Amid the dust generated by protests by Nigerian Civil Society Organisations (CSOs) against President Goodluck Jonathan for not arresting Sudanese President Omar Al- Bashir and handing him over to the International Criminal Court (ICC) for prosecution during his visit to Nigeria, Chukwuemeke Eze examines the implications of this action on Nigeria’s obligations under the Rome Statute and Genocide Convention
The United Nations Conference of Plenipotentiaries on
the Establishment of the International Criminal Court
took place in Rome from June 15 to July 17, 1998. On July 17, 1998, member states of United Nations (UN) overwhelmingly voted in favour of the Rome Statute of the ICC, creating the treaty establishing the first permanent international criminal court capable of trying individuals accused of genocide, war crimes and crimes against humanity. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC.
Article 1 of the Statute establishing the court provides thus:
An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
Sixty countries were required to bring the treaty into force. On April 11, 2002 the 60th ratification necessary to trigger the entry into force of the Rome Statute was deposited during a special ceremony at UN headquarters, and the treaty then entered into force on July 1, 2002.
The International Criminal Court investigation in Darfur, Sudan or the Situation in Darfur, Sudan is an ongoing investigation by the International Criminal Court (ICC) into criminal acts committed during the War in Darfur. Although Sudan is not a state party to the Rome Statute, the Situation in Darfur was referred to the ICC’s Prosecutor by the United Nations Security Council in 2005. As at 2012 seven suspects have been indicted by the court: Ahmed Haroun and Ali Kushayb, Omar al-Bashir, Bahar Abu Garda, Abdallah Banda and Saleh Jerbo, and Abdel Rahim Mohammed Hussein.
The Darfur conflict was a guerrilla conflict that took place in the Darfur region of Sudan from 2003 until 2009–2010. The conflict began when the Sudan Liberation Army and the Justice and Equality Movement began attacking the Sudanese government in response to perceived oppression of black Sudanese by the majority Arab government. During the conflict government forces and Janjaweed militia have attacked and massacred black Sudanese in the Darfur region. These actions have been described as genocide by a number of governments and human rights groups. Omar Al-Bashir, Sudan’s president, has denied that his government has links to Janjaweed.
The Security Council referred the Situation in Darfur on March 31, 2005 after the passage of Resolution 1593. The resolution was passed by a vote of 11 in favour and zero against, with four abstentions. Argentina, Benin, Denmark, France, Greece, Japan, the Philippines, Romania, Russia, Tanzania, and the United Kingdom voted in favour and Algeria, Brazil, China, and the United States abstained. The Prosecutor, Luis Moreno Ocampo, formally opened an investigation on June 6, 2005.
Omar al-Bashir, the President of Sudan, was indicted on 4 March, 2009 with five counts of crimes against humanity and two counts of war crimes: attack against a civilian population pillaging, murder, extermination, forcible transfer of a population, torture and rape.
On July 12, 2010 he was additionally charged with three counts of genocide of killing, constituting a crime of genocide in violation of article 6(a) of the Rome Statute; causing serious bodily or mental harm, constituting a crime of genocide in violation of article 6(b) of the Rome Statute; and deliberately inflicting conditions of life calculated to bring about physical destruction, constituting a crime of genocide in violation of article 6(c) of the Rome Statute.
Nigeria signed the Rome Statute on June 1, 2000, and ratified it on September 27, 2001, becoming the 39th State Party. A Workshop on National Implementation of the Rome Statute was convened in Nigeria in November 2002. The Workshop resulted in a plan of action for the development of domestic implementing legislation.
The Ministry of Justice sent an executive bill, entitled “The Rome Statute of the International Criminal Court (Ratification and Jurisdiction) Bill 2001” to the National Assembly for adoption (pursuant to Section 12 of the 1999 Federal Constitution). On 1 June 2004, the House of Representatives passed its own version of the bill. The bill was re-submitted by the executive arm of government in 2003. On May 19, 2005, the Senate passed a legislation implementing the Rome Statute. The Bill was never signed into law by the President.
The Rome Statute (Ratification and Jurisdiction) Bill, 2006 was passed by both houses of the National Assembly, but was not harmonised for assent by the President before the end of the last civilian administration in May 2007. The bill is to be resubmitted by the Ministry of Justice, which committed to resubmit the bill as soon as possible during the 10th anniversary of the Rome Statute.
Nigeria recently joined the bandwagon of AU members who chose to obey the 2009 AU Resolution not to co-operate with ICC to arrest and surrender Al-Bashir should he visit their states. Al-Bashir on the 15th of July attended the AU Summit on HIV/AIDS, Tuberculosis and Other related Infectious Diseases (ORID) in Abuja and despite calls from the civil societies and international communities to arrest and surrender Al-Bashir Government of Nigeria refused to do so but rather choose to abide by the AU Resolution.
The Ministry of Foreign Affairs explained why Al-Bashir was not arrested in Nigeria. It said by the statute of the African Union (AU), he was supposed to enjoy immunity like other delegates. It also said Al-Bashir was in the country under the auspices of the AU and the nation owes an obligation to respect the decision of the continental body. The Ministry said the Federal Government decided to stick to the 2009 resolution of the AU urging the UN Security Council to defer action against Al-Bashir.
For the records and avoidance of doubt, Nigeria’s position in this regard is consistent with the AU Assembly decision adopted at the 13th Ordinary Session of the Heads of State and Government in Sirte, Libya on 3rd July, 2009, as it concerns President al-Bashir of The Sudan.
In this regard, it is worthy to recall that following the lack of action on the request by the African Union to the UN Security Council to defer the proceedings initiated against President al- Bashir in accordance with Article 16 of the Rome Statute of the ICC, the AU Assembly of Heads of State and Government decided inter-alia that the …AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar Al-Bashir of The Sudan…
The AU decision further reiterated its request to the UN Security Council and appropriate response is still being awaited to-date. As a responsible member of the AU, Nigeria has a duty to take full cognisance of this decision in the overall interest of Africa.
However, the Civil Society Organisations (CSOs) under the auspices of the Nigerian Coalition for the International Criminal Court (NCICC) had earlier approached a Federal High Court in Abuja for an order compelling President Goodluck Jonathan to arrest Al-Bashir the minute he steps foot in the country and surrender him to the trial chamber of the ICC.
Also, a group, Socio-Economic Rights and Accountability Project (SERAP) called on the Federal Government to “immediately arrest” Al-Bashir. The organisation noted that:
Nigeria is a state party to the Rome Statute of the ICC, and as such, has international legal obligations to ensure that this country does not become a safe haven for alleged perpetrators of crimes under international law like Al-Bashir.
In a statement by its Executive Director, Adetokunbo Mumuni, the organisation stated:
The government risks sanctions by the UN Security Council if it fails to arrest President Al-Bashir and surrender him to the ICC at The Hague. President Jonathan now has a rare opportunity to assist the ICC and support the demand by the international community for justice for the victims of genocide and war crimes in Darfur. Ignoring the ICC’s arrest warrants will have huge legal ramifications for the country, and it is therefore in Nigeria’s national interest to act in this case, by arresting President Al-Bashir and surrendering him to the ICC to face fair trial for the allegations against him.
Other civil groups also condemned the Federal Government for the state reception accorded Al-Bashir in his arrival in Nigeria and called for his immediate arrest and surrender to the ICC.
At a press conference under the aegis of Nigerian Coalition for the International Criminal Court (NCICC), the Chair, Steering Committee, Chino Obiagwu, warned that:
Failure of Nigeria to do so will be a brazen disregard of its international treaty obligation under Article 89 of the Rome Statute of the ICC which it has ratified since 2001.
NCICC noted that “such failure also undermines the pursuit of international justice, peace and security which are the objectives of the ICC”, warning that:
it amounted to grave diplomatic blunder for the Jonathan administration to invite and give full ceremonial reception to a war crime indictee in disregard of millions of victims of Darfur atrocities and their families, some of them Nigerian citizens who are still crying for justice.
Nigeria as a state Party to the Rome Statute has obligation to arrest and surrender Al-Bashir to ICC. The AU decision not to cooperate with the ICC does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute. Obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC just as AU did, hence Nigeria should have chosen to co-operate with ICC that obeying AU Resolution on Al-Bashir.
One of the key issues to this debate is whether Al-Bashir can even be legally prosecuted considering historical deference to immunity under customary international law. In issuing the arrest warrant, Pre-Trial Chamber I expressed the view that Al-Bashir’s status as a sitting head of state does not grant him immunity before the ICC. However, the African Union has asserted that Al-Bashir is protected by immunity. The question is: what is the basis of Al-Bashir’s immunity and is it valid against the charge of genocide before the ICC?
However, Security Council Resolution 1593 alters the equation. Despite not being a party to the Rome Statute, Sudan became subject to ICC authority once the Security Council referred the matter to the ICC, stating that;
the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.
The ICC authority is governed by the terms of the Rome Statute; by referring the situation in Darfur to the ICC, the Security Council essentially made Sudan subject to prosecution under the terms of the Rome Statute for the Darfur conflict. As such, Al-Bashir’s immunity as head of state has been suspended.
The issue of immunity and Al-Bashir’s arrest is a far greater battle for the ICC to fight so long as Al-Bashir remains an incumbent President. Under Resolution 1593, Sudan has the obligation to “cooperate fully” with the ICC, meaning the government of Sudan should surrender Al-Bashir of its own accord. This is highly unlikely scenario considering Sudan still does not recognize ICC authority and would clearly be resistant to arresting its own head of state. Since the ICC lacks a related police force, the only other viable alternative is to rely on its member states to effectuate the arrest. Here, the immunities question begins anew because the question is no longer about immunity before an international tribunal but about immunity between states.
On the surface, Al-Bashir’s travel plans do not seem to have been hindered much by the arrest warrants issued by the ICC; since his indictment, he has made trips to Chad, Kenya, Zimbabwe, Ethiopia, and Qatar. The Chad trip stands as the most significant because it is the first time al-Bashir has visited a member state of the ICC. By not acting upon the arrest warrants during al-Bashir’s visit, Chad defied international law and its own treaty obligations via the Rome Statute. Yet Chad is not the only gracious host on the aforementioned list to violate international law by hosting a leader accused of genocide. Ethiopia and Zimbabwe are both parties to the Convention on the Prevention and Punishment of the Crime of Genocide, and state parties to the Genocide Convention have a legal obligation to implement the ICC arrest warrants.
As the situation stands with the Rome Statute and current customary international law, Al Bashir is immune from arrest by a foreign state so long as he is a sitting head of state. One factor that could possibly change this calculus is the Genocide Convention. This obligation stems from the holding in Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia v. Serbia), where the International Court of Justice held that states parties to the Genocide Convention have an obligation to take affirmative action to prevent and punish genocide. The ICJ analyzed Article VI of the Genocide Convention which provides:
Persons charged with genocide … shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Of note is the finding of the ICJ that prevention and punishment, while linked, are separate obligations. Thus, the responsibility of contracting parties to the Genocide Convention to implement the ICC arrest warrants, regardless of their membership status in the ICC, is tied to both their obligation to prevent genocide, as well as their obligation to punish. In other words, the Genocide Convention would overcome the customary international law obstacle that the Rome Statute alone could not. Thus, states who are parties to both the Genocide Convention and the Rome Statute would be obligated by Art. VI to arrest those accused of genocide by the Prosecutor such as Al-Bashir.
The position of AU requiring AU members not co-operate with ICC to arrest Al-Bashir is another critical issue. The AU has legal competence to require AU members to not cooperate with ICC under the Constitutive Act of the African Union. Article 9 (g) states:
The functions of the Assembly shall be to…give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace;
and Article 23(2) provides that “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions”.
However, for States Parties to the Rome Statute, the AU decision not to cooperate with the ICC does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute. Although Article 98 of the Rome Statute prevents the ICC from requesting assistance for arrest or surrender when it would require a state to act inconsistently with its obligations under international law, these obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC. Otherwise, any ICC request for cooperation can be sidestepped by artificially creating a new international obligation which is inconsistent with that request. It is an international law principle that emanated from the Nuremberg Trials after the Second World War that head of state immunity cannot be invoked to avoid prosecution for acts that are condemned as criminal by international law. This principle also finds expression in the Genocide Convention of 1948.
Thus, for States Parties to the Rome Statute, compliance with the AU decision constitutes a material breach of the Rome Statute, as it is only the Security Council that can defer the investigation or prosecution in accordance with Article 16 of the Rome Statute.
Moreover, the Vienna Convention on the Law of Treaties, 1969 (VCLT) prohibits compliance with the AU decision if it would be incompatible with compliance with the Rome Statute. Under Article 18, “State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound by the treaty.” ICC States Parties have consented to be bound by the Rome Statute. The object and purpose of the Rome Statute is “to put an end to impunity.” However, by complying with the AU decision and giving it priority, ICC States Parties are protecting rather than bringing Al-Bashir to justice. Thus, ICC States Parties that refuse to comply with the Rome Statute are thereby breaching their obligations under it.
Nigeria, by violating its obligation to multi-lateral treaties like the Rome Statute and the Genocide Convention with impunity, risks losing its chance of becoming a permanent member of the United Nations Security Council when the reform of democratisation eventually berths at the United Nations. If this happens as speculated by many human rights pundits, this will be too high a price to pay for our diplomatic delinquency.
Chukwuemeka Eze is the principal solicitor of Eze & Associates, based in Ikeja, Lagos.
