Paper Presentation by Olympia Bekou of the Human Rights…

  1. Modes of Liability(Sections 8, 9and Defences (Part III – Sections 17, 18, 19, 20)
  • Article 25 of the Rome Statute regime provides for individual criminal responsibility.
  • The Bill, by and large, incorporates the modes of liability listed in the Rome Statute. For example,Section 9 of the Nigerian Billcovers – among others – the modes of liability of attempt, ordering, soliciting, inciting, inducing, and aiding and abetting.
  • Further, although the Rome Statute does not provide for conspiracy as a mode of liability, the Bill criminalises conspiracy to commit any of the core crimes– not merely genocide. This is a wider provision than required by the Statute and, again, serves to strengthen the system by criminalising the commission of core crimes to the widest extent possible.
  • However, there is a spelling mistake in Section 17(4): The spelling ought to be amended from: «autrofois acquit, autrofois convict» to : « autrefois acquit, autrefois convict ».
  • As regards available defences, the Bill provides for the widest available number thereof. Each State has a policy decision to make as to the approach to defences.
  • From the perspective of the accused, it is most favourable to have recourse to all defences under both international law anddomestic law – as in the case of the Nigerian legislation. This is because the accused is on trial for the commission of an international crime, albeit that the trial, legislation and prosecuting authority are of a domestic nature.
  • However, the effect of incorporating defences at international law is that arguably all of the defences in the Rome Statute (namely, Sections 31, 32 and 33) will be available.
  • Nigeria is surely aware that – having made all the defences in the Rome Statute as well as those under domestic law available to an accused – its domestic courts must be able and prepared to address any conflicts inter se. Nigerian domestic courts may also be required to identify which defences are available generally under international law.
  • Finally to this end, the Nigerian Bill waives the defence of State or diplomatic immunity.
  • The Rome Statute – in article 27 – provides that a claim to immunity or official capacity shall not bar the Court from exercising its jurisdiction over the person making the claim.
  • The Nigerian Bill provides similarly in Section 20 of the 2012 Bill. However, it is notable that inSection 20, paragraph (2)the Attorney-General is afforded significant discretion as to whether Nigeria ought to waive the defence of State or diplomatic immunity.
  • This provision reflects Section 12 of the Australian national implementing legislation – the International Criminal Court Act 2002, as amended. Depending on its use, Nigeria may fall short of complying with the ICC regime in that respect.
  1. Offences against the Administration of Justice(Sections 10, 11, 12, 13, 14, 15, 16)
  • Sections 10 to 14 of the Billprovide for prosecution in Nigeria for those accused of committing several offences against the administration of justice, including bribery, the corruption of officials, and interference and intimidation of witnesses.
  • However, the meaning of Section 15 of the Bill, which states that “[a] person charged with an offence under this Act shall be tried on information”, is not immediately obvious to a lawyer not versed in Nigerian Law.
  • In sum, however, that the Nigerian legislation provides for prosecution for several of the offences against the administration of justice provided in the Rome Statute, and because there are no significant omissions to this end, the draft Bill is to be commended.
  1. Cooperation(Part V, Part VI – Sections 24-51, Sections 52-68, etc.)
  • Article 88 of the Rome Statute obliges State Parties to ensure that there are procedures available to enable them to cooperate with the ICC.
  • The ICC is dependent on State authorities for the arrest and surrender of persons. In the words of the late Antonio Cassese: “The Court is a giant without arms and legs. It needs artificial limbs to walk and work. And these artificial limbs are the State authorities”.
  • The Rome Statute therefore contains a detailed regime regulating the arrest and surrender of persons to the Court – indeed, this level of detail reflects the State-orientated nature of cooperation at the ICC.
  • To this end, the draft Bill provides for a comprehensive cooperation regime, addressing – among other aspects – assistance in locating and questioning persons, taking evidence, producing and serving documents, and facilitating the appearance of witnesses.
  • The Rome Statute regime is premised on the voluntary appearance of witnesses.
  • The Bill – in Section 29, paragraph (2), provides for the power to compel the appearance of witnesses – a power not given to the ICC under the Rome Statute.
  • However, compelling witnesses to testify is very common at the national level. Indeed, most States have this power under their respective domestic laws and procedures.
  • In principle, the Nigerian provision is not problematic. However, potentially, a witness may be compelled to go to The Hague (pursuant to Nigerian law) and ultimately refuse to testify before the ICC, pursuant to the Rome Statute provision. For proceedings before Nigerian courts, this simply would not arise. In sum, this provision does not need to be amended; however, its potential effects are nonetheless noteworthy.

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