1.3 THE COMPLIMENTARITY PRINCIPLE OF THE ICC
The Rome Statute creates an obligation on the part of states to investigate and prosecute ‘core international crimes’ as state parties risk an intervention by the ICC if there is no investigation or prosecution. The ratification of the Rome Statute by about 121 states constitutes significant evidence of an acknowledgement of the duty to prosecute and punish these crimes. The Statute therefore depends on the principle of complimentarity.
Complimentarity is a necessity for the ICC to succeed in its mandate. The ICC operates on a minimal budget with a small staff who are usually involved in multiple conflict countries simultaneously. With limited resources to cover a global jurisdiction, the ICC relies on domestic states to investigate and prosecute their own cases. The ICC also has no police force of its own. Consequently, when the ICC does open investigations in a country, it depends on domestic governments to arrest suspects and protect the Court’s investigators. This poses significant challenges because the ICC must often cooperate with state officials who themselves, sometimes, are suspected of committing atrocities.The ICC’s reliance on state cooperation leaves it open to these sorts of domestic political machinations. The bill in progress in the Nigerian legislature provides in many clauses co-operation between the Court and Nigeria.
1.4 ACTIVATING THE JURISDICTION OF THE COURT UNDER THE BILL
The jurisdiction of the Court could be invoked when an act constituting an offence under the Statute is alleged to have been committed after the date the Act comes into effect.
There are three ways the Court’s jurisdiction may be activated, vis-à-vis the offences covered in the Statute as captured in the Nigerian bill. One, a state party may refer such a crime to the Court. Secondly, the Security Council of the United Nations may refer such a crime to the Prosecutor relying on Chapter VII of the UN Charter; and thirdly the Prosecutor may initiate investigations in respect of such crime, suo motu.
The Court may request the Attorney General for assistance in respect of an investigation or prosecution being carried on or proposed to be carried on by the Prosecutor in respect of an offence within the jurisdiction of the court relating to the arrest or surrender of a person for trial or to serve a sentence where conviction has taken place; for the identification and location of a person or thing; for the taking of evidence, including testimony under oath, and the production of evidence; or for the questioning of a person or the service of documents. The Court may also request for assistance from Nigeria to facilitate the voluntary appearance of persons as witnesses or as experts; the temporary transfer of prisoners; the examination of places or the exhumation of corpses; the execution of searches and seizures; the provision of records and documents; the protection of victims and witnesses; the identification, tracing or seizure of the proceeds of a crime within the jurisdiction of the court (the rights of bona fide third parties exempted) and for any other assistance not prohibited by the law of Nigeria.
1.5 AFRICA AND INTERNATIONAL JUSTICE
There has been a barrage of criticisms of the Rome Statute especially as regards Africa with many seeing it as representing a neo-colonialist intervention in the affairs of African states. It does seem as if African personalities are mainly targeted by the Court giving that since its establishment, mainly African persons have been indicted and warrants issued against them by the Court. Currently, there are five situations before the ICC and all of them are from Africa.
The warrant of arrest issued by the Court for the arrest of Sudanese President Omar al-Bashir was the biggest manifestation of the fears of those who say it is a neo-colonialist weapon. The argument is that the ICC’s actions do not countenance the peculiarity of African conflicts, that they complicate peace processes and that they further contravene the principles of national sovereignty and sovereign immunity. According to this point of view, al-Bashir had been forced to employ the services of the Janjaweed militia in the early stages of the rebellion in Darfur in 2003 because he did not have the military capacity to deal with the rebellion that was started by the Justice for Equality Movement (JEM), and it is therefore argued that it would be unfair for the world to ask al-Bashir to disown the Janjaweed after they helped save Sudan from disintegration. The argument further states that the charges against al-Bashir were mainly because he refused to hand over the Janjaweed to the ICC and that in the absence of any evidence that al-Bashir gave the Militia the blanket authority for rogue behaviour, it would be unfair to indict him.
The decision by African leaders to rally behind the Sudanese President, it has been counter-argued, was proof that the African leaders were reneging on their promise to embrace good governance and accountability as part of the African Renaissance. This argument moves further that nearly half of Africa has ratified the Treaty voluntarily and three countries, Uganda, The Central Africa Republic and the Democratic Republic of the Congo have invited the Court to investigate, for purposes of invoking its jurisdiction, their conflict situations. And although there seems to be a perception of concentration of the Courts searchlights on Africa, it is undeniable that African national courts have been unwilling or in some cases, unable to bring the perpetrators of conflict atrocities to justice. It is inconceivable that any Sudanese Court would try al-Bashir for crimes against humanity just as Kenyan Courts have been unable to try Uhuru Kenyatta, former Deputy Prime Minister and now the President of Kenya who had been indicted following the crises that trailed the 2007 Kenyan general elections.
The Dakar Declaration of 1998 saw African nations examining factors militating against the development of Africa and promising a new beginning where the policy of non-interference in internal affairs of member countries was replaced with the concept of accountability under peer supervision. African Leaders also advocated for a court that could deter and punish genocide and crimes against humanity since these are the major human tragedies and obstacles to the economic and social development of Africa. The rampancy and the grievous activities of actors in African conflicts need to be checked for Africa to grow. Africa’s cooperation with the ICC, it is therefore argued, in the short and long run, helps Africa develop.
The danger really is that African leaders may use the ICC to target their political opponents while protecting themselves from prosecution. Certainly the ICC’s pursuit of the Lord’s Resistance Army (LRA) in northern Uganda has greatly benefited President Yoweri Museveni, who has been locked in a 25-year civil war with the rebel force led by the brigand Joseph Kony. Likewise, President Joseph Kabila has gained from the ICC’s prosecution of Jean-Pierre Bemba, his main opponent at the last Congolese presidential elections. The former Prime Minister of Kenya Raila Odinga tried to make political capital out of the ICC’s citing of Kenyatta in the 2012 Presidential contest between the two which Kenyatta won.
1.6 OVERVIEW OF THE INTERNATIONAL CRIMES BILL
The purport of the bill, in the main, is to provide measures under Nigerian law for the enforcement and punishment of crimes against humanity, war crimes, genocide and related offences. The bill seeks to do this by giving effect to the Rome Statute of the International Criminal Court which will enable Nigeria to cooperate with the International Criminal Court in the performance of its functions. Generally, the bill will help in the fight against impunity in Nigeria by demanding that those who are principally responsible for grave violations of human rights and humanitarian laws are investigated and prosecuted, and where applicable, at the ICC.
The bill makes it clear that it is not all provisions of the Rome Statute that shall apply to Nigeria. Specifically, it provides in Section 2 those provisions that shall have the force of law in Nigeria when the bill is passed to include those provisions in relation to making requests to Nigeria by the ICC for assistance and the method of dealing with those requests; the conduct of investigation by the Prosecutor of the Criminal Court; the means of bringing and the determination of proceedings before the Criminal Court; the enforcement of sentences of imprisonment or other measures or related matters imposed by the Criminal Court and how Nigeria can make requests to the Court for assistance and the method of dealing with those requests. Consequently, the relevant provisions of the Rome Statute that may be enforced in Nigeria when the bill becomes law are: Part 2 on jurisdiction, admissibility and applicable law; Part 3 on the general principles of criminal law; Articles 51 and 52 on the rules of procedure, evidence and Regulations of the Court respectively; Part 5 on the investigation and prosecution of crimes within the jurisdiction of the court; Part 6 on the conduct of trials; Part 7 on penalties; Part 8 on appeals and revision of acquittals, convictions or sentences; Part 9 on International co-operation and judicial assistance; and Part 10 on the enforcement of sentences and other measures imposed by the Court. The Attorney General of the Federation has the responsibility, on behalf of the Government of Nigeria, to exercise any power, duty, or function imposed by a provision of the Rome Statute, Rules of Evidence or to perform or cause to be performed any such function assigned to a State Party, such as Nigeria, and his consent is required for prosecutions although his consent is not a pre-condition for the arrest of a suspect in Nigeria.
The bill classifies the crimes under International crimes and offences, and they include genocide, crimes against humanity or war crimes. Conspiring within or outside Nigeria to commit any of the offences in Nigeria, or to pervert the course of justice, aiding and abetting, including counselling or procuring, or being an accessory after the fact in relation to the offence, giving false or fabricated evidence, bribing or corrupting the Judge; or where the Judge or court official accept such offers, or interference with witnesses are all offences under the bill.
A person that may be charged with any of the said offences may rely on a defence or justification available to him under Nigerian law (Section 17 (1)), but where a provision of the law is Nigeria conflicts with a provision of international law, then in the finest principles of customary international law, the provision of the international law shall prevail (S.17 (2)). The bill states specifically that this provision, however, is without prejudice to Section 308 of the Nigerian Constitution which confers state immunity to certain categories of political office holders, like the President, the Vice-President, Governors of the 36 States that make up the Federation of Nigeria and their deputies.
It shall not be a defence for an accused to plead that the act constituting the offence was committed in obedience to, or in conformity with, the law in force at the time in the place where the offence was committed (S. 17(3)), or as established during the Nuremberg trials in the wake of WW 2, that the accused committed the act in obedience to a government or superior order, whether military or civilian, and every commander shall be responsible for any offence committed by forces effectively under his control.