Originally Published on Wednesday, 23 July 2014 

THE DOMESTIC IMPLEMENTATION OF INTERNATIONAL TREATIES IN NIGERIA: UNDERSTANDING THE ROLE OF THE NATIONAL ASSEMBLY IN THE IMPLEMENTATION OF THE INTERNATIONAL CRIMINAL COURT BILL

by

Chinedum Odenyi[1]

1.1 INTRODUCTION

The bill for an Act to provide for the enforcement and punishment of crimes against humanity, war crimes, genocides and related offences which, when passed by the Nigerian Legislature, would give effect to certain provisions of the Rome Statute of the International Criminal Court (ICC) in Nigeria was read in the Nigerian Senate on Wednesday, June 20, 2012 and in the House of Representatives on Tuesday, September 18, 2012. It would be the third time the Rome Statute would be introduced into the Nigerian Legislature for domestication since 1999, when democracy returned to Nigeria after a 16-year military rule hiatus. The first time in 2003, it did not move beyond the legislature. The second time, the bill was passed by both Chambers of the Legislature and presented in 2006 to President Olusegun Obasanjo who did not sign it before the expiration of his tenure in 2007 citing certain objectionable clauses[2]. By Nigerian Laws[3], the President of the Federal Republic must, within thirty days of a bill being presented to him, give his assent (signified through his signature) to any bill passed by the National Assembly for it to become an Act of the National Assembly; and where he does not sign the bill (which effectively is a veto) the National Assembly could pass the bill again by a 2/3 majority vote and the bill becomes law, all the same. Where the President did not sign and the National Assembly did not override the veto, the bill begins a new legislative journey when the next National Assembly is inaugurated. This was the fate of the 2006 bill that expired on President Obasanjo’s table.

This treatise will give a background to the International Treaty that gave rise to the bill, and attempt a synopsis of the journey of the Rome Statute through the Nigerian Legislature, the legislative process in Nigeria, the contents of the bill as it courses through the Legislature, an analysis of the place and fears of Africa in the international justice arena using the Rome Statute as case in point and what can be done to secure a speedy passage of the bill now lying in the Nigerian Legislature.

1.2 A BRIEF HISTORY OF THE ICC

The Rome Statute is the result of multiple attempts for the creation of an international tribunal conferred with supranational jurisdiction. The idea of a permanent global criminal court to prosecute genocide, crimes against humanity, war crimes and the crime of aggression was first given serious consideration in 1937 when the League of Nations produced a draft statute for a court to try international terrorists[4]. The Nuremberg and Tokyo trials which came on the heels of the Second World War (WW2) accentuated the need for a permanent international criminal court to try those crimes that dehumanize the world which national courts are unable or unwilling to prosecute. Although the post WW 2 tribunals have been criticised as “victors’ justice” because they were established by victorious allied powers of France, United Kingdom, United States of America and the USSR to try war criminals of the defeated nations of mainly Germany and Japan, they nonetheless pointed again to the need for a permanent court operating in conditions of peace to try crimes from theatres of conflicts that violate international law.

The ICC has been operational since mid-2003 following the entry into force of the Rome Statute of the International Criminal Court on July 1, 2002. The statute is one of the most complex international treaties being a combination of public International Law, International humanitarian law and criminal law[5]. It was adopted at a diplomatic Conference in Rome on 17^th July 1998. As at February 15, 2013, 121 States are State parties to the Statute including all of South America, almost all of Europe, and about half the Countries in Africa; Ivory Coast being the latest. Nigeria signed the Rome Statute on June 1, 2000 and ratified it on September 27, 2001. However, Nigeria has not incorporated it into its domestic laws as required under Section 12 of the Constitution of the Federal Republic of Nigeria which provides that the National Assembly must pass any International Treaty or Instrument entered into by Nigeria before the Treaty would have effect in Nigeria. The National Assembly needs to pass the bill into law (that is the practice of domestication of International Instruments) so that Nigeria can recognize and prosecute the Statute crimes namely: Genocide, war crimes, crime against humanity and the Crime of aggression as part of the organic laws of the Federation.

The atrocities of war and the horrors of its execution needed to have a global process of amelioration through the spectre of global imposition of responsibility on those who carry out heinous activities during any war or conflict. And as crimes against international law are committed by people, not by abstract entities[6], only by punishing the persons involved in committing such crimes would the provisions of international law be enforced.

The heinousness of the war in former Yugoslavia and the distressing brutalities of the tribal conflict in Rwanda in 1993 and 1994 respectively, consequent upon which separate criminal tribunals were established as ad-hoc arrangements to try persons involved in conflict atrocities, gave impetus to the need to establish a permanent Court. With the proliferation of conflicts and the need to punish brutalities perpetrated during conflicts, it was not possible to establish, for every theatre of war or conflict, International War Crimes Tribunals. Therefore, following a consideration of the Report of the International Law Commission on the draft Statute, the United Nations Diplomatic Conference of Plenipotentiaries finally approved, in July 1998, the establishment of the International Criminal Court. Its establishment offered the solution to the proliferation of International Criminal Courts[7]. The vote for its establishment was adopted by one hundred and twenty (120) countries in favour to Seven (7)[8] against whilst twenty one (21) nations abstained. Senegal was the first country to ratify it thereby bringing that honour of earnestness to curtail impunity during conflicts to Africa.

The benefits of an effective ICC, as we have seen from the trials of those who perpetrated war crimes in the former Yugoslavia, Rwanda, Liberia, Sierra Leone and other conflict regions of the world, are legion. It helps address the grave violations of human rights by checking impunity among war mongers. It does this by demanding accountability, during or long after the conflict has ended. This deters people from behaving with impunity during conflicts and secures some kind of elementary considerations of humanness in waging wars or conflicts thereby upholding a mandatory minimum conduct in armed conflicts of any kind. The searing practice of conscripting under-aged persons into militias to fight wars is one of the practices the Statute targets to tackle. It is complimentary arrangement as it provides alternative platform to deal with war crimes, crimes against humanity and genocide where national criminal justice mechanism is unwilling or unable to act. It also helps in apprehending those criminals who have found refuge in foreign countries. It therefore enthrones the principle of globalisation of criminal justice.