Bola A. Akinterinwa
Many reasons can be adduced for attacks on consular and diplomatic missions in international relations. The first is because of their representational function. They represent the goodness and badness of their countries in their host capitals. Normally, diplomatic conventions require that diplomatic missions be located in the political capitals of the receiving States in order to enable the government of the receiving State to provide adequate protection for them. As representatives of their governments, political opponents, political hoodlums, extremists, etc., can always target the diplomatic and consular agents when assailants cannot have easy access to Government officials. The best terrorists have been able to do is to assault internationally-protected persons from a distance in the mania of a guerrilla warfare.
Secondly, when terrorism first became a critical issue before 9/11 in international relations, the mode of attack was the use of letter and parcel bombs. They are planted near diplomatic offices and vehicles and detonated from a distance. When efforts were made to detect such dangerous letter and parcel bombs, terrorists changed to engagement in physical attacks. The violent attacks on US Consulate in Benghazi, Libya and on the US Embassy in Cairo, Egypt, on Tuesday, September 12, 2012 should be understood against this background. US Ambassador to Libya, Mr Christopher Stevens was killed during the attack while the attack in Cairo led to the evacuation of embassy staff because of the extensive damage.
Thirdly, and more importantly, consular and diplomatic agents are specially protected internationally especially by the 1961 Vienna Convention on Diplomatic Relations and by the 1963 Vienna Convention on Consular Relations. Article 27 of the 1961 Convention says that diplomatic bags must never be opened while Article 29 requires all receiving States to ‘make all efforts to protect their person and dignity.’ Besides, a diplomatic agent ‘is not obliged to give evidence as a witness. A diplomatic agent is inviolable as provided in Article 34. The article stipulates that ‘the receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.’’ Thus, the security of the diplomat is total. If a diplomat is found wanting, the worst thing that any receiving State can do is to declare him a persona non grata as provided in Article 9.
Attack on US Convoy in Nigeria
Grosso modo, whenever US missions were under attack in different parts of the world, the US Government was always very prompt to condemn the attacks in strong terms in a press release. It also quickly finds a means of reciprocating and bringing the assailants to book through the host government. The reciprocal process always begins with the issuance of a press statement. For example, in reaction to the attacks in Libya and Egypt, US Senator Ben Cardin, then a Member of the Senate Foreign Relations Committee and Chairman of the Subcommittee on Development and Foreign Assistance, condemned the attacks and made it clear that the United States would remain undaunted in the pursuit of the protection of the national interest.
As Senator Cardin put it, ‘as Americans, we support the universal human rights of all to hold and express their religious beliefs, but we cannot tolerate the acts of those who exploit religion to promote violence. Let the legacy of these lives lost be a redoubling of our efforts to support our Americans working to assist democratic transition and consolidation around the world, so that others may live freely’ (vide Press Statement on Attacks on US Embassies and the Death of American Diplomats in Libya, September 12, 2012).
In the same vein, on 5 August, 2018, another press release had it that ‘an official vehicle from the US Embassy in Dhaka (Bangladesh) which was transporting the Ambassador, was attacked by a group of armed adult men, some on motorcycles, in the Mohammadpur area of Dhaka on Saturday, August 4. The ambassador and her security team departed the area unharmed. There were no injuries to the Ambassador, her drivers, or security staff, however, two security vehicles sustained some damage.’ In other words, there were cases in which there were minor or no casualties and there were attacks in which many lives were taken
What should be noted here is that attacks on US diplomatic missions are not a recent phenomenon. In 1900, for instance, the US Embassy was attacked in China. US Embassy was attacked on July 18, 1924 in Persia. It was attacked on March 24, 1927 in China; on May 24, 1957 in the Republic of China; on July 27, 1958 in Turkey; on January 22, 1958 in Venezuela; on March 5 and 8, 1963 in Gabon; on March 30, 1965 in Vietnam; in June 1967 in Libya; on January 31, 1967 in South Vietnam; on October 21, 1970 in Kymer Republic; on August 19, 1974 in Cyprus; on August 4, 1975 in Malaysia; on February 14,1978 in Iran; on April 18, 1982 in Lebanon; on November 26,1984 in Colombia; in November 1986 in Portugal; in June 1986 in Italy; on September 13, 1995 in Russia; on August 7, 1998 in Kenya; in 1999 in China; in 2006 in Greece, in 2007 in Serbia; on 26 May, 2010 in Syria; in 2011 in Afghanistan and Bosnia and Herzegovina; on January 8, 2011 in Egypt; on September 11, 2012 in Libya; on September 13, 2013 in Afghanistan; and on August 10, 2015 in Turkey.
In the 20th Century, US Embassy, as a diplomatic institution, was a victim of not less than twenty attacks and a victim of eight attacks in the 21st Century. China played host to some attacks. So did Libya. It is against this background that the attack on US convoy in Nigeria should be explained and understood. In other words, how do we explain the fact that US Embassies were always attacked? And true, other big powers like the United Kingdom, France and rarely Russia have also been victims of terrorist attacks. Is it because the United States is considered as the policeman of the world? Is it because of disagreement with US foreign policy stance?
Whatever is the case, the attack on US convoy in Nigeria is of particular interest. In the press statement on the attack, released by the US Secretary of State, Anthony J. Blinken on May 17, 2023, unknown assailants attacked a convoy of two US government vehicles in Ogbaru Local Government Area of Anambra State, Nigeria. The convoy was made up of nine Nigerians, four of whom were policemen while the other five were local staff of the Embassy. In the words of Anthony Blinken, ‘they were travelling in advance of a planned visit by U.S. Mission personnel to a US-funded flood response project in Anambra.’
Many points are noteworthy from this statement: advance team, US-funded project in Anambra, and nationality of all the victims in light of requirement of diplomatic protection. In normal diplomatic practice, an advance team is always sent to an event or to a place to be visited, particularly to ensure safety of the would-be guests, to ensure the security of the area, and to also ensure that there is no bugging and threats of whatever kind. This is generally done for visiting presidents, ministers, governors and other very important personalities. In other words, the sending of an advanced team by the US diplomatic mission to Anambra State is perfectly in order and consistent with international diplomatic practice.
On the issue of the US-funded flood response project, there is no disputing the fact that the project falls under a bilateral cooperation framework. The intended visit, though no information has been given as to who the visitors were to be, could not have been for anything else than for evaluation and monitoring. It is therefore logical for a funder of a project to seek to monitor progress about its funded projects. However, such evaluative visits must have been agreed to by either the Federal Government or the State Government concerned, precisely the Anambra State Government in this regard.
Regarding the nationality of the advanced team, it is Nigerian. Nationality is a requirement for diplomatic protection, but not for calling Nigeria’s international responsibility to question. Basically, it is having a diplomatic status that is required. There were five locally-recruited staff of Nigerian origin who can be assigned any responsibility to perform. In many cases, locally recruited staff in an Embassy is often required to provide much assistance to the employer based on his existing language and knowledge of local communities. The mere fact that the Nigerian employees were sent as an advanced party and were accompanied by four Nigerian policemen clearly suggests that there was provision for security protection for the team. However, there cannot but be problems when security protection is inadequate and when the security provider himself was killed by the enemy. How should the protector be protected to enable him to protect others?
Anthony Blinken press statement also stated that ‘we do not yet know the motive for the attack, but we have no indications at this time that it was targeted against our Mission. The assailants killed at least four members of the convoy, and US Mission personnel are working urgently with Nigerian counterparts to ascertain the location and condition of the members of the convoy who are unaccounted for.’
It may be true that there were no indications so far that the US mission was specifically targeted. The mere sight by the hoodlums of Nigerian policemen can be frightening and, in the context of self-defence, hoodlums can attack thinking that they were being pursued. However, diplomatic vehicles always have special plate numbers like ‘CC’ meaning Corps Consulaire (Consular Corps), ‘CD’ meaning Corps Diplomatique (Diplomatic Corps), ‘CMD’ (Chef de Mission Diplomatique) meaning (Chief or Head of Diplomatic Mission). The main purpose of giving a distinct registration number plates to accredited diplomatic missions was to easily identify them for special protection. In fact, when a vehicle with a CMD plate number also has the National Flag flying on it, it simply suggests that the plenipotentiary and extraordinary ambassador is in inside the vehicle. There should be no stopping or checking of the ambassador. No embarrassment of whatever kind, so to say. So States playing host to accredited diplomatic missions have the obligation of international responsibility to protect.
International Responsibility and Diplomatic Security
International responsibility to protect is of three types: international responsibility by failure of elected governments, international responsibility by self-ascribed obligation, and international responsibility by diplomatic convention. As regards international responsibility by failure of elected governments, it simply means a failed obligation or irresponsibility of Government. Government ought to perform but could not do so. Hence its international responsibility is called to question. It is an expression of poor governance by not protecting the populations from genocide, war crimes, crimes against humanity, and ethnic cleansing.
Stricto sensu, the principle does not directly create an obligation for every sovereign State to prevent by all means the foregoing four crimes. However, by virtue of some other treaties and agreements, such as the Convention on Genocide, sovereign States are still obligated to prevent the four aforementioned crimes. Failure to prevent them can call the international responsibility of the State concerned to question.
It was Canada that initiated the idea of IR2P, following the 1994 genocidal atrocities in Rwanda in which the international community is on record to have not intervened as at when due. As noted by the ICISS in 2001, when States are unwilling to protect their citizens, ‘the principle of non-intervention yield to the international responsibility’ (ICISS Report, 2001: VIII and XI). The United Nations General Assembly debated it for long and adopted the principle at the 2005 World Summit as an expression of global commitment. Emphasis was placed on the need for timely and decisive response of the international community before the deterioration of crises.
Although the international community has not always been able to prevent many cases of atrocity – for example, the 2003 Sudanese government forces and the Janjaweed militias’ orchestration of a campaign of mass murder, rape, forced displacement and destruction, in which 200,000 people were killed and 2.5 million people were displaced -, many scholars have pointed to the remissness and incapacity of the United Nations to act appropriately.
As observed, ‘the conflict was escalating for many years no attempt was made to stop the disaster at an early stage… Not only did they fail to prevent the obvious escalation of violence before it occurred, but when they did finally act in 2004, they opted for inappropriate and complacent bureaucratic measures as means of protecting civilians.’ What is useful to note here is that when governments fail to protect their populations from genocide, crimes against humanity, ethnic cleansing and war crimes, the international community owes it a responsibility in principle to intervene with or without the government in place to ensure the protection of the population. This is not the international responsibility that is applicable in the context of the attack on US convoy in Anambra State in Nigeria. It is the international responsibility by conventional obligation that is applicable.
As referred to above, the person of a diplomatic agent cannot be violated and must be protected in all circumstance. In the context of the Nigerians who were part of the advanced team, do they have diplomatic status? If they have a consular status, is the status that of Nigeria or the United States? People can have dual nationality. In such a situation, which nationality is more or most effective and applicable? All these questions are necessary in the determination of applicability of the principle of diplomatic protection and international responsibility to protect.
First, the rationale for diplomatic protection was explained in 1758 by a Swiss jurist, Emmerich Vattel that ‘whoever ill-treats a citizen indirectly injures the State, which must protect that citizen.’ This explanation is valid in the context of a country seeking to protect its injured national abroad. The injured Nigerians were in Nigeria. The incident occurred in Nigeria. As a matter of fact, the government of President Muhammadu Buhari owes it a responsibility to protect, and even to have prevented the saga in the first instance. But the government failed in its duty. All Nigerians, inclusive of the five consular staff working with the US diplomatic mission, are to be well protected by the Governments in Nigeria. The extent to which the five consular staff is to be protected by the US government is, at best, limited.
It should be recalled here that the US Embassy, like any other accredited diplomatic mission in Nigeria, has an extraterritorial character. It is the law of the sending State that applies within the embassy. This does not mean disregard for the municipal law of the host country. The essential point here is that it is the government of Nigeria that should be held responsible for protection of both the diplomatic agents and the locally recruited members of staff of the embassy.
Additionally, the incident took place in an area of political agitation for separation. The area cannot be said to be very secure. Even the various governments in the region have been attacked by militants. If the Government of Nigeria has not been able to effectively nip in the bud the violent agitations for political separation from Nigeria, the same Government of Nigeria may not be held responsible for inability to stamp out insurgencies in the region.
And perhaps more significantly, Article 41 of the 24 April 1963 Consular Convention stipulates that ‘it is the duty of the one receiving immunities and privileges to respect the laws of the receiving State. It is also their duty not to interfere in the internal affairs of that state. In this regard, if we admit that there is an American-funded project in Anambra State, if we also reckon with the reported information that the Governor of Anambra State is claiming ignorance of the official, or unofficial or officious visit of the American advanced team, the question cannot but be: did the US mission inform the necessary local authorities about the visit? It is when it can be established that notice of the visit was given that the international responsibility of Nigeria, and not necessarily that of the Anambra State, can be called to question. When cooperation agreements are done, is there no provision for the time of monitoring of projects and time of completion of projects? Seeking to monitor projects can be understandable from the perspective of Nigeria having been identified as fantastically corrupt. People and particularly politicians do not always like the idea of transparency and public accountability, but the Americans will surely insist on that. In the absence of prior approval, the Embassy can still go ahead to seek protection of the national interest of its country without breaking municipal law of the host country.
Article 36 of the 1963 Consular Convention says ‘diplomats should be able to do their duty, that is, in representing the Sending State, protecting its interests and that of its nationals and promoting friendly relations between the sending State and the receiving State, without interference of the receiving State.’ The sending of an advanced team to Anambra State may be protected by this provision
In sum, the attack on US Convoy in Nigeria is one attack too many for the Americans. The attack might be the handiwork of the ISIS or ISWAP or the Boko Haram who is in alliance with the Al Qaeda Organisation Network. The United States foreign policy might also be responsible as the policy is not clear on the IPOB (Indigenous People of Biafra). The United States is strongly believed to be a protector of the principle of self-determination while also supporting the indivisibility of Nigeria. When Nigeria asked for military support to fight the insurgents, the United States refused. In fact, Washington has promised to sanction any country that acts contrarily to US foreign policy interest. This policy interest is enough reason to attract enmity and terrorist attacks. In this regard, did the assailants think that Americans were in the two-car convoy? Was there intelligence in possession of the assailants? Was the attack coincidental? Whatever is the case, the attack raises more questions and concerns than answers. For us, under no circumstance should any Nigerian policeman be killed anyhow in the course of official duty. Nigeria’s security agents must also be specially protected by providing them with special armoured facilities. Given the fact of IPOB’s denial of responsibility for the dastardly act, international terrorists who are opposed to Western education are likely to be responsible for the attack. This is why the US should assist Nigeria more constructively in fighting the Boko Haram in its own enlightened self-interest. The eastern part of Nigeria has been generally turbulent which suggests that the problem goes beyond simply calling the international responsibility of Nigeria to question for not ensuring diplomatic security.
