Since the past decade or more, Nigeria has witnessed an unprecedented security challenges occasioned by the activities of kidnappers, militants, Boko Haram and more recently activities of the Fulani Herdsmen. It is trite that one of the key aims of international law is to foster international co-operation, peace, security and amicable relations among nations of the world. Internal conflicts, however continue to pose threat to the international order and development globally. It is on this basis, this paper examines the duty of Nigeria in international law to protect its citizens within its territory and the implication of not doing so. It further examines thoroughly the concept of a State responsibility, Responsibility to Protect and the attribution of international responsibility of States for conduct of a group of individual within its territory.
The Nigerian State has witnessed plethora of security challenges, especially since the enthronement of democracy in 1999. As a leading State in the African continent, available evidence shows that Nigeria has peculiar security challenges to address. Nigeria is plagued with violent security threats which include Kidnapping, Boko Haram crisis and frequent clashes between farmers and herdsmen. Consequently, these internal security challenges have not only posed threat to corporate existence of Nigeria as a sovereign state, but has also portrayed Nigeria as being unable to meet up its obligations in international law.
It is against this background, this paper purports to examine thoroughly the concepts of state responsibility under international law, armed non-state actors and imputation of acts of armed non state actors on the state. In furtherance, duties of state to oblige to a treaty under the Vienna Convention and protection of its citizens within its territory under international human right law will be considered. The latter part of this paper will deal extensively on how Nigeria has failed with respect to several treaties ratified guaranteeing protection of its citizens within its territory and how Nigeria is responsible for acts committed by armed non-state actors like Boko Haram, Fulani Herdsmen etc.
Armed Non-State Actors (ANSA)
In international relations, violent non-state actors are individuals and groups that are wholly or partly independent of State government and which threaten or use violence to achieve their goals. ANSA vary widely in their goals, size and methods. While some ANSA oppose government others are allied to them. ANSA includes, Criminal Organisation, Private Military Companies, Religious or Ideological groups etc. Armed violence perpetrated by ANSA poses a significant threat to the enjoyment of human rights and freedoms by individuals. This is particularly where a state has lost control over part of its territory as the results of the activities of an ANSA. This loss of control by territorial State can result in a protection gap that in practice leaves victims of human right violence without recourse to remedy. As a general rule a State is only responsible for its own acts. However, there are instances where the conduct of an ANSA will invoke State’s responsibility.
State responsibility is a fundamental principle of international law, arising out of the nature of the International legal system and the doctrines of state sovereignty and equality of states. It provides that whenever one state commits an internationally unlawful act against another state, international responsibility is established between the two. A breach of international obligation gives rise to requirement for reparation. It is worthy to mention here that while laws relating to treaties are relevant in breach of international obligation by a state, legal consequences of a breach of a treaty, including determination of the circumstance that may exclude wrongfulness and appropriate remedies for breach are subjects that belong to customary law of state responsibility. The essential features of responsibility hinge upon certain basic factors; first, the existence of an international legal obligation in force; secondly, that there has occurred an act or omission which violates that obligation and which imputable to the state responsible and finally loss or damage has resulted from the unlawful act or omission. These requirements have been made clear in a number of cases which include the Spanish Zone of Morocco Claims, Judge Huber emphasised that ‘responsibility is the necessary corollary of a right’. All rights of an international character involve international responsibility. Responsibility result in the duty to make reparation if the obligation in question is not met. This very position is clearly emphasized in Article 1 of the International law Commission (ILC) Articles on Responsibility of States for Internationally Wrongful Acts which is to the effect that every internationally wrongful act of state entails responsibility. Article 2 provides that there is an internationally wrongful act of a state when conduct consisting of an action or omission is attributable to the state under international law and constitutes a breach of international obligation of the state. Article 3 provides that it is international law that determines what constitutes an internationally unlawfully act irrespective of any provision in the domestic law. Article 12 is to the effect that there is a breach of an international obligation, by which the state is bound, when an act of that state is not in conformity with what is required of it by that obligation, regardless of its origin or character. A breach that is of a continuing nature extends over the entire period during which the act continues and remains in conformity with international obligation in question, while a breach that consists of a composite act will also extend over the entire period during which the act or omission continues and not in conformity with international obligation
International Responsibility of States under the Vienna Convention
As legal entities, nations that sign international treaties agree to be bound by their terms. Article 21(d) of the Vienna Convention on Law of Treaties (hereafter VCLT) refers to a ‘contracting party’ as a ‘state which has agreed to abide by a treaty, whether or not the treaty has entered into force’. This is the basis for States’ international obligations legal responsibility pursuant to the terms of mutual agreement. International law rests on legal principles and as such, its duties and obligation extend beyond treaties, including customary law and norms of jus cogen.
Article 18 of the VCLT defines the States’ main obligation as ‘refraining from acts which would defeat the object and purpose of the treaty’. As obvious as this may appear, it forms the basis for the international responsibility of States, as it requires that each signatory nation act in accordance with the terms of the treaty. More importantly, each party is obligated to make a good faith effort to actively support the main principles of the accord.
This general obligation is complemented by the Pacta Sunt Servanda and bona fide principles of international law. Article 26 of the VCLT establishes that ‘every treaty in force is binding upon the parties to it and must be performed by there in good faith’. In this way, it establishes the obligatory nature of international agreements, particularly States’ obligation to proactively act in ways that promote compliance.
International Responsibility of State under International Human Rights Law
The promotion and engagement of respect for human rights and freedoms is cited by the United Nations (UN) Charter as one of the purposes of the UN charter. The Charter commits all Member States to promote ‘universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion and to take ‘joint and separate action’ in cooperation with the UN to achieve that end. The General Assembly reiterated this commitment to the promotion of human rights and freedoms in 1948 with the adoption of the Universal Declaration of Human Rights (UDHR), which called for the universal protection of the fundamental human rights and freedoms. Since 1948, the UDHR has been elaborated upon by comprehensive frameworks that are ratified by states. The nature of international human rights obligations of states can be divided into two categories: negative and positive obligations. The terms ‘negative’ and ‘positive’ are not used to imply any value judgment on the respective obligations. Rather, they are used to denote the state’s requirement no to act in a way that violates human rights (negative obligations) and the requirement to act- take positive steps- to implement measures to ensure that individuals are protected from violations of their rights and freedoms by state organs and by private persons or entities (positive obligation). As noted by the UN High Commissioner for Human Rights ‘Everyone has rights and obligations under human rights law’. The state holds primary responsibility, as not only must it respect human rights and respond when it violates them, but it also has the duty to protect against violations by third parties and to create an environment where all rights are respected. While, For example, armed actors, landlords and businesses must all respect human rights and be accountable for violations they commit, the State, through its policies, programmes and laws, must act to stop these violations and prevent their repetition’
It has been emphasized by the International Court of Justice (ICJ) that International human right law applies at all times, including during an armed conflict, whether the armed conflict is international in character. Common to the International Covenant on Civil and Political Rights, the African Charter on Human and People Rights (ACHPR) and sectoral human rights treaties is the provision that a state party is only under a duty to respect and ensure the rights guaranteed by the Convention of persons within the state’s jurisdiction. In other words, a state’s exercise of jurisdiction over territory or a person will trigger that state’s obligations under International human right law.
Obligation to Investigate, Prosecute, Punish and to Provide Redress
Even if a state has fulfilled its obligations to exercise due diligence to prevent violations of human rights, it may still be responsible for its failure to properly investigate, prosecute, punish and provide redress to the victims of those violations. A state is not relieved of the obligation to investigate allegations of human rights violations because those violations have been committed during an outbreak of violence or armed conflict. The state must investigate allegations of violations of rights promptly.
Loss of Control of Territory
The obligation to secure human rights requires State Parties to take Legislative, judicial, administrative, educative and other appropriate measures to fulfil their obligations. These positive obligations apply to all the rights and freedoms guaranteed by relevant human rights instrument and must be fulfilled without discrimination.
Inherent in a state’s loss of control over territory is a loss of authority and control over its institutions and administrations local to that area such as the police force, courts, local government, customs and immigration control, prisons, hospital and schools. This raises the question on how a state can fulfil its positive obligations with respect to the population of that territory if it has no authority and control over these institutions. According to the ACHPR, the state in question must endeavor, with all the legal and diplomatic means available to it alongside foreign states and international organisations, to continue to guarantee the enjoyment of rights and freedoms contained in the Charter. Such efforts will include measures needed to re-establish the state’s control over its territory, as well as to protect and ensure the rights and freedoms of persons within that territory. A state’s obligation to secure the human rights and freedoms of individuals within its jurisdiction includes the obligation to prevent the commission of human rights violations by ANSAs. This is an obligation of due diligence. Due diligence requires the state to take all appropriate measures available to it to prevent the commission of human rights violations and harmful acts by ANSAs. Thus, even if the state itself has not acted in a way that violates an individual’s rights, it may still have failed to fulfil its human rights obligations if it has not taken steps to protect individuals from harmful acts of ANSAs operating within its territory.
Whether or not the state will be responsible for failure to prevent harm will depend upon what knew or ought to have known at the time about the ANSA’s plans to commit the harmful acts or the real and immediate risk of harm. A state’s responsibility will be engaged if the state authorities fail to plan and control security operations so as to minimize, to the greatest extent possible, recourse to use of lethal force. Equally, a state’s responsibility will be engaged if the state fails, in the planning and performing of that operation, to take all feasible precautions in the choice of means and methods used so as to avoid the incidental loss of civilian life.
The Notion of Responsibility to Protect
The responsibility to protect (hereafter R2P) recently gained recognition as an emerging norm of international law that enjoins the international community to intervene when countries fail to protect their populations from mass atrocity crimes – namely genocide, crimes against humanity, war crimes and ethnic cleansing. One of the key foundations of the emerging R2P norm is the principle of intervention which allows international action whenever it is necessary and justifiable to reduce or resolve internal conflict among constituent States of the world. Although the authority of a State which lies in its sovereignty presupposes that the State is territoriality bounded with an inside and outside. Internally, the sovereign State is conceived to be an entity that can exercise supreme authority within its own territorial boundary. Although intervention is prohibited by the UN, however, there are instances where intervention can be legal. This is reasonably so, where national governments are unable and unwilling to address the origins of such threats that lead to the continuous breach of fundamental rights of citizens. Therefore, while the concept of sovereignty remains sacred, the concept of intervention through R2P seems an exceptions which allows authorized entering, and international assistance. International law opens the possibility for external to be involved in internal armed conflicts within the territory of another nation. Essentially, however, such intervention affects the territorial integrity or internal political affairs of the state concerned. For instance Article 7 of the Rome Statute of International Criminal Court defines crimes against humanity as ‘for the purpose of this Statute, crime against humanity means any of the following acts when committed as part of a widespread or systemic attack directed against any civilian population, with knowledge of the attack; includes inter alia murder, extermination, enslavement, deportation or forcible transfer of population’. Unfortunately, reoccurring among Member States include such activities termed ‘crime against humanity’
The Nigerian Situation
Isolated incidents of mass killings by Boko Haram are still occurring in Nigeria as of October 2018, especially in the north-eastern states of Nigeria. However, as already noted, the most worrisome, nation-wide and recurrent source of mass killings in Nigeria in recent years is the violent campaign of armed Fulani herdsmen. Flowing from the above, there are numerous international legal rulings which point towards the Nigeria government’s culpability. It has been successfully established that, a state can be held responsible for actions of non-state actors where it is shown that the state has not sufficiently protected its citizens. By virtue of Nigeria having ratified the ICCPR, ICESCR and ACHPR, there is an obligation on Nigeria to respect, put in place measures and legislations so safeguard the rights provided for in these treaties. Since by becoming parties to international treaties, states assume obligations and duties under international law to respect, protect and fulfill human rights. It is against this backdrop that Nigeria has failed in its responsibility in international human rights law to protect its citizens from the danger and destruction of Boko Haram and the Fulani herdsmen. Hence, there is a duty on the Nigerian government in international law, to secure back towns and villages under the control of Boko Haram in the north eastern states in Nigeria, as well as stop incessant killings by the Fulani herdsmen in line with Nigeria’s positive obligation under international human rights law. Better still under the concept of responsibility to protect, intervention can be undertaken either by the U.N authorized forces, regular or irregular armed forces of regional organisation, with the acquiescence or toleration of Nigeria.
It is necessary at this juncture to mention that, the Nigerian Government own constitution under Chapter II is to the effect that the ‘security and welfare of the peoples’ is it primary purpose, but section 6 (6) (c) of the constitution state that the court is void of jurisdiction with respect to whether the government has fulfilled Chapter II obligations. More crucially, under section 12 of the constitution, no treaty is enforceable in Nigeria except to the extent it is incorporated into domestic law and has been accorded a status higher than other domestic legislation but this still subject to the Nigeria constitution. Consequently, the constitution is a serious obstacle to the implementation of international law.
- Insecurity and human rights abuse has become endemic in Nigeria. This is because individuals, groups and state actors are complicit in this vicious circle. In the recent past, human rights violations and insecurity have held our people down, devaluing our cherished values and constituting blight on our diplomatic relations with the rest of the world. Therefore, the Nigerian government must combat these ills by putting in place measures in protecting the lives and properties of its citizens as it is bound under international to do so. In addition, at the domestic level the Nigerian government should prioritise the welfare and security of its people by making the very provision justiciable.