The use of force in counterterrorism policing in Africa under international law

Abstract

Terrorism is a major threat to peace and security in Africa. In law enforcement responses to terrorism, affected states often employ excessive force. In addition to violating international law and standards, research suggests that excessive force is itself a driver of violence, pushing the victims and their families into the arms of terrorist groups. This potentially perpetuates terrorist violence in a continent vulnerable to violent extremism and to whom terrorism now presents the principal threat to peace and security. This thesis considers what legal, institutional, and policy interventions relevant African regional institutions can make to ensure that the use of force in counterterrorism policing on the continent is brought into line with the international standards. In doing so, it examines and clarifies the regulation of the use of force in counterterrorism policing under international law- highlighting the difference in the law enforcement and the conduct of hostilities rules for the use of force and their scopes of application, and also addressing the issue of the interplay between both sets of rules. In seeking to identify trends in the use of force during counterterrorism operations on the African continent, it uses Egypt, Kenya, and Nigeria as illustrative case studies. In addition, it assesses the legal and policy response of the African regional system to the use of excessive force during counterterrorism policing, focusing principally on the roles of relevant counterterrorism and human rights institutions. The thesis finds that while there have been some positive strides towards greater respect for international norms, the current response by the institutions evidences material gaps and significant inadequacies. The thesis then proposes a two-pronged framework for a comprehensive regional response to the use of excessive force during counterterrorism policing in Africa, based on the clarification of the applicable rules to states; as well as on further roles and actions that regional institutions need urgently to take. Such roles include the design of scenario training programmes for law enforcement (which should be based on the clarified rules), the creation of a dedicated special mechanism for the promotion and protection of human rights while countering terrorism in Africa (in the form of an independent expert), and the establishment of human rights-compliant use of force during counterterrorism policing as an African Union institutional policy.