By AGWU UKIWE OKALI
ONE can, in fact, envisage a case of a very small indigenous population surviving on subsistence farming on ancestral land that is repeatedly attacked by herdsmen, killing their able-bodied people, while chasing many others away, and destroying their food crops, until eventually, through a combination of starvation, death and dispersal, the community ceases to exist as an identifiable group. Such an outcome, brought about with the intention of achieving it or knowing it to be the probable result of the attacks, would surely meet the classical definition of genocide: attacking a people with the intention of eliminating them, in whole or in part.
This brings up squarely the issue of the discharge by the Nigerian authorities of their responsibility to protect the various villages and communities that have either been the target of attacks (some repeatedly) by Fulani herdsmen or appear likely to be so. As might be expected, there have been very many loud calls and remonstrations to the Nigerian security authorities to take decisive actions to stem these attacks attributed to Fulani herdsmen, one of which attacks actually resulted in the kidnapping for ransom of a prominent and highly respected politician and one-time candidate for President.
These calls have included fairly trenchant editorials in leading Nigerian newspapers questioning the commitment (or lack thereof) displayed by the Nigerian authorities to combatting this menace. As will have been apparent from the earlier part of this article, it is not easy at all to fathom what is going on here and why a more robust law-enforcement approach befitting the seriousness of the situation is not forthcoming from the Nigerian authorities on this one.
This, naturally, creates room for speculations of all sorts as to the motive behind this inaction – as indeed the true character of the attacks and identity of the attackers themselves.
Returning to the international obligation imposed by the responsibility to protect, it is instructive to explore how this obligation may be enforced under international law. Here, one must always bear in mind that while the subjects of domestic law are individual persons, the subjects of international law are nation states.
This necessarily points to differing kinds of enforcement regimes and mechanisms for violations of legal obligations. In the case of international obligations of States, enforcement measures include diplomatic strictures, economic, trade and financial sanctions and ultimately military measures.
However, a very significant downside to enforcement measures against a State is, of course, the fact that these measures hurt the country as a whole and may even work to the detriment of the very victims whose interests the sanctions are invoked to protect. For this reason, among others, modern enforcement measures have sought to target, by way of financial and travel sanctions, for example, particular individuals who are believed to be behind the complained of activity or are well-placed to influence action in the direction desired by the sanction regime.
Current examples include European Union and United States sanctions against individual members of President Putin’s inner circle over Russia’s actions in the Ukraine, including the annexation of Crimea. An interesting “enforcement” approach, by the way, is that adopted in a suit filed before the ECOWAS Court on behalf of several victims of Fulani herdsmen attacks in Benue State.In this case, based on alleged conventional human rights violations, the “enforcement” sought for is monetary damages – 500 billion plus Naira from the Nigerian government.
Now, there are two important characteristics of the enforcement of a State’s obligation to protect that needs to be borne in mind here. The first is the often critical urgency of the situation by the time outside intervention becomes necessary -which typically renders the usual enforcement measures of diplomatic and economic sanctions seemingly slow and ineffectual, if not indeed irrelevant.The reality, in fact, is that the particular group needing protection may be facing imminent catastrophe and, therefore, requiring urgent rescue measures that can only be guaranteed by military intervention.
The second thing is that, unlike the normal enforcement action to punish a non-complying State or to compel it to act in a certain way, the “collective action” envisaged by the international community in exercise of its responsibility to protect where the State concerned has failed, which,significantly,includes specific reference to the use of force under Article VII of the UN Charter,is not projected as a punishment or sanction against that State but as action directed at protecting the concerned population – unless, of course, the threat to the population comes from instruments of the State itself, as was said to be the case with Ghaddafi’s Libya.
We see, then, that the “responsibility to protect” is a genuine obligation of national governments, taken quite seriously by the international community and ultimately enforceable by military action under Chapter VII of the UN Charter,overriding classical notions of state sovereignty, as was done in authorizing multinational military action against the Ghaddafi regime in Libya in 2011. As one Foreign Minister put it, “Sovereignty does not mean a licence to kill!”
Now, into the foregoing scenario based on classical international law principles, we must now insert another crucialand new element – the international criminal law dimension. The United Nations-backed 1998 Rome Treaty on the International Criminal Court, to which Nigeria is a party, established the Court as a permanent international criminal court, with jurisdiction to punish individuals committing crimes of the categories mentioned above.
There are several important features of the ICC regime that are especially germane to the situation under consideration of the Fulani herdsmen attacks.
The first feature of note is that, unlike the situation discussed above of State responsibility, responsibility under the ICC regime is individual.So, for example, when President Uhuru Kenyatta of Kenya was charged before the court a few years ago in the wake of that country’s 2007/2008 post-election violence, he was not there as President of the Republic of Kenya, but as Mr. Uhuru Kenyatta, whose political status was, by express provision of the court’s Statute, irrelevant. Likewise, the then Kenya Commissioner of Police (equivalent to Nigeria’s Inspector-General of Police), who also was charged, was there in his personal capacity and for what he was alleged to have done, or not done, personally with respect to the post-election violence that was the focus of the charges.
A second important feature of the ICC regime, which underscores the individual responsibility feature, is the express provision in the court’s Statute ruling out any kind of exemption or immunity based on official status, which, of course, explains why the Sudanese President, a sitting Head of State, is under indictment at the court. A third and no-less-important feature of the ICC regime is that there are no time limitations within which charges may be brought or the crimes prosecuted.
Concluded.
Dr. Okali is a former Registrar of the United Nations International Criminal Tribunal for Rwanda.