Nobody has been held accountable for the ongoing kidnappings of civilians by Boko Haram. Oluwafifehan Ogunde examines Nigeria’s human rights law and asks whether the government’s decision to prioritise words over action will result in legal repercussions.
On 17 September 2018 an aid worker with the International Committee of the Red Cross, Saifura Hussaini Ahmed Khorsa, was killed in Nigeria by suspected members of the militant group Boko Haram. Khorsa had been kidnapped by suspected members of the group in March 2018. The insurgent group also threatened to kill fifteen-year-old Leah Sharibu, a Christian girl in their captivity.
This represents a more recent instalment in an ongoing conflict in Nigeria’s Borno state which has left up to 1.9 million people internally displaced and up to 7.7 million people in need of humanitarian assistance.
The murder of the aid worker has been condemned by international organisations and the Nigerian government. However, there has been very little to suggest that any of the perpetrators have been or will be held accountable for their actions. A year later, Leah Sharibu remains in captivity with little update on her welfare or location, and promises made by the government in relation to her release have proven to be no more than words. Reports suggest that the victim’s family has accused the government of religious bias based on Sharibu (a Christian) being the only member of her kidnapped group yet to be released.
Steps could be taken, in theory, to secure Sharibu’s release either through military action or dialogue. Pragmatically, the latter may be more expedient for the purpose of securing her release given that any military action taken without proper planning and strategy may result in her death. There is every reason to believe that negotiations can yield a positive result given the release of a significant number of the 200 kidnapped schoolgirls in Borno state’s Chibok area in 2014, and Leah Sharibu’s other classmates. But what are the legal implications for the government’s attitude of indifference towards securing her release, and the acts of kidnapping themselves?
There are numerous international legal rulings which point towards the Nigerian government’s culpability. Under international law, the state can be held liable for the actions of non-state actors where it is shown that the state has not sufficiently protected individuals from them. The European Court of Human Rights has ruled that the failure of states to investigate the existence of terrorist and armed groups is a violation of Article 2. The African Commission on Human Rights has also found states liable for rights violations carried out on their citizens by rebel forces according to its African Charter. Under Article 6 of the International Convention on Civil and Political Rights (ICCPR) the individual’s right to life is guaranteed with states having an obligation to protect the right to life of its citizens.
At home, the Nigerian government’s own Constitution under Chapter II states that the ‘security and welfare of the people’ is its primary purpose, but Section 6(6c) of the same Constitution states that the Court is void of jurisdiction with respect to whether the government has fulfilled Chapter II’s obligations. Even more crucially, under Section 12 of the Nigerian Constitution, no international treaty is enforceable in Nigeria except to the extent as is incorporated into domestic law. As it stands, only the African Charter has been incorporated into domestic law and has been accorded a status higher than other domestic legislation, but this is still subject to the provisions of the Nigerian constitution.
The Constitution is consequently a serious obstacle to the implementation of international law and ascribing the government culpability for Boko Haram’s actions. Nonetheless, because the Nigerian state is primarily responsible for the ‘security and welfare of the people’, albeit outside of the domestic Court’s jurisdiction, we should ask whether sufficient steps had been taken to secure the safety of aid workers in such a volatile region.
The death of Saifura Korsa by itself may be insufficient to establish such a failure. For instance there is a lack of evidence to support the case that there were advance warnings of her murder or Leah Sharibu’s kidnapping, which might form a legal case, unlike the incident involving the 200 Chibok schoolgirls. It may nonetheless serve as additional evidence, along with the failure to secure the release of other hostages taken by the armed group. Borno state’s reputation as the hub of the insurgent group means security forces ought to be aware of the high possibility of such incidents and should take steps in pre-empting and preventing such action.
So while we might find liability for the lack of protection afforded under the ICCPR obligations, with the law unenforceable in domestic courts any success in Khorsa’s case would require appeal to a non-Nigerian court: a complaint of rights violations must be made to the UN’s Human Rights Committee (HRC) by a direct victim, a requirement which may ultimately frustrate this process. Even with a successful complaint, the HRC is limited in its powers in that it can not impose sanctions on the Nigerian government or compel the government to comply with its orders. The same applies to any potential complaints to the African Commission on Human Rights. Should any case be successful, it would most likely result in compensation for her family, if not bringing the perpetrators to justice.
The fact-finding work being conducted by the Office of the Prosecutor of the International Criminal Court (ICC) may, similarly, not yield results. Amnesty International has raised concerns over the lack of cooperation by the Nigerian government with the ICC in relation to Boko Haram’s actions. Purported investigations into the activities of the group have been related to their alleged support by civilians.
Despite these barriers, one might nonetheless hold that raising complaints at this level could encourage the government to take more responsibility in the future.
We should remember this would not be the first time the government has been found liable for actions by non-state actors under international human rights law. In 2001, the Nigerian government was held liable for oil spills by multi-national corporations in the Niger Delta and orders were made on compensation as well as cleaning-up the affected area. Needless to say, these have hardly been implemented. There is nothing to suggest that things will be different now.
Oluwafifehan Ogunde is an early career researcher and legal consultant affiliated with the University of Birmingham with focus on child rights protection in Nigeria. He obtained a Master’s degree in Human Rights Law from the University of Nottingham in 2014 and is a qualified barrister and solicitor of the Supreme Court of Nigeria. He was called to the Nigerian Bar in January 2012.
The views expressed in this post are those of the author and in no way reflect those of the Africa at LSE blog, the Firoz Lalji Centre for Africa or the London School of Economics and Political Science.
