Herdsmen attacks and the responsibility to protect

The deadly attacks on various Nigerian communities in recent times, usually attributed to “Fulani herdsmen”, are without doubt one of the most serious and, at the same time, perplexing problems dogging the Nigerian polity today. One does not have to look very far, of course, for evidence of the seriousness of this problem, as almost every few weeks, reports surface of yet another invasion of a farming community by these herdsmen, often leading to the slaughter of many villagers and heavy destruction of settlements and property, including crops in the farm. The dispute over the number of people killed in the attack on Agatu in Benue State earlier this year, with some reports putting the figure in the hundreds, tells its own story, as do the recent reported attacks on several largely Christian Southern Kaduna communities, including the attacks just last month,widely reported by the international press, in which around 40 people were killed. Other attacks of note in the past several months include the attack on Kodomun in Adamawa State, the attack on Ukpabi Nimbo and Uzo-Uwani communities in Enugu State, and the infamous attack that killed a traditional ruler of Bokkos town in Plateau State, which provoked protests by youths of the town, who, in turn, were fired at, and some killed, by elements of the security forces that you would have expected to have done something to forestall the original herdsmen attack in the first place!

So, where does this leave us? It leaves us extremely perplexed, as indicated above. Perplexed that a group of people can traverse the land, killing other citizens, burning and sacking whole villages, destroying crops and farms and abducting people, and in some cases, sexually assaulting women and girls, and generally terrorizing whole communities, all at will and with nobody stopping them or seriously sanctioning them thereafter. Perplexed that the Government and its security agencies have found no imperative need to decisively intervene in this situation, not only to protect its citizens and their communities against such widely-publicized attacks, but also simply to assert its own authority as sole authorized guarantor and enforcer of law and order in the territory of Nigeria. Perplexed, too, at the rather muted verbal response to the problem from a Government otherwise known to voice very strong views on issues, especially those it disapproves of. Perplexed, above all, in this context, that this group of people, clearly outside of the authorized security forces, appear uniquely able to acquire and openly carry firearms, including assault rifles. Perhaps, the answer to this puzzle is provided by a picture displayed in a national newspaper some months ago of cattle grazing in the lawns and flower beds outside of the offices of the Head of Service of the Federation in Abuja, under the caption “Federal Cattle Territory of Abuja”. In short, this appears to be a situation of impunity as well as, many would say, de facto immunity being enjoyed by some people. The curious thing, by the way, is that enjoyment of such impunity expressed in the destruction of farms and, more importantly, farming communities, seems hardly compatible with the Government’s highly touted pivot towards agriculture as a saving grace for the sick Nigerian economy!

It is important to make clear what one is saying here. One is not saying that these herdsmen have in all cases acted totally out of the blues, without perceived justification, according to their own point of view. It is a fact indeed that behind some of these attacks are long-standing conflicts and disputes deriving from competing claims of entitlement to use of particular stretches of land. And it is also a fact that the attacks in some cases have been justified as reprisal attacks against an earlier one claimed to have been perpetrated against the herdsmen communities themselves. What one is rather saying is that no amount of claim of entitlement or of exacting revenge for some earlier wrong can justify storming a village, typically in the dead of night, to burn down the place and kill as many people as one can. This is like being complainant, prosecutor, judge and executioner all at once. Obviously, no organized society can allow any individual or groups of individuals to operate in such a manner and with such dire consequences to others. Yet, surprisingly, this appears to be the situation we are faced with here.

Now, in the past this situation would have presented all concerned with a serious conundrum. Under the then prevailing doctrine of international law, a sovereign nation state had absolute control and prerogative over matters occurring within its own territory, and more so if the matter involved only its own nationals. A most unfortunate illustration of the operation of this doctrine was the Rwanda genocide of 1994, in which hundreds of thousands of people, men, women and children, mostly ethnic Tutsis were slaughtered during a 100-day killing orgy while the whole world looked on helplessly. Even when France finally intervened, though its motives were not free of suspicion, having first sought the backing of the UN Security Council, there were still some notable objections from traditionalists to this violation of the doctrine of sovereignty and concern as to its precedent-setting impact – even under this most extreme of circumstances.

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 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 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 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.

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)