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AN APPRAISAL OF THE DEVELOPMENT OF LEGAL FRAMEWORK OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW

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 Sep 02, 2019 |  10:20 pm |  1688

ABSTRACT

This dissertation entitled “An Appraisal of the Development of Legal Framework of Crimes against Humanity in International Law ” aimed at examining the various constitutive legal instruments on the field of crimes against humanity in international law vis-a-vis the obligation of states to take practical measures to endure respect for the performance of such obligations under the various constitutive legal instruments. However, the justification for this research is that despite the fact that the term “crimes against humanity” has acquired enormous resonance in the legal and moral imaginations of the post-World War II which suggested that crimes against humanity are offences that aggrieved not only the victims and their own communities, but all human beings regardless of the community because such violate the very essence of the existence of humanity. Yet while the law limped lamely, the crime against humanity flourishes as if there is no law in existence, particularly of recent where there is an increase in violence at both local and international levels. For example, according to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity in the 21st century. In view of these events therefore the objective of this research is to identify the factors responsible for the prevalence of such crimes and to proffer solutions to the lapses identified (if any). In conclusion, it is recommended (among others) that there is the need for a specific international treaty on crimes against humanity which will provide a comprehensive definition of crimes against humanity; and by so doing it will harmonized constitutive elements of each of the crimes against humanity and promote greater certainty and uniformity in the development of the jurisprudence of the law of crimes against humanity. The sources of information relied upon here are relevant text materials, international instruments, domestic instruments, judicial authorities and internet materials

CHAPTER ONE

GENERAL INTRODUCTION

Background of the Study

The first forty years after the Nuremberg Trial was a period of slow progress in developing international criminal law. There is no doubt that international criminal law has developed as a distinct field of study in recent years. Indeed if international criminal law is defined as the prosecution of individuals for ‘international crimes’ such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions of State sovereignty. As the Nuremberg judges pointed out the following in 1946, ‘The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.’[1]

The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity - even by a sovereign against his own citizens-gradually emerged from the Nuremberg principles affirmed by the United Nations.

The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of


various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.

While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity during the past century. The World Wars led the world community to pledge that “never again” would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century. But what is possibly even sadder is that the International Community have witnessed these massacres passively without been proactive. The result is that in almost every case in history, the person responsible for carrying out these atrocities is not punished despite the existence of the constitutive international instruments and the judicial institutions (such as International Criminal Court) and ad hoc tribunals such as the International Tribunal for Former Yugoslavia and International Tribunal for Rwanda.

Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was [2] [3] essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statutes for the International Criminal Tribunal for Yugoslavia in about 8 weeks - the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.

Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The idea of establishing a permanent international criminal court is not new though. Attempts in that direction were taken as nearly as the end of World War I, but the international community never reached agreement on the matter.

The ICC’s predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies after World War II. These tribunals have been accused of being unfair and merely institutions for “victor’s justice,” but nevertheless they did lay the groundwork for modern international criminal law. They were the first tribunals where violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly.

The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statute for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law.

After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and it entered into force on the first of July of 2002, after achieving 60 ratifications[4]. Now, only a few years after ratifications/accessions has risen from 60 to 120.[5] The Court holds a promise of putting an end to the impunity that reigns today for human rights violators and bringing us a more just and more humane world.

No record exists of how the term “crimes against humanity” came to be chosen by the framers of the Nuremberg Charter. The term was selected by Justice Robert Jackson of the US Supreme Court, Chief Prosecutor at Nuremberg and the Head of the American delegation to the London Conference of US (the three constituting those that frame the Charter).

In 1915, the French, British, and Russian governments had denounced Turkey’s Armenian genocide as ‘crimes against civilization and humanity’, and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called “laws of humanity” had no specific content, and the proposal to try the Turks was scuttled. The phrase “crimes against humanity” has acquired enormous resonance in the legal and moral imaginations of the post-World War II. It suggests, in at least two distinct ways, the enormity of these offences. First, the phrase “crimes against humanity” suggests offences that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offences cut deep, violating the core humanity that we all share and that distinguishes us from other natural being[6] [7] [8].

The term “crimes against humanity first appeared in positive international law in Article 6(c) of the Charter of the International Military Tribunal (IMT), in 1946, which defined crimes against humanity as a constellation of prohibited acts committed against a civilian population. The Charter further defined crimes against humanity as “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The category of crimes against humanity was added to the Charter because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished? The crimes against humanity count in the Nuremberg. The crimes against humanity charge confirmed that citizen’s are under the

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protection of international law even when they are victimized by their compatriots .

Furthermore, the criminality of such acts “whether or not in violation of the domestic law

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of the country where perpetrated established the supremacy of international law over municipal law[9] in this way, the prohibition of crimes against humanity at Nuremberg had the potential to irretrievably pierce the trope of sovereignty “a rule of international law which provides that no state shall intervene in the territorial and personal sphere of validity of another national legal order[10].

The definition of crimes against humanity in the Charter of the International Military Tribunal contained a curious limiting principle the Nuremberg Tribunal could assert jurisdiction only over those crimes against humanity committed ‘before or during the war’ and ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal”, i.e., war crimes or crimes against the peace[11]. This formulation became known as the “war nexus”, and it is apparent that the Charter’s drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic jurisdiction of a state.

Against the above backdrop, therefore, a statement of problem is hereby established in relation to the wider nature of the meaning of the phrase “Crimes against humanity” and the extents of their compatibility with various national constitution (with particular reference to Nigeria) having regard to the fact that even the definition offered by Art. 7 of the Rome Statute of the International Criminal Court (ICC Statute) contains loose concepts such as a ‘widespread or systematic attack directed against any civilian population’ and a ‘State or organizational policy to commit such attack’. The meaning of these terms is far from clear in international law. Whilst the ad hoc Tribunals created by the Security Council (the CTY and the ICTR) have recently pronounced upon the crime’s meaning in the context of their own statutory definitions and factual situations, there is no authoritative case law of the ICC assigning the offence a clear technical meaning, and the various statutes defining it - the Nuremberg Charter, the Tokyo Charter, Allied Control Council Law No. 10, the ICTY Statute, ICTR Statute, the ICC Statute, the Statutes of the hybrid Tribunals of Sierra Leone, East Timor, Kosov and Cambodia-along with the international law Commission, all define it differently. Hence, the term’s ‘correct meaning’ under international law remains elusive. This has prompted many wide and varied claims as to what amounts to a crime against humanity. For example, Kate Reynolds in respect of Australia’s policy of mandatory detention of asylum seekers stated that ‘Our government is engaged in a continuing crime against humanity. It is indeed, this state of confusing levels of the law on one hand and its different interpretation by the tribunals and court on the other hand that generates the writers interest in this field of research with the objective of identifying the reasons for such differences in international law and also to proffer solution to the existing practice by suggesting among others that the domestication of the Rome Statute within the state national legislation will be an essential way forward as it will serve as a customary rule of uniform understanding.

1.2              Statement of the Problem

Crimes against humanity were conceived to fill the gap in international criminal law, the formation of the idea arose from the need to justify the prosecution of atrocities and end the horrific international offences in order to protect the largest number of victims. Crimes against humanity comprised of two categories of specific Punishable behaviour, the first, such as murder, extermination, enslavement, and inhumane acts, correspond generally to crimes under virtually all domestic criminal law systems, and cover such offences as killing, assault, rape, and kidnapping or forcible confinement. The second, persecutions on discriminatory grounds, run afoul of antidiscrimination laws in many countries but fall short of criminal behaviour. What elevates these acts to crimes against humanity, as held by the courts, is their commission as part of a widespread or systematic Attack on a civilian population, although this is not stated explicitly in the Nuremberg Tribunals definitions; Atrocities and offences, including but not [12] limited to murder, extermination, enslavement deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

On this note therefore, the statement of problem of this institution starts from the manner in which the understanding of the phrase is couched statutorily by Article 7 of the ICC. The implication of this is that the court is face with the inherent problems of adjudicating crimes against humanity, the principle of legality and individual culpability. The rationale behind the principle of legality can be defined as “the requirement of specificity and the prohibition of ambiguity in criminal legislation”, noting that ‘without the satisfaction of these principles no criminalization process can be accomplished and recognized’. However, the International Military Tribunal placed a higher value on substantive justice than strict legality. The London Charter asserted that “it is the expression of international law existing at the time of its creation”, declaring preexisting custom, further defined in Article 38 of the Statute of the International

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Court of Justice on “the general principles of law recognized by civilized nations”.

Another worrisome issue is the practical difficulties in bringing perpetrators to trial. The problem was two-sided: “First, the collective nature of most crimes under its jurisdiction. Second, proving the responsibility of individuals for acts they had not directly committed”.[13] [14] 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 London Charter emphasized “individual responsibility” for crimes against humanity. Under the Charter, individuals, not collective bodies like governments or militaries, were held accountable for criminal offences. Members of the International Military Tribunal in 1946, proclaimed that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Nigeria’s situation is in respect of possible war crimes in the conflicts in North Central region, particularly in Jos, Boko Haram, kidnapping and bombing that has been on the rise. Nigeria ratified the Rome Statute on 27 September 2001, but has not incorporated it into its domestic law, so as to recognize and prosecute the Statute crimes namely: Genocide, war crimes and crime against humanity.

Of all the above mention incidences, Boko Haram insurgency leads more to the commission of crime against humanity. Boko Haram is group created by Late Yusuf and it’s known for its disturbance of peace throughout the nation and the world all over.[15]

The group Jama’atu Ahlu-Sunnah lidda’Awati wal Jihad. Know the world over as Boko Haram, is an extremist Islamic sect in Nigeria that has created havoc across the north of the country and in the capital, Abuja.[16] As defined by U.S Institute of Peace violent attacks on government offices, the United Nations, and churches threaten to destabilize the country. A range of conflicting narratives has grown up around Boko Haram, and the group’s origins, motivations and future plans remain a matter of debate. This report addresses the questions stemming from these narratives and suggests how the group can be contained. The report is based on the authors’ extensive research and reporting on Boko Haram. In March 2011, he conducted an interview with a senior member of the group in the city of Maiduguri, Nigeria , the center of Boko Haram’s area of influence. The report also draws on interviews with Nigeria

journalists who have covered the group (and who asked to remain anonymous in this report) and

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on information provided to the author by other researchers working on Boko Haram.

In relation to Boko Haram insurgency in Nigeria, it was rightfully observed thus:

Undoubtedly, the Boko Haram insurgency essentially endangers public safety, security and peace; retards economic growth and development; undermines the state and democracy; constitutes crime against public order, crimes against humanity and terrorism.

Above all, it violates the fundamental human rights to life, human dignity, liberty and freedom of religion, conscience and thought etc.[17] [18]

Boko Haram insurgence is however, the major security threat facing the Nigerian government and her citizenry since 2009 to date, with the coming of the Gen. Muhammad Buhari’s regime on May 29, 2015, the Nigerian populace taught Boko Haram regime was over, but rather they gained further momentum. The continued resilience of Boko Haram under the Buhari regime- at a time when the soldiers battling them are believed to be well motivated and well-equipped-call for a re-thinking of some of our earlier notions about the sect.[19]

On, the continued resilience of the terrorist sect negates some of the conspiracy theories that for long helped to undermine any concerted action against the group. For instance, among the prevailing conspiracy theories was that the group was being sponsored by eminent Northern politicians to make the country “ungovernable” for former President Jonathan because he is a Christian and from a minority ethnic group in the South. Buhari had been accused under this theory of being one of the sponsors of Boko Haram and the only evidence often adduced by the accusers was that he was ‘nominated’ by the sect as a negotiator when the Jonathan administration was exploring the option of dialogue with the group. If this ‘theory’ is correct,

Buhari’s victory over Jonathan in the last election would have mellowed the group. But it hasn’t.[20] [21]

The Federal Government of Nigeria in July 2014 set up a Committee on Victims Support Fund (CVSF) for victims of Boko Haram atrocities throughout Nigeria under the chairmanship of Lt. Gen. Theophilus Yakubu Danjuma (Rtd). The CVSF through the help of the Nigerian government raised about N80 billion naira during a presidential fund raising event on Thursday 31 July 2014. The Committee through the help of the Nigerian government plans to raise $500 million dollars in the next 12 months. The National Cyber-Security and Communications Integration Center (NCICC) commends the efforts of the government in setting up the CVSF and fighting insurgency in the country as several Nigerians have become victims of the international crimes committed by Boko Haram elements in very large numbers. However, the NCICC believes that an important issue has been totally ignored by the government in setting up this committee which should be addressed as soon as possible[22] [23].

The NCICC recalls that on 17th July 2012, the Federal Government submitted the Crimes Against Humanity, War Crimes, Genocide and Related Offences Bill, 2012 (Rome Statute Bill) that will domesticate the Rome Statute of the International Criminal Court of the National Assembly. Nigeria ratified the Rome Statute treaty in 2001 and attempted twice without success

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to incorporate the provisions of the treaty into our national law.

The Rome Statute Bill among other things provides for the punishment of those responsible for international crimes in Nigeria and cooperation between Nigeria and the International Criminal Court to ensure the effective prosecution of criminals either in Nigeria or
the Hague, Netherlands. The conflict between Nigerian forces and Boko Haram insurgents is currently a non-international armed conflict and therefore the provisions of the Rome Statute covers the crimes committed during the conflict. Most importantly, the Rome Statute Bill provides for a Special Victims Trust Fund (SVTF) to assist victims, families of victims and survivors of international crimes in Nigeria .

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The NCICC believes that the Rome Statute Bill offers a holistic approach to the fight against impunity in Nigeria. It addresses crimes committed by both Boko Haram members and Nigerian security forces that may have gone beyond the established rules of engagement in their

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conduct during the counter insurgency activities.

However, Nigeria is currently a non-permanent member of UN Security Council, and a key player in the Africa region in promoting international peace and security as well as justice. It is against this background that this research is conducted noting with concern the continuation in some parts of the world, and specifically Nigeria the persistent violations of international humanitarian law and international human rights law and; to find out whether the domestication of Rome Statute would aid the government’s effort to prevent and control crimes against humanity in particular, and generally war crimes and genocide in Nigeria.

1.3              Literature Review

Several materials have been written on the crime against humanity at different stages in the development of international jurisprudence. The literature of some of these notable writers considered relevant to this field of research are considered below, starting with a conceptual discourse on the conceptual foundation of crimes against humanity. [24] [25]

The field of international criminal law is a continuously evolving and challenging area of study. The broader notion[26] [27] [28] [29] of crimes against humanity is as old as humanity itself. However, the present status has evolved mainly throughout the twentieth century, greatly influenced by the Nuremberg Trials, which tried war crimes, crimes against humanity and genocide. The latest development was the consensus in defining Crimes against Humanity during the ICC Diplomatic

Conference of 1998, which can be considered as a milestone for the international community in

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the fight against human rights violations.

Crimes against humanity encompass attacks and violations on a wide range of civilian populations, which can be committed in times of peace and do not result necessarily in the physical extermination of the victims. In contrast, the term “genocide” is narrower, and “war crimes” can only be committed during an armed conflict. Currently, the most comprehensive, though ambiguous, definition of crimes against humanity can be found in the Rome Statute of the International Criminal Court. The Court restricts itself to the most serious crimes of international concern, as it declares in its articles, presenting at the same time some basic maxims of the legal science including the principles of nullumcrimen, nullapoena sine lege, the prohibition of ex post facto criminal laws and its derivative of the non-retroactive application of criminal law.[30]


When regulating against crimes, suggests that the protected value is the essential humanness, which is carried by each and every person. Even though Kant and natural theorists would perceive humanness as human dignity, a crime against humanness negates the very being in the world as a human, obliterating or attempting to greatly devalue the person qua human. The crimes that could fall under international criminal law are broader than the ones regulated by the 5th Article of the ICC Statute, with those committing war crimes, crimes against humanity and genocide being sui generis criminals.

Crimes against humanity have the peculiarity also that they are mainly perceived as crimes of obedience, taking place under the explicit instructions and strategic plans of the authorities involved, or otherwise under their tolerance.[31] [32] [33] [34] [35] In the aspect of jurisdiction, the mens rea and the existence of a widespread attack are sufficient to distinguish crimes against humanity from ordinary crimes. These requirements upgrade some types of crimes to crimes against humanity, and not a crime prosecutable under domestic criminal law.[36] [37] Thus, the expression “laws” or “principles of humanity” embodies the idea that some transcendental humanitarian principles exist beyond conventional law that are not subject to any form of

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violation.

In addition to the International treaties dealing with the broad notion of crimes against humanity various regional treaties have contributed to the evolution of the term[38]; this facilitated the process of recognizing which crimes are international, a particularly important procedure as it symbolises their recognition as jus cogens. The threshold is the ergaomnes obligation of states which gives them the right to proceed against the perpetrator of these crimes.[39]

International crimes have the abnormality that they are not examined often, and their codification process is much more difficult than in national criminal systems. Usually the interpreters of crimes against humanity have been the International Tribunals and the prosecutors during recent years.[40] [41] [42] Crimes against humanity are therefore offences against humankind and injuries to humanness. Their gravity qualifies the perpetrators hostishumani generis, offending fundamental values not adequately defended in internal legal systems, urging international intervention.

It is sometimes stated that the term “crimes against humanity” is based upon natural law concepts. Reports of forbidden forms of crimes date back to Herodotus, who mentioned certain conduct as prohibited in the fifth century BC. St. Augustine and St. Thomas Aquinas also set philosophical premises in order to distinguish a just from an unjust war.[43] Xenophon reports the earliest precedent for modern international criminal law when describing the process for treating the Athenian prisoners captured by the Spartan commander, Lysander.[44]

The very essence of “humanitas” can be traced to the landmark concept in Greek philosophy of “philanthropia” and the Roman concept of “ethos”[45]. Plato explored punitive theory with a focus on the purpose of punishment in works like Gorgias, Protagoras and Nomoi (“Laws”). The union between theory and practice was further explored by Aristotle and Theophrastus. Aristotle, for instance, proposed an international institution that would give the same amount of justice either in Rome or in Athens.[46] The philosophical approach to crime and punishment is also exemplified by Cicero, in “De Legibus” (“On the Laws”) and “De Officiis” (“On Duties”), and Seneca, in “De Clementia” (“On Clemency”) and “De Ira” (“On Anger”).[47] [48]

Early scholars include Grotius (with De lure Belli Ac Pacis - On the Law of war and peace), Vitoria, Ayala, Belli, Gentili and Vattel who, in accordance with a number of judicial decisions and opinions, make reference to concepts very similar to crimes against humanity. Vattel in 1757 characterised certain crimes as being a crime against humankind in general.[49] Even though these contributions are extremely important in tracing the evolution of the term, they did not refer to the present form of crimes against humanity, but more to the philosophy underlying its notion.

The first ad hoc International Criminal Court was established in 1474 to judge Peter von Hagenbach for crimes committed during the siege of the town of Breisach. These proceedings have also been extensively cited in the literature as the first international criminal


trial for what nowadays could be called crimes against humanity.[50] In 1649, at the trial of Charles I in England, the Solicitor General John Cooke relied on natural law and the works of Bracton to say that a King always remains under God and the law. Also, scholars have suggested the creation of an international criminal court in the early stages of modern history, such as the proposal made by Gustav Moynier in 1872.[51] [52] [53]

Many claims exist concerning the coining of the phrase “crimes against humanity.” The French revolutionary Maximilien Robespiere, for instance, described the

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deposed King Louis XVI as a criminal “envers l’ humanite” (criminal against humanity). Almost a century later, on September 15, 1890, a minister -George Washington Williams- wrote a letter to the US Secretary of State, characterising the actions of King Leopold of Belgium in the Congo as crimes against humanity. The Unitarian minister, Theodore Parker, used the term in a flamboyant sermon rendered in his hometown of Boston in the context of abolitionist politics in 18 54.[54] Crimes against humanity however emerged from expressions such as “the laws of humanity”, which are traced back to the 1860s; an example is the St. Petersburg Declaration of 1868 which was proclaimed to limit the use of explosive or incendiary projectiles described as “contrary to the laws of humanity”.[55]

Finally, Marten’s Clause appeared in the preamble to the 1899 Hague Convention II and the 1907 Hague Convention IV and in many key international humanitarian law treaties onwards. It is considered as the earliest identifiable legal foundation for crimes against humanity. In sum, the Clause states that “populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience”.[56] [57]

On 24 May 1915, the major winners of the World War I--Russia, French and Britain-protested against Turkey’s massacres of Armenians, as “crimes against humanity” with extended responsibility to all members of the Ottoman government. However, this did not conclude in a judicial enforcement of crimes against humanity, due to the obstacles raised by some countries.[58]

After World War I, the Treaty of Versailles summarized its results, with the creation of a tribunal to bring the former Emperor of Germany to trial.[59]Tallat Pasha was considered to be the architect of the Armenian Genocide, and was convicted by a domestic Turkish court for acts “against humanity and civilization”.[60] This decision also signified the complete refusal of natural law and the domination of positivism, representing territoriality, sovereign immunity and non- interference in a foreign nation’s affairs.

The allies tried to prosecute Turkish officials, with the accusation of “deportations and massacres” against the Armenians. Turkey did not ratify the treaty of Sevres, signed on August 10, 1920, which mentioned the obligation to surrender the perpetrators of the Armenians’ persecutions, and was eventually replaced by the Treaty of Lausanne of July 24, 1923, which included amnesty for offences committed between 1914 and 1922. This decision was largely political, as the victors were worried that a possible prosecution of criminals could rebound on their states where they systematically mistreated minorities.[61]

Olugua, B.C, in his article entitled “Domestication and Implementation of the Rome Statute of the International Criminal Court”[62] vividly examined the conceptual section of the crime against humanity in relation to its interpretation and application and obligations of state parties for the purpose of domestication under the Rome Statute of the International Criminal Court. In this regard, the work of Olugua is found to be a good literature to this dissertation as it gives a general understanding to the theme of this research thereby considered useful in the introductory aspect of the work and other aspects relating domestication by state parties.

Luban, D., in his article entitled, “A Theory of Crime against Humanity”[63] examined the development of crime against humanity in International Law through international criminal tribunals (for recalling example the Nuremberg Tribunal of 1946). In this regard, Luban also postulated the conceptualization of the crime against humanity in a similar manner like Olugua but he adopted a different theoretical approach by recalling the efforts of tribunals in the fight against humanity even before the arrival of the International Criminal Court. In the light of this therefore, Luban’s work (just like the work of Olugua) is considered relevant to introduction aspect of this dissertation for the purposes of general interest ending of the crime against humanity and its development in international jurisprudence.

Roger, C., in his book entitled, “Prosecuting International Crimes: Selectivity and the International Criminal Law Regime”[64] examine the prosecution of international crimes as an obligation in international order noting the fact that crimes against international law are committed by individuals and it is only by punishing those individuals that the provisions of international law could be enforced. Further, on the basis of selectivity and the international criminal law regime, attention must be given to crimes against humanity as a serious grade of international crime to be address. In this regard therefore, the work of Roger is captivating on the pence sanctions for those who commit the crimes against humanity as one of the objectives of the Rome Statute of the International Criminal Court which is certain to this dissertation.

Ladan in his book entailed: “Materials and Cases on Public International”[65] 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 the fact that crimes against humanity 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 the 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 Statue and general issue in domestic implementation of Rome Statute in Nigeria in relation to domestication process under the 1999 CFRN as amended. On this general note therefore, Ladan’s work is considered relevant as it touches several aspects of this dissertation.

Bassiouni, M.C., in his article entitled: “Crimes against Humanity in International Law”[66]discussed, the meaning, nature and development of crime against humanity and he indicated measures needed to eradicate the commission, the crime against humanity in the international order by creating obligations on states procedures for the enforcement of the decision of the ICC.

Sadat L.N., The article demonstrates the central importance of Crimes Against Humanity (CAH) prosecutions at the ad hoc international criminal tribunals and in the International Criminal Court (ICC). It represents the first comprehensive and empirical assessment of what CAH charges accomplish as a matter of observable practice. This empirical analysis informs the construction of a new theory of CAH in modern international criminal law. The Article analyzes the early jurisprudence of the ICC and challenges the conventional wisdom that CAH must be interpreted unduly restrictively, with reference to Nuremberg in mind. Instead, CAH at the world’s first permanent international criminal court must emerge from the shadow of Nuremberg -- as the framers of the Statute intended it to do -- and continue to develop as a contemporary response to widespread or systematic human rights violations against civilian populations. Opinions in the Court’s early case law unduly restricting the scope and application of CAH or proposing a return to the Nuremberg paradigm may have the effect of limiting the effectiveness of CAH charges at the ICC. This could render CAH at the ICC, like genocide at the ICTY, impotent not only as a basis for the post hoc punishment of offenders, but in terms of prevention and deterrence. The Article critiques this jurisprudence with a view towards developing a theory of CAH at the ICC that not only respects State sovereignty, but implements its mandate to prevent and punish “unimaginable atrocities that deeply shock the conscience of humanity.”

Heller K.J., in this article, the Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international

community's most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute's substantive provisions are often confusing, contradictory, and of uncertain application - an "unsystematic conglomeration from a variety of legal traditions," as one scholar has memorably put it.

However, this research unlike the work of the authors considered is restrictively concerned on the measures needed for domestication in Nigeria and means of its practical implementation vis-a-vis the adequacy or otherwise of the current constitutive instruments on the subject matter in the country.

1.4              Scope of the Study

The study seeks to cover the development of the international legal framework in combating crimes against humanity from the end of the II world war in 1945 to the coming into force and implementation of Rome Statute of International Criminal Court. The scope of this study is limited to the analysis of the international legal foundation for the crimes against humanity and a review of issues, challenges and prospects in domestic implementation of Rome Statute provisions relating to crimes against humanity in Nigeria.

1.5              Objectives of the Study

The objective of this research is to appraise the evolution of the legal framework of crime against humanity in International law with a view to:

a.     Providing a conceptual discourse and definitional analysis of the crimes against

humanity.

b.     Examining the nature and scope of the international and regional instruments on the concept of crime against humanity by understanding the modern contours of the term crime against humanity.

c.      Identifying possible challenges in the domestic implementation of the law of crimes against humanity in Nigeria.

1.6               Significance of the Study

The significance of this study is that it serve as an additional literature to the existing ones in creating awareness for the promotion of a better understanding of the crime against humanity and thus contribute to the prevention of such crimes by bringing to justice those who commit such crimes in Nigeria. By so doing, the public will be better informed and it will in turn contribute to guaranteeing lasting respect for and the enforcement of human rights and justice in Nigeria.

In addition, this dissertation will go along way to create awareness between legislators, policy makers, the judiciary, legal practitioners, students, relevant stakeholders and the general public at large on the need for the domestication of the Rome Statute by accelerating the draft 2012 Bill on the domestication of the Rome Statute of the ICC.

1.7               Research Methodology

Doctrinal approaches is to be adopted for this research.

The doctrinal approach involve the use of library based materials, and analysis of cases and statutory provisions such as books, journals, newspapers and documents such as the ICC statute which Nigeria is a signatory.

However, a comparative analysis of legal systems with a view to discovering the similarities and differences of the two or more legal regimes being compared, and to aid in better understanding of a particular national or international legal regime wil be undertaken.[67] Comparative analysis of domestic implementation of international law of crimes against humanity in selected Jurisdictions like the former Yugoslavia, Rwanda and Sierra Leone.

1.8              Organizational Layout

This research work is structured into five chapters as follows:

Chapter one examines the general introduction of the dissertation. Therein, the limits of the research and other formal introductory concepts of the research are defined for example, aims and objectives, justification of the research/study, literature review and etcetera. In other word, it focuses on research questions that this study is set out to answer on the concepts of crimes against humanity, its domestication in Nigeria, possible challenges in various constitutions of nations with particular reference to Nigeria.

Chapter two deals with the theoretical basis for the understanding of the concept of crime, right from the word go of human existence to the develop idea of public understanding of the meaning of crime.

Chapter three deals with the evolutionary concept of international criminal law and justice system relating to crimes against humanity.

Chapter four examines the Legal Framework on the Constitutive elements of Crimes against Humanity in International Law and also further examined the Domestic implementation of the international law of crimes against Humanity: Lessons from selected jurisdictions for Nigeria.

Chapter five makes an overview of the work in general by considering summary, findings on the research work and recommendations to the findings that have been made.



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