Re-visiting the Status of Nigeria’s Membership of the International Criminal Court

Re-visiting the Status of Nigeria’s Membership of the International Criminal Court
By Dr. Tonye Clinton Jaja, Research Fellow, National Institute for Legislative Studies

OBJECTIVES
This paper seeks to provide guidance on the legal issues involved in enactment or otherwise of a national law to give effect to the Rome Statute.

The primary objective is to provide legislators with the details and facts to enable them to make an informed decision on whether or not it is desirable and in the best interest of Nigeria’s National Assembly to enact a law to give effect to the Rome Statute.

BACKGROUND 
1998-2015
The United Nations Conference of Plenipotentiaries on the Establishment of the International Criminal Court took place in Rome from June 15 to July 17, 1998. On July 17, 1998, member states of United Nations (UN) overwhelmingly voted in favour of the Rome Statute of the ICC, creating the treaty establishing the first permanent international criminal court capable of trying individuals accused of genocide, war crimes and crimes against humanity.

Sixty countries were required to bring the treaty into force. On April 11, 2002 the 60th ratification necessary to trigger the entry into force of the Rome Statute was deposited during a special ceremony at UN headquarters, and the treaty then entered into force on July 1, 2002.

In accordance with section 12 of the 1999 Constitution of the Federal Republic of Nigeria, the National Assembly is supposed to enact a national law as a pre-condition to giving effect to any international Treaty before such a Treaty can become operative within the territory of Nigeria.

Nigeria signed the Rome Statute on June 1, 2000, and ratified it on Sept. 27, 2001, becoming the 39th State Party. A Workshop on National Implementation of the Rome Statute was convened in Nigeria in November 2002. The Workshop resulted in a plan of action for the development of domestic implementing legislation.

The Federal Ministry of Justice sent an Executive Bill, entitled “The Rome Statute of the International Criminal Court (Ratification and Jurisdiction) Bill 2001” to the National Assembly for adoption (pursuant to Section 12 of the 1999 Federal Constitution). On June 1, 2004, the House of Representatives passed its own version of the Bill. The Bill was re-submitted by the executive arm of government in 2003. On May 19, 2005, the Senate passed a legislation implementing the Rome Statute. The Bill was never signed into law by the then President.

The Rome Statute (Ratification and Jurisdiction) Bill, 2006 was passed by both Chambers of the National Assembly, but was not harmonised for assent by the President before the end of the last civilian administration in May 2007. The Bill is to be re-submitted by the Ministry of Justice, which committed to re-submit the Bill as soon as possible during the 10th anniversary of the Rome Statute.

Nigeria recently joined the bandwagon of AU members who chose to obey the 2009 AU Resolution not to co-operate with ICC to arrest and surrender Al-Bashir should he visit their states. Al-Bashir on the 15th of July 2010 attended the AU Summit on HIV/AIDS, Tuberculosis and Other related Infectious Diseases (ORID) in Abuja and despite calls from the civil societies and international communities to arrest and surrender Al-Bashir Government of Nigeria refused to do so but rather choose to abide by the AU Resolution.

The AU Assembly of Heads of State and Government decided inter-alia that the …AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar Al-Bashir of The Sudan.

For the avoidance of any doubts, the AU Assembly decision adopted at the 13th Ordinary Session of the Heads of State and Government in Sirte, Libya on 3rd July, 2009, as it concerns President al-Bashir of The Sudan. In other words, the African Union (AU) refused to obey the UN Security Council by deferring the proceedings initiated against President al- Bashir in accordance with Article 16 of the Rome Statute of the ICC

Current Background-January 2016-date
As of November 2016, the Countries that have withdrawn from the ICC include The Gambia, Burundi, South Africa, Kenya and Russia. The oft cited reason for withdrawal of membership of ICC is that the ICC is an erosion of a country’s sovereignty considering that it refuses to recognize the principle of immunity from prosecution that the Constitutions and laws of most countries is conferred upon certain elected officials such as the President, Vice-President, Governors just to mention a few. On Wednesday, April 13, 2016, it was reported1 that Nigeria’s “Minister of Justice and Attorney-General, Abubakar Malami during a meeting with the ICC delegation, expressed  the Nigerian government’s commitment to upholding the highest standards of human rights,  including  during counter insurgency operations in the country.

In a statement issued by his Special Adviser on Media and Publicity, Salihu Isah, the minister assured the delegation that Nigeria had high value for its relationship with the ICC.

Malami said that the Nigerian Army has conducted its operations in the North East region of the country in a highly professional manner, imbibing best practices in the areas of international human rights. He also said that he was aware of the eight case files against Nigeria. He insisted that Nigeria had the prerogative rights in handling the alleged crimes referred to in the prosecutor’s 2015 report of activities in the country.

“Let me reiterate that Nigeria retains the sovereign capacity to investigate and punish the alleged crimes referred to in the report and will therefore continue present efforts in the above direction.’’

He however solicited the support and understanding of ICC and the international community especially in regards to the conduct of the affairs of the Nigerian Armed Forces.

Responding, the leader of delegation, Mr. Phakiso Choko, said that the prosecutor did not intend to compromise the sovereign rights of Nigeria in investigating crimes and meting out punishment.

He said that most cases referred to the ICC were the ones host nations were unable to resolve through internal mechanism.”

EXISTING LEGAL ORDER
Under the current legal regime, there are certain potential areas of conflict that arise between the Statute of Rome establishing the ICC and the 1999 Constitution of Nigeria (as amended), these areas of potential conflict are as follows:
 
1. Exhaustion of Nigeria’s internal mechanism(s) and the principle of Complementarity:
As alleged by Mr. Phakiso Choko, the representative of the ICC Prosecutor, the Rome Statute that established the ICC was never intended to usurp the role of national courts or the internal mechanism(s) national legal systems. To the contrary, as can be inferred from the provisions relating to the jurisdiction of the ICC as stipulated under Articles 5, 11 and 13 of the Rome Statute the intention of the drafters was that the ICC would play a “complementary” role. As Mr. Phakiso Choko succincitly put it, it is only when the internal mechanisms of Nigeria (and other national legal systems) have failed that “cases referred to the ICC were the ones host nations were unable to resolve through internal mechanism.”

Some questions and answers relating to this sub-heading are:
(i) Does Nigeria possess adequate and sufficient internal mechanism(s) for resolving the eight (8) cases that were filed against Nigeria at the ICC? The answer is in the affirmative there are plethora of legislation in Nigeria that provide internal mechanisms for resolution of crimes such as those listed within the purview of the ICC.

For example, chapters Four and Six of the 1999 Constitution of Nigeria (as amended) respectively provided for fundamental human rights and established courts of law for enforcement of those rights. Other relevant legislation are: the Armed Forces Act, Cap.A.20, Laws of the Federation of Nigeria, 2004 and the Nigerian Red Cross Society Act, Cap. N.130, Laws of the Federation of Nigeria, 2004, respectively these pieces of legislation prohibits the commission of war crimes (genocide) similar to those prohibited under the Rome Statute that establishes the ICC. It stipulates penalties for members of Nigerian armed forces that are found guilty.

The Nigerian National Human Rights Commission Act of 1995 also provides an internal mechanism for redressing issues of human rights violations.

(ii) Has the ICC’s investigation provided adequate facts to support the allegation that the parties who brought these eight (8) cases against Nigeria at the ICC have exhausted the Nigeria’s internal mechanism(s) for resolution of their claims? This is a question of fact that the parties ought to answer considering that the relevant rule of law is that “He who alleges must prove”, the Office of the ICC Prosecutor must provide documents such as court judgements etc. to prove that Nigerian courts, governmental authorities or internal mechanism(s) were approached by the parties but failed or neglected to redress the complaints of the parties.

2. Potential legal issues arising from violation of Nigeria’s Constitution by certain Articles of the Rome Statute:
“Articles 27, 59 and 89 of the Rome Statute could involve constitutional questions for Nigeria when the state is obligated to surrender its national, irrespective of his rank or status in the society at the ICC’s request.

This is because under section 308(1) and (3) of the Nigerian Constitution, 1999, the President or Vice-President, Governor or Deputy-Governor of a State shall not be arrested or imprisoned, and no process of any court requiring or compelling the appearance of such persons shall be applied for or issued.

Further, the absence of immunity for Heads for State or government or any other Government official while performing his official functions during his period in office conflicts with section 308 of the constitution.

Under Section 308 (1) (a), no civil or criminal proceedings shall be instituted or continued against any of the persons mentioned above during his period of office. Under article 27 of the statute, a Head of State or other officials of Government who commits a crime within the Jurisdiction of the ICC will lose his or her immunity and can be prosecuted by the ICC. The provisions of the Statute are applicable to everyone regardless of any distinction based on official capacity.”2

LESSONS FROM COMPARATIVE LAW-FOREIGN JURIDICTIONS
There are a broad spectrum of options and decisions on how to resolve the issues raised by national membership of the ICC.

At one extreme, as a means of dealing with the above named issues, as stated earlier some African countries and Russia have recently taken the option of the decision to withdraw their membership from the ICC.

At another extreme other countries have explored the option of full compliance with the ICC by amendment of their constitution to effect total compliance with the Rome Statute establishing the ICC in any areas of conflict. This is the route adopted by France as evident from the statement below:

“Nigeria may wish to follow the example of France, by making a general amendment to the constitution that allow the country to cooperate with the ICC in all situations. The French Government decided to adopt the following constitutional provisions, which addressed all three areas of conflict:- “the Republic may recognise the Jurisdiction of the International Criminal Court as provided by the treaty signed on 18 July 1998” (article 53-2, constitutional Law No. 99-568).”3

However, it must be noted that this option is based on the fact that France’s legal system is based on the MONIST model of international law which implies that rules of customary international law has almost an automatic direct application in France. This is not the same as in Nigeria.

Unlike France, Nigeria on the other hand is a DUALIST country wherein international law requires the enactment of a national legislation to give them effect.

A professor of international law has succinctly explained the procedure as follows:
“Having ratified the Rome Statute of the International Criminal Court on 27th September 2001, Nigeria is automatically obliged to the Court, and the Statute operates in the future and does not apply retroactively. In the case of Nigeria under the 1999 National Constitution, a treaty is not Justiciable in our domestic courts unless it has been domesticated or incorporated into Nigerian Law or enacted into law by an Act of the National Assembly. On the authority of the African Reinsurance Corporation case (1986) 3NWLR pt. 31, p. 811. At 834 supported by a long line of English cases of the common law tradition, it would appear that a person may not be able to invoke the jurisdiction of a municipal court to directly enforce the provisions of the Rome Statute in Nigeria. Thus section 12 of the Nigerian Constitution13 provides as follows:

(1) “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.” (2) “The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative list for the purpose of implementing a treaty.” (3) “A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the president for assent, and shall not be enacted unless it is ratified by a majority of all the Houses of Assembly in the Federation. The domestication process in Nigeria therefore, requires the provisions of the Rome Statute of the ICC to be enacted into law by the instrumentality of the Rome Statute of the International Criminal court (Ratification and Enforcement) Act, of a particular No., and of a given year.14 This is subject to the requirements of subsections (2) and (3) of section 12 of the constitution. This was the method adopted in enacting into law by the National Assembly in 1983 of the African Charter on Human and Peoples’ Rights as Cap. A.9 Laws of the Federation of Nigeria 2004. Consistent with the subject matter of jurisdiction of the Rome Statute of the ICC, Nigeria has equally ratified and domesticated the relevant provisions of the Geneva Convention of 1949 as part of Nigerian Law: - Cap. G.3, Vol.7 Laws of the Federation 2004”4

Arguments for Nigeria’s renouncement of ICC Membership
It could be argued that Nigeria ought to withdraw its membership of the ICC considering that certain provisions of the Rome Statute establishing the ICC which waive immunity from prosecution conferred upon the Heads of States and other officials as stipulated by section 308 of the 1999 Nigerian Constitution (as amended).

Another line of argument is that both the 1999 Nigerian constitution (as amended) and other relevant legislation contain sufficient internal mechanism(s) to handle the crimes over which the ICC has jurisdiction.

In fact, under the Rome Statute establishing the ICC it is not a requirement that a country must have signed and ratified the Treaty. The Security Council of the UN could refer an official of any government for investigation and prosecution. This is exact case of the then President of Sudan in the year 2009. At that time Sudan was not a signatory to the Rome Statute neither had they ratified the Rome Statute, yet a UN Security Council Resolution was sufficient for the ICC to investigate and issue an arrest warrant against him.

From a foreign policy point of view, it could be argued that since Africa is the center piece of Nigeria’s foreign policy, it would be consistent with the AU Resolution of 2009 that no African country should derogate its sovereignty to the ICC by submitting its serving Head of State for prosecution by the ICC.

Arguments against Nigeria’s renouncement of ICC Membership
It could be argued that the benefit of Nigeria’s membership of the ICC far outweighs any real or imagined benefit(s) from withdrawal of membership. The ICC holds the potential of acting as an independent arbiter for the alleged war crimes or crimes against humanity that result from conflicts amongst the multi-ethnic groups that make up Nigeria. Amongst the eight (8) cases that were preferred against Nigeria at the ICC majority of them border on allegations of genocide against the Igbo ethnic group in the Southern Eastern part of Nigeria who are agitating for creation of an independent state of Biafra just to mention a few.

RECOMMENDATION(S): A MIDDLE OF THE ROAD APPROACH
In view of the foregoing, it is my legal advice that Nigeria should toe a middle of the road approach.

Although, Article 120 of the Rome Statute specifically prohibits the entering of reservation by State Parties, Nigeria could make a belated case for entering a reservation to the portions of the ROME STATUTE that violates section 308 of the 1999 Nigerian Constitution (as amended).

The relevant legal steps to achieve this are specified under VIENNA CONVENTION ON LAW OF TREATIES, 1969. It requires “denouncing” the Treaty and later entering a reservation upon re-ratification subject to the approval of the UN Security Council.

After Nigeria has completed that first step, Nigeria could achieve its ultimate goal of re-ratifying a modified Rome Statute that is consistent with the provisions of the 1999 Nigerian Constitution (as amended).

Endnotes
1 Chukwuemeka Eze, “Nigeria’s Obligation under the Rome Statute in THE NATION newspaper, August 6, 2013, available online: http://thenationonlineng.net/nigerias-obligation-under-the-rome-statute/ accessed on 23 November 2016
2 Muhammed Tawfiq Ladan, AN OVERVIEW OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: JURISDICTION AND COMPLEMENTARITY PRINCIPLE AND ISSUES IN DOMESTIC IMPLEMENTATION IN NIGERIA in Afe Babalola University: Journal of Sustainable Development Law and Policy Vol. 1 Iss. 1 (2013) pp. 37-53 at p.50
3Supra at p.51

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