PAPER PRESENTATION BY OLYMPIA BEKOU OF THE HUMAN RIGHTS CENTRE NOTTINGHAM UNIVERSITY, UNITED KINGDOM

PAPER PRESENTATION BY OLYMPIA BEKOU OF THE HUMAN RIGHTS CENTRE NOTTINGHAM UNIVERSITY, UNITED KINGDOM

General Introduction

· The 2012 Crimes against Humanity, War Crimes, Genocide and Related Offences Bill is a comprehensive piece of implementing legislation. It covers both crimes and cooperation and, as such, seeks to cover all parts of the Statute for the International Criminal Court.

· The Bill is modelled heavily on the 2011 Commonwealth Model Law, an advisory document produced by the Commonwealth Secretariat, to facilitate implementation of the Rome Statute into national law.

· The Model Law, now in in its second edition – which takes into account the experience since the coming into force of the Statute – is intended to be advisory and used as a guide.

· The way in which the Bill deals with the following issues will now be addressed in turn: a. core crimes, b. jurisdiction, c. modes of liability and defences, d. offences against the administration of justice, and e. the ICC cooperation regime.

a. Crimes (Part II – Sections 4, 5, 6)

· The Bill thoroughly incorporates the three core crimes under the Rome Statute: namely, the crime of genocide, crimes against humanity, and war crimes.

· The fourth core crime, the crime of aggression, which was adopted at the Kampala Review Conference, is not yet part of the ICC Statute, as the amendment requires 30 States to ratify it. The earliest the ICC could exercise jurisdiction over aggression is 2017. It is therefore understandable that the crime of aggression does not feature in the Bill.

· However, Nigeria is encouraged to ratify the Kampala aggression amendments, following which it must be prepared to discuss its position on aggression and determine whether such a crime would eventually need to be incorporated into its national law when the ICC is able to exercise jurisdiction over the crime.

· In incorporating the core crimes, the Bill is modelled closely on the wording of the Rome Statute and, where necessary in order to provide further detail, the Elements of Crimes. For example, use of the Elements of Crimes to better define the crimes against humanity of – among others – apartheid, extermination, and enslavement – is to be commended.

· Moreover, the Bill does not merely reproduce the wording of the Statute and Elements of Crimes. For example, by noting that the crime against humanity of enslavement applies to “in particular women and children” – is indicative of the adaptation of the crime to fit the Nigerian context taking into account the current challenges faced by Nigeria.

· Consequently, the 2012 Bill does not have any significant omissions as regards the implementation of the core crimes into Nigerian national law. In contrast, it thoroughly incorporates each of the crimes under the Rome Statute, but for the crime of aggression.

b. Jurisdiction (Part IV – Sections 21, 22, 23)

· When discussing jurisdiction, issues of temporal jurisdiction need to be considered. Of course, in order to protect the rights of the accused, the nullum crimen nulla poena praevia principle needs to be taken into consideration.

· Section 21 of the Bill stipulates that applicability of this Act is prospective from the day it will come into force. A number of States have in their domestic legislation allowed for retrospective jurisdiction, to the day that particular state joined the Statute, or to the 1st of July 2002, when the ICC came into existence.

· With regard to jurisdiction allocated to the national courts, The Nigerian Bill provides for universal jurisdiction for each of the core crimes. Indeed, Sections 4(1), 5(1), and 6(1) of the Bill begin similarly: “A person who, in Nigeria or elsewhere […]”.

· The ICC has been criticised on the basis that it was not granted universal jurisdiction, that is, namely, jurisdiction over an international crime notwithstanding any other recognised jurisdictional link to a State party to the Rome Statute than perhaps presence (or custody). This is not necessarily a bad thing. However, when it comes to the domestic exercise of jurisdiction, as State needs to consider which jurisdictional principles apply.

· Part IV of the Bill allow for the exercise of universal jurisdiction by Nigeria. This goes beyond the traditional grounds for jurisdiction, such as territoriality or nationality and is wider than the Statute. The provision of universal jurisdiction at the national level, when exercised, ensures that there are no safe havens for serious international criminals.

· In sum, therefore, the jurisdictional regime in the Nigerian Bill is universal and thorough. Similar to the provisions on the core crimes, there are no significant omissions.

c. Modes of Liability (Sections 8, 9) and 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 Bill covers – 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 and domestic 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 in Section 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.

d. Offences against the Administration of Justice (Sections 10, 11, 12, 13, 14, 15, 16)

· Sections 10 to 14 of the Bill provide 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.

e. 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.

f. Concluding Remarks

· Part 10 of the Rome Statute obligates States to enforce orders made by the ICC as regards – among other things – sentences, fines, forfeiture orders, and reparations to victims.

· Moreover, the funds generated through enforcement measures should be transferred to the Court, with any expenses incurred by the State deducted, of course.

· Pursuant to article 79(2) of the Rome Statute, funds recovered through the enforcement of victim reparation orders may be transferred directly to the ICC Victims Trust Fund.

· However, the Nigerian Bill establishes a separate, national Special Victims’ Trust Fund under Section 93 for the benefit of victims of crimes within the jurisdiction of the Court.

· This provision, although found in the commentary to the 2011 Commonwealth Model is somewhat unique. It will therefore be interesting to see how such a Trust Fund will operate in practice alongside the ICC Victims’ Trust Fund.

· The ICC places great emphasis on victims and for the first time, at the international level, it has allowed for their participation in the trials. This is one of the key characteristics of the Rome Statute.

· Nigeria, as a State following the common law legal tradition, has not provided for victim participation in national proceedings. This is not to be viewed as an omission, as States are not expected to change their criminal procedures to replicate the Rome Statute.

· It is for this reason that the national Special Victims’ Trust Fund sits uncomfortably with the rest of the Bill. Notwithstanding, it is encouraging to see that additional thought has been given to meeting the needs of the victims and, if used properly, it might pave the way for other States to follow this example.

· Overall, the Bill is very comprehensive. It is notable, however, that the Attorney General is given a wide margin of discretion throughout the State cooperation regime and – in particular – as regards deciding whether to waive the defence of official capacity.

· To conclude, the draft Bill by and large fully incorporates the Rome Statute into Nigerian law and it is hoped that – whatever amendments it may undergo from now on – they will not detract from its current spirit of compliance with the Rome Statute.

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