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THE CONCEPT OF COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT UNDER THE ROME STATUTE AND ITS DOMESTIC IMPLEMENTATION IN NIGERIA BY Prof. Muhammed Tawfiq Ladan Department of Public Law, Faculty of Law, A.B.U., Zaria A Paper Presented at: A Two-Day National Judicial Colloquium on the Rome Statute of the International Criminal Court Organized by: Civil Resource Development and Documentation Centre (CIRDDOC) Enugu, Nigeria In Collaboration with MacArthur Foundation and the Open Society Justice Initiative Venue: NICON Luxury Hotel, Abuja Date: 15TH – 16TH June, 2009 THE CONCEPT OF COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT UNDER THE ROME STATUTE AND ITS DOMESTIC IMPLEMENTATION IN NIGERIA BY Prof. Muhammed Tawfiq Ladan 1. INTRODUCTION This paper aims at realising the following objectives: - 1. To provide an overview of the concept of cooperation with the ICC under the Rome Statute; 2. To examine the general and specific issues in domestic implementation of the Rome Statute; 3. To locate the role of the legislature, the executive, the judiciary and the law enforcement in the implementation of the cooperation principle; and 4. Finally to conclude with viable options for Nigeria. 2. OVERVIEW OF THE PRINCIPLE OF COOPERATION WITH THE ICC UNDER THE ROME STATUTE The twentieth Century witnessed some of the worst atrocities committed in the history of humanity, accounting for more than eighty six million civilian deaths in over 250 conflicts in the past fifty years alone. Since the Second World War with the Principles established by the Nuremberg and Tokyo Tribunals, the international community through the UN decided to take action to bring the perpetrators of the most heinous crimes against humanity to justice. After some 50 years of prolonged discussion and debates the creation of a permanent international criminal court became a reality on July 17 of 1998 with the 1 adoption of the Rome Statute.1 It came into force on July 1, 2002, upon 60 ratifications. The Rome Statute was signed (on 1st June 2000) and ratified (on 27th September 2001) by Nigeria along with many other countries.2 2.1 COOPERATION BY STATES PARTIES Article 86: General Obligation to Cooperate State parties shall co-operate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the Court. Article 87: Requests for Cooperation: General Provisions The court shall have the authority to make request to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel, the International Criminal Police Organization or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession. Request for cooperation and documents supporting the request shall be in an official language of the requested State or in one of the working languages of the court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession. The requested State shall keep confidential a request for cooperation except to the extent that the disclosure is necessary for execution of the request. The Court may take measures to ensure the safety or physical or psychological well-being of any victims, potential witness and their families. 1 As of March 2009, 108 countries have ratified or acceded to the ICC Statute. There are 40 other states which have signed but not ratified the treaty. Under customary international law a state that has signed but not ratified a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty. As of the above date, the USA and Israel have signed the Rome treaty. See http://en.wikipedia.org/wiki/International_Criminal_Court. 6/13/2009 at p.1 2 For positive commencement of the process of its domestication in view of Nigeria’s long history of military dictatorship, unstable democracy, human rights abuses and impunity, see Federal Republic of Nigeria official Gazette for a bill titled:- “An Act to enable effect to be given in the Federal Republic of Nigeria to the Rome Statute of the International Criminal Court and for Purposes connected therewith”, Federal Government th Printers, Lagos, No. 46, Vol. 88, 12 June 2001, Pp. C. 689-767. 2 Article 88: Availability of Procedures under National Law State Parties shall ensure that there are procedures available for all forms of co-operation under their national law. Article 89: Surrender of Persons to the Court3 The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, comply with requests for arrest and surrender. Where the person sought for surrender brings a challenge before a national court on the basis that he or she has been convicted or acquitted on the same charge, the requested State shall immediately consult with the Court. If the case is admissible, the requested State shall proceed with the execution of the request. A State party shall authorize transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender. The request for transit shall contain a description of the person being transported; a brief statement of the facts of the case and their legal characterization; and the warrant for arrest and surrender. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court. 3 Under Article 102 of the Rome Statute the word “Surrender” means delivering up of a person by a state to the court and “extradition” means delivering up of a person by one state to another as provided by treaty convention or national legislation. 3 Article 90: Competing Requests A State Party which receives a request from the Court for the surrender of a person shall, if it also receives a request from any other State for the extradition of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, notify the Court and the requesting State of that fact. The requested State shall give priority to the request from the Court. But where it is for conduct other than which constitutes the crime for which the Court seeks the person’s surrender; the requested State shall, if it is not under an existing international obligation to extradite the person to the requesting State, give priority to the request from the Court; the requested State shall, if it is under an existing international obligation to extradite the person to the requesting State, determine whether to surrender the person to the court or to extradite the person to the requesting State. In making its decision, the requested State shall consider all the relevant factors, and shall give special consideration to the relative nature and gravity of the conduct in question. Article 91: Contents of Request for Arrest and Surrender A request for arrest and surrender shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record. In the case of a request for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Pre-Trial Chamber, the request shall contain or be supported by information describing the person sought, the person’s probable location, a copy of the warrant of arrest and other documents that may be necessary to meet the requirements for the surrender process in the requested State; except that those requirements should not be more burdensome than those applicable to requests for extradition pursuant to treaties or arrangements between the requested State and other States. In the case of a request for the arrest and surrender of a 4 person already convicted, the request shall contain or be supported by a copy of any warrant of arrest for that person, a copy of the judgement of conviction, information to demonstrate that the person sought is the one referred to in the judgement of conviction and if the person sought has been sentenced, a copy of the sentence imposed. Article 92: Provisional Arrest In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain information describing the person sought and information as to that person’s probable location; a concise statement of the crimes for which the person’s arrest is sought; a statement of the existence of a warrant of arrest or a judgement of conviction against the person sought and a statement that a request for surrender of the person sought will follow. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible. The fact that the person sought has been released from custody shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date. 5 Article 93: Other Forms of Cooperation States parties shall comply with requests by the Court to provide assistance in relation to investigations or prosecutions such as identification and whereabouts of persons or the location of items; the taking of evidence, questioning of any person being investigated or prosecuted; service of documents, including judicial documents; facilitating the voluntary appearance of persons as witness or experts before the Court; temporary transfer of persons; examination of places or sites, including the exhumation and examination of grave sites; execution of searches and seizures; provision of records and documents, including official records and documents; protection of victims and witnesses and the preservation of evidence; identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and any other type of assistance with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court. The Court shall have the authority to provide an assurance to a witness or an expert appearing before it that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State. Where execution of a particular measure of assistance detailed in a request is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary. A State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security. Before denying a request for assistance, the requested State shall consider whether the assistance can be provided subject to specified conditions, or provided at 6 a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial. The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the person freely gives his or her informed consent to the transfer; and the requested State agrees to the transfer. The person being transferred shall remain in custody and when the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State. The Court shall ensure the confidentially of documents and information. The requested State may transmit documents or information to the Prosecutor on a confidential basis, for the sole purpose of generating new evidence. If the requested State subsequently consents to the disclosure of such documents or information, they may then be used as evidence. In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one of the other request. Failing that, competing requests shall be resolved in accordance with established principles. Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State, the requested States shall so inform the Court and the Court shall direct its request to the third State. The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State. 7 Article 94: Postponement of Execution of a Request in Respect of Ongoing Investigation or Prosecution If the immediate execution of a request would interfere with an ongoing investigation or prosecution of a case different from that to which the request relates, the requested State may postpone the execution of the request for a period of time agreed upon with the Court. However, the postponement shall be no longer than is necessary to complete the relevant investigation or prosecution in the requested State. If a decision to postpone is taken, the Prosecutor may, however, seek measures to preserve evidence. Article 95: Postponement of Execution of a Request in Respect of an Admissibility Challenge Where there is admissibility challenge under consideration by the Court, the requested State may postpone execution of a request pending the determination by the Court, unless the court has specifically ordered that the prosecutor may pursue the collection of such evidence. Article 96: Contents of Request for Other Forms of Assistance Under Article 93 A request for other forms of assistance shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the diplomatic channel or any other appropriate channel as may be designated by each State Party. The request shall be supported by a concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request; information about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided; statement of the 8 essential facts underlying the request; the reasons for and details of any procedure or requirement to be followed; such information as may be required under the law of the requested State in order to execute the request; and any other information relevant in order for the assistance sought to be provided. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply. During the consultations, the State Party shall advise the Court of the specific requirements of its national law. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court. Article 97: Consultation Where a State Party receives a request in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter. Such problems may include, insufficient information to execute the request; the fact that despite best efforts, the person sought cannot be located or that the investigation conducted has determined that the person in the requested State is clearly not the person named in the warrant; or the fact that execution of the request in its current form would require the request State to breach a pre-existing treaty obligation undertaken with respect to another State. Article 98: Cooperation with Respect to Waiver of Immunity and Consent to Surrender The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, or its obligations under international agreements pursuant 9 to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity or of the sending State for the giving of consent for the surrender. Article 99: Execution of Requests under Articles 93 and 96 Requests for assistance shall be executed in accordance with the relevant procedure under the law of the requested State in the manner specified in the request. In the case of an urgent request, the documents or evidence produced in response shall be sent urgently. Replies from the requested State shall be transmitted in their original language and form. Where it is necessary for the successful execution of a request which can be executed without any compulsory measures, the Prosecutor may execute such request directly on the territory of a State when the State Party requested is a State on the territory of a State when the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility, following all possible consultations with the requested State Party; in other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request it shall, without delay, consult with the Court to resolve the matter. Provisions allowing a person heard or examined by the Court to invoke restrictions designed to prevent disclosure of confidential information connected with national security shall also apply to the execution of requests for assistance. 10 Article 100: Costs The ordinary costs for execution of requests in the territory of the requested State shall be borne by that State, except costs associated with the travel and security of witnesses and experts or the transfer of persons in custody; translation, interpretation and transcription; Travel and subsistence of the judges, the Prosecutor, the Deputy Prosecutors, the Registrar, the Deputy Registrar and staff of any organ of the Court; expert opinion or report requested by the Court; transport of a person being surrendered to the Court by a custodial State; and following consultations, any extraordinary costs that may result from the execution of a request, which shall be borne by the Court. The provisions of paragraph 1 shall apply to requests from States Parties to the Court. In that case, the Court shall bear the ordinary costs of execution. Article 101: Rule of Specialty A person surrendered to the Court under this Statute shall not be proceeded against, punished or detained for any conduct committed prior to surrender, other than the conduct or course of conduct which forms the basis of the crimes for which that person has been surrendered. The Court may request a waiver of the requirements from the State, which surrendered the person to the Court, and, if necessary, the Court shall provide additional information. States Parties shall have the authority to provide a waiver to the Court and should endeavour to do so. 2.2 COOPERATION BY STATES NOT PARTIES TO THE ROME STATUTE4 One of the principles of international law is that a treaty does not create either obligations or rights for third states (pacta tertiis nec nocent nec prosunt) without their consent, and this is also enshrined in the 1969 Vienna Convention on the Law of Treaties. The co-operation of the non-party states with the ICC is envisioned by the 4 See Article 87 of the Rome Statute 11 Rome Statute of the International Criminal Court to be of voluntary nature. However, even states that have not acceded to the Rome Statute might still be subjects to an obligation to co-operate with ICC in certain cases. When a case is referred to the ICC by the UN Security Council all UN member states are obliged to co-operate, since its decisions are binding for all of them. Also, there is an obligation to respect and ensure respect for international humanitarian law, which stems from the Geneva Conventions5 and Additional Protocol I6, which reflects the absolute nature of IHL. Although the wording of the Conventions might not be precise as to what steps have to be taken, it has been argued that it at least requires non-party states to make an effort not to block actions of ICC in response to serious violations of those Conventions. In relation to co-operation in investigation and evidence gathering, it is implied from the Rome Statute that the consent of a non-party state is a prerequisite for ICC Prosecutor7 to conduct an investigation within its territory, and it seems that it is even more necessary for him to observe any reasonable conditions raised by that state, since such restrictions exist for states party to the Statute. Taking into account the experience of the ICTY (which worked with the principle of the primacy, instead of complementarity) in relation to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation of non-party states. As for the actions that ICC can take towards non-party states that do not co-operate, the Rome Statute stipulates that the court may inform the Assembly of States Parties 8 or Security Council, when the matter was referred by it, when non-party state refuses to co-operate after it has entered into an ad hoc arrangement or an agreement with the court. The Court may invite any State not party to this Statute to provide assistance on the basis of an ad hoc arrangement or agreement with such State or ask any 5 Geneva Conventions I-IV of 1949 6 Of 1977 7 http://en.wikipedia.org/wiki/International_Criminal_Court//Office_of_the_Prosecutor 8 http://en.wikipedia.org/wiki/International_Criminal_Court//Assembly_of_States_Parties 12 intergovernmental organization to provide information or documents or ask for other forms of cooperation and assistance which may be agreed upon with such an organization, where a State Party or non State party, which has entered into an agreement, fails to comply with a request to cooperate by the Court, thereby preventing the Court from exercising its functions and powers, the Court may make a finding to that effect and refer the matter to the Assembly of State Parties (ASP or, where the Security Council referred the matter to the Court, to the Security Council. 2.3 ROLE OF THE LEGISLATURE, THE EXECUTIVE, THE JUDICIARY AND LAW ENFORCEMENT OFFICIALS IN THE IMPLEMENTATION OF THE COOPERATION PRINCIPLE UNDER THE ROME STATUTE For the ICC to function effectively, State Parties like Nigeria need to have in place comprehensive domestic legislation which implements the Rome Statute.9 The nature and scope/character of the implementing legislation requires a close working relationship between the legislature and the executive as well as the judiciary in the following areas: - a) Jurisdiction Whatever policy decision is taken on the prospective or retrospective jurisdiction for the international crimes under the Statute, the domestic implementing legislation should provide clearly that: - Section on temporal jurisdiction relating to requests for assistance, enforcement of fines and forfeiture orders, enforcement of sentences and sittings of the Court ensuring the relevant provisions will apply regardless of when the underlying offence occurred. 9 See Report of the Commonwealth Expert Group on Implementing Legislation for the Rome Statute of the International Criminal Court, 7 July, 2004, Marlborough House, London: Criminal Law Section Legal and Constitutional Affairs Division, 2004 13 b) Request for Assistance Article 87 of the Rome Statute sets out a number of general provisions relating to requests for assistance both for arrest and surrender and other forms of cooperation. While some of the paragraphs in the Article relate to Court activity and need not be the subject of legislation, others should be reflected to guide domestic authorities in the applicable procedure and specifically addressing: The designated channel and responsible authority (paragraph 1); and Confidentiality of requests (paragraph 3) A State may also wish to set out the manner in which requests may be transmitted i.e. whether fax or other forms of electronic communication may be used. c) Arrest and Surrender10 The Rome Statute provides that a State must be able to surrender a person to the Court in response to a request though it does not specify the procedure that should be used to effect surrender. It is for each State to put in place a procedure under national law to do so in accordance with its constitution and fundamental principles. It was recognized that it is technically possible to use existing schemes for state to state extradition, amended as appropriate, to surrender to the Court. However, it is recommended strongly against such an approach which will be complex and difficult both in terms of the development of legislation and its implementation in practice. The opinion is that, unless constitutional or other fundamental principles mandate it, the surrender process should be entirely distinct from extradition, given the unique nature of the Court and the Statute. 10 See Article 102 of the Rome Statute for the definition of Surrender. 14 d) Provisional Arrest and Arrest on the Basis of a Complete Request The first phase of the surrender process will involve bringing the person before a court in the requested state. This will normally be accomplished through the arrest of the person. The Scheme needs to be comprehensive covering the arrest of the person provisionally – prior to preparation and submission of the supporting documentation – and “straight” arrest – on the basis of a full request with supporting documents. Whether in respect of a person arrested provisionally or otherwise, the Scheme should recognize the requirements of Article 59 respecting the procedure upon arrest. Article 59 mandates that upon arrest a person must be brought before a competent judicial authority. The judicial authority must determine that: The warrant applies to the person; The person has been arrested in accordance with proper process; and The person’s rights have been respected In some States these requirements will be met as a matter of course under domestic law. Should there be any question, specific provisions to this effect should be included and samples should be set out in the model law. A question does arise, however, as to what should happen if the domestic court were to find that the person has not been arrested in accord with procedure or his or her rights were violated. Clearly such findings should not prevent the ultimate surrender of the person to the Court nor affect the validity of the arrest. It is recommended a provisions like that found in the UK legislation (s5(8)) where the domestic court makes a finding on the issue but gives no remedy, referring the matter to the ICC for consideration. e) Interim Release (Bail) Paragraphs 3 to 6 of Article 59 provide that the person arrested should have a right to apply for interim release pending surrender. However, the Statute sets out a high test for release namely: 15 “the competent authority in the custodial State consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court”. Consideration needs to be given to the test that will apply to applications for release under domestic law. It is recommended that the safest course would be to include this exact test in the legislation. There is also a requirement that the Court be given an opportunity to express its views and that those views should be taken into account before a decision is made on interim release. This too should be provided for in the law. Article 59 further explicitly excludes the domestic court from going behind the ICC warrant. This needs to be reflected in the law to avoid any contrary arguments being raised. f) Evidence Article 91 of the Rome Statute recognizes that some States may need to require evidence in support of a request for surrender because of constitutional imperatives under domestic law. However, such requirements may not be more burdensome than those for extradition and should, if possible, be less burdensome, taking into account the distinct nature of the Court. In practical terms, unless a State has a constitutional requirement for supporting evidence this should not be incorporated into the legislation. Surrender should be available through a simple process founded on the submission of basic information about the case and a copy of the warrant of arrest, along with identification information. The view is that there should not be any requirements for evidence in support of the request in the model law. 16 g) Structure It was recognized that the process for receiving and executing requests will involve both the judiciary and the executive. However, there should be only one “decision”, on surrender by either the executive or the judiciary, unlike the two phased procedure in many extradition schemes. As well, any such process should be as streamlined as possible. The legislation should also support and encourage good communication between the executive and the judicial to ensure the person is not surrendered before relevant processes have been completed. There was discussion as to whether the decision on surrender should be given to either the judiciary or the executive. While the executive should be accorded the powers to receive, verify and refer the request, to consult with the Court and communicate information, the actual decision on surrender should be made by the judiciary. As the Rome Statute does not provide any grounds for refusal of a request the role of the executive should be a limited one. That once the decision is made by the judiciary, the matter should be referred directly to an executing authority such as the police, with simply a notice to the executive. h) Appeal It is important to have some form of appeal or review mechanism for the State and for the person. For the State, a statutory appeal right should be included because otherwise there may be an adverse decision by the judiciary for which there will be no mechanism for appeal. For the person, the appropriate mechanism for review will depend on domestic law, if there is a constitutional or otherwise enshrined right to a habeas corpus review in all cases, this would be a sufficient review mechanism for the person and the legislation can be silent. If there is any doubt on the point than a specific statutory right to a habeas corpus review should be included. 17 Whatever approach is adopted, the view is that there should be a procedural provision which ensures that no surrender order will be executed before the expiry of a specified period of time (10/15 days). This should be accompanied by a provision for waiver of the time delay. There should also be a power to detain the person in custody in the case of a State appeal. A simplified scheme for the arrest and surrender of persons sought by the Court for prosecution or the imposition or enforcement of a sentence which incorporates the principles outlined above. i) Guidance on the Role of the Judge in Surrender Proceedings Many Commonwealth authorities, prosecutorial and judicial, will be familiar with the laws and procedures related to extradition.11 It needs to be made clear that extradition procedures will not be used in this process and that standard extradition grounds of refusal do not apply. The view is that the model law should include specific provisions to prevent the application of general extradition law to the surrender of persons to the ICC. Section that provides the judge in the surrender process is not to: Consider whether the ICC warrant was properly issued; Require evidence to establish that a trial would be justified; or Receive evidence or adjudicate claims that the person has been previously tried and convicted or acquitted. j) Competing Requests The Rome Statute sets out in Article 90 very specific rules where a State is faced with competing requests from another State and the International Criminal Court for the surrender of a person. As the decision as to which request will be 11 See Article 102 of the Rome Statute on definition of extradition distinct from surrender. 18 executed is for the executive, a State could choose not to incorporate the rules on competing requests in domestic law and allow the executive to ensure that the requirements of Article 90 are met. At the same time it may be very useful for domestic authorities called upon to deal with competing requests to have guidance in the legislation as to how to proceed. For this reason the view is that model law should contain a provision reflecting the requirements of Article 90. K) Temporary Surrender of a Person Serving a Sentence or being Prosecuted in the Requested State The Rome Statute does not resolve what happens if a person sought by the Court is serving a sentence domestically or being prosecuted. Article 89(4) provides that in such situations there should be consultation with the Court. However Rule 183 of the Ruled of Procedure and Evidence (RPE) recognizes one practical way to resolve the problem would be through a temporary surrender power. If this is provided, State can surrender temporarily a person who is serving a sentence or being prosecuted domestically, so that the trial may take place. At the conclusion of the trial the person can be returned to the State for the completion of any proceedings or sentence and then re-surrendered to the Court to serve any sentence imposed there. To implement this procedure several technical amendments are required under domestic law to allow for the release and movement of the person and to meet related requirements. While not strictly mandated by the Statute, the view is that the model law should contain detailed provisions to empower the State to surrender temporarily. l) Transit Relating to Arrest and Surrender The regime for arrest and surrender will need to address the transit of persons being surrendered to the Court and those being transferred to and from a State of 19 enforcement and the Court. The provisions can be minimal covering the power to agree to transit, the material required and importantly, the detention powers in the case of an unscheduled landing. m) Postponement of Execution of Request for Arrest and Surrender There may be circumstances where the execution of a request for arrest and surrender will have to be postponed. This possibility is recognized in Articles 94 and 95 where there is an ongoing domestic investigation or prosecution or if there is a challenge to the admissibility of the case before the ICC. In both circumstances, execution of the request would be postponed pending the conclusion of the domestic matter or a determination of the challenge. While legislation is probably not needed for execution of the request to be postponed, the view is that it would be useful to include a specific provision in the model law to serve as a guide for domestic authorities. h) Grounds of Refusal Need Section detailing the only circumstances in which a request for arrest and surrender may be refused and giving the Executive authority the power to refuse those cases. The Rome Statute does not provide for any of the traditional grounds of refusal for requests for arrest and surrender as can be found in state to state extradition regimes. Rather, there are simply circumstances where a request might be proceeded with, such as where a decision is made under Article 90 to accede to a competing request or where the Court rules the case inadmissible. There are also practical circumstances identified in Article 97 where a request might not be proceeded with because there is insufficient information, the person cannot be found or is the wrong person or surrender would result in the breach of pre-existing obligation. 20 o) Specialty Section on the waiver of specialty which specifies what authority (giving options) is responsible to give the waiver on behalf of the State. Article 101 incorporates a rule of specialty with respect to the surrender of a person to the Court. That is, the Court can only proceed against the person for the conduct or course of conduct which forms the basis of the crimes for which that person was surrendered, unless the requested State waives the requirement. p) Other Forms of Cooperation Articles 87 and 93 of the Rome Statute mandate that States must comply with requests for other forms of cooperation a specified in Article 93. While a State may execute such requests in accordance with the procedures of national law, Article 88 requires that there be procedures available under national law for all the forms of assistance reflected to Article 93. Therefore, any effective implementing law will need to provide powers to implement all the measures of assistance in Article 93. Where a State has in place flexible, modern mutual legal assistance legislation, it may be possible to amend that legislation in order to apply it to requests for assistance from the Court. This, for example, was the approach adopted in Canada. Article 93(1)(1) recognizes that the Court may seek other types of assistance not listed in the previous sub-paragraphs. To assist the Court with these other types of measures as much as possible and to ensure the maximum use of domestic investigative powers, the Group was of the view that there should be an additional provision which allows for the use and, if necessary, adaptation of any domestic investigative powers to respond to a request by the Court under Article 93. 21 3.0 OBLIGATIONS OF STATE PARTIES TO IMPLEMENT THE PROVISIONS OF THE STATUTE12 Actually, implementing an international treaty means putting the treaty into effect. It goes a bit further than mere observance of the law. It implies that its general aim, the result that was desired by those who adopted the treaty, is achieved or will be achieved, so that the treaty-rules can be said to have been given full effect. Usually, the obligation to perform a treaty is intrinsic to its accession by the sate and therefore is not expressly stipulated. The Vienna convention on the law of treaties simply states that a treaty must be performed in good faith by the states which are parties to it. Indeed, a state in good faith does want that the treaty to which it has become a party, is given full effect. Hence implementation covers all those measures which must taken to ensure that the rules of international criminal law are fully respected. All states have a clear obligation to adopt and apply measures of implementing international criminal law. These measures may be taken by one or more government ministries, the legislature, the courts, the armed forces, or other state organs. However, it is states which continue to have the primary responsibility to ensure the effective implementation of international criminal law, and which must first and foremost adopt measures at the national level. The means of implementation that have a preventive character are, essentially those whereby states have the duty to take measures pertaining to the domestic legal order. These measures are called “national measures of implementation”. Hence, this part of the paper is divided into general and specific issues of implementation. 12 For detail analysis See Ladan, M.T., “An Overview of the Rome Statute of the International Criminal Court: Obligations of State Parties and Issues in Domestic Implementation in Nigeria”, A Paper Presented at Judicial Colloquium on the Rome Statute of the International Criminal Court, Organized by the Civil Resource Development and Documentation Centre (CIRDDOC) Enugu, Nigeria, Venue: Beyelsa State House Conference rd th Room, Abuja, date: 23 – 25 July, 2008 22 3.1 GENERAL ISSUES OF IMPLEMENTATION13 As with any international treaty, States need to consider whether becoming a Party to the Rome Statute will require changes to be made to their national laws or administrative procedures, to enable them to meet all of their obligations under the treaty. For example, some legislative measures may need to be taken to ensure effective cooperation between states parties and the court during its investigations. If States already have national legislation pertaining to international legal assistance and extradition, there will be little difficulty to introduce these measures. The aim of this part of the paper is to highlight the general issues in domestic implementation of the Rome Statute in Nigeria; and the compatibility of the Statute’s general principles of criminal law with our national constitution, penal legislations and other international conventions to which Nigeria is a signatory. 3.1 DOMESTICATION PROCESS OF THE ROME STATUTE IN NIGERIA14 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. 13 Human Rights Watch, New York:- Making the ICC Work, A Handbook for implementing the Rome Statute, Vol. 13, No. 4(G), September 2001, Pp. 1-22. 14 Supra note 2 for Official Gazette on Ratification and Jurisdiction Bill. 23 Thus section 12 of the Nigerian Constitution15 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.16 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. 15 The National Constitution of Nigeria came into force on May 29, 1999. 16 See supra note 2 already gazetted by the by the Federal Government of Nigeria. 24 Further, Nigeria had ratified, yet to domesticate, the following international human rights and humanitarian treaties relevant to the jurisdiction and powers of the ICC under the Rome Statute17: - TABLE ON STATUS OF RATIFICATION OR SIGNATURE BY NIGERIA OF INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS RELEVANT TO WOMEN AND CHILDREN’S RIGHTS: AS OF JUNE 30, 2009 S/No. Title of Instrument Date 1. UN Convention on the Elimination of All Forms of Ratified 13-6-1985 Discrimination Against Women (CEDAW); 2. Optional Protocol to CEDAW; Signed: - 8-9-2000 3. UN Convention on the Rights of the Child (CRC) Ratified 19-4-1991 4. Optional Protocol to the CRC on the involvement of children in Signed: - 8-9-2000 armed conflict; 5. Optional Protocol to CRC on the sale of children, child Signed: - 8-9-2000 prostitution and child pornography; 6. UN Convention Against Torture and other cruel, inhuman or Ratified 28-6-2001 degrading treatment or punishment (CAT); 7. International Covenant on Civil and Political Rights (ICCPR); Ratified 29-7-1993 8. International Covenant on Economic, Social and Cultural Ratified 29-7-1993 Rights (ICESCR); 9. International Convention on the Elimination of all forms of Ratified 16-10-1967 Racial Discrimination; 10. Convention on the political rights of Women; Ratified 17-11-1980 11. Protocol relating to the status of Refugees; Ratified 2-5-1968 12. Convention relating to the status of Refugees; Ratified 23-10-1967 13. African Union Charter on the Rights and Welfare of the Child; Ratified 23-7-2001 14. African Charter on Human and People’s Rights Ratified 22-6-1983 Signed: - 31-8-82 15. OAU Refugee Convention; Ratified 23-5-1986 Signed: - 10-9-69 16. Protocol to the African Charter on Human and People’s Rights Ratified 16-12-2004 Relating to the Rights of Women in Africa; Signed: - 11-7-2003 17. UN Convention Against Transnational Organized Crime; and Ratified 28-6-2001 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children; 18. ECOWAS Declaration on the decade of a culture of the Rights Signed: - 21-12-2001 of the child in West Africa; 19. ECOWAS Declaration on the fight against Trafficking in Signed: - 21-12-2001 Persons in West Africa; 20. ECOWAS Protocol on Democracy and Good Governance; 17 Ladan, M.T., supra note 12., at Pp. 14-16. 25 21. ILO (1999) Convention on the Elimination of the Worst Forms Ratified in 2001 of Child Labour; 22. ILO Convention (No. 45) concerning the employment of Ratified as of 31-12-1998 women on underground work in mines of all kinds; 23. ILO Equal Remuneration Convention (1951); Ratified as of 31-12-1998 24. UNESCO Convention Against Discrimination in Education Ratified as of 31-12-1998 (1960); 25. Protocol to the African Charter on the Establishment of Ratified on 20-5-2004 African Human Rights Court; 26. AU Protocol on the Peace and Security Council; Ratified on 23-12-2003 27. Protocol on the Pan-African Parliament; Ratified on 23-12-2003 28. Protocol on Amendments to the Constitutive Act of the African X Union; 29. Constitutive Act of the African Union; Ratified on 29-03-2001 30. Treaty Establishing the African Economic Community; Ratified on 31-12-1991 31. Cultural Charter; Ratified on 24-09-1986 32. African Convention on the Conservation of Nature (Revised); 33. African Union Convention on Preventing and Combating Ratified on 2-09-2006 Corruption; 34. 1986 OAU Convention on the Conservation of Nature; Ratified on 2-04-1974 35. Protocol to the AU Convention on the Prevention and X Combating of Terrorism; 36. AU Convention on the Prevention and Combating of Ratified on 28-04-2002 Terrorism; 37. AU Convention on Mercenarism in Africa; and Ratified on 14-05-1986 38. AU Treaty on Nuclear Weapon-free Zone Ratified on 20-04-2000 It is evident from the above table that Nigeria is yet to ratify the two optional protocols to the CRC signed since 2000. It means that they are not legally binding on Nigeria, even though the protocols appear quite significant for a holistic protection of children in both peace and armed conflict situations. Similarly, Nigeria is yet to sign and ratify the following instruments: - 1. Convention for the Suppression of the traffic in persons and of the exploitation of the prostitution of others (1949/51). 2. Convention on the Nationality of Married Women (1957/58). 3. Convention on Consent to Marriage, minimum age for marriage and registration of marriages (1962/64). 4. Convention on Maternity Protection, revised (1952). 26 The above instruments seek to promote universal respect for, observance of, human rights and fundamental freedoms for all without distinction as to sex. They further seek to protect the girl child and women from exploitative and discriminatory practices, policies and customs. INTERNATIONAL HUMAN RIGHTS LAW The Table below indicates the United Nations International Legal Instruments on Human Rights that Nigeria has signed, ratified or signed and ratified: As of June 30, 2009. S/No. TITLE OF INSTRUMENT SIGNATURE RATIFICATION 1 Convention Relating to the Status of Refugees 1951 2 May 1968 2 International Convention on the Elimination of All 16 Oct 1967 Forms of Racial Discrimination New York, 7 March 1966 3 International Covenant on Economic, Social and 29 Jul 1993 Cultural Rights New York 16 December 1966 4 International Covenant on Civil and Political Rights 29 Jul 1993 New York, 16 December 1966 5 Protocol Relating to the Status of Refugees 23 Oct 1967 6 Convention on the non-applicability of statutory 1 Dec 1970 limitations to war crimes and crimes against humanity (New York, 26 November 1968) 7 International Convention on the Suppression and 26 Jun 1974 31 Mar 1977 Punishment of the Crime of Apartheid 8 Convention on the Political Rights of Women 17 Nov 1980 9 Convention on the Elimination of All Forms of 23 Apr 1984 13 Jun 1985 Discrimination against Women New York, 18 December 1979 10 Convention against Torture and Other Cruel, Inhuman 5 Oct 1998 or Degrading Treatment or Punishment, New York, 10 December 1984 11 International Convention against Apartheid in Sports 16 May 1986 20 May 1987 (New York 10 December 1985) 12 Convention on the Rights of the Child New York, 20 26 Jan 1990 19 Apr 1991 November 1989 13 Optional Protocol to the Convention on the Rights of 8 Sep 2000 the Child on the involvement of children in armed conflict New York, 25 May 2000 14 Optional Protocol to the Convention on the Rights of 8 Sep 2000 the Child on the sale of children, child prostitution and child pornography New York, 25 May 2000 15 Optional Protocol to the Convention on the 8 Sep 2000 22 Feb 2004 Elimination of All Forms of Discrimination Against Women, New York 06, Oct, 1999 16 Convention Against Transnational Organized Crimes; 28 Jun 2001 27 and Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children 17 Convention on the Prevention and Combating of 24 April 2002 Terrorism 18 Convention on the Rights of Persons with Disabilities, 30 Mar 2007 New York, 13 December 2006 19 Optional Protocol to the Convention on the Rights of 30 Mar 2007 Persons with Disabilities, New York, 13 December 2006 The Table below indicates the United Nations International Legal Instruments on Human Rights that Nigeria has neither signed nor ratified: As of June 30, 2009. S/No. TITLE OF INSTRUMENT 1 Convention on the Prevention and Punishment of the Crime of Genocide New York, 9 December 1948 2 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949/51 3 Convention on Maternity Protection (Revised) 1952 4 Convention on the Nationality of Married Women 1957/58 5 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 1962/1964 6 Optional Protocol to the International Covenant on Civil and Political Rights New York, 16 December 1966 7 Amendments to articles 17 (7) and 18 (5) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 8 September 1992) 8 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment New York, 18 December 2002 9 Amendment to article 43 (2) of the Convention on the Rights of the Child (New York, 12 December 1995) 10 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (New York, 15 December 1989 11 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families New York, 18 December 1990. 12 Protocol to the Convention on the Prevention and Combating of Terrorism 13 International Convention for the Protection of All Persons from Enforced Disappearance (New York, 20 December 2006) 28 INTERNATIONAL HUMANITARIAN LAW The Table below indicates International Instruments on Humanitarian Law that Nigeria has either signed or ratified or has signed and ratified: As of June 30, 2009. S/No. TITLE OF INSTRUMENTS SIGNATURE RATIFICATION 1 Protocol for the Prohibition of the Use of 15.10.1968 Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare. Geneva, 17 June 1925 2 Geneva Conventions of 12 August 1949 20.06.1961 3 Convention for the Protection of Cultural Property 15.06.1961 in the Event of Armed Conflict. The Hague, 14 May 1954 4 Protocol for the Protection of Cultural Property in 15.06.1961 the Event of Armed Conflict. The Hague, 14 May 1954 5 Convention on the Non-Applicability of Statutory 01.12.1970 Limitations to War Crimes and Crimes Against Humanity, 26 November 1968 6 Convention on the Prohibition of the 10.07.1972 09.07.1973 Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. Opened for Signature at London, Moscow and Washington. 10 April 1972 7 Protocol Additional to the Geneva Conventions of 10.10.1988 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 8 Protocol Additional to the Geneva Conventions of 10.10.1988 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 9 Convention of the OAU for the Elimination of 10.02.1978 14.05.1986 Mercenarism in Africa. Libreville, 3rd July 1977 10 Convention on the prohibition of the 13.01.1983 20.05.1999 development, production, stockpiling and use of chemical weapons and on their destruction, Paris 13 January 1993 11 Convention on the Prohibition of the Use, 27.09.2001 Stockpiling, Production and Transfer of Anti- Personnel Mines and on their Destruction, 18 September 1997 12 Rome Statute of the International Criminal Court, 01.06.2000 27.09.2001 17 July 1998 29 13 Second Protocol to the Hague Convention of 17.05.1999 21.10.2005 1954 for the Protection of Cultural Property in the Event of Armed Conflict The Hague, 26 March 1999 14 Final Act of the Diplomatic Conference of Geneva 10.06.1977 1974-1977 15 Convention on Prohibitions or Restrictions on the 26.01.1982 Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980 16 International Convention against the Recruitment, 04.04.1990 Use, Financing and Training of Mercenaries, 4 December 1989 The Table below indicates International Instruments on Humanitarian Law that Nigeria has neither signed nor ratified. S/No. TITLE OF INSTRUMENTS 1 Convention for the Exemption of Hospital Ships, in Time of War, from The Payment of all Dues and Taxes Imposed for the Benefit of the State. The Hague, 21 December 1904 2 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 6 July 1906 3 Final Act of the Second Peace Conference. The Hague, 18 October 1907 4 Convention (III) relative to the Opening of Hostilities. The Hague, 18 October 1907 5 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 6 Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907 7 Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities. The Hague, 18 October 1907 8 Final Protocol to the Naval Conference of London, 26 February 1909 9 Declaration concerning the Laws of Naval War. London, 26 February 1909 10 Treaty relating to the Use of Submarines and Noxious Gases in Warfare. Washington, 6 February 1922 11 Rules concerning the Control of Wireless Telegraphy in Time of War and Air Warfare. Drafted by a Commission of Jurists at the Hague, December 1922 - February 1923 12 Convention on Maritime Neutrality. Havana, 20 February 1928 13 Final Act of the Diplomatic Conference. Geneva, 27 July 1929 14 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field. Geneva, 27 July 1929 15 Convention relative to the Treatment of Prisoners of War. Geneva, 27 July 1929 16 Treaty for the Limitation and Reduction of Naval Armaments, (Part IV, Art. 22, relating to submarine warfare). London, 22 April 1930 30 17 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments (Roerich Pact). Washington, 15 April 1935 18 Affirmation of the Principles of International Law recognized by the Charter of the Nüremberg Tribunal. Resolution 95 (I) of the United Nations General Assembly, 11 December 1946 19 Convention on the prohibition of military or any hostile use of environmental modification techniques, 10 December 1976 20 Protocol on Non-Detectable Fragments (Protocol I). Geneva, 10 October 1980 21 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II). Geneva, 10 October 1980 22 Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III). Geneva, 10 October 1980 23 Protocol on Blinding Laser Weapons (Protocol IV to the 1980 Convention), 13 October 1995 24 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996) 25 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects. Geneva, 10 October 1980. Amendment article 1, 21 December 2001 26 Protocol on Explosive Remnants of War (Protocol V to the 1980 Convention), 28 November 2003 27 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005 28 Convention on Cluster Munitions, 30 May 2008 As with any treaty, States may create a single piece of legislation that covers every aspect of implementation,18 or amend all relevant pieces of their existing legislation separately, in order to comply with the statute 19. However, there are some special considerations worth taking into account when approaching the implementation of the Rome Statute. States Parties will have a special relationship with the ICC, particularly in terms of providing judicial assistance. As such there are some particular features of the ICC that may not lend them to being incorporated as amendments to existing arrangements for state-to-state cooperation. For example, there will be no grounds 18 Ibid, at Pp. 15-16 19 See Human rights Watch, New York:- Comparative Tables on how various countries are implementing the Rome Statute, Draft No. 2, November 10, 2002, tables 1-3. 31 for refusal when a state is asked to surrender a person to the ICC (article 89). This is clearly different from the usual extradition arrangements between States. Therefore, States may wish to draft new ICC-specific “surrender” legislation, instead of trying to adopt existing laws on extradition. 3.2 Compatibility of Rome Statute’s General Principles of Criminal Law with our National Constitution, Penal Laws, etc. In keeping with the principle of legality (nullum crimen sine lege and nulla poena sine lege), meaning no one is to be held criminally responsible under the Statute for acts which did not constitute crimes under it at the time they were committed. The court is required to construe strictly the definitions of crimes and not to extend them by analogy, with any ambiguities interpreted in favour of the person investigated, prosecuted or convicted (Article 22). In this way, the Statute ensures that the interpretive discretion of the judges is kept within the confines of the statute, that is, within the limits set by the states that negotiated it. Also, a person convicted by the court can be punished only in accordance with its terms (Article 23). Provisions relating to this requirement of Criminal Justice in Nigeria can be found in Section 11 of the Criminal code Act Cap. C.38 Vol.4 Laws of the Federation of Nigeria 2004 which states that:- “No person can be punished for doing or omitting to do an act unless the act or omission constituted an offence under the law in force when it occurred.” Section 36 (8) of the 1999 Constitution speaks in the same vein when it states that:- “No persons shall be held guilty of a criminal offence on account of any act or omission that did not, at the time it took place constitute such an offence, and no account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the 32 penalty in force at the time the offence was committed. This is also the language of section 36 (12) of the 1999 Constitution which states that:- no one shall be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of law. The decision in the case Aoko v. Fagbemi (1961) 1 ALL NLR 400 was quashed for making an offence an act of adultery which was not an offence at the place of its commission. The Rome Statute does not apply to conduct prior to its entry into force. In the event of a change in the law before entering of final Judgement in a case, the law more favourable to the person investigated, prosecuted or convicted will be applied (Article 23). The crimes within the Jurisdiction of the ICC are not to be subject to any statute of limitations (Article 29). In agreeing to this provision, the Diplomatic conference reaffirmed the example of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. This international treaty had been ratified by Nigeria and hence binding legally on her. Next is the principle of ‘ne bis in idem’ meaning: - “No person may be tried for the crimes for which he has already been convicted or acquitted by either the ICC or by any other tribunal (Article 20 of the Statute). However, under Article 20 (3) of the Rome Statute there is an exception to this principle by stating that the ICC may prosecute someone who has already been prosecuted by another tribunal when the previous proceeding:- (a) was for the purpose of shielding the person concerned from criminal responsibility for crimes within the Jurisdiction of the court; or (b) otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in 33 circumstances, were inconsistent with an intent to bring the person concerned to Justice.” Therefore, by interpreting the norm of Article 20(3), comparing it to (1) and (2) of the same Article, one arrives at the conclusion that the general principle of the ICC is to respect previous judgements in the sense that if a suspect has already been tried under proceedings that safeguard due process, the person shall not be submitted to a second trial. A second trial will take place only under the extraordinary circumstances described above. These cases of fraudulent proceedings only arise under authoritarian rule to shield members of the regime from punishment. Hence section 36 (9) of the 1999 Nigerian Constitution provides that:- “No person who shows that he has been tried by any court of competent Jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order or a superior court,” thereby implementing the legal principle of ne bis in idem. Furthermore, the statute sets out in Part 3, Articles 22 to33, the most important general principles of criminal law, and reflects contributions from a wide range of countries as well as the highest international standards. Principles and standards related to investigation and prosecution are contained in other parts of the Statute. The court will be able to impose criminal responsibility on natural persons who have committed crimes within the Jurisdiction of the court (Article 25). The material elements of the crime must be committed with intent and knowledge, as defined in the statute (Article 30). This requirement of mental elements is consistent with the provisions of sections 8 and 9 and 22 of the Nigerian Criminal Code. 34 DEFENCES TO CRIMINAL LIABILITY The Statute provides defences, or grounds for excluding criminal responsibility, which will have a considerable impact on the scope of criminal responsibility under the statute. As such, they will be important to states wishing to provide in their implementing legislation for the possibility of conducting proceedings at the national level. The defences, as stated in Articles 31 and 32 are:- insanity, intoxication, self- defence, duress, mistake of fact or mistake of law. The Nigerian Criminal Code provides for all these defences under sections 24 to 29 of the Criminal Code, thereby implementing the grounds for excluding criminal responsibility. However, under Article 33 of the Statute, a person is not relieved of criminal responsibility by the fact that the crime was committed under order of a Government or of a superior, whether military or civilian, unless the person was under a legal obligation to obey the order, did not know the order was unlawful, and the order was not manifestly unlawful. Any order to commit genocide or crimes against humanity is deemed to be manifestly unlawful. This is consistent with the provisions of sections 56 and 57 of the Nigerian Armed Forces Act Cap. A.20 Vol. 1, LFN 2004,20 where disobedience to lawful superior orders is punishable. So a soldier in Nigeria is under a duty to disobey unlawful or illegal superior orders otherwise he will be answerable for any crime or offence committed thereby. This was the decision of the court in the leading, Nigerian case of the State V. Pius Nwaoga and another (quoted in, Achike, O., Military law and military rule in Nigeria (1978) Fourth Dimension Publishers, Enugu, Pp. 52-55. 4. SPECIFIC ISSUES OF IMPLEMENTATION This section of the paper is intended to highlight the various forms of state cooperation that are detailed in the statute, and to suggest ways that Nigeria can 20 Formally Decree No. 105 of 1993 as amended in 1994 35 ensure its ability to provide such assistance, as required. Each of the various types of cooperation outlined here may require a different approach to implementation, depending on the particular state’s criminal procedures and existing mechanisms for international judicial assistance. 4.1 PRIVILEGES AND IMMUNITIES OF ICC PERSONNEL. Under Article 48 of the statute States should recognise the privileges and immunities of the Judges, prosecutors, deputy prosecutors and Registrar in their implementing legislation as are accorded to heads of diplomatic missions and will, after the expiry of their terms of office, continue to be accorded immunity from legal process of every kind in respect of words spoken or written and acts performed by them in their official capacity. This will help to prevent any politically motivated allegations against such personnel or any reprisals after they retire from the court. This is very similar to article 105 of the UN Charter regarding Judges of the International Court of Justice. Accordingly, an amendment to Part II, Sections 14 to 16 of the Diplomatic Immunities and Privileges Act Cap. D.9 Vol.5 Laws of the Federation of Nigeria 2004 (on ICJ), is recommended to accommodate the Judges and other ICC Personnel consistent with Article 48 of the Statute. 4.2 POSSIBLE CONSTITUTIONAL ISSUES RELATING TO SURRENDER AND ABSENCE OF IMMUNITY FOR HEADS OF STATE. Articles 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 36 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. The idea of an absence of immunity for Heads of State accused of international crimes is not new. The existence of this rule was recognised following the First World War in the Treaty of Versailles, after the Second World War in the Charter of the Nuremberg Tribunal, in the Genocide Convention, by the International Law Commission, and in the Statutes of ICTY/R. Article 27 confirms that the rule that individuals cannot absolve themselves of criminal responsibility by alleging that an international crime was committed by a State or in the name of a State, because in conferring this mandate upon themselves, they are exceeding the powers recognised by international law. With respect to immunity for former Heads of State for crimes committed while they were in power, the United Kingdom’s House of Lords ruled that Senator Augusto Pinochet was not entitled to immunity in any form for the acts of torture committed under his orders when he was Chile’s Head of State. The House of Lords indicated that because the alleged acts of torture could not be considered as constituting part of the functions of a Head of State, these acts were not protected by any immunity.21 21 See for an extensive analysis of Pinochet’s case, Ladan M. T., “Pinochet:- A Land mark case in international law”, in:- UDUS Law Journal, Usmanu Dan Fodio University, Sokoto, Nigeria, 2000, Vol. 1, No. 2, Pp. 149-158. 37 Article 27 of the Statute therefore necessitates a constitutional amendment to section 308 of the 1999 Constitution by providing an exception to this absolute immunity. This amendment could be minor, and may simply consist of the addition of a provision making an exception to the principle of immunity for the Head of State or other officials, should they commit one of the crimes listed under the statute. However, several European States have decided that they do not need to amend their constitutions, in order to provide for an exception to immunities under national law. They believe it is already implicit in their constitutions. 22 If the unlikely situation arises where the ICC requests the surrender of an official, such as their head of State, a purposive interpretation of the relevant constitutional provisions would allow for that official to be surrendered, given that the purpose of the ICC is to combat impunity for “the most serious crimes of concern to the international community as a whole.” If a state official commits such a crime, this would probably violate the underlying principle of any constitution. Therefore, other States may be able to surrender State officials to the ICC, notwithstanding the protection that their constitutions may appear to offer to the official under normal circumstances. 23 A State party could also make provisions to ensure that its own courts can prosecute the Head of State or any State official for the commission of crimes within the Jurisdiction of the ICC. The advantage of this approach is that, as a result of the principle of complementarity running through the statute, the state would likely exercise jurisdiction in this matter. Another advantage is that it may be easier for states to prosecute their leaders themselves. Whatever solution is adopted, immunity should no longer be absolute and should not prevent the ICC from prosecuting the perpetrators of the international crimes listed under the statute.24 22 Supra note 19, tables 1-3. 23 Ibid, tables 1-2 24 Ladan, M.T., “Introduction to International Human rights and Humanitarian Laws”, 2001, ABU. Press, Zaria, Nigeria, Chapters 7 and 8. 38 Under Article 29 of the Statute, perpetrators of crimes covered by the statute can still be prosecuted and punished by the ICC regardless of the number of years that have elapsed between the crime’s commission and the indictment. States must therefore ensure that persons may be surrendered to the ICC, even when statutory limitations would normally apply under national legislation to the crime for which they are being charged. 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). The advantage of this type of constitutional reform is that it implicitly amended the constitutional provisions in question, without opening an extensive public debate on the merits of the provisions themselves. 4.3 SUBJECT-MATTER JURISDICTION The jurisdiction of the ICC is limited, as set forth in Article 5 of the statute, “to the most serious crimes of concern to the international community as a whole.” These crimes are:- the crime of genocide, crimes against humanity, crimes of war and the crime of aggression. The crime of aggression will fall under the jurisdiction of the court once it is defined and this will be done in conformity with the requirements of the charter of the UN. Regarding genocide, it should be remembered that the UN Convention for the Prevention and Punishment of Genocide was approved in 1948 and not yet ratified by Nigeria. The Rome Statute has included the majority of the acts that constitute genocide as defined by the Convention. 39 With respect to crimes against humanity in the Rome Statute, may appear exactly as they do in international instruments, as for example, the crimes of slavery, torture, forced disappearance, apartheid, rape, forced prostitution and other grave sexual abuses. Nigeria has also ratified the majority of these international instruments that condemn and sanction these crimes. The War Crimes in the statute were taken from the four Geneva Conventions of 1949, which make illegal certain acts committed in times of internal or international armed conflict. The Geneva conventions and the Additional Protocols I and II of 1977 were also ratified by Nigeria in 1961 and in 1988 respectively. While the Geneva Conventions have already been domesticated as Cap. G.3 Vol. 7 Laws of the federation of Nigeria 2004, the Protocols are yet to be domesticated. Accordingly, it is proposed here that in order to implement the Protocols as well, Nigeria needs to amend Cap. G.3 Vol. 7, by means of Geneva Conventions (Amendment) Act.25 This proposal26 is consistent with the Australian Geneva Conventions Act, 1957 (as amended in 1991). In sum, the majority of these grave breaches that constitute violations of human rights are already recognised in the Nigerian legal order, whether in the Constitutional, the Penal Legislations or in international conventions ratified by Nigeria.27 4.4 UNIVERSAL JURISDICTION AND DUTY TO PUNISH INDIVIDUALS The Geneva Conventions Act Cap. G.3 Vol. 7Laws of the Federation 2004 covers persons of all nationalities, regardless of the place where the offence is committed. 25 See the Federal Executive approved Proposed Bill: - For the Repeal of the Geneva Conventions Act, Cap. G.3 LFN 2004 and for the Enactment of Geneva Conventions and Additional Protocols Act 2007. 26 Proposal made by this writer since November 202 in a Paper titled: - Issues in Domestic Implementation of the Rome Statute of the National criminal Court, published in the Journal of Public Law, Rivers State University, Portharcourt, Rivers State, Nigeria, Vol. 1 2003 at pp.112-128. 27 See Uchegbu, Okere and Ladan, M. T., Report on Nigerian National Practice Study on Customary Rules of International Humanitarian Law, September 1997, submitted to the ICRC, Lagos/Geneva. 40 Indeed the Act states that any person may be proceeded against, tried and sentenced in Nigeria for an offence committed outside the country, as if the crime had been committed in Nigeria. The Act goes further to state categorically that for all purposes incidental to or consequential on the trial or punishment, the offence shall be deemed to have been committed in Nigeria (Sections 3-4 of the Act). Nigeria as one of the High Contracting Parties to the Geneva Conventions has a right to punish individuals violating international humanitarian law on the basis of universal jurisdiction. Thus in addition to sections 3-4 and first schedule to the Geneva conventions Act, section 130 (2) of the Armed Forces Act Cap. A.20 LFN 2004 has conferred universal jurisdiction over war criminals to General Courts Martial. In Conclusion therefore, the opinio Juris of Nigeria is supportive of the right to punish individuals violating international humanitarian law and by extension the Rome Statute on the basis of Universal Jurisdiction. 5. CONCLUSION The Rome Statute of the ICC has the potential to mark a significant turning point in the way the international community views peace, transition and the enforcement of international law. The Jurisprudence of the ICC – and of national courts that investigate and prosecute crimes within the Jurisdiction of the court, or that cooperation with it, will quickly bring international criminal law to a level of development commensurate with its importance. On a practical level, the court will fill many of the gaps that characterise the current system of national enforcement, and will encourage advancements in national law and practice even outside the scope of the statute as such. From a practical point of view, whether Nigeria introduces the ICC – Specific legislation, amend existing pieces of legislation separately, or use a hybrid approach, the changes to the legal order of the state will need to be disseminated widely once 41 they come into force. This will ensure that all relevant personnel are aware of the changes that the new legislation or amendments may introduce into the law in their particular area of work. 42
"AN OVERVIEW OF THE ROME STATUTE OF THE INTERNATIONAL"