In conflict situations, the violation of human rights is common and sometimes seen as inevitable. For the Nigeria-Cameroon border conflict, however—deemed settled between the contesting parties by the Greentree Agreement in 2006—the continuing violation by one or both parties of the rights of the people living in the disputed Bakassi Peninsula raises questions with regard to the functionality of the settlement and the processes that brought it about. It raises questions about the pacification of the most important stakeholder in the triangular process—the Bakassi people—and about the respect for the treaty obligations of Nigeria and Cameroon, the states involved in the violations of such rights. Is Nigeria not obligated by treaty to protect its citizens at home and abroad? This is pertinent because the contested issue here is the territory and not its inhabitants, as the Bakassi people made clear during the period of adjudication and in reaction to the International Court of Justice (ICJ) ruling that they were Nigerians, not Cameroonians.
In international law, it is the responsibility of the state to “ensure” or “secure” the respect of rights. The European Convention on Human Rights and Fundamental Freedoms (ECHR), the American Convention on Human Rights (ACHR), and the International Covenant on Civil and Political Rights (ICCPR) all subscribe to this state obligation. According to the United Nations Human Rights Committee, states are “required to give effect to the obligations under the [ICCPR] in good faith,” and the obligation to “respect and ensure rights . . . has immediate effect.”1UN Human Rights Committee (HRC), General Comment No. 31 (80), The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, May 26, 2004, CCPR/C/21/Rev.1/Add.13, http://www.refworld.org/docid/478b26ae2.html, accessed December 4, 2015. The African Charter on Human and Peoples’ Rights (ACHPR), to which both Cameroon and Nigeria are parties, also envisages the enforcement of these rights by states.
In some instances, a state may be unable to ensure respect of all human rights obligations.2L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (New York: Oxford University Press, 2011), 40–41. This defense of a violation of human rights usually refers to force majeure—that is, unforeseeable circumstances that prevent the fulfillment of a contract. It may not be a tenable defense in Nigeria, however, since the violation of the Bakassi people’s human rights, both within Nigerian territory and the ceded territories in Cameroon, has arguably been caused directly or indirectly by the conduct of the Nigerian state—in this case, through acts of omission. An excuse of force majeure could, on the other hand, be considered valid because of Nigeria’s loss of control over the ceded territory, making it impossible to meet all obligations fully.
Yet, if the obligation to “ensure” is interpreted strictly, the question then becomes, what is the nature of the obligation concerned, and what efforts did the Nigerian government make or could have made to respect or ensure the respect of those obligations to the degree possible?3Ibid, 40–41. As Doswald-Beck has observed, the terms “ensure” and “secure” require governments to take positive actions so respect actually occurs. In other words, the failure to take such measures does, indeed, amount to acts of omissions that are in themselves wrongful.4Ibid, 32.
Nigeria and Cameroon are not at war, yet the former’s failure to use subtle diplomacy to make Cameroon live up to its treaty obligations with regard to the Greentree Agreement and other human rights treaties to which Cameroon is party represents a failure on Nigeria’s part to protect its citizens. For all the numerous violations of the rights of the indigenes on the Bakassi Peninsula, the Nigerian government has not, surprisingly, raised any serious objections in defense of these people or employed other means necessary to defend them, apart from protesting their treatment in 2005 during the thirteenth session of the Cameroon-Nigeria Mixed Commission in Yaoundé. The ACHPR allows any state party to the charter to report the violation of its provisions by another state party to the African Commission.5Article 47 et seq. of the African Charter. Yet, despite persistent reports of widespread human rights violations on the peninsula by Cameroon against the Bakassi people, no evidence indicates Nigeria has followed this procedure to report Cameroon.
As for Cameroon, it has demonstrated both by commission and omission through its inability to live up to the treaty’s obligations, especially under Article 1 of the African Charter.6African Commission on Human and Peoples’ Rights (AComHPR), Association of Victims of Post Election Violence and Interights v. Cameroon, communication no. 272/2003, November 25, 2009, 107. That the Cameroonian soldiers and gendarmes have engaged in the violation of the human rights of the Bakassi population in the ceded territories is incontestable. What has been contested, however, is the involvement of the Cameroonian authorities in the perpetuation of these violations. In any case, the soldiers represent the instrument of state coercion and are therefore state agents, in the same way the gendarmes, though they are private third parties, are acting on behalf of their state. Neither the alleged ignorance of the Cameroonian authorities nor their excuse of not sanctioning the violations exempts them from liability. As stated by the United Nations Human Rights Committee in its General Comment 31,
The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the state, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities . . . There may be circumstances in which a failure to ensure Covenant rights . . . would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.7UNHRC, General Comment No. 31, 8.
Similarly, the defense for failing to address human rights violations on the grounds that the victims are neither Cameroonian citizens8Daniel Okon (30 years), Bakassi youth returnee who alleged this during a focus group discussion with the author and other returnees in Ekpri Obutong Estate, Ikang Area, New Bakassi Local Government Area, Cross River State, Nigeria, August 25, 2015. nor are they spies9BBC News, “Doing time in a Cameroon ‘cell,’ ” August 24, 2004, http://news.bbc.co.uk/2/hi/africa/3591676.stm, accessed September 16, 2015. is also untenable. This was affirmed indirectly by the Inter-American Court of Human Rights in the case of Gonzáles et al. (“Cotton Field”) v. Mexico, when the court interpreted the obligation to ensure the rights protected by the American Convention of Human Rights of 1969 thus:
States should not merely abstain from violating rights, but must adopt positive measures to be determined based on the specific needs of protection of the subject of law, either because of his or her personal situation or because of the specific circumstances in which he or she finds himself.10Inter-American Court of Human Rights (IACtHR), Gonzáles et al. (“Cotton Field”) v. Mexico, judgment of November 16, 2009, 243, http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_ing.pdf.
Clearly, due to the peculiar situation in which the Bakassi indigenes have found themselves, the Cameroonian authorities should make every effort to protect them. Cameroon must bear in mind that these people have traditional titles to this territory and therefore are entitled to settle there, regardless of the 2002 International Court of Justice ruling that ceded it to Cameroon. In addition, Cameroon has obligations it must fulfill under the Greentree Agreement, other human rights treaties notwithstanding.
References [ + ]
|1.||↑||UN Human Rights Committee (HRC), General Comment No. 31 (80), The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, May 26, 2004, CCPR/C/21/Rev.1/Add.13, http://www.refworld.org/docid/478b26ae2.html, accessed December 4, 2015.|
|2.||↑||L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (New York: Oxford University Press, 2011), 40–41.|
|5.||↑||Article 47 et seq. of the African Charter.|
|6.||↑||African Commission on Human and Peoples’ Rights (AComHPR), Association of Victims of Post Election Violence and Interights v. Cameroon, communication no. 272/2003, November 25, 2009, 107.|
|7.||↑||UNHRC, General Comment No. 31, 8.|
|8.||↑||Daniel Okon (30 years), Bakassi youth returnee who alleged this during a focus group discussion with the author and other returnees in Ekpri Obutong Estate, Ikang Area, New Bakassi Local Government Area, Cross River State, Nigeria, August 25, 2015.|
|9.||↑||BBC News, “Doing time in a Cameroon ‘cell,’ ” August 24, 2004, http://news.bbc.co.uk/2/hi/africa/3591676.stm, accessed September 16, 2015.|
|10.||↑||Inter-American Court of Human Rights (IACtHR), Gonzáles et al. (“Cotton Field”) v. Mexico, judgment of November 16, 2009, 243, http://www.corteidh.or.cr/docs/casos/articulos/seriec_205_ing.pdf.|