Abstract
The core purpose of the establishment of the International Criminal Court (ICC) is to prosecute and enforce International Criminal Justice. The Rome Statute of the International Criminal Court envisages the use of the doctrine of complementarity to enhance cooperation between States and the Court. The chapter will therefore examine this concept as it relates to the responses of Nigeria in ending crimes that fall within the jurisdictions of the ICC. The chapter focuses on the situations of Internally Displaced Persons (IDPs) in the North-East of Nigeria which is one of the regions affected by the terrorist activities of Boko Haram. The chapter examines the actions of Nigerian internal security agencies saddled with the responsibilities of protecting the fundamental human rights of IDPs particularly in the North-East State of Nigeria where the insurgencies are more rampant. The core purpose of the chapter is to assess the ability and willingness of Nigeria, as a state party to the Rome Statute, to hold perpetrators of human rights violations against IDPs in North-East Nigeria to account. As the atrocities against these IDPs have been generally labelled human rights violations, in assessing Nigeria’s commitment to accountability, the nexus between gross human rights violations and international criminal justice is established. This is with a view to setting the pace for calls for the ICC’s intervention should inability and unwillingness be established on the part of Nigeria. In discussing these issues, the doctrinal method of research is applied.
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Notes
- 1.
See ‘Rome Statute of the International Criminal Court: Overview’, https://legal.un.org/icc/general/overview.htm (accessed 20 January 2021).
- 2.
Cited in P Seils, An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes (Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes) 3.
- 3.
Chapter 4 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended.
- 4.
YA Fabur ‘Benchmarking The Rights of Internally Displaced Persons in the Fight Against Boko-Haram Insurgency in Nigeria’ (2016) 6 Nigerian National Human Rights Commission Journal 20.
- 5.
J Pablo ‘The Close Relationship Between Serious Human Rights Violations and Crimes Against Humanity: International Criminalization of Serious Abuses’ (2017) 17 Anuario Mexicano de Derecho Internacional 146. See also EC Lubaale and AO Jegede, ‘Gross Human Rights Violations in the Context of Armed Conflict: The Cautionary Tale That Uganda Offers Nigeria’ in R Adeola and AO Jegede (eds), Governance in Nigeria post-1999: Revisiting the Democratic ‘New Dawn’ of the Fourth Republic (2019) 231–246.
- 6.
United Nations High Commissioner for Human Rights Report, ‘Nigeria Emergency’ (2021), https://www.unhcr.org/nigeria-emergency.html (accessed 12 July 2021).
- 7.
On past and ongoing human rights violation against IDPs by both Boko Haram rebels and government security forces, see Human Rights Watch Report, ‘Nigeria: Officials Abusing Displaced Women: Girls Displaced by Boko Haram and Victims Twice Over’ 31 October 2016, https://www.hrw.org/news/2016/10/31/nigeria-officials-abusing-displaced-women-girls (accessed 11 July 2021); Report of the United Nations High Commissioner for Human Rights, ‘Violations and Abuses Committed by Boko Haram and the Impact on Human Rights in the Countries Affected’ Human Rights Council Thirtieth session, Agenda item 2, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, 9 December 2015, A/HRC/30/67; A Surajo, Displaced Persons in North-Eastern Nigeria: Causes, Effects and the Role of Social Workers’ (2020) 8 Sociology and Anthropology 57–65.
- 8.
Report of the Special Rapporteur on the human rights of internally displaced persons on his mission to Nigeria (A/HRC/35/27/Add.1) 2017.
- 9.
As above.
- 10.
W Schabas, The International Criminal Court: A Commentary on the Rome Statute (2010) 7.
- 11.
Cited in Pablo (n 5 above) 152.
- 12.
Resolution 1593 (2005), Adopted by the Security Council at its 5158th meeting, on 31 March 2005, S/RES/1593 (2005).
- 13.
- 14.
The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Situation in The Democratic Republic of The Congo, ICC-01/04-01/07, 30 September 2008, Decision on the confirmation of charges, para 448. On the nexus between gross human rights violations and individual criminal responsibility by other criminal tribunals, see also the Extraordinary Chambers in the Courts of Cambodia. This Court was established to prosecute international crimes and other serious national crimes committed during the reign of Khmer Rouge between 1975 and 1979. In Case 001 (Appeal Judgment, Supreme Court Chamber, 3 February 2012, para 261), the ECCC exercised jurisdiction over persecutory acts despite their not falling within the ambit of international crimes as envisaged by the ECCC. In favoring prosecution, the ECCC ruled that although these acts did constitute international crimes per se, they resulted in ‘breaches of fundamental human rights under treaty or customary international law in order to rise to the requisite level of gravity and severity’. Similarly, the International Criminal Tribunal of the Yugoslavia, also mandated to prosecute international crimes committed in the former Yugoslavia during the Balkan war, ruled in Prosecutor v Kupreskic (IT-95-16-T, Judgment, Trial Chamber, 14 January 2000, para 563) that ‘other inhumane acts’ can instead be identified in international standards on human rights such as those laid down in the Universal Declaration on Human Rights of 1948 and the two United Nations Conventions on Human Rights of 1966. Drawing upon the various provisions of these texts, it is possible to identify asset of basic rights appertaining to human beings, the infringement of which may amount, de-pending on the accompanying circumstances, to a crime against humanity.
- 15.
Pablo (n 5 above) 159.
- 16.
See International Criminal Court, ‘The ICC at a Glance’ https://www.icc-cpi.int/Publications/ICCAtAGlanceENG.pdf (accessed 21 June 2021).
- 17.
MO Brein ‘International Criminal Court (ICC): The Encyclopedia of Crime and Punishment’ 2016, available at https://www.researchgate.net/publication/309486379 (accessed 21 January 2021).
- 18.
See the Preamble to the Rome Statute which established the International Criminal Court.
- 19.
O Melanie, ‘International Criminal Court’ in WG Jennings (ed), The Encyclopedia of Crime and Punishment (Wiley 2015) 1.
- 20.
As above.
- 21.
See International Criminal Court, ‘Understanding the International Criminal Court’, https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf (accessed 21 June 2021).
- 22.
See art 13 (b) Rome Statute. This has happened on two occasions: in 2005 when the UNSC referred the situation in Darfur, Sudan (SC Res 1593); and in 2011, with the referral of the situation in Libya (SC Res 1970), both non-state parties.
- 23.
Art 12(1) (a) Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 (entered into force on 1 July 2002) (Rome Statute).
- 24.
Art 12(2) (b) Rome Statute.
- 25.
ICC, n 16 above.
- 26.
Melanie, n 19 above, 2.
- 27.
See ‘The International Criminal Court: How Non-Governmental Organizations Can Contribute to the Prosecution of War Criminals’ September, 2004, Human Rights Watch, 8.
- 28.
n 9 above.
- 29.
Art 17(1) (d) Rome Statute.
- 30.
Art 53(2) Rome Statute.
- 31.
Human Rights Watch, n 27 above, 10.
- 32.
As above.
- 33.
See ICC, n 16 above, 3.
- 34.
ICC, n 21 above, 10.
- 35.
As above.
- 36.
As above.
- 37.
See ICC, n 16 above, 3.
- 38.
Human Rights Watch, n 27 above, 11.
- 39.
As above.
- 40.
See ICC, n 21 above, 11.
- 41.
As above.
- 42.
See Human Rights Watch, n 27 above, 10.
- 43.
See ICC, n 21 above, 11.
- 44.
As above.
- 45.
As above.
- 46.
See Human Rights Watch, 10.
- 47.
As above.
- 48.
As above.
- 49.
See ICC, n 21 above, 9.
- 50.
As above.
- 51.
International Criminal Court, Elements of Crimes, 2011 reproduced from the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3–10 September 2002 (United Nations publication, Sales No. E.03.V.2 and corrigendum), part II.B. The Elements of Crimes adopted at the 2010 Review Conference are replicated from the Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May-11 June 2010 (International Criminal Court publication, RC/11).
- 52.
Art 6 of the Rome Statute.
- 53.
Art 7 of the Rome Statute.
- 54.
Art 8 of the Rome Statute.
- 55.
Art 5(2) of the Rome Statute.
- 56.
AM Katherine ‘Prevention and Complementarity in the International Criminal Court: A Positive Approach’ 1.
- 57.
As above.
- 58.
M Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ 2003, 7, Max Planck Yearbook of United Nations Law, 592.
- 59.
As above.
- 60.
MA Newton ‘Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court’ 2001, 167 Mil. Law Review, 20.
- 61.
Art 17 of the Rome Statute.
- 62.
See Cf. Report of the Preparatory Committee on the Establishment of International Criminal Court, GAOR 51st Sess., Suppl. No. 22, Doc. A/51/22, Para. 153.
- 63.
M Bergsmo ‘Occasional Remarks on Certain State Concerns about the Jurisdictional Reach of International Criminal Court, and Their Possible Implications for the Relationship between the court and Security Council’ (2000) 69 Nord. Journal of International Law 87.
- 64.
Art 53 (1) (b) of the Rome Statute and Rule 48 of the Rules of Procedure and Evidence.
- 65.
NS Benjamin Building the International Criminal Court (Cambridge University Press 2008) 73.
- 66.
P Seils ‘An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes’ International Centre for Transitional Justice’s Handbook on Complementarity 6.
- 67.
As above This in fact distinguishes the ICC from the early tribunals that was set up by the international bodies to prosecute crimes of international concern. These early tribunals were more or less imposed on the states by the international bodies that set them up.
- 68.
As above, 7.
- 69.
As above.
- 70.
As above.
- 71.
See paragraph 4 and 5 of the Preamble to the Rome Statute.
- 72.
Seils, n 66 above, 8.
- 73.
As above.
- 74.
See A Report by the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) in June 2018, https://www.unv.org/our-stories/improving-livig-conditions-internally-displaced-person-adamawa-north-east-nigeria (accessed 24 December 24 2018).
- 75.
See Saharareporters.com/2018/09/24/huriwa-neglect-suffered-idps-worst-case-human-rights-violations.
- 76.
See Nigeria: A Huge Displacement And Humanitarian Crisis Require Urgent Life-Saving and Protection Measures, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20428&LangID=E (accessed 24 February 2021).
- 77.
As above.
- 78.
E Alobo and S Obaji ‘Internal Displacement in Nigeria and The Case for Human Rights Protection of Displaced Persons’ (2016) 51 Journal of Law, Policy and Globalization 26.
- 79.
See Section 33 CFRN 1999 as amended; Article 7 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 80.
See Section 41 CFRN 1999 as amended; Article 12 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 81.
See Section 34 CFRN 1999 as amended; Article 5 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 82.
See Section 40 CFRN 1999 as amended; Article 11 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 83.
See Section 35 CFRN 1999 as amended; Article 6 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 84.
See Section 37 CFRN 1999 as amended; Article 9(1) of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 85.
See Section 42 CFRN 1999 as amended; Article 3 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 86.
See Section 38 CFRN 1999 as amended; Article 8 of the African Charter on Human and People’s rights (ratification and enforcement) act cap A9 Laws of the federation of Nigeria 2004.
- 87.
Alobo and Obaji, n 78 above, 30.
- 88.
As above.
- 89.
See ‘IDP Protection Strategy 2015’ www.humanitarianresponse.info/en/operatioons/nigeria/document/idp-protection-strategy-2015 (accessed 22 February 2021).
- 90.
Alobo and S Obaji n 78 above, 31.
- 91.
See ‘Humanitarian Need Overview’ www.humanitarianresponse.info/en/operatioons/nigeria/document/idp-protection-strategy-2015 (accessed 22 February 2021).
- 92.
Nigeria: Officials abusing displaced women and girls (October 31, 2016), https://www.hrw.org/news/2016/10/31/nigeria-officials-abusing-displaced-women-girls (accessed 27 February 2021).
- 93.
As above.
- 94.
As above.
- 95.
As above.
- 96.
Prosecutor v Dominic Ongwen, Situation in Uganda, Trial Chamber IX, Trial Judgment, ICC-02/04-01/15, 4 February 2021.
- 97.
As above.
- 98.
One such seminal decision is the International Criminal Tribunal for Rwanda decision in the case of The Prosecutor v Jean-Paul Akayesu (Appeal Judgment), ICTR-96-4-A, International Criminal Tribunal for Rwanda, 1 June 2001.
- 99.
See e.g. K Amone-P’Olak et al., ‘Sexual Violence and General Functioning Among Formerly Abducted Girls in Northern Uganda: The Mediating Roles of Stigma and Community Relations—The WAYS Study’ (2016) 16 BMC Public Health 64.
- 100.
International Criminal Court transcripts, available at https://www.icc-cpi.int/Transcripts/CR2021_01038.PDF (accessed 13 July 2021).
- 101.
As above.
- 102.
As above.
- 103.
A Samade, ‘Framework for the Care of IDPs’ https://www.vanguardngr.com/2016/01/framework-for-the-care-of-idps-2/amp/ (accessed 7 March 2021).
- 104.
See www.internal-displacement.org/countries (accessed 7 March 2021).
- 105.
Ba Bukar ‘Nigeria Needs to Take Responsibility for its IDPs’ available at https://www.fmreview.org/young-and-out-of-place/bukar (accessed 7 March 2021).
- 106.
As above.
- 107.
As above.
- 108.
As above.
- 109.
As above.
- 110.
As above.
- 111.
As above.
- 112.
O Rotimi, ‘IDPs in Nigeria and a Call for Urgent Intervention’ (December 28, 2015) https://opinion.premiumtimesng.com/2015/12/28 (accessed 7 March 2021).
- 113.
As above.
- 114.
M Maina, ‘Borno: Our Major Challenge Now Is High Influx of IDPs—Grema Terab’, https://dailypost.ng/2015/06/15/borno-our-major-challenge-now-is-high-influx-of-idps-grema-terab/ (accessed 21 June 2021).
- 115.
As above.
- 116.
As above.
- 117.
As above.
- 118.
As above.
- 119.
See UNHCR; Handbook for the protection of internally displaced persons on https://www.unhcr.org (accessed 8 March 2021).
- 120.
As above.
- 121.
As above.
- 122.
As above.
- 123.
As above.
- 124.
See Art 2(1) United Nations General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993.
- 125.
Words in italics mine. Of course, there are some acts in Nigeria whose provisions could be made applicable to the IDPs, example include the NEMA Act, The 2012 National Policy on Internal Displacement etc.
- 126.
Nigerian National Human Rights Commission Journal: A Publication of the National Human Rights Commission, 6, 9, December 2016.
- 127.
Parliamentarians for Global Action; Nigerian and the Rome Statute https://www.pgaction.org/ilhr/rome-statute/nigeria.html (accessed 24 June 2021).
- 128.
As above.
- 129.
As above.
- 130.
As above.
- 131.
National Human Rights Commission, n.126 above.
- 132.
As above.
- 133.
Art 3(1) African Union Convention for Protection and Assistance of Internally Displaced Persons 2009.
- 134.
See Chapter 4 CFRN 1999 as amended.
- 135.
YA Fobur, ‘Balancing the Same Sex Marriage (Prohibition) Act, 2014 within Fundamental Human Rights in Nigeria’ (2014) 4 Journal of Nigerian National Human Rights Commission.
- 136.
C Adeogun-Phillips, ‘Do Internally Displaced People Have Right Under the Law?’ www.vanguardngr.com/2015/10 (accessed 9 March 2021).
- 137.
See ‘Nigerian National Human Rights Commission Journal’ (December 2016) 6, A Publication of the National Human Rights Commission 9.
- 138.
Section 6 (j) NEMA Act.
- 139.
Section 6 (k) NEMA Act.
- 140.
Responsibilities: Lagos State Emergency Management Agency, https://lasema.lagosstate.gov.ng/responsibilities-2/ (accessed 9 March 2021).
- 141.
As above.
- 142.
As above.
- 143.
Chapter 4 National Policy on Internal Displacement 2012.
- 144.
As above.
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Onuora-Oguno, A.C., Niyi-Gafar, O., Ekene, I.F. (2022). Accountability for Violations Against Internally Displaced Persons in Nigeria: Finding a Nexus Between International Criminal Justice and Human Rights Violations. In: Lubaale, E.C., Dyani-Mhango, N. (eds) National Accountability for International Crimes in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-88044-6_10
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