Nigeria: Xenophobic Violence and Intl Law
By Uche Ewelukwa Ofodile
I like to respond to Kayode Komolafe’s piece entitled “Beyond Xenophobia” published in the THISDAY edition of March 1, 2017.
The xenophobic violence in South Africa is reprehensible and completely unacceptable. While Mrs. Abike Dabiri-Erewa, the Senior Special Adviser (Foreign Affairs) to the President can be commended for speaking up against the violence against foreigners in South Africa and for understanding that diplomacy may not be enough; it does not appear that the Nigerian government is taking concrete steps beyond diplomacy to address the situation.
There are many options available to the Nigerian government and the government is presently not exercising any of these options. The Nigerian government must do more than summon South Africa’s ambassador to explain the xenophobic violence. The Nigerian government must do more than call on African Union organs to intervene. If Nigerians violate the criminal laws of their country of residence, the host state has every right to prosecute and punish offenders.
There is, however, absolutely no justification under South African law or under international law for the wanton destruction of the lives and property of foreigners in South Africa. That a country that remains the poster child for all that is terrible about apartheid and intolerance – the country that hosted the 2001 World Conference against Racism, Racial Discrimination, xenophobia and Related Intolerances (aka Durban I) – should sink so low is really sad. Horrific as the xenophobic violence in South Africa is, the bigger crime will be if the Nigerian government does nothing in response. Given the recurring nature of these attacks, ordinary diplomacy is no longer enough. Nigerian government must make use of all mechanisms available under regional (AU) law and international law to address the situation.
South Africa has an obligation under customary international law and under international human rights law to protect the rights of all individuals within its territory. Pursuant to Article 2(1) of the International Covenant on Civil and Political Rights, a treaty that South Africa ratified in 2002, South Africa undertakes to “respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (emphasis added).
Although poor, unemployed and largely ignorant youths are the direct perpetrators of the xenophobic attacks in South Africa, under international law South Africa can be held responsible for the various acts violence. There are two circumstances under which South Africa can be held to be responsible for the attacks. In the first instance, South Africa can be held responsible for the attacks if it can be established that the killings and the destruction of property are attributable to South Africa and constitute a breach of South Africa’s international obligation. In the alternative, even if
the xenophobic attacks are not attributable to South Africa, South Africa can still be held responsible if it can be shown that it failed to exercise due diligence to prevent, punish, investigate, or redress the harm caused by acts private persons.
Can the xenophobic violence be attributed to South Africa? Answering this question calls attention to recent statements by Johannesburg Mayor, Herman Mashaba. Mashba has been accused publicly of instigating the attacks on immigrants. Mashaba openly called immigrant animals and criminals and blamed them for all the crimes in Johannesburg. Gauteng Community Safety MEC Sizakele Nkosi-Malobane blames Mashaba for the recent violence. “If he didn’t actually refer to people as animals and criminals and all the crimes happening in Johannesburg, we wouldn’t be where we are today,” Nkosi-Malobane is quoted as saying. Under international law, conduct of an organ of a State is attributable to the State regardless of what position the organ holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
As already noted, even if the violence cannot be attributed to South Africa, South Africa has a positive obligation to use due diligence to prevent, investigate, prosecute, punish and provide remedies for acts of violence perpetrated by private persons and groups in the country and has clearly failed in this duty. In its General Comment No. 31 (2004), the Human Rights Committee, a United Nations human rights body, noted that states have an obligation to take appropriate measures or to exercise due diligence to prevent, punish, investigate, or redress the harm caused by acts private persons and entities. Other human rights bodies including the European Court of Human Rights (in X and Y v. Netherlands), the Inter-American Court of Human Rights (in Velàsquez Rodríguez v. Honduras), and the African Commission of Human and Peoples’ Rights have reiterated the due diligence obligation of states.
The African Commission on Human and Peoples’ Rights (African Commission) came to this conclusion in Movement burkinabé des droits de l’Homme et des peuples v. Burkina Faso and Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria. The recurring nature of xenophobic violence in South Africa raises serious questions about whether South Africa is allowing private persons and groups to act freely and with impunity to the detriment of the migrants and foreign nationals in the country. Based on the response of top South African government officials to recent violent attacks, it is debatable whether South Africa will take serious steps to prevent, punish, investigate or redress the harm caused by the violence.
Nigeria has a duty and a right to protect Nigerians in South Africa. As the Permanent Court of International Justice noted in the 1924 case of Mavrommatis Palestine Concessions [Greece v Great Britain] [Jurisdiction], “It is an elementary principle of international law that a State is entitled to protect its subjects when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels.” Nigeria has a right to ensure, in the person of its subjects, respect for the rules of international
law. This law of diplomatic protection allows Nigeria to take up the case of its subjects and to resort to diplomatic action or international and regional judicial proceedings on their behalf.
Nigerians affected by the violence in South Africa must be advised to explore all domestic remedies available in South Africa. However, the Nigerian government can also take up the case of all Nigerians affected by the situation in South Africa.
First, the Nigerian government should at the very least provide necessary legal and financial assistance to affected citizens to enable them to use and exhaust available domestic remedies in South Africa. Second, the Nigerian Government should consider providing necessary legal and financial assistance to affected Nigerians to enable them explore remedies available under the African Charter on Human and Peoples’ Rights (African Charter) and under other applicable international human rights treaties. Third, the Nigerian government can on its own initiate a complaint against the South African government using mechanisms available under the African Charter or under international law.
The Nigerian government can and should consider using the State-to-State complaints mechanism under the African Charter and other international human rights treaties. Article 47 of the African Charter stipulates “If a State Party to the present Charter has good reasons to believe that another State Party to this Charter has violated the provisions of the Charter, it may draw, by written communication, the attention of that State to the matter” (emphasis added). Article 49 further stipulates that “Notwithstanding the provisions of Article 47, if a State Party to the present Charter considers that another State Party has violated the provisions of the Charter, it may refer the matter directly to the Commission by addressing a communication to the Chairman, to the Secretary General of the Organisation of African unity and the State concerned” (emphasis added).
Recurring xenophobic violence in South Africa is regrettable, repugnant, and undermines the goals of regional integration in Africa. In the Charter of the Organization of African Unity (1963), the Heads of African States and Governments expressed “a common determination to promote understanding among our peoples and cooperation among our states in response to the aspirations of our peoples for brotherhood and solidarity, in a larger unity transcending ethnic and national differences.”
According to Article 3 of the Constitutive Act of the Africa Union (2000), one of the objectives of the Africa Union is to inter alia “Achieve greater unity and solidarity between the African countries and the peoples of Africa,” and “Accelerate the political and socio-economic integration of the continent.” Regional integration means nothing and will mean nothing if intolerance and xenophobia is tolerated in the continent and private citizens and groups are allowed to engage in xenophobic attacks with impunity. South Africa must not allow unruly youths to act freely and with impunity to the detriment of foreign nationals within its borders. The Nigerian government has a right and an obligation to act and to act immediately.
– Ofodile, (SJD Harvard), a professor at the University of Arkansas School of Law, is the Secretary General, African Society of International Law