Fulani Hersdsmen and International Law

By Agwu Ukiwe Okali

Few will deny that the spate of deadly raids in recent times on many and diverse Nigerian communities, attributed to “Fulani herdsmen”, has left a trail of physical destruction, as well as morale devastation, through swathes of the land, with many ordinary Nigerians unable to comprehend why in their own country they are so without protection from such atrocities.

Few, too, in these circumstances, would dispute the common assessment that the response of the Nigerian authorities to these attacks, even at the level of ordinary verbal condemnation, has been bafflingly tame and muted. Never mind, of course, that from time-to-time one sees a few hapless herdsmen “paraded” by the security authorities as having been arrested for such attacks. This situation has, not surprisingly, prompted the inquiry whether there is, perhaps, another applicable legal regime to which victims and potential victims of such attacks can look for protection and other relief. “What about international law?” people have asked. What, if anything, does it have to say about such situations? After all, the adage that “No nation is an island unto itself” has never been truer than in today’s “globalized” world.

As far as international law is concerned, one can see two possible avenues of engagement open to it in a situation such as this – engagement at the level of State responsibility and engagement at the level of individual responsibility. Now, as regards State responsibility, it might seem self-evident that the State owes each and every one of its citizens the duty of protection: this, after all, under the “social contract” theory of organized society, is the reason for the existence of the State and for the individual’s submission to it. The reality, however, is that until very recently there was no mechanism or forum to enforce such a duty outside of domestic law, as the classical international law doctrine of “State sovereignty” accorded a sovereign state, more or less, absolute authority and prerogative over matters occurring within its own territory, and, more so, if the matter involved only its own nationals. This is the view of things that, sadly, was illustrated by the 1994 Rwanda genocide, when the rest of the world watched in seeming paralysis while hundreds of thousands of people were slaughtered. Indeed, even when the UN Security Council finally authorized a French “humanitarian” military intervention under those extreme of circumstances, there were still some notable objections from traditionalists to this derogation from the doctrine of sovereignty and concern as to its precedent-setting impact.

In the Year 2005, however, Member States of the United Nations, meeting at the World Summit to Prevent Genocide, War Crimes, Ethnic Cleansing and Crimes against Humanity, decided to change things, and, at that historic gathering adopted two important norms 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. It is an outlook best-encapsulated in the declaration by one Foreign Minister that “Sovereignty is not a licence to kill!”

This assumption of “collective responsibility” by the international community conclusively resolved the previous ambiguity regarding the legal basis for outside intervention in matters of humanitarian concern that the particular State involved has proven unable or unwilling to address. Now, the “responsibility to protect”, being thus a genuine obligation of national governments, becomes, like every other such obligation, “enforceable” by the usual sanctions recognized under international law, which may include diplomatic measures, economic and financial sanctions and, ultimately, military intervention under Chapter VII of the United Nations Charter – as was done against the Ghaddafi regime in Libya in 2011. Not to be overlooked, too, in this context, is the emerging refinement of targeted sanctions against specific individuals in the country who are believed either to be behind the complained-of activity or are well-placed to influence action in the direction desired by the sanctions regime. Current examples of this 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.

One can see, therefore, from the foregoing that the seeming inability or unwillingness – it does not matter which – of the Nigerian State to protect the communities affected by the attacks under consideration does, consequently, expose the country to the risk of intervention by the international community under the aforesaid “responsibility to protect” commitment, resulting in a range of sanctions of an indeterminate severity on both the country and individual power brokers within it. Indeed, recent news reports indicate that, based on a petition from a Nigerian civil society organization, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has commenced investigations on the series of herdsmen attacks in Southern Kaduna, accounts of which make for really gruesome reading. Decisive steps not only to stop but also punish perpetrators of these attacks must surely commend themselves to the Nigerian authorities as the only viable option now – not only for the sake of rendering justice to the victims, but also to avoid negative international consequences, including further damage to an already not-so-favourable current image.

The other possible avenue of international law intervention in this situation is by invoking the operations of the International Criminal Court. 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 in connection with the World Summit, most notably genocide, ethnic cleansing and crimes against humanity. Several important features of the ICC regime make it especially relevant to the situation under consideration of the Fulani herdsmen attacks. Firstly, 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 there not 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 for what he was alleged to have done, or not done, personally with respect to the same events.

Secondly, and underscoring this 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 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 10, 20, or even more, years from now when circumstances are likely to be completely different. Indeed, illustrative of this no-time-limit situation is the fact that people are still being hunted down and prosecuted today for crimes committed during World War II, which, as we all know, ended 71 years ago!
Now, regarding the attacks and related activities of these herdsmen as they relate to the substantive jurisdiction of the Court, there is every reason to believe that the premeditated, targeted, and repeated nature of some of these attacks on particular communities and the ferocious and indiscriminate nature of the killings, not to talk of their religious undertones, could easily persuade a judge of their genocidal character, thereby sustaining a charge of the crime of genocide – or the attempt thereof. At the very least one would be looking at a strong case of “crimes against humanity” and possibly of “ethnic cleansing”.

Ideally, of course, one should charge the actual herdsmen perpetrators of these killings. However, apart from the practical difficulty of identifying, tracing and arresting such herdsmen perpetrators, even with the help that the Nigerian authorities are legally obligated to provide the court, prosecution of hundreds, if not more, individual herdsmen at the international level obviously would be difficult to manage and prohibitively costly. Moreover, to the extent the objective of such prosecution is not only punishment of this particular perpetrator, but also deterrence of other would-be perpetrators and abettors, such a message is best delivered by targeting the “leadership” of the group – the people who provide the inspiration, the direction and the encouragement to the actual perpetrators, who may be likened to foot soldiers. This was the approach successfully employed by the two United Nations ad hoc International Criminal Tribunals (for the former Yugoslavia and for Rwanda) in going after the persons “most responsible” for the crimes under consideration. This did not mean that the perpetrators and foot soldiers were to go Scot free; rather that it was more efficient and cost-effective for these people to be tried by the domestic legal system – under the watchful eyes of the international community, of course.

In the typical genocide, crimes against humanity, etc. situation the target is a government or other organized armed group (e.g. a rebel movement) with identifiable leadership. The Fulani herdsmen situation obviously does not present the same structured framework for leadership targeting. Nevertheless, criminal justice theory has always held that those who assist, encourage or otherwise facilitate commission of a crime, regardless of their capacity or relationship to the perpetrator, also bear a culpability and should be held answerable.

One particular form of the non-perpetrator liability that is relevant in this context is that of “complicity”. This is where the accused person through his action (or lack of it) is adjudged to have given tacit support or encouragement, which may be tacit, to the perpetrator in the commission of the crime. Thus, for example, in the Akayesu case before the UNICTR, the accused, a Mayor of a commune (district) and an admittedly very influential community leader, was found guilty of complicity to murder and rape, among other charges, because he took no steps, though he could have, to prevent or stop the commission of such crimes, some of which took place in his very presence. So also in the Pauline Nyirimasuhuko case was a former Minister of Family and Women’s Affairs found guilty of “complicity in genocide” by taking no action to prevent or stop crimes which she knew were being committed by people over whom she had substantial influence.

The “complicity” doctrine is particularly germane to situations involving third-party non-State actors such as the Nigerian Fulani herdsmen situation. This is because “complicity”, especially by State organs and officials, can play a decisive role in giving encouragement for and even facilitating the offending conduct. Just imagine a group of herdsmen with designs on raiding a particular community, for whatever reasons. Now, what could be more decisive when planning and making their calculations than the knowledge, or belief, that the security forces (whether police or military) who alone can muster superior forces against them, will turn a blind eye to their activities, neither intervening to prevent or stop their attack nor going after them afterwards to punish them? Bear in mind, too, that one of the really perplexing things, endlessly pointed out by commentators, is how these herdsmen, uniquely among the civilian population, are allowed to own and, indeed, openly display firearms (AK-47, etc.).

Consider, again, the following other interesting real-life examples from the Nigerian context. In an editorial on this subject on 15 August, 2016, a national daily (The Guardian) recounts the case of a Police Commissioner who, after one such herdsmen attack against a community, acknowledged, almost boastfully, one might say, that “My men were on the ground”, but did not intervene to stop the attack, “so that the other (i.e. attacking side) “will not think that we are taking side with one side”. To which one may ask “What ever happened to the Police being ‘your friend’?” for those under attack. Another odd and telling incident reported in the same editorial is that of military units from a nearby base raiding a group of villages that had earlier been under attack by herdsmen, reportedly to search for arms – an exercise which, if successful, one would think, must surely render these villages even more defenceless and vulnerable! Other allegations reported include that of security forces (e.g. soldiers at nearby camps) ignoring distress calls from communities – only to show up after the attackers were gone, as well as of security forces putting up protective rings around Fulani settlements near to villages that had been attacked – ostensibly to prevent further clashes.

It remains to be seen, of course, how the foregoing examples would actually fare if scrutinized against the ICC prosecution criteria for “complicity”, but they seem troubling enough. What is not in doubt, however, is that the existence of this possibility of prosecution for “complicity” transmits an important message to the appropriate authorities of a country, not least of all the individual commanders of the security forces and their various formations stationed in parts of the country that are affected or likely to be affected by attacks of the kind under discussion: that it is not necessarily safe to knowingly turn a blind eye to such situations or to stand by and do nothing while atrocities cognizable under the mandate of the ICC are being committed; there just might be sufficient circumstances to uphold a “complicity” charge.

Moreover, and most importantly, there is good reason to believe that it will not be long – if such is not already the case – before culpable complicity may be inferred with respect to such crimes from the deliberate failure to act, without justifiable reason, by an official with authority to act and in a position to do so. When that happens – and reason surely dictates that it will – then the responsibility to protect will have, well and truly, become the positive duty that it was envisaged to be, not only of the Government’s, as such, but also of individual officials within it.

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).