Monday, 9 June 2014

Open Letter: Demand For Presidential Invitation Of The ICC To Nigeria (Part4)


His Excellency
Dr. Goodluck Jonathan
President & Commander-in-Chief of the Armed Forces
Federal Republic of Nigeria
The State House, Three-Arms-Zone
Abuja, FCT, Nigeria

Boko Haram Terror & Other Unlawful Killings In Nigeria: Our Opposition To Immunity & Impunity For Atrocity Crimes & Criminals And Insistence On International Criminal Justice Intervention-Part Four
This part concludes the referenced letter to Your Excellency by the leadership of International Society for Civil Liberties & the Rule of Law-Intersociety. The parts one, two and three were dated 28th and 31st May and 6th June 2014. The subject matter remains a call on Your Excellency for urgent invocation and application of international criminal justice sanctions against those involved in atrocity crimes in both war and peace times in Nigeria since July 2002 in accordance with the international criminal justice, human rights and humanitarian norms. Article 11 of the Rome Statute of the ICC remains our guide in this respect.

Jurisdiction Of The International Criminal Court:  “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: 1. The Crime of Genocide; 2. Crimes Against Humanity; 3. War Crimes; and 4. The Crime of Aggression” (not yet universally agreed on definition and modes).

Genocide:  For the purpose of this Statute (in accordance with Article 6 of the Statute), "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)  Killing members of the group; (b)  Causing serious bodily or mental harm to members of the group; (c)   Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; and (e)  Forcibly transferring children of the group to another group.

Crimes Against Humanity: 1. For the purpose of this Statute (in accordance with Article 7 of the Statute), "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b)  Extermination; (c)     Enslavement; (d) Deportation or forcible transfer of population; (e)  Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f)   Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)  Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;  (i) Enforced disappearance of persons; (j)The crime of apartheid; (k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1: (a)  "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b)  "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c)  "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; (d)  "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law; (e)  "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

(f)  "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g)  "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h)  "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

War Crimes (Article 8 of the ICC):  The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means: (a)  Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (i)  Willful killing; (ii)  Torture or inhuman treatment, including biological experiments; (iii)     Willfully causing great suffering, or serious injury to body or health; (iv)   Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v)  Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii)  Unlawful deportation or transfer or unlawful confinement; (viii)  Taking of hostages.
(b)  Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii)     Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii)     Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

Others are: (iv)  Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; (v)  Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi)  Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion; (vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii)  The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(x)  Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi)  Killing or wounding treacherously individuals belonging to the hostile nation or army; (xii)   Declaring that no quarter will be given; (xiii)  Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv)  Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv)  Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi)  Pillaging a town or place, even when taken by assault; (xvii)  Employing poison or poisoned weapons; (xviii)  Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix)  Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx)  Employing weapons, projectiles and material and methods of warfare which are of a nature to causesuperfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123; (xxi)  Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (xxii)  Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv)     Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (xxv)     Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions; (xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities( The ICC June  2014)

Powers Bestow On Your Excellency By The ICC: Having become a State party since 27th September 2001, the State of Nigeria has accepted the jurisdiction of the ICC and crimes under which its jurisdiction investigates, prosecutes and convicts or acquits. This is in accordance with Article 12 of the Statute. Also, Article 14 of the Statute empowers Your Excellency as the President & Commander-in-Chief of the Federation of Nigeria, which is a State-party to the ICC to invite the Chief Prosecutor to the country over the butcheries under reference. The Article 14 (1 & 2) provides: A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.  2. As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.

On account of apparent “unwillingness” and “inability” by governing authorities in the country to visit the atrocity criminals under reference with municipal criminal code sanctions, invocation of international criminal code sanctions becomes inevitable. This is in line with Article 17 of the Rome Statute. Those exempted by the Statute from being held criminally liable over the aforesaid heinous crimes are those genuinely and popularly tried and convicted or acquitted by municipal courts. This is in accordance with Article 20 of the Statute under reference. Within the context of the subject matter under discussion, it is correct to say that most of those responsible for the butcheries and destructions are still on the prowl with impunity. Article 28 talks about the criminal responsibility of barbarous and murderous security commanders in the conflict under reference.

Lastly Your Excellency, going by the provisions of the Rome Statute on war crimes, crimes against humanity and genocide, we believe strongly that the three have been committed in the butcheries under reference since July 2002 when the ICC Statute came into force in accordance with Article 11 of the Statute. In our view, for instance, the Gwoza massacre of 2nd June, 2014 is considered a crime of genocide because it is a deliberate act to wipe out the entire Christian communities as well as all male populations in the areas. The abduction of over 200 Chibok girls on 14th April 2014 is a war crime because such act is totally forbidden in conflict situations by the ICC’s Rome Statute. The Boko Haram terror insurgency has also become a bloody conflict of international nature on account of recent UN Security Council pronouncement (22nd May, 2014).

 As a member of the UN Security Council, Your Excellency should explore other international options including getting several UN backed or recognized bodies to peruse and act towards taming the dire security challenges in the country. A UN and ICC backed Special Criminal Court or Tribunal for Nigeria on Boko Haram Killings & related others should also be considered as an alternative or a complementary option to the ICC’s intervention. Nigeria and Nigerians are tired of “presidential condolence messages”. They are yearning for permanent solutions to butcheries and destructions that have pervaded and still pervade their hallowed landscape especially since July 2002.

Yours Faithfully,
For: International Society for Civil Liberties & the Rule of Law-Intersociety
41, Miss Elems Street, Fegge-Onitsha 430003
Anambra State, Southeast Nigeria

 Emeka Umeagbalasi, Board Chairman
+2348100755939 (text 24/7, call Mon.-Friday: office hours)

1. Mr. Ban Ki-moon, Secretary General of the United Nations, New York, USA
2. Ms Fatou Bensouda, Chief Prosecutor for International Criminal Court, Hague, the Netherlands
3. The United Nations Higher Commissioner for Human Rights, Geneva, Switzerland
4. Secretary General of Amnesty International, London, UK
5. The Executive Director, Human Rights Watch, New York, USA
6. Nigeria’s Permanent Rep to the United Nations

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