Benue killings: FG, Security Agencies Have Abandoned Us

GOVERNOR Samuel Ortom of Benue State has accused the Federal Government and the various security agencies of abandoning the citizens of the state to be slaughtered by rampaging Fulani herdsmen. Ortom In an exclusive interview with Vanguard, Governor Ortom, who decried the recurring killing of Benue people by herdsmen, also lamented that a cabal has blocked communications with President Muhammadu Buhari. He added that if the intention of those blocking access to the President was to make the state rescind its decision to sign the anti-open grazing law, they have failed because, according to him, there is no going back on the law. The governor spoke as the Nigeria Bar Association, NBA, criticised President Buhari over his alleged indifference to the Benue killings. Also, Benue Committee of Elders, led by veteran Journalist, Elder Simon Shango urged President Buhari to set up a commission of enquiry on the killings. The Socio-Economic Rights and Accountability Project, SERAP, has appealed to Prince Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights to “urgently call and/or facilitate the holding of a special session of the UN Human Rights Council to address persistent killings apparently by herdsmen in Benue State and other parts of the country.” The organization also urged Prince Al Hussein to “speak out strongly and condemn the killings, and make an official visit to Nigeria with special rapporteurs with relevant mandates to discuss the killings and concrete actions to end the killings and ultimately bring about significant improvement in the lives of farmers and their families as well as other citizens affected by violence across the country.” Meanwhile, the Police, through the Deputy Inspector General of Police, DIG, in charge of Operations, Mr. Habila Joshak, has promised that the force in collaboration with the military would fish out the masterminds of the attacks and bring them to Justice. “The Police and the military have agreed that there would be no recurrence of the crisis and killings and all those fingered in the killings would be arrested. So, the search for the masterminds of the killings has started. Already, we have increased the manpower of the Benue command and I can assure you that in no distant time, all those fingered in the killings will be arrested. If it is established that anyone of those being mentioned as being responsible for the killings is truly involved, we will have him arrested without delay,” he said. Cabal blocking communications with Buhari — Gov Ortom According to Governor Ortom, some people around the president have been deliberately frustrating the attempt by the state government to present the true picture of what is happening in the state for selfish reasons. His words: “Let me be frank. The Federal Government has not done enough. When this incidence started with the threat from the president and secretary of Miyetti Allah, Kauta Hore, who addressed a press conference and issued threats that they will do everything possible to frustrate the Benue State Government from implementing the anti-open grazing law, we quickly drew the attention of the Inspector General of Police, the Director General of the Department of State Services, DSS, and even the office of the National Security Adviser. ‘’The leadership of Miyetti Allah called the law names; that it was draconian and had no place in the 21st century. We saw that as a threat to our existence and in June 2016, we reported to the then acting president (Prof. Yemi Osinbajo) and to our surprise, these people were not apprehended. “When they saw that no one was going to apprehend them, they went further to issue more threats. In October 2016, we reminded the IGP, the DSS and the NSA of the potential violence that we faced in Benue State as a result of the threat from the Miyetti Allah. We, specifically, demanded that the two officers of the Miyetti Allah, the secretary and the president, be arrested, but unfortunately, they were not arrested. I do not know why the Federal Government has abandoned us. If they had acted that time, we would not have gotten to where we are today.” It’s going beyond my powers — Ortom The governor warned that though he has consistently told the people of the state not to take the law into their hands, he is losing control of the people because of the persistent killing of innocent women and children by Fulani herdsmen and the inaction of the federal government. He continued: “You can see that it is getting beyond me. Even when there was protest against the recent killings in Makurdi, and I went there, there was massive resistance. It became violent and it is even God that saved us. I would have been attacked. “When I came into office, there was proliferation of arms and ammunition in the state. I declared an amnesty programme that saw massive retrieval of arms from our youths. I pleaded with them that the way to develop is not by taking the laws into their hands but by obeying the laws. I have resisted the temptation to say that our people should protect themselves because I trusted the president. I believed that he has the capacity to protect us. But from what is happening, I am sure some people around him are frustrating our communication with him and the actions to be taken. Otherwise, the president I know will not allow this kind of thing to be happening. We have not committed any offence. “We have no regret passing the anti-open grazing law. The law came as a necessity because of the killings in Benue State by the herdsmen. We sought peaceful ways of resolving the matter but we could not. We tried everything under the sun to ensure that we stopped these killings but it was not possible so we prayed and God gave us wisdom to enact that law, which gives protection to the farmers and the herdsmen. We have not sent cattle rearers away from Benue, we are simply saying there are modern ways of rearing cattle, which is to ranch them. With that, farmers can go their legitimate ways of doing their business and those who are rearing cattle can also continue. I am surprised at the resistance of the herders.” ‘I can’t preside over dead people, campaigns suspended’ Asked if the recent killings had made the job of campaigning for an APC presidency more difficult, the governor reiterated that he has suspended all political activities until the killing of innocent people in the state is stopped. “I have suspended everything about campaigns and all that, even for myself. Yes, I am contesting in 2019 but I don’t want to be campaigning for now. I cannot campaign for myself or any other person until this matter is resolved. I cannot preside as governor over dead people. The lives of my people come first before politics. In fact, I have decided that I am not going to engage in any political activity, whether for myself or for anybody until this matter is resolved. I cannot be talking about 2019 when my people are being killed. If I win, will I preside over dead bodies? If that will make other people to take the governorship from me, so be it. I must not be governor,” he said. Don’t politicize herdsmen killings, Osinbajo warns Nigerians Meanwhile, Vice President Yemi Osinbajo, yesterday, warned Nigerians against politicizing herdsmen killings across the country in recent times, saying such interpretation could inflame passion from certain quarters thus causing unpredicted crisis in the country. Osinbajo, who said his warning was against the backdrop of rise in Boko Haram activities, following politicization of the insurgents at the early stage, asked Nigerians to be wary and not make similar mistake. He spoke during an inter-denominational church service for the 2018 Armed Forces Remembrance Day Celebration at the National Christian Centre, Abuja. SERAP to UN: Speak out, hold special session The SERAP, in an urgent appeal dated January 6, 2018 by its Executive Director, Adetokunbo Mumuni, said: “The UN Human Rights Council’s ability to successfully expose and hold perpetrators of human rights violations to account may be under threat if your office continues to ignore or pay little attention to the crimes and abuses apparently by herdsmen and other unknown perpetrators in Nigeria. “While we acknowledge that the council has made significant contributions to human rights elsewhere, we are concerned that the violence and killings in Nigeria rarely attract the attention of the UN and particularly, your office. It is time for your office to speak out strongly against the continuing killings by herdsmen in Nigeria for the sake of thousands of victims and their families who continue to lack access to an effective remedy, including truth, justice and full and effective reparation.” Suspected herdsmen, yesterday, killed at least 11 persons in a fresh attack on Tombu village in Logo Local Government Area of Benue State. This followed the alleged killing earlier in the week of at least 33 people by herdsmen in the state. The urgent appeal read in part: “The killings in Benue State and the distressing situation of farmers and their families paint a stark picture of the grave abuses carried out by herdsmen and the impunity that they continue to enjoy. The actions of herdsmen hinder meaningful progress towards stability, development and peace in the country.” NBA slams President Buhari Also, the Chairman of Makurdi branch of the NBA, Mr. Emmanuel Agbakor, while addressing journalists in Makurdi on the issue, said: “The NBA is totally disappointed, disenchanted and absolutely disillusioned at the display of apathy by the administration of President Muhammadu Buhari, with respect to the wanton, reckless and unwarranted killings. “We condemn, in strong terms, the recurring invasion of the state by herdsmen and the concomitant nonchalant cum indifferent posture of the Federal Government concerning the problem. We overwhelmingly voted the President into power as Nigeria’s President but he has dramatically become ethnic and does not see anything wrong with what his kinsmen, the Fulani, are doing in different parts of the country, including Benue State. This is totally unacceptable. A government which is incapable of defending her people is simply, to say the least, not worth its salt.’’ We ‘ll soon start raining curses on leaders – Cleric A Catholic cleric, Rev. Fr. Kwaggas Matthew, said, yesterday, in Abuja that Nigerians, especially Christians, will soon start raining curses on leaders, who have abandoned their primary responsibility of protecting the lives of the citizens. The Borno State born cleric and Parish Priest of Church of the Annunciation Parish, Kubwa, Abuja, in his homily at the Feast of Epiphany, noted with dismay the killings and destruction of property by the Fulani herdsmen while the government that swore to protect the lives and property of Nigerians remained silent. He wondered how the herdsmen allegedly killing people got the sophisticated guns they always use in their dastardly act and charged Nigerians to start protecting themselves, if the government failed to protect them. Recollecting the number of lives lost in Agatu, Guma and Logo of Benue State, Kaduna, Plateau, Adamawa, Enugu, Taraba, Borno and other parts of the country as a result of herdsmen onslaught on the people, he said, “We will soon start raining curses on the leaders, who are not helping us. How did the herdsmen killing people get the guns?’

Read more at: https://www.vanguardngr.com/2018/01/benue-killings-fg-security-agenciesve-abandoned-us-ortom/

Libyan lawyers welcome ICC prosecutor Bensouda’s promise to finally…

The commitment International Criminal Court (ICC) chief prosecutor Fatou Bensouda gave to the UN Security Council that in 2018, that she really would be getting on with investigating and prosecuting Libyan war crimes, has been welcomed by Lawyers for Justice in Libya (LFJL).

The organisation, which has been among the frequent international critics of Bensouda and the inability of the ICC to get to grips with prosecutions of Libyan war criminals, praised her determination. It observed that this was the 13th time that Bensouda had spoken to the Security Council about Libya.

“We hope that the prosecutor’s comments will serve as a much-needed reminder to actors involved in the commission of the ongoing atrocities in Libya that the international community is watching and stands ready to take action” said LFJL director El ham Saudi, What is needed now is a concerted effort for collaboration between the ICC, states and civil society to ensure that the ICC has the resources, access and reach to ensure that its mandate reaches the ground”.

Saudi noted Bensouda’s comments to Security Council members on the principle that military commanders had responsibility for the actions of their subordinates and that, under the Rome Statute that established the International Criminal Court (ICC), they could be held liable for crimes that subordinates committed.

Saudi said the LFJL welcomed Bensouda’s “unequivocal call for greater cooperation from Libya” to ensure the arrest of war crimes suspect Saiqa Special Forces major Mahmoud Al-Warfali.

She said justice was key to achieving sustainable peace: “Accountability for serious crimes and respect for the rule of law must form the cornerstone of the ongoing political dialogue if Libya is to achieve peace, stability and security”.

Source: Libya heraldhttps://www.libyaherald.com/2017/11/11/libyan-lawyers-welcome-icc-prosecutor-bensoudas-promise-to-finally-focus-on-libya/

Burundi-ICC: The legal consequences of opening of the investigation…

1. Background

Since Nkurunziza Pierre’s decision to run for a third term in violation of the constitution and the historic Arusha peace and reconciliation agreement of Burundi, in April 2015, Burundi has been plunged into an unprecedented crisis with an escalating violence. According to estimates by the Office of the United Nations High Commissioner for Human Rights (OHCHR), between 26 April 2015 and 30 August 2016, at least 564 cases of executions have been registered. By the end of April 2016, the OHCHR office in Burundi had documented 36 enforced disappearances, 3477 arbitrary arrests or detentions, 651 cases of torture and 19 cases of sexual violence since the beginning of the crisis.

Burundi has been a State party to the Rome Statute since 1 December 2004. The International Criminal Court (hereinafter referred to as the ICC) has jurisdiction over crimes against humanity, crimes of genocide and war crimes committed on territory of Burundi or by Burundian nationals as from that date.

The evolution of the situation in the country has thus legitimately attracted the attention of the ICC Prosecutor who twice expressed his concerns about the Preliminary examination is the initial phase of any proceeding before the ICC, in which the ICC Prosecutor’s Office determines “whether there is a reasonable basis for initiating an investigation”

The reaction of the Burundian state was not long in coming and on October 7, 2016, he announced his intention to withdraw from the Rome Statute. On October 12, 2016, the two Houses of Parliament of Burundi had already passed the bill of withdrawal, in an unprecedented rush, President Nkurunziza promulgated the law on October 18, 2016. On October 27, 2016, Burundi officially notified its withdrawal to the Secretariat United Nations.

In the past, threats of such action have not been lacking, but so far no state has so clearly demonstrated its willingness to complete the withdrawal. However, following the steps taken by Burundi on 21 October 2016, South Africa expressed the same desire and the day itself became the first country to formally withdraw from the Rome Statute, 11 opening the door to a “Domino effect”. Indeed, this road has already been undertaken by The Gambia, which announced its intention to withdraw on 25 October 2016. Fortunately, it recanted itself in favor of the change of institutions that took place in that country with the overthrow of the President Yahya Jammeh,

The South African justice also invalidated the government’s decision to withdraw from the Rome Statute, to say that ultimately only Burundi actually withdrew

The purpose of this contribution is to explore the legal consequences of Burundi’s withdrawal from the Rome Statute of the ICC on the current preliminary examination and the possible continuation of the proceedings, by analyzing the relevant provision of the Rome Statute (1). °). It aims to probe the avenues that are opening up in such a situation, including the possibility of continuing the preliminary investigation and the initiation of the investigation itself. This despite the expiration of a period of one year after notification of withdrawal to the Rome Statute. It will finally question the future of the international justice system based on the ICC, once the ICC does not use its prerogatives to prosecute the perpetrators of serious crimes committed in Burundi since April 2015

2. The possibility for Burundi to withdraw to the Rome Statute

The Rome Statute expressly provides for the possibility of a State withdrawing from the treaty and specifying its terms and limitations. According to what Art. 127 (1), “Any State Party may, by written notification to the Secretary-General of the United Nations, withdraw from this Statute”.

Burundi’s withdrawal from the International Criminal Court responds to a wish of the African Union because it deems it biased. But the withdrawal can not be formulated by the set of States, because the accession was made individually and the withdrawal is done individually

Art. 127 (1) goes on to say that “the withdrawal takes effect one year after the date on which the notice was received, unless the notice provides for a later date”. Thus, only from the receipt of the withdrawal instrument the period of one year begins to run. The withdrawal will not be effective for Burundi until 27 October 2017. Until the expiry of the deadline, Burundi remains a State party  with all the obligations arising therefrom..

The South African court also invalidated the government’s decision to withdraw from the Rome Statute, which means that only Burundi has effectively withdrawn.

3. The consequences of the Withdrawal from Burundi to the Rome Statute

According to Art. 127 (2), the withdrawal “shall not relieve the State of its obligations under the … Statute while it was a Party, including financial obligations incurred, and shall not affect cooperation established with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect; the withdrawal shall not affect the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect “.

From this provision we can see many consequences, in particular the obligations incurred by him when he was a party to it, including the financial obligations incurred (1), the obligation to cooperate with the Court in investigations and criminal proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect (2) and the obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect (3)

For the moment allow us to analyze the last two obligations as these are both apparently relevant to the case in this case

The obligation of cooperation with the Court in criminal investigations and proceedings in respect of which the State had a duty to cooperate and which began before the date on which the withdrawal took effect

It can be emphasized here that Art. 127 (2) of the Statute thus provides that the withdrawal does not affect the State’s co-operation obligations arising from criminal investigations and proceedings initiated before the one-year period has expired.

It is clear that the preliminary examination already begun on Burundi is part of the investigation to which Burundi has an obligation to cooperate with the court from beginning to end.

From this obligation to cooperate one can deduce the possibility of continuing the investigation in spite of the delay of one after the notification

Extension of the preliminary examination

This would seem to be the only way that the ICC would undoubtedly continue to exercise its jurisdiction once the withdrawal is executed.  This means that if the preliminary investigation was initiated before the expiry of one year after notification of the withdrawal, Burundi should cooperate from the preliminary phase until the closure of the case, to the judgment of either the conviction or acquittal of the alleged perpetrators of crimes under international law.

The obligation not to affect in any way the continuation of the examination of cases which the Court had already begun to consider before the date on which it took effect

The second paragraph of Art. 127 provides that “the withdrawal shall not affect the continuation of the examination of cases which the Court has already begun to consider” before the withdrawal is effective. The doctrine seems to agree on one point: what the editors of the Statute wished to express with this sentence remains vague.  The preparatory work does not seem to help in this sense.

First, although doubts were expressed,  it might fairly easily be considered that when Art. 127 (2) refers to the “Court”, the Office of the Prosecutor would be understood, in particular because of the use of the term “Court” throughout the Rome Statute. It could also be said that a preliminary examination is indeed an examination of a “matter”. Although the English version of the provision uses the term “matters” to create some confusion, the term “case” is used in many provisions of the Statute to indicate either a specific case.

Thus, in principle, there would be no objection to the possibility that this sentence might legitimize the continuation of the preliminary examination of the situation in Burundi which had begun before the withdrawal of the Statute became effective. Such a result would flow from the “ordinary meaning to be attributed to the terms of the treaty” and would be most consistent with its object and purpose.

However, this could be nothing but a simple academic exercise. Indeed, as Whiting correctly noted, as soon as the one-year period expires without an “investigation or criminal proceeding” within the meaning of the second paragraph, Burundi would no longer have the “duty to cooperation “under Chapter IX

Would the result change if an application for authorization to initiate an investigation by the Prosecutor acting proprio motu, submitted before the withdrawal took effect, namely on 27 October 2017, would be pending before the Pre-Trial Chamber?

An unambiguous answer can not be given. It can certainly be maintained that under the last sentence of Art. 127 (2), the withdrawal may not affect the further consideration by the Pre-Trial Chamber of the application for leave to commence an investigation. But if a positive decision of the Chamber does not intervene before the withdrawal of Burundi is effective, the fate of the investigation remains uncertain. According to Kolb, “a State which has freed itself from its treaty obligations can no longer be obliged to cooperate in an investigation or proceedings initiated after the date on which its withdrawal took effect”

4. General international law: a means of supporting the court to open the investigation despite the end of one year after notification of the withdrawal of Burundi to the Rome Statute

In support of the second paragraph of Art. 127, one might be tempted to resort to general international law,  including relevant customary law, as codified by the 1969 Vienna Convention on the Law of Treaties (hereinafter CVDT)

Art. 70 of the CVDT provides that “Unless the treaty otherwise provides or the parties otherwise agree, the fact that a treaty has terminated under its provisions or in accordance with this Convention: (b) does not affect any right, obligation or legal position of the parties created by the execution of the treaty before it has ended ”

According to Clark, under this general rule, the ICC would in no way lose jurisdiction over crimes committed before the withdrawal was effective regardless of whether an investigation had been opened.This argument would be based on the fact that the mere commission of a crime falling within the jurisdiction of the ICC creates “a legal situation of the parties” to which withdrawal can not be infringed.In this way, Clark seems to suggest that the withdrawal ” would have no impact on the ICC’s competence with respect to crimes ex Art. 5 of the Statute allegedly committed on Burundian territory or by Burundians before the one-year time limit expired on 27 October.

Sanctions that may be opened up against other states parties, especially the African Union in the event of non-cooperation Article 86 of the Rome Statute states that “In accordance with the provisions of the present Statute, States Parties shall cooperate fully with the Court in its investigations and prosecutions of crimes within its jurisdiction. “The article states that states parties to the Rome Statute are under an obligation to cooperate fully with the court in the investigation and prosecution of perpetrators of crimes under its jurisdiction. As a result, countries that would act against this provision would be subject to sanctions, as was the case in countries such as Chad and Malawi, which were sanctioned by the Court for breaching their legal obligation to arrest and surrender El BECHIR to the Court

6. Towards the collapse of the international justice system

The case of Burundi could set a potentially very dangerous precedent for the international justice system based on the Rome Statute. Beyond the question of the mass withdrawal of African States from the Statute, which is a very questionable question outside the scope of this note, the Burundian case might suggest to other States that face (or will face) a preliminary consideration that it would be sufficient to withdraw immediately from the Rome Statute so that the initiation of an investigation could be effectively avoided. Indeed, as stated above, the Prosecutor may initiate an investigation before the withdrawal takes effect

It should be recalled that, in order for the Prosecutor to initiate an investigation on his or her own initiative, once it has concluded that there is a reasonable basis for proceeding, it is required to “submit to the Pre-Trial Chamber an application for leave to do so  “. As stated above, this request will probably not be sufficient for the Court to retain its jurisdiction: a positive decision authorizing the initiation of the investigation would seem necessary.

But the Prosecutor would not need such permission from the Pre-Trial Chamber if other actors of the international community, such as other States parties to the Rome Statute or the UN Security Council, responsibility for the fight against impunity in recalcitrant countries.

Although until then the States parties to the Statute have only referred cases directly affecting them, under Art. 14 of the Statute, a State Party may properly refer to the Prosecutor a situation such as that prevailing in Burundi. Once determined that there would be a reasonable basis for initiating an investigation, the Prosecutor could proceed without the need for prior judicial review by the Pre-Trial Chamber.

Alternatively, responsibility could be assumed by the United Nations Security Council. Acting under Chapter VII of the Charter of the United Nations, the Security Council may also refer a situation to the ICC and no authorization would be required for the initiation of an investigation. Today, this approach has been initiated only for the situation in Darfur (Sudan) in 2005 and for the situation in Libya in 2011.

Source: Burundi Coalition on the ICC