Herdsmen attacks and the responsibility to protect

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 authorising 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 crucial and 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. This provision is worthy of note, particularly for the official or individual who may be thinking to himself “Look, I am in Government or I am very well connected with people in power, so I will be protected and nothing can happen to me”. True, it might not happen now, but it can 20, 30, or even more, years from now when circumstances may be completely different. Indeed, as we all know, people are still being hunted down and prosecuted today for crimes committed during World War II, which, of course, ended 71 years ago!

Again, what does this all mean for the case at hand of the herdsmen attacks? Well, the following deductions can be made. Firstly, the persistent, coordinated and targeted attacks on certain communities by the herdsmen can constitute crimes against humanity, ethnic cleansing and even genocide, or the attempt thereof, under international humanitarian law and international criminal law. Secondly, the Nigerian Government, representing the Nigerian State, has an obligation under international law, as we have seen, to protect all persons and communities within Nigerian territory from such atrocities.

Dr. Okali, a former Registrar of the United Nations International Criminal Tribunal for Rwanda, is Founder-Chairman of The Okali Seminal Ideas Foundation for Africa (OSIFA).