July 5, 2016 BY ABDUL KARIM KOROMA ESQ. in GENEVA
The abduction of Sierra Leone’s Deputy High Commissioner to Nigeria, Rtd. Major General Nelson Williams has raised serious questions about the protection of diplomats in host countries. The essence of establishing diplomatic relations among states is to promote international diplomacy and corporation. States keep in mind that the exchange of diplomatic agents is a means to keep this relation for long term. Therefore, diplomatic missions are established on one another’s territory. Diplomats represent their states and therefore the host state has a duty to protect the diplomats from any attack and any act or insults to their dignity.
Receiving States are required, under international law, to take appropriate steps to protect diplomatic missions and staff from threats posed by either state or non-state actors. For centuries, the international legal order has existed to regulate relations among States (and that remains true whatever one makes of its evolution to accommodate the regulation of non-State actors as well). To allow “relations” among States, however, requires means and methods of inter-State communication, of which embassies, consulates and diplomatic staff are the most visible symbols.
Diplomatic and consular relations are regulated under international law by both the Vienna Convention on Diplomatic Relations, 1961 and the Vienna Convention on Consular Relations of 1963. Both Sierra Leone and Nigeria are parties to the said conventions. While Sierra Leone acceded to the Convention on Diplomatic Relations on the 13 Aug 1962 and the Convention on Consular Relations on the 9th May, 2016, Nigeria signed and ratified the Convention on Diplomatic Relations on 31 March 1962 and 19 June 1967 respectively, and acceded to the Convention on Consular Relations on the 22 January 1968. Pursuant to Article 29 of the Vienna Convention on Diplomatic Relations of 1961, “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”. This responsibility is also extended to acts of non-States actors who are within the territory of the host state and subject to jurisdiction. Since the Vienna Convention did not specify or regulate how to deal with the situations in which the diplomatic agent is a victim of crimes, it is therefore accepted that the host authorities should take all necessary precautions to protect diplomatic officers.
As the ICJ stated in the case of US Diplomatic and Consular Staff in Tehran (paras 38-40):
[t]here is no more fundamental prerequisite for the conduct of relations between States than the inviolability of diplomatic envoys and embassies . . . [T]he institution of diplomacy, with its concomitant privileges and immunities, has withstood the test of centuries and proved to be an instrument essential for effective co-operation in the international community, and for enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding and to resolve their differences by peaceful means . . . [and] the inviolability of consular premises and archives, are similarly principles deep-rooted in international law…
Did Nigeria fail to honour its obligation under the treaty? It is difficult at this stage to conclude that Nigeria has failed in its obligations under international law to protect our diplomat. The law of State responsibility provides that a State is responsible for actions attributable to it that constitute a breach of its international legal obligations. The violation of fundamental rights and dignity of Sierra Leone’s Deputy High Commissioner is not in dispute here by virtue of his abduction by unknown persons. The issue is primarily one of attribution.
The conduct of the kidnappers in this occasion could be directly attributed to Nigeria only if it is established that they are in fact acting on its behalf. The information with regards the kidnapping at this moment is not sufficient to establish this proposition with due certainty. However, Nigeria, as the State to which the mission is accredited, is under an obligation to take appropriate steps to protect the diplomatic and consular staff of Sierra Leone.
In the Tehran hostage case, even though the ICJ did not establish that the militants that took US embassy officials as hostages were agents of the state of Iran, responsibility was triggered for the inaction of the Iranian authorities which constituted clear and serious violations of Iran’s obligations to the United States under Articles 22 (2). 24,25,26, 27 and 29 of the 1961 Vienna Convention on Diplomatic Relations, and Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations.
In the present situation, the responsibility of Nigeria to protect the Deputy High Commissioner could not be triggered merely for failing to protect, as it is very difficult in practical terms for host States, especially countries like Nigeria, to provide effective protection to diplomats considering the related security challenges the nation is facing. However, responsibility could be triggered where there is failure to investigate and take reasonable measures to ensure the release of our diplomat.
Abdul Karim Koroma is a Barrister at Law of the High Court of Sierra Leone and a member of the Professionals in Humanitarian Assistance and Protection (PHAP), Geneva. He is currently pursuing a joint Masters of Advanced Studies (LLM) in International Humanitarian Law and Human Rights at the Geneva Academy of International Humanitarian Law, a joint Centre of the University of Geneva and the Graduate Institute for International and Development Studies, Geneva.