National Security versus Diplomatic Immunity: The Case of UN Office in Maiduguri, Nigeria

Vie international With Bola Akinterinwa

Maiduguri is the capital of Borno State in the North-eastern part of Nigeria. It is a region of Boko Haram terror and counter-terror battle by the Nigerian Army. Maiduguri is not only currently playing host to the 7th Division of Nigeria Army, but also to its ‘Operation Lafiya Dole,’ put in place mainly to deal with boko haramism. And true, Maiduguri is nationally and internationally a major source of security problems.

In late October 2013, the 7th Division of the Nigerian Army killed 74 Boko Haram terrorists after a raid of camps in Galangi and Lawanti villages on the outskirts of Maiduguri. Since then, it has always been a reign of Boko Haram terror to date. Apart from boko haramism, which gives Maiduguri its international attention, the Internally Displaced Persons (IDPs) in Borno State also explain the rationales for the internal special focus.

For instance, Vanguard (August 12, 2017), in its Saturday news, made it known that 350 IDPs had refused to return to liberated communities. As wondered by Lt-Gen. Buratai, ‘the IDPs are still in camps, despite the liberation of over a dozen communities in Borno State. The most important thing for the military is to ensure that all displaced persons return to their towns and villages. But I wonder why the IDPs are still living in camps of Maiduguri metropolis.’

On Thursday, 10th August, the trending news was that Abubakar Shekau, leader of the Boko Haram, was hiding in a compound called ‘Red Roof.’ It was even the United Nations (UN) Department that first reportedly released the information. According to the UN, ‘information about Shekau’s presence in the Red Roof was already being spread yesterday (Thursday, 10 August, 2017) on the social media… At about 2.am early this morning, Nigerian Army troops in trucks are conducting (a) search on UN Red Roof Humanitarian Camp and forced their way into the property.’

Thus, the so-called Red Roof is the UN building. The rumour of Abubakar Shekau hiding under the Red Roof cannot but therefore need special attention and further interrogation. What does he want there? Is there any possible validity to the trending rumour? If indeed, Abubakar Shekau was hiding there, could it be that one major power was aiding and abetting Boko Haram in Nigeria but using the UN framework indiscreetly in such a way as to make boko haramism recidivist?

Most importantly, which international law can limit the authority of Nigeria and prevent her from first ensuring her self-preservation and security? Which country of the world will accept to respect international law to its own detriment? Perhaps, more fundamentally, the obligation for Nigeria and the UN to fight terrorism necessarily requires a mutual understanding in the fight against terror, and therefore, there should not have been any need for the humanitarian coordinator to raise any eyebrow. The common challenge to address is the rumour on the presence of a dangerous jihadist terrorist in the UN Red Roof. Was Abubakar Shekau really there? If he was not there, how do we explain the origins of the rumour?

On Friday, 11th August, 2017 media reports had it that the United Nations (UN) and the Nigeria Army clashed over an alleged invasion of a UN building in Maiduguri, Borno State. There were two main operational words that invited much attention in the various reportages on the saga: clash and invasion. Was there really a clash? Was there an invasion of the diplomatic premises of the UN? What was the nature of the clash if there was one: clash of ideas or physical clash? What also is the nature of the alleged invasion by the Nigeria Army? These questions are necessary at this juncture as Nigeria’s international responsibility is directly being raised.

Put differently, it has been suggested that Nigerian troops had violated diplomatic conventions and should be called to order. Most unfortunate! The intervention of the Nigerian Army, on the contrary, was prompt and far from being a violation. The intervention was patriotic and consistent with the international obligation to protect the diplomatic community, as well as prevent it from being assaulted and violated by the boko haramists, especially after its most unfortunate terrorist attack on UN Office in Abuja.

Without doubt, there has been a misperception of the critical issues involved: rivalries between Nigeria’s quest for national security and the UN functionaries’ right to diplomatic immunity and non-violation. At the level of national security, the Government of Nigeria is obligated by international conventions and the 1999 Constitution as amended to ensure protection and security of all peoples residing in the country. Article 4 (0) of the Constitutive Act of the African Union states that all Member States should have ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.’ Article 4 (f) of the same Act also requires Nigeria to ‘promote peace, security, and stability on the continent.’ The main challenge of these provisions is the silence of the two provisions on the modalities of how to promote peace and security, as well as ensure stability in Africa.

In the same vein, Nigeria’s constitution, in its Section 11 on public order and public security, provides that ‘the National Assembly may make laws for the Federation or any part thereof with respect to the maintenance and securing of public safety and public order, and providing, maintaining and securing of such supplies and services as may be designated by the National Assembly as essential services.’ More importantly, Section 14(b) provides that ‘the security and welfare of the people shall be the primary purpose of government.’

The implication of these two sections is that, apart from obligations arising from international agreements to which the government has voluntarily given its consent on behalf of the people of Nigeria, there is also the obligation arising from the country’s Constitution. And most importantly, as shown above, the raison d’être of political governance is national security. If the Government of Nigeria signs any international agreement, the ultimate objective, cannot but include security and welfare of the people of Nigeria.

Another issue in this regard is that a national constitution can come into conflict with an international agreement, in which situation there has to be a priority choice-making. There is the Monist School of thought in international relations which takes international law as superior to municipal law, and therefore implements international agreements automatically without having to first ratify or domesticate the agreement. Nigeria does not belong to this school. Nigeria belongs to the Dualist School, which puts international law and municipal law at the same level of importance and status, and therefore, will need to first ratify an agreement, as well as domesticate it before such an international agreement can be enforced.

As noted in Section 12 of Nigeria’s 1999 Constitution as amended, ‘no treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly. The relevant international diplomatic conventions have been ratified and domesticated.

Consequently, there can be no disputing the fact that the Government of Nigeria has the onerous responsibility to ensure national security, not only as required by the 1999 Constitution but also as demanded by international law.
As provided in Article 22 (1) of the 1961 Vienna Convention on Diplomatic Relations, ‘the premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the Head of the Mission.’ What is noteworthy about this provision is that, deductively, there can be situations warranting the agents of the host government to seek entry into a diplomatic mission. However, in such a situation, the prior permission of the Head of Mission would be required. This is the rationale for the use of the words, ‘may not enter…’ in the Article. The Article did not say ‘shall not enter.’

Article 22(2) states further that ‘the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.’ In this regard, while Article 22(1) underscores inviolability of a diplomatic mission and subjects any intrusion to the consent of the Head of Mission, Article 22(2) compels a receiving State to take necessary or appropriate steps to protect diplomatic premises.

The issue again here is to determine what constitutes an appropriate step. If the Nigeria Army says it has intelligence report according to which the most wanted leader of the Boko Haram terrorist organisation is hiding in a diplomatic premise, does it make any sense to seek authorisation before entering the premises? There is no disputing the fact that, in classical and contemporary international relations, an embassy, because of its extra-territorial character, has always been used for various unacceptable political and criminal activities: issuance of identity cards and travel documents to opposition elements in the receiving State; safe-haven for political opponents, hiding arms and ammunitions, etc.

Additionally, if the agents of the receiving State ‘may enter’ a diplomatic premise, but subject to the consent of the Head of Mission, what happens if there was really a terrorist in the premises and the Head of Mission does not give the required consent for possible intervention?

And perhaps, most importantly, Article 22(3) says ‘the premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.’ The implication of this provision is multidimensional in scope. In this regard, it is not simply the chancery that constitutes an embassy. The residence, the means of transportation and communications are also part of a diplomatic mission, and are therefore inviolable. For instance, a law enforcement agent cannot attach or violate a diplomatic vehicle for whatever purpose.

However, this provision remains, at best, meaningless if a property, a mission or means of transportation does not have a diplomatic identification. In other words, an embassy normally carries the name and national flag of the country at the main entrance of the mission. The vehicles of an embassy also have special matriculation numbers: CMD (Chef de Mission Diplomatique, meaning Head of Diplomatic Mission; Corps Diplomatique meaning Diplomatic Corps, Corps Consulaire (Consular Corps), etc. This point should be clearly noted, because the whole misunderstanding between the UN Office in Maiduguri and men of the Nigerian Army arises from the non-identification of the office.

At the level of Nigeria, the Operation Lafiya Dole of the Nigerian Army in Maiduguri is mainly designed to contain the terrorism imposed on the people of Nigeria by Boko Haram. The Nigerian Army has a special mandate to neutralise all threats of Boko Haram in Maiduguri and its environs. As explained by the spokesperson of the 7th Division, the Army ‘has forced the Boko Haram terrorists to change tactics and resort to the employment of suicide bombers to target military locations and the population. This necessitated the need to intensify cordon and search in the Maiduguri metropolis and environment.’ It also became ‘expedient to take pre-emptive action by combing the general area through a cordon and search operation.’ What is also particularly useful to note here is that, of the more than 30 houses searched, there was the ‘property, which was said to be occupied by the UN staff members, although the property did not carry a UN designation.’

From the foregoing, many points are noteworthy: the Nigerian Army truly carried out a cordon and search at the UN premises, a compound belonging to the former Governor of Borno State, Mala Kachalla, but rented to the UN, and used as a hostel for the UN humanitarian aid personnel. Under normal circumstances, we should not have been talking about UN diplomats in this case. The word, ‘diplomat’ is generally used for accredited Foreign Service Officers working in a diplomatic mission. Those who are working, stricto sensu, in or for international organisations are referred to as ‘functionaries’ and not as diplomats. Only those people who are officially representing their countries in an international organisation can be called diplomats.

Thus, in the UN premises in Maiduguri, the residents cannot but include locally recruited staff that also may not be entitled to diplomatic immunity like the locally-recruited staff in an embassy that do not fall under enjoyment of diplomatic immunity and privileges. The diplomatic immunity and the non-violation status of the UN premises should therefore be put in context. This is necessary, because the Nigerian Army has made it clear that ‘the property did not carry a UN designation.’

If the security-seeking Nigerian Army has entered the UN premises without the consent of the Head of the UN Office in Nigeria, it could not have been done to undermine the pursuit of UN goals in Maiduguri in particular or Borno State, in general. The truth of the matter is that the UN staff cannot operate well in an insecure environment. The UN humanitarian coordinator should not quickly forget the terrorist attack on UN building in Abuja few years back.
A second point is that, after the cordon and search, Abubakar Shekau, the Boko Haram leader, strongly suspected to be hiding in the UN building, popularly referred to as Red Roof, was not found. This means that either the intelligence report relied on by the Nigerian Army was faulty or there was also a counter-intelligence that quickly aided and abetted the escape of the wanted terrorist, in which case the Nigeria Army still prevented an intended terrorist act that should have occurred. Put differently, the threat of possible attack and arrest by the Nigerian Army compelled the quick escape of Abubakar Shekau. The Nigerian Army should therefore be unconditionally commended.

Thirdly, and most importantly, it is always better to prevent foreseeable insecurity than expending much energy in dealing with its aftermath. If Shakespeare said in Macbeth that there is no art of human construction from the face, he probably did not reckon with future developments, especially with the emergence of physiognomy, which is precisely the new science of determining human construction from the reading of lips, eyelids, lie-detection, etc. In other words, there is nothing to suggest that there cannot be terrorists working in an organisation, whose terrorist identity may be quite difficult to determine by the Head of the UN Office in Maiduguri.

A terrorist is not only the suicide bomber, the carrier of arms and weapons. It is also the money launderer, all those aiding and abetting terrorism directly and indirectly. UN staff in Maiduguri may include anti-Nigeria elements, who may be informants to terrorists while working in and using the umbrella of the UN. This is why there is always the need to reconcile the quest for national security and the need for diplomatic protection.

Most unfortunately in this regard, one of Nigeria’s foreign policy objectives, as stated in Section 19(d), is that Nigeria shall have ‘respect for international law and treaty obligations, as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication.’ Why should there be respect for international law if it is detrimental to the national interest or when other countries respect it selectively? For instance, most African countries are now against the Rome Statutes and therefore the International Criminal Court, even though they have signed and ratified the statutes.

It is the national security interest that is at stake and should always be given the pride of place. Diplomats are generally required to be decent and of good behaviour, as well as seek to respect the law of their host State.

However, it is not always so with the diplomats from big powers. They not only engage in unlawful diplomatic activities but also in activities not compatible with their diplomatic status. This therefore raises many issues with the principle of sanctity of agreements. It is not known in contemporary diplomatic history, where a country expressly implements an international agreement to the detriment of national survival and self-preservation.

It is important to remember that the humanitarian crisis in the Northeast of Nigeria is one of the most severe in the world as at today. From the UN humanitarian coordinator’s statement, there is no doubt that he was not comfortable with the cordon and search as he described it as ‘unauthorised search.’ Secondly, he was waiting for official explanation to determine his next line of action. Thirdly, the alleged invaded house of the UN is a base, which is tented. If it is a base, it means that the base ought to be recognisable at first sight.

In this regard, as a UN base, does the Nigerian army not have the right to search the premises in the face of a security threat? If the Nigerian Army does not have the right, how do we explain the obligation created by international diplomatic law for Nigeria to ensure the non-violation in whatever manner the person of an accredited diplomat?

Besides, it is a truism that Maiduguri is currently a Boko Haram terrorist area, which therefore requires special security attention. If the life of a UN staff is suddenly endangered, will there be need for a prior authorisation before security protection? What if it is the life of the Head of Mission and whoever is also in the position to give the required authorisation that is endangered, are we still going to be talking about authorisation before security protection?

These questions simply raise the conflict of interest between the need to respect the principle of non-violation of a diplomatic premise and the need to also secure the location of the same premises. Without doubt, there is nothing to suggest that a UN diplomatic premise cannot be a den of terrorism with or without the knowledge of whoever is representing the UN in Nigeria.

Whatever is the case, if there is an intelligence report of a criminal threat in any given area, security agencies may not be prevented from accessing the area, be it diplomatic or not. Vie internationale posits here that it is only the living that can respect a law. Nigeria must first be made secure and stable for any UN staff to operate and protect human rights. Consequently, the Nigerian Army should be commended for its promptness of action without report of any brutalisation.