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Tag: ICC

  • AU stops Kenyan president from attending trial

    AU stops Kenyan president from attending trial

    African leaders agreed on Saturday that Kenyan President Uhuru Kenyatta should not attend trial at the International Criminal Court if the United Nations Security Council did not agree to delay the proceedings, Ethiopia’s foreign minister said.

    Tedros Adhanom said the African Union would request the trial be deferred under article 16 of the court’s Rome Statute that allows a delay of a year subject to renewal and would request a postponement if that demand was not agreed.

    “If that is not met what the summit decided is that President Kenyatta should not appear until the request we have made is actually answered,” Reuters quoted Tedros as saying to journalists on Saturday.

     

  • Prove your impartiality to Africans, Jonathan tells ICC

    *Seeks reforms in ICC for equity, fairness

    *Wants ICC to recognize customary international law, conventions, norms

    President Goodluck Jonathan has  declared that the International Criminal Court (ICC) is yet to prove to the whole world that it is not biased against African leaders.

    He made this remark while speaking at Extraordinary Session of African Union (AU) Heads of State and Government in Addis Ababa, Ethiopia, on the subject of Africa’s relationship with the International Criminal Court.

    Even as its work is useful to achieving a world without crimes against humanity, genocide and other acts of impunity, he said that ICC should take concrete steps to prove that it is not biased against African leaders as being alleged in some quarters.

    Pointing out the cases involving Presidents of Sudan, Kenya and his deputy, he said that ICC seemed to be devoting unusual energy on African cases than other continents.

    He said: “It is also the reason why the refusal of the International Criminal Court to accede to the requests by our member-states for the deferral of the cases involving the President of Sudan, and now, the President and Deputy President of Kenya has left many of us in the African continent disappointed.”

    “Many are concerned that the African Union’s principled position that African leaders should not be targeted by the ICC has been ignored, and that the ICC, despite its universal jurisdiction, seems to be devoting unusual energy and enthusiasm to the prosecution of cases from Africa, compared to cases from other parts of the world.”

    “If the Court is concerned about this implied allegation of bias; it has not, in our opinion, taken enough pro-active steps to address it and allay the fears of concerned stakeholders. We think it should.”

    Urging African leaders not to lose sight of the legal identity of AU, he charged the 34 African countries who are signatories to the States Parties of the Rome Statute, to mobilize requisite support to achieve reforms in the shortest time possible.

    Jonathan said: “It will also be useful to point out the limitations of the Rome Statute, in order to strengthen the ICC and reposition it for greater fairness and equity in the discharge of its noble responsibilities. This Assembly should urgently call its members in the Assembly of States Party of the Statute, to mobilize requisite support to achieve reforms in the shortest time possible.”

    Noting that certain Articles of the Rome Statute are not in the interest of Africa, he said: “In particular, Article 27 which denies immunity to all persons without regard to customary international law, conventions and established norms, must be amended.”

    “Similarly, Articles 63 and 98 need close scrutiny and review. There is also the need to align Articles 27 and 98 with a view to bringing them in conformity with the tenets of customary international law, conventions and norms.” He said

    On the need to speak with one voice on Kenya, he said: “Given that not all members of the Assembly are signatories to it, it is important that we balance our interests in a manner that enables signatory and non-signatory members of our Union to express solidarity with one another on matters arising from their obligations. In this regard, it is important that we maintain our unity and speak with one voice on Kenya.”

    He said that five years after the post-election violence of 2007 in Kenya, the people have proven to the world that they are capable of expressing their sovereign wishes in a free, fair and credible manner in accordance with democratic norms and values.

    “This is a clear demonstration to the world that the people of Kenya are in the best position to determine their own future and deal with their past.” He stated

    To accelerate the process of national healing in Kenya, Jonathan also urge the Kenyan Parliament to hasten its consideration of the Report of the Truth, Justice and Reconciliation Commission to facilitate the implementation of its recommendations.

    “What remains is for the international community, in particular, the ICC, to give the elected leaders of Kenya the space to discharge their mandate in meeting the aspirations and needs of their people.” Jonathan said

  • ICC wants quick resumption of Kenyan leader’s trial

    ICC wants quick resumption of Kenyan leader’s trial

    Judges at the International Criminal Court on Friday rejected a bid by Kenyan deputy president, William Ruto, to have his trial adjourned until mid-October to allow him to deal with the aftermath of the attack on a Nairobi shopping mall.

    The judges said the trial for crimes against humanity must resume on Wednesday, allowing Ruto to attend a memorial service the day before for the 72 people who died in the four-day assault, claimed by Somali Islamist militant group al Shabaab.

    “The service is an important event in Kenya’s national healing,” said Judge Chile Eboe-Osuji, presiding.

    Reuters reports that hearings have been suspended since Ruto asked last Sunday for an adjournment to allow him to return home at the height of the hostage drama at the Westgate mall.

    At the hearing on Friday, his lawyers said he would need to stay longer to deal with a series of high-level meetings relating to the attack.

    Ruto and his boss, President Uhuru Kenyatta, face charges of crimes against humanity related to the violence that followed Kenya’s 2007 elections, in which 1,200 people died. Both have voluntarily complied with all the court’s summonses.

    But since they were elected to their posts earlier this year, both men have asked judges for more leeway in attending court hearings, saying their presence is needed in Kenya.

    If one is in court, the other must be at home, they say, meaning they cannot represent the country properly at international summits.

    The court has not yet given a final ruling on whether the two men can be excused from most hearings.

     

  • African leaders to hold summit on Kenya’s ICC cases

    African leaders to hold summit on Kenya’s ICC cases

    African leaders will meet in the Ethiopian capital on October 13 to take a position on whether to join Kenya’s planned pull-out from the International Criminal Court (ICC) over the prosecution of its leaders, officials said on Thursday.

    Reuters says so far there seems not to be much support for it.

    However, Heads of State from the 54-member Africa Union may still discuss the possibility of a pullout by the 34 African signatories to the Rome Statute that created the tribunal.

    Last week’s start of the trial of the Kenyan Deputy President, William Ruto, for crimes against humanity, with President Uhuru Kenyatta’s trial due in November, has fuelled a growing backlash against the Hague-based court from some African governments, which sees it as a tool of Western powers.

    “The Kenyans have been criss-crossing Africa in search of support for their cause, even before their parliament voted to withdraw from the ICC,” an AU official said.

    “An extraordinary summit will now take place to discuss the issue. A complete walk-out of signatories to the Rome Statute is certainly a possibility, but other requests maybe made.”

    The summit would be preceded by a meeting of African foreign ministers a day earlier, he said.

    The Kenya’s Spokesman for the Presidency, Mr. Manoah Esipisu, said the country had not canvassed for the summit, but “welcomed the opportunity by African leaders to discuss what is obviously an important matter for the continent.”

    ICC prosecutors had accused Kenyatta and Ruto, alongside radio journalist, Joshua Arap Sang, of fomenting ethnic violence that killed about 1,200 people after a disputed election in December 2007.

    The three suspects denied the charges.

     

     

  • Kenya’s deputy president goes on trial at ICC

    Kenya’s deputy president goes on trial at ICC

    Kenya’s deputy president appeared before the International Criminal Court on Tuesday charged with co-orchestrating a post-election bloodbath five years ago, a case that will test the stability of a country seen as vital to security in East Africa, Reuters reports.

    The trials of William Ruto and that of Kenyan President Uhuru Kenyatta, which will start in November, have split public opinion, and witness testimonies of the violence in 2007-08 that killed more than a thousand people could stir tension.

    The cases are also a major test for prosecutors at the decade-old Hague-based ICC, who have had a low success rate and face accusations of focusing on African countries, while avoiding war crimes in other global hotspots.

    Kenyatta, Ruto’s former rival who became a political ally, faces similar charges of crimes against humanity.

    Rival members of Kenyatta’s Kikuyu and Ruto’s Kalenjin tribes, wielding machetes, knives, and bows and arrows, went on the rampage after a disputed 2007 election, butchering more than 1,200 people and driving hundreds of thousands from their homes.

    This year, Kenyatta and Ruto joined forces for another election, which was comparatively peaceful. Their joint Jubilee Alliance ticket was elected in March after a campaign in which the ICC charges against the two men played a central role.

    Western leaders, who see a stable Kenya as central to the fight against militant Islam, have already found their ties with east Africa’s biggest economy complicated by the charges.

    Ruto, who is voluntarily obeying a summons to attend sessions, is expected to enter a plea of “not guilty” on Tuesday in court. He appeared in The Hague wearing a grey suit, accompanied by several supporters.

     

  • Will ICC get Boko Haram

    Will ICC get Boko Haram

    The issue
    The administration of President Goodluck Jonathan took a major
    decision last week. It opted to support the probe of the Islamic sect, Boko Haram, by the International Criminal Court (ICC) at The Hague.
    The ICC observed that the sect, in the last three years, has been committing crimes against humanity for which its identified leaders are expected to stand trial.
    ICC prosecutor Fatou Bensouda said information at the court’s disposal showed that there were reasonable grounds to believe that since July 2009, the sect has launched coordinated attacks against undefended and innocent Nigerians in the North. It is believed that if the ICC succeeds in its plan, any identified leaders of the sect will receive summons and if arrested, will face trial before the court at The Hague.
    Media reports quoted Presidency sources as saying that the decision to accept a probe of Boko Haram activities is without prejudice to the ongoing dialogue with the sect. Last April, the government  inaugurated  a committee on Dialogue and Peaceful Resolution of Security Challenges in the North to engage key leaders of the group in a dialogue. The committee is chaired by the Minister of Special Duties, Mr Kabiru Tanimu Turaki (SAN). Others on the committee are Sheik Ahmed Lemu, Dr. Hakeem Baba Ahmed, Col. Musa (rtd.), Sheik Abubakar Tureta,  Dr Datti Ahmed, Senator Sodangi Abubakar, Senator Ahmed Makarfi, Hon. Mohammed Bello Matawalle, Ambassador Z Ibrahim, Comrade Shehu Sani, Hajiya Naja’atu Mohammed, Malam Adamu S. Ladan, Dr. Joseph Golwa, Air Vice Marshal  A. I. Shehu, Mr. R. I. Nkemdirim, Deputy Inspector-General of Police (DIG) Philemon  Leha, Prof. Nur Alkali, Malam Salihu Abubakar, Alhaji Abubakar Sani Lugga, Mr Ibrahim Tahir, Brig-Gen. Ibrahim Sabo, Ambassador Baba Ahmed Jidda, Group Capt. Bilal Bulama (rtd), Prof. Bolaji Akinyemi, and a representative of the Office of the Secretary to Government of the Federation who will serve as secretary.
    The committee was charged to: “develop a framework for the granting of amnesty; setting up of a framework through which disarmament could take place within a 60-day time frame; the development of a comprehensive victims’ support programme, and the development of mechanisms to address the underlying causes of insurgencies that will help to prevent future occurrences”.
    Special adviser to the President on Media and Publicity Dr Reuben Abati had said the setting up of the committee was sequel to the recommendation of a committee within the National Security Council set up by the president on April 4, 2013, when he held a meeting with security chiefs.
    Though the 60-day time frame given the committee to secure a ceasefire has since elapsed, there is nothing to indicate that a truce is in the offing or will be signed. Neither is there anything to indicate that  all the factions of the Boko Haram sect have agreed to amnesty, or that  amnesty will lead to ceasefire.
    While the government of Nigeria is bogged down with how to find a lasting solution to the insurgence, the ICC on its part, has since 2012 opened preliminary investigations into the activities of Boko Haram, having found out that there was a “reasonable basis” to believe that the sect had committed crimes against humanity. The ICC  cited the killings of  over 1,200 Christian and Muslim civilians and attacks on churches, the cold murder of  civilians and suicide bombings carried out against security forces, newspapers, a UN office, markets and schools  in Borno, Yobe, Katsina, Kaduna, Bauchi, Gombe and Kano states in the north as well as Abuja, Kaduna and Plateau states in central Nigeria to justify why a probe has become inevitable if an end must be found to the activities of the sect in the country.
    Though, Nigeria in the past, has had to contend with security challenges, the activities of the Islamist sect has remain a source of worry to the government. The sect had claimed  responsibility for several bombings and other activities in the northern Nigeria and this appeared to be setting the country on the path of disintegration, without the government exhibiting any capacity to tame the monster that is called Boko Haram nor determine the actual causes of the Boko Haram.
    There is no disputing the fact that for Nigeria to build a decent society with decent human beings, everybody must support the need to maintain law and order. There is therefore a compelling reason for government to bring the insurgence under control as no government would fold  its hands and allow such nefarious acts to turn the country upside down. This is why most Nigerians supported the decision of the government deploying troops to Maiduguri and other known towns where the activities of the sect is prevalent to quell the activities of the sect. It also explained why the decision of the ICC to probe the activities of the sect is a welcome relief to many Nigerians, particularly the civil societies that have been calling for the court’s intervention in the situation in the country.
    About the ICC                                                                                                                                                                                              The ICC is an international  court established under the Roman Statute that was adopted  on July, 17, 1998. Nigeria became a State Party to the Rome Statute of ICC when it ratified the Treaty on 27 September, 2001. The treaty finally came into force on July 1, 2002,  with powers to exercise  its jurisdiction over persons for the “most serious crimes of international concern”. Nigeria is a signatory to the Roman statute which established the court.
    The court operates on the principle of complementarity and as court of last resort; it carries out investigation and prosecution only where national courts have failed. Article 17 of the Statute provides for situations when a case will become inadmissible and these include where the case is being investigated by a State which has jurisdiction over it, unless the State is unwilling or unable to carry out investigation or prosecution; or that the case has been investigated by a State which has jurisdiction over it and the State decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.
    Article  5(1) of the Rome Statute, provides that the jurisdiction of the I.C.C. shall be limited to the most serious crimes of concern to  the international community as a whole  The court has jurisdiction with respect to  the following crimes:  The crime of genocide, crimes against humanity, war crimes and the crimes of aggression.

    Article 5 (2)  provides that the court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with Article 121 and 123 of the Statute defining the crime and setting out the conditions under which the court shall exercise jurisdiction with respect to the crime and that such a provision shall  be consistent with the relevant Charters of the United Nations.
    Article 7 (1) of the Statute of the I.C.C  states that:  “crime  against humanity” means any of the following acts when committed  as part of a wide spread or systematic attack directed against any civilian population, with knowledge of the attack: murder, extermination, enslavement, deportation or forcible transfer of population.

    ICC in other climes
    There are a lot of people and former presidents of countries that the ICC has investigated and successfully tried and the list is legendary. To date, the Prosecutor has opened investigations into eight situations in Africa: the Democratic Republic of the Congo: Uganda; the Central African Republic; Dafur, Sudan; the Republic of Kenya; the Libyan Arab Jamahiriya; the Republic of Côte d’Ivoire and Mali. Of these eight, four were referred to the Court by the concerned states parties themselves (Uganda, Democratic Republic of the Congo, Central African Republic and Mali), two were referred by the United Nations Security Council (Darfur and Libya) and two were begun proprio motu by the Prosecutor (Kenya and Côte d’Ivoire). Additionally, by Power of Attorney from the Union of Comoros; a law firm referred the situation on the Comorian-flagged MV Mavi Marmara vessel to the Court, prompting the Prosecutor to initiate a preliminary examination.
    In addition, the ICC has publicly indicted 30 people, while proceedings against 23 are ongoing. The ICC has issued arrest warrants for 21 individuals and summonses to nine others. Five individuals are in custody; one of them has been found guilty and sentenced (with an appeal lodged), three are being tried and one’s confirmation of charges hearing has yet to begin. One individual has been acquitted and released (with an appeal lodged). Nine individuals remain at large as fugitives (although one is reported to have died). Additionally, three individuals have been arrested by national authorities, but have not yet been transferred to the Court. Proceedings against seven individuals have finished following the death of two, the dismissal of charges against another four and the withdrawal of charges against one.         Notable among those tried and convicted by the court for war crimes and for crime against humanity is the former war lord and president of Liberia, Mr. Charles Taylor.  The former Liberian president Charles Taylor was sentenced to 50 years in prison for aiding and abetting war crimes in neighbouring Sierra Leone.
    The most prominent figure being tried at the moment by the court is former Coate de Voir  President, Laurent Gbagbo on four counts of crimes against humanity.
    The ICC has issued an arrest warrant against another head of state, Omar al-Bashir, the president of Sudan. He is accused of war crimes, crimes against humanity and genocide committed in Darfur. There is also a warrant for the arrest of Saif al-Islam, son of former Libyan dictator Moammar Gadhafi, for alleged crimes against humanity. In 2005, a warrant was issued for Joseph Kony, head of the Lord’s Resistance Army in Uganda. He is accused of a pattern of “brutalization against civilians” among others.
    What lawyers are saying

    Lawyers who spoke on the probe of Boko Haram activities by the ICC include, Chief Felix Fagbohungbe (SAN), Chukwuemeka Eze and Ikechukwu Ikeji, all Lagos-based legal practitioners. They all offered insights into the operations of the ICC agreed that the court has jurisdiction to intervene in the ongoing onslaught by boko haram on innocent Nigerian citizens going by the provisions of Articles 5, 6, and 7 of the Rome Statute of 1998.
    Chief Fagbohungbe  said that since Nigeria is a signatory to the Roman statute, there is nothing wrong or illegal with the decision of the ICC coming to probe the activities of Boko Haram. “I think they should be given unhindered access to go about their investigation successfully. They are not going to be meeting with individuals other than security agencies and the civil societies and collate their report from information obtained from them. He however advised that nothing should be done to hinder their operations”, he said.
    Chukwuemeka Eze observed that from the statement issued by the Prosecutor, it is evident that the Prosecutor has collected sufficient evidence in the trouble spots of Northern Nigeria before coming to a conclusion that crimes against humanity have been committed. What remains for the Prosecutor to

  • Falana urges ICC to probe killing of Egypt protesters

    ACTIVISTS lawyer Mr Femi Falana (SAN) has asked the Interna-tional Criminal Court (ICC) to institute an inquest into the killings of  Pro-Morsi protesters in Egypt.

    His request is contained in a letter titled, Request For Inquiry into the brutal killings of Pro-Morsi Protesters in Egypt addressed to the Special Prosecutor, ICC, Ms Fatou Bensouda.

    The activist pointed out that unless the ICC  acceded to his request, without further  delay, the illegal and on-going  killings will continue unabated in Egypt.

    He suggested that in the interim, the prosecutor  may  apply to the ICC to issue a warrant for the arrest of General Abdel Fattah al-Sisi for crimes against humanity.

    “Since the Egyptian military authorities sacked the democratically elected government headed by  President Mohammed Morsi on July 3, 2013 there has been a crackdown on unarmed demonstrators in several parts of  Egypt. In particuar, genocidal attacks have been targetted at the members and supporters of the Muslim Brotherhood who have been demanding for the reinstatement of the dissolved democratic structures. In the process, scores of unarmed  protesters have been killed by the Egyptian security forces.

    “As the protests have not stopped in spite of the killings, the head of the armed forces, General Abdel Fattah al-Sisi has been inciting the  supporters  of the military backed Interim Government to stage counter-protests which have since led to further bloodshed and killings”, he said.

    The activist stated further that “on Saturday, July 27, 2013 the pro-military protesters who staged their protests in Cairo were protected  by the security forces while  the pro-Morsi demonstrators at Nasr City were violently attacked by soldiers.

    At the end of the unprovoked attacks the soldiers killed  120 people  and injured about 1,500 others.

    “The government of the United States which funds the Egyptian armed forces to the tune of $1.3 billion per annum has merely expressed “concern” over the killings.

    Falana noted that though Egypt which signed the Rome Statute on December 26, 2000  has not ratified  it, the law of treaties require states which have signed the Statute  to refrain from acts which would defeat its object and purpose until they declare that they do not intend to become parties to the Statute. Egypt has not made any declaration not to be a party to the Rome Statute.

    “In the light of the foregoing I am compelled to request you to use your offices to conduct an inquiry into the genocidal attacks and illegal killing of  members of the Muslim Brotherhood  by the Egyptian security forces contrary to Article 6 of the Rome Statute”, he said.

  • ‘Nigeria’s obligation under the Rome Statute’

    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.

     

  • Nigeria wants U.S, others to join ICC

    Nigeria wants U.S, others to join ICC

    Foreign Affairs Minister, Olugbenga Ashiru, on Friday in Abuja called on more countries, including the United States to accede to the Rome Statute, which established the International Criminal Court (ICC).

    Ashiru made the call at a briefing session for members of the diplomatic corps in Nigeria.

    The News Agency of Nigeria reports that the minister briefed the diplomatic community on the recent visit of President Omar Al-Bashir of Sudan to Abuja for an African Union special summit, among other issues.

    He defended Nigeria’s decision not to arrest Al-Bashir, who is under an ICC arrest warrant for alleged crimes against humanity.

    On ICC membership, Ashiru said, “Nigeria became a State Party to the Rome Statute out of its own independent and sovereign decision to demonstrate our total revulsion against impunity, war crimes and crimes against humanity.

    “Nigeria will, therefore, not take any action to undermine respect for the rule of law and international criminal justice system.

    “To ensure the effectiveness of the court, it is essential that more countries accede to the Rome Statute.

    “I, therefore, call on all states who are not yet parties to join in the overall interest of international justice, peace and security.”

    NAN reports that currently, 122 states are parties to the Statute of the Court, including half of the 54 countries in Africa.

    The membership of the ICC includes all countries in South America, nearly all of Europe and most of Oceania.

    A further 31 countries, including Russia, have also signed but have not ratified the Rome Statute.

     

     

  • Al-Bashir: ICC writes Nigeria

    Al-Bashir: ICC writes Nigeria

    …Seeks respect for Rome Statute 

    President, Assembly of States Parties to the International Criminal Court (ICC), Ms Tina Intelmann, has called on the Nigerian Government to respect and fully comply with its Rome Statute obligations.

    This is contained in a statement issued on Tuesday by the court, following the inability of Nigeria to execute an arrest warrant on Sudan’s President Omar Al-Bashir, who visited Abuja from July 14 to July 16.

    Al-Bashir, who was indicted by the ICC for alleged war crimes in Darfur, reportedly left Abuja on Tuesday morning after attending the Abuja + 12 AU Summit on HIV and AIDS.

    The News Agency of Nigeria reports that he was accused of allegedly masterminding genocide and other atrocities during the Sudan’s Darfur conflict, charges which he has repeatedly denied.

    In her letter to the Foreign Minister of Nigeria, Mr. Olugbenga Ashiru, the ICC president reminded Nigeria of its commitment as a State Party to the Rome Statute, to cooperate with the court.

    “The Assembly had repeatedly expressed concerns regarding the negative consequences that failure to comply with decisions of the court had on the court’s capability to carry out its mandate.’’

    The ICC president deplored the visits of persons subject to arrest warrants of the court to any State Party.

    Intelmann appealed to State Parties and other stakeholders to join efforts to prevent instances of non-cooperation.