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AN OVERVIEW OF THE ROME STATUTE OF THE INTERNATIONAL

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AN OVERVIEW OF THE ROME STATUTE OF THE INTERNATIONAL Powered By Docstoc
					   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.




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