Herdsmen attacks and the responsibility to protect
Everything changed, however, with the holding in 2005 by Member States of the United Nations of the World Summit to Prevent Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity. At that important gathering, of which, significantly, the African Union was a major promoter, and which was attended by a very impressive number of Heads of State and Governments, two important norms were established for the protection of people and population groups from atrocities of the above-listed kind.
Firstly, it was affirmed that individual states bore primary responsibility for protection of their populations from these atrocities.
Secondly, the summit affirmed the collective responsibility of the international community to intervene to protect a population in the last resort, especially where “national authorities manifestly fail” to do so. This dual commitment, popularly referred to as the Responsibility to Protect and colloquially as “R2P”, has become a crucial pillar of modern international law, especially its humanitarian law branch.
What, then, does this mean for the case in hand of the herdsmen attacks? First of all, there is every reason to think that many, if not all, of these attacks, premeditated and ferocious as they typically are, and targeting particular ethnic groups or communities, may well meet the threshold for classification as one or more of the enumerated crimes of genocide (or the attempt thereof), ethnic cleansing and crimes against humanity, depending on the particular circumstances.
Take as an illustration, the crime of genocide. It is a common mistake to think that this must always involve large-scale killing, as in Rwanda, or systematic extermination as Hitler attempted with the Jews. 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 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 combating 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 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 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.
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).