AN EXAMINATION OF THE CRIME OF GENOCIDE IN INTERNATIONAL HUMANITARIAN LAW
This thesis entitled “An Examination of the Crime of Genocide under International Humanitarian Law” dealt with crime of genocide as an act of aggression which of recent presented serious threats to international peace and security. This is because this crime when committed within a particular state lead to murder of innocent people to such alarming propositions that the international community could not ignore. Global incidences of the commission of the crime of genocide led to concerted efforts of the United Nations to make genocide an international crime so that its perpetrators could be brought to justice through punishment. On this note, this thesis aimed at examining the legal framework of the crime of genocide through the study of the various constitutive international instruments on the crime of genocide and also that of the International Criminal Court (ICC) as the judicial institution responsible for fight against genocide in International Law. However, the statement of problem of this research is that following the recent experiences in the commission of the crime of genocide the international community has found it difficult to bring perpetrators for punishment before the international criminal court due to one reason or the other. For example, the consideration of the circumstances to be designated as genocide by the Rome Statute is not clear. In addition, it is noteworthy to state here that, a fundamental issue which generated the interest of the writer in this area of research is that there is no corresponding will by states to prevent the commission of the crime or stop it from escalating. State parties and indeed even the United Nations always fail to use the term Genocide to describe hostilities that clearly fall within the meaning of the crime of Genocide. Thus, United Nations and state parties usually capitalize on the loopholes and inherent defects in the laws of Genocide to suit their political purposes. For instance the persistence of Genocide in Bangladesh, Uganda, Cambodia, Rwanda (Hutus and Tutsis) and Bosnian Muslims in the former Yugoslavia are testimonies of failure of intervention by the international community to stop high profile atrocities. Indeed, when ethnic cleansing was going on in the territory of former Yugoslavia, Darfur, Rwanda between Tutsis and Hutus, the United Nations, the US government and other countries were called upon to intervened but they failed. Against this backdrop therefore, the objective of this thesis was to identify the factors militating against the prevention and punishment of the crime of genocide and to proffer possible measures solutions to addressing them; and further to consider the possibility of adopting same measures in Nigeria so as to eradicate instance of genocide in the country in view of the present Nigerian experiences. In view of this therefore, the finding of the writer was that the general weakness of international law constitutes a major problem of lack of enforcement to the institution of the punishment and prevention of genocide. In this regard, the writer concluded by recommending (among others) that the governments of Member States of the international community particularly the Security Council should be proactive, effective, prompt and jurisprudentially sound on the improvement and enforcement of the international legal processes that hold individuals accountable to the law so that, never again should would-be violators of these laws succeed in claiming that they are entitled to hide behind a wall of sovereignty.
TABLE OF CONTENTS
Title page – – – – – – – – –
Declaration – – – – – – – – –
Certification – – – – – – – – – –
Dedication – – – – – – – – –
Acknowledgments – – – – – – – – –
Abstract – – – – – – – – – –
Table of Contents – – – – – – – – –
Table of Statutes – – – – – – – – –
Table of Cases – – – – – – – – –
1.1 Background of the Study – – – – – –
1.2 Statement of the Problem – – – – – – –
1.3 Justification of the Study – – – – – – –
1.4 Aim and Objectives of the Study – – – – –
1.5 Scope of the Study – – – – – – – –
1.6 Research Methodology – – – – – – –
1.7 Literature Review – – – – – – – –
1.8 Organizational Layout – – – – – – –
CONCEPT OF INTERNATIONAL HUMANITARIAN LAW AND GENOCIDE
2.1 Introduction – – – – – – – – –
2.2 Development of International Humanitarian Law – – –
2.3 The Role of Custom in the Development of International
Humanitarian Law (IHL) – – – – – – –
2.4 The Relationship between IHL and the Crime of Genocide – –
2.4.1 The Meaning and Nature of International Humanitarian Law – –
2.4.2 The Meaning and Nature of the Crime of Genocide – – –
2.4.3 The Development of Genocide and its Criminalization in
International Humanitarian Law – – – – –
2.4.4 Genocide as an International Crime – – – – –
2.4.5 An Overview of the Constitutive International Instrument on Genocide-
AN ANAYLSIS OF THE CRIME OF GENOCIDE IN INTERNATIONAL HUMANITARIAN LAW (IHL)
3.1 Introduction – – – – – – – – –
3.2 The Meaning and Nature of the Concept Genocide – – –
3.3 The Scope of the Concept of Genocide in International Law – –
3.4 The Punishment of the Crime of Genocide in International Law
3.5 Specific Instances of the Commission of Genocide in International Law-
3.6 The Nigerian Experience – – – – – – –
3.6.1 The Odi Massacre – – – – – – – –
3.6.2 The Tiv Massacre – – – – – – – –
3.6.3 Boko Haram – – – – – – – – –
3.6.4 Ombatse Militia in Nasarawa State – – – – –
3.6.5 The Plateau State Religious Crisis – – – – – –
THE CRIME OF GENOCIDE IN INTERNATIONAL CRIMINAL COURT (ICC)
4.1 Introduction – – – – – – – – –
4.2 Procedure of the Court – – – – – – –
4.3 The International Court of Justice and the Maintenance of International
Peace and Security – – – – – – – –
4.4 The Functions of the Court – – – – – –
SUMMARY AND CONCLUSION
5.1 Summary – – – – – – – – –
5.2 Findings – – – – – – – – –
5.3 Recommendations – – – – – – – –
Bibliography – – – – – – – – –
1.1 Background of the Study
International crime such as genocides, war crimes, crimes against humanity and crime of aggression have always presented serious threats to international peace and security. Such crimes which often committed within a particular state always have a spill-over effect in other states (by way of displacement of persons) and; such crimes also have the potential to engulf an entire region in crises (by way of refugees) and perpetration of more atrocities (such as rape, looting and etcetera). The prevalence of these events is not new to the world. This is because events before the advent of the United Nations Charter
in 1945, showed that conflicts starting in a particular region of a particular continent can spread to engulf the neighboring region or even the world at large because at that time wars are considered to be the only solution of resolving conflicts.
Consequently, such wars paved way for the commission of other crimes such as loss of life or injury to civilians, wide spread and severe damage to the environment, attacking and bombarding by whatever means to towns and villages, torture, persecution enslavement and indirect transfer of civilian population all of which are considered to be crimes in violation of the existing international law and in particular the principles of the International Humanitarian Law (IHL) within the four 1949 Geneva Conventions and its two Additional 1977 Protocols together with the Hague Regulations. Indeed, the concern of punishing the offenders for the purposes of deterring further occurrence in the
International Legal Order prompted the researchers interest to delve into one aspect of these crimes, which is the crime of genocide.
Genocide is generally considered one of the worst moral crimes a government or a ruling authority be it a guerilla group, a guise state terrorist organization etc can commit against its citizen or those it controls it also refer to mass killing or murder with intent to destroy a designed group of people1. This is because of the lesson learnt by the form of holocaust which was the systematic attempt of German authorities during the World War II to kill people and particularly every Jew no matter where found destroyed groups estimated between 5-6 million. This murder of the Jews became the paradigm case of genocide and underlies the origin of the word. Alarmed by this spate of killing in both local and international conflict an attempt was made finally by the international community through the UN to make genocide an international crime and bring the perpetrators to justice. This flagrant violation of humanity led to the adoption by the UN‟s General Assembly, the Convention on the Prevention and Punishment of Genocide 1948 and most recently the signing into being of the International Criminal Court in 2002.
The event in former Yugoslavia and Rwanda which led to the destruction of thousands of innocent lives further strengthened the need for an international criminal court which had long been under consideration. The creation of the Permanent International Criminal Court (ICC) became a reality on July 17, 1998 with the adoption
1 The legal application of the term genocide first occurred in the incident of Nazi war cardinal in 1945-46. See also Guobadia, D.A., (Ed) (1982) An Introduction to the Rome Statute of the International Criminal Court, p.71
of the Rome Statute after 50 years of prolonged discussion and debates. The Rome Statute was signed on 1st June 2000 and ratified on 27th September 2001 by Nigeria along with many other counties2.
The objective of the establishment of the ICC are principally to safeguard higher values such as the protection of human rights, an obligation that transcends state border; and accountability for those responsible for the commission of these crimes so as to put an end to the impunity that is often associated with these violations3. At this juncture the first thing that borders the researcher into delving in this field of research is how far has the ICC achieved these objectives noting the current prevalent day to day local and international high profile impunities as a result of disorderliness. Of course the answer to this question is that the achievement of the objective of the ICC is so far poor even though there are machineries in place for the achievement of its objectives; yet, international practice (particularly politics has not pave way for the effective operation of the court (ICC).
Thus, in view of the foregoing, the finding of the writer is that the general weakness of international law constitutes a major problem of lack of enforcement to the institution of genocide. And another observation which further generates the interest of the writer in this field of study is that there is no corresponding will by states to prevent the crime or stop it from escalating. State parties and indeed even the United Nations always fail to use the term Genocide to describe hostilities that clearly fall within the
2 Ladan, M.T. (2007) Materials and Cases on Public International Law, A.B.U Press, Zaria, p. 228 3 Ibid
meaning of the crime of Genocide. Thus, United Nations and state parties usually capitalize on the loopholes and inherent defects in the laws of Genocide to suit their political purposes. For instance the persistence of Genocide in Bangladash, Uganda, Cambodia, Rwanda (Hutus and Tutsis) and Bosnian Muslims in the former Yugoslavia are testimonies of failure of intervention by the international community to stop high profile atrocities. Indeed, when ethnic cleansing was going on in the territory of former Yugoslavia, Darfur Genocide, Rwanda Genocide between Tutsis and Hutus, the United Nation, the US government and other countries were called upon to intervene but they failed. The failure of the international community to stop high profile atrocities in Bosnia and Rwanda have all highlighted the need for timely intervention in stopping or reducing the severity of mass killings.
It should be noted that after many years of Genocide, the international community hasn‟t taken a simple step like imposing a no fly zone just like what happened in the Libya and United States crises or what is currently happening in Syria and Mali. Equally, the Islamic world has been even much more concerned, particularly since the victims in Dafur include Muslims. In Darfur, the government supported Arab Janjaweed militia against the black population and this is Genocide. Can‟t the Islamic world master one hundredth as much indignation for the Genocidal slaughter of hundred of thousands of Muslims as it can for a few Danish cartoons? Yet, the international community failed to describe what happened in Rwanda as Genocide and this prevented spontaneous and effective intervention which could have saved innocent lives.
In view of the above poor delivery system of the court and international politics, the objective of this research is to identify reasons for the poor delivery of the court, or in other words, why is it that perpetrators of such crimes are not punished, and could that be due to international politics (as a general weakness of international law) or due to local circumstances that perpetrators have been shielded by national laws or local collaborations with other offenders and supporting states that frustrates the court from apprehending the offenders and punishing them accordingly. In the light of these events therefore, a major constraint of this research is that state parties have not given full support to the implementation of the obligations set out in the Rome Statute amongst which is surrounding offers to the court without any bias or sentiments. As a result of this unfortunate common practice of states, the writer concludes this research by recommending (among others) that for the court to be able to discharge its objectives efficiently as intended at its formation, state parties must be made to fulfill their obligations under the Rome Statute.
1.2 Statement of the Problem
Attempted efforts to put an end to the crime of genocide and other impunity under International Humanitarian Law is constraint by many factors. A major constraining factor here is that the general weakness of public international law under which IHL exist as a branch is seriously affecting the achievement of the objectives of IHL vis-à-vis the response of the state parties to give full support to obligation created under the Rome Statute as a basis for full implementation of the provision of the Rome Statute.
Other related problem to the above include the practical difficulties in bringing perpetrators to trial. The problem was two-sided: “First, is the understanding of the nature of the crimes that falls under its jurisdiction. Second, proving the responsibility of individuals for acts they had not directly committed”. However, the notion that an individual can be held accountable for international criminal offences grounded the Tribunal‟s concept of international criminal law. Accordingly, the Nuremberg Tribunal of 1946 emphasized “individual responsibility” for crimes against humanity. Under the Charter, individuals, not collective bodies like government or militaries, were held accountable for criminal offences. Members of the International Military Tribunal in Nuremberg proclaimed that “crimes against international law are committed by men, not by abstract entities, and it is only by punishing individuals who commit such crimes can the provisions of international law be enforced.
Although it is difficult to conceive of heavier responsibility for the international community and the various human right bodies of the UN than to undertake all effective steps possible to prevent and punish this terrible act in order to deter reoccurrence.
It has rightly been said that those people who do not learn from this bad history are likely to continue to repeat it. This goes contrary to the human right work of the United Nation and the other NGOs in order to perceive the optimal remedies and to prevent future occurrence. It is therefore necessary to diagnose or examine past event, and case and even present happening in order to analyze the cases harness possible way of averting it.
1.3 Justification of the Study
In recent time social conflicts have become pronounced in the world (for example, the Libyan, Syrian, Sierra Leone, Rwanda crisis to mention but a few) encompassing a broad range of conflict usually manifesting in outright war or tyrannical government. And there have been also various techniques over the year by the international community to prevent, manage, and resolve conflict, many of the most severe persistent threats to the global peace and stability are arising not from conflicts between major political entities but from increase discord within states along the ethnic racial religious linguistic.4 The threats to global peace has greatly affected human rights and particularly the objective of the International Humanitarian Law (IHL) which is to protects lives and properties by limited the method of war fare in armed conflict situation. It is in view of this therefore, that the necessity of making an attempt to address these global threats to international peace that this research alongside with other existing literature in this field justifies itself by identifying possible legal mechanisms of making the international legal framework proactive in order to be able to achieve its objectives of bringing an end to impunity as intended by the state parties to the Rome Statute and further examine the possibility of adopting same measures in Nigeria. These in turn will eradicate (if not completely wiped out) instances of genocide in the country in view of the present Nigerian experiences.
1.4 Aim and Objectives of the Study
The aim of this study is to examine comprehensively the crime of genocide in International Humanitarian Law (IHL) through the study of the extant laws on genocide. Against this background therefore, the objectives of this research is to identify reasons for the current prevalent commission of the crime of genocide in IHL and possible measures for eradicating the commission of the crime together with the possibility of domestic implementation in Nigeria by reference to the following issues:
i. The implementation of the punishment of the crime of genocide and factors militating against the implementation.
ii. Proffering suggestions and strategies on how best the problem of implementation of Rome Statute could be addressed in International Humanitarian Law.
1.5 Scope of the Study
The scope of this research is confined to the following areas of study:
i. Understanding of the concept of crime of genocide in International Humanitarian Law with particular reference to Rwanda, former Yugoslavia, Sudanese region of Darfur, as analytical studies of whether the acts committed in those places are enough for the international community (especially UN) to declare such as acts of genocide.
ii. Examining the punishment for genocide and its implementation measures in IHL.
iii. A case study of domestic implementation of international standard strategies in Nigeria.
1.6 Research Methodology
The research method adopted here is doctrinal. Doctrine method of approach includes the use of the following materials, statutes, (for example, the Four Geneva Conventions and the two Additional Protocols), textbooks, journals, law reports, conference proceedings both local and international. Also Declarations and Resolutions of international conferences and information accessed from the internet will be used.
1.7 Literature Review
Many jurists have written in this area. However, notable among such literatures considered to be relevant to this study are considered below.
Harris, D.J., in his book entitled “Cases and Materials on International Law”5 discussed genocide of Former Yugoslavia in relation to the application of the genocide convention of 1948. He gave a brief and concise introductory legal regime of the crime genocide as contained in the United Nations Convention on the Prevention and the Punishment of Genocide (UNCPPG).
Brownlie, in his book entitled “Principles of Public International Law”6 noted that the crime of genocide has been generally recognized to be part of those acts or omissions for which international law imposes criminal responsibilities on individuals and for which punishment may be imposed, either by properly empowered international tribunals
5 (1979) Sweet and Maxwell Publication, London, pp.581-583 6 (1990) 4th edition, Oxford University Press, Great Britain, pp.561-564
or by national courts and military tribunal. Thus Brownlie‟s analytical position is considered relevant to introductory aspect of this research for the purposes of general understanding of the crime of genocide and its development in international law.
Mc Coubrey in his book entitled “International Humanitarian Law: The Regulation of Armed Conflicts”7 traced the history of genocide in discussing individual and criminal responsibility, and in his opinion the atrocities perpetrated by Nazis to Jews, gypsies and homosexuals led to a post war demanded for specific treaty provision, which resulted in the 1948 United Nation (UN) convention on genocide. He further defined genocide and the essence of such definitions under the United Nation Convention on the Prevention and the Punishment of Genocide, the nature of jurisdiction in cases of genocide under the convention. Importance in the mentioned by the author that the convention does not as such purport to create new law, instead it is represented as “confirming” the existence of a crime called genocide which was taken to exist in prior customary law.
Lemkin R,8 a Polish born Adviser to the United States War Ministry, in his book “Axis Rule in Occupied Europe”, aware of the situation at hand and of the need to find and give it a meaning first coined the term “genocide”. The term genocide was constructed in contradiction to the accepted rules of etymology, from the Greek word “Genos” (race or tribe) and to the Latin suffix “Cide” (to kill). According to Lemkin, genocide signifies “the destruction of a nation or of an ethnic group and implies the
7 Mc Coubrey, (1990). International Humanitarian Law, Dartmouth Publishing Company Limited, U.S.A, pp145-170 8 Lemkin, R., “Axis Rule in Occupied Europe”, cited in Harris, D.J., op. cit, p.583
existence of a coordinated plan aimed at total extermination to be put into effect against individuals chosen as victims purely, simply and exclusively because they are members of the target group”.
Ladan M. T, in his book entitled “Materials and Cases on Public International Law”9 in chapter 16 and 17 made an overview of the Rome Statute of the International Criminal Court in relation to the obligations of state parties and issues in domestic implementation in Nigeria. On that note, generally Ladan concluded that the approach taken in Rome Statute reflects that fact that crimes against humanity (which includes genocide) are often committed against civilians in the absence of hostilities and that the seriousness of the crime is not affected by whether it is committed in peace or war time; or that perpetrators have a discriminatory intent when committing a crime against humanity. Such crimes include, enslavement, persecution, enforced disappearance, genocide and war crimes. Further, Ladan considered the obligations of member states under the Rome Statute and general issue in domestic implementation of Rome Statute in Nigeria in relation to domestication process under the 1999 CFRN as amended. On this note therefore, Ladan‟s work is considered relevant as it touches several aspects of this thesis particularly the last (concluding) chapter.
Bassiouni, M.C. in his article entitled, “Crimes Against Humanity in International Law”10 discussed, the meaning, nature and development of crime against humanity and indicated measures needed to eradicate the commission of such crimes designated as
9 (2008) A.B.U Press, pp.218-247 10 Bassiouni, M.C. (1999), Crimes Against Humanity International Criminal Law pp.17-18
crimes against humanity and lot which genocide is one in the international legal order by creating obligations on state parties for the enforcement of the decision of the ICC.
Mcviegh R in his article entitled “The Balance of Cruelty: Ireland, Britain and the Logic of Genocide11” illustrated, accusations and assertions of genocide pervade both historical and contemporary readings of Irish history. Ireland thus provides a case study of the relationship between colonialism and genocide as a “proof” of their own righteousness and their opponent‟s perfidy. Ireland therefore provides an important case study of the question of colonialism and its relationship to genocide. He asserted that the notion of the state as a necessary condition for genocide is largely implicit in the Convention but this connection is starkly illuminated by any examination of the colonial state and genocide. Mcviegh is considered relevant to this research as it adds to the understanding of the connection between different forms of colonialism and genocidal logic as a basic ground showing that the crime of genocide is a long time existing offence demanding the necessity of the adoption of the convention.
Akper, P.T. in his article entitled “The Crime of Genocide under the International Criminal Court: An Introduction to the Rome Statute and the International Criminal Court”12 opined that the world witnessed some of the most gruesome attacks on humanity by totalitarian and authoritarian regimes leading to murder of innocent peoples to such alarming propositions that the international community could not ignore. Global incidences of the commission of crime of genocide led to concerted efforts of the United
11 Mcveigh, R. (2008), The Balance of Cruelty: Ireland, Britain and the Logic of Genocide. Journal of Genocide Research, Routledge Taylor & Francis Group, pp.541-561. 12 Akper, P.T. (2005), The Crime of Genocide under the International Criminal Court: An Introduction to the Rome Statute and the International Criminal Court” Nigerian Institute of Advanced Legal Studies Lagos, pp.66-90.
Nations to make Genocide an international crime and bring its perpetrators to justice. Akper‟s work is of considerable importance to this research as it expressed the importance of the establishment of International Criminal Court in the bid to prevent and punish for the crime of Genocide so as to put an end to impunity around the globe which is the central theme of this research work.
Finally, Heilprin J. in his article entitled: “United Nations Debate on Genocide: Protect or Intervene?13 Posited a well reasoned argument on the responsibility of nations to protect nations that find themselves sliding towards anarchy usually borne out of a government‟s inadequacy or direct collusion with a particular group to cause particular distress, prejudicial harm or embark upon genocidal killings against a part of its people needs to stop. His aptly titled essay draws on the disastrous handling by the UN of the Rwandan Genocide that was allowed to degenerate into a bloodbath against a particular ethnic group (The Tutsis) and their sympathizers who expressed chagrin and disgust were also slaughtered in one of the worst post World War II human disasters ever to plague the African continent. In this research Heilprin‟s article is used to analyze generally the weakness or otherwise of the United Nations enforcement mechanism on the prevention and punishment of genocide.
However, notwithstanding the existence of the above literatures on the subject matter, the researcher intends to focus this study on measures which must be taken to ensure that the rules of IHL are fully respected as a different approach of the literatures
13 Heilprin, J. (2012) “United Nations Debate on Genocide: Protect or Intervene? Derived from http://www.Genocidewatch.org/images/Articles accessed 29/7/14
considered above. Measures needed here are, those which must be taken outside the areas of conflict and in time of peace as much as in time of war so as to ensure that all people, both civilian and military, are familiar with the rules of IHL.
1.8 Organizational Layout
There are five chapters in this research.
Chapter one deals with the general introduction of the research work that the study hopes to achieve, the reason or the study and the importance of the study to the international community, organizational layout of the study is also discussed in this chapter to make for easier understanding.
Chapter two critically examines the concept of the international humanitarian law, the meaning of concept of genocide, historical development of international humanitarian law and make a conclusion.
Chapter three deals with the nature and scope of the crime of genocide under international humanitarian law, introduction, nature of genocide, scope of genocide, punishment for genocide specific instances of the commission of genocide and closed with conclusion.
Chapter four which deals with the crime of genocide under international criminal court, introduction procedure of the court, the ICJ and security, function of the court and the conclusion of the chapter.
Chapter five deals with the entire summary of the research, observations arising therefrom and suggestions.
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