AN APPRAISAL OF THE CRIME OF GENOCIDE IN INTERNATIONAL LAW

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CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Research

Humanity is caught in a paradoxical epoch that is characterized by hope and great yearning for peaceful co-existence amongst people, yet there are conflicts and possibilities of more explosive conflicts based on the mobilization of various identities and deterioration of relations at different level of identity divide.2 This deterioration of relations, which often spurs diverse crises, may be predicated on different divides, such as religious, racial, ethnic or national identity. Such crises on the basis of identifiable divides often degenerate to “genocide” the worse crime known to humanity.3 Genocide has been commonly used particularly in political dialogue to describe atrocities of great diversity, magnitude and character.4 Yet the prospect of the term arising in policy making often imposes an intimidating break on effective responses to the calamity of the crime.5 The crime of genocide, has over the years, dug the steps of mankind, and aborted the age long conceived sanctity and dignity of man. It shook the conscience of Winston Churchill, yet eluding a description; Churchill thus, called the terrible horror he saw as “a crime without a name”6 Scholars have also described genocide as “the crime of crimes”.7

The fact of genocide is as old as humanity.8 The law is however, considered as younger than the aged long acts constituting the crime.9 Schabas observed that this dialectic of an ancient fact yet a modern law of genocide flows from the observation that historically, genocide was unpunished.10 Hitler‟s famous comment to the effect that nobody remembers the Armenians and the genocide perpetrated against them is indicative of the historic fact that genocide often goes unpunished.11

 

The biggest picture of genocide in African recent history is the Rwandan genocide. What subsequently degenerated into genocide was a build up of ethnic tension between majority Hutus and minority Tutsis. This tension flowed from Rwandan colonial experience, during which the ruling Belgians favoured the minority Tutsis over the majority Hutus, where the few oppressed the many, economically, politically and socially. This created a legacy of tension that exploded into violence, a minor one in 1959 and a major one in 1994.12 On April 6, 1994 a plane carrying Hubyarimana (Rwandan President) and Cyprien Ntaryamira (Burundi‟s President) was shot down over Kigali killing all on board. Within an hour of the plane crash, Hutus set up a road block slaughtering Tutsis and moderate Hutus. The mass killing targeted at Tutsis spread from Kigali to the rest of the country, with 800,000 people killed within three months.13 The horror of genocide as a dark crime could also aptly be visualized in the following accounts:

seven times sealed. Never shall I forget the little faces of children, whose bodies I saw turn into wreaths of smoke beneath a silent blue sky. Never shall I forget those flames which consumed my faith forever. Never shall I forget the nocturnal silence which deprived me for all eternity, of my desire to live. Never shall I forget those moments which murdered my soul and turned my dreams to dust. Never shall I forget those things even if I am condemned to live as long as God himself.14

 

  • I was shocked to see how every few minutes a group of men, women and children were ordered to disrobe and to stand on the edge of a long ravine… then they were killed by machine guns. I saw it with my own eyes, though I was far away from the ravine, I heard terrible cries and children soft voices: “mama, mama”. I stood paralysed, thinking how could people be treated worse than animals and be brutally killed for the only crime that they were Jewish. Suddenly, I fully realized that fascists were not human beings but wild animals. I saw a young naked woman feeding a naked baby with her breast, when a ukarian policeman grabbed the infant and threw it into the ravine. The woman tried to save her baby running towards the child, but she was killed instantly. This I saw with my own two eyes. I would never believe this could happen. How can anyone believe?15

 

 

This  was  the  picture  and  glimpse  of  a  very  myopic  aspect  of  the  great  and

 

outrageous  genocidal  atrocities  of  holocaust.  Similar  expressions  of  passionate  pains,

 

hatred and grief, have in the entire history of mankind characterized and depicted the global horror of inhumanity, cruelty and reckless impunity perpetrated by man on his fellow man of the human family;16 from the Armenian massacre of 1915 which claim about 2/3 of the Armenian population, to the horrifying holocaust perpetrated by Nazi Germany on the Jews, which was said to have claimed the lives of six million Jews and to other subsequently re-occurring genocidal atrocities, including the murder of one million Bangali in 1971;17 one hundred and fifty thousand Burundi Hutus in1972;18 one million, five hundred thousand Cambodians between 1975 and 1979;19 two hundred thousand Bosnian Muslims and Croats in the territory of former Yugoslavia in 1992;20 eight hundred thousand Tutsis in Rwanda in 1994;21 three hundred thousand Darfurians in Western Sudan;22 the atrocities committed by the Lord‟s Resistance Army (LRA) against the Civilian population of Northern Uganda and Eastern Democratic Republic of Congo;23 the post election crisis in Central African Republic; the Kenyan genocidal violence which claimed over one thousand lives in January 200824 and the numerous crises in Nigeria, which includes the civil war, Odi massacres, Zaki-Biam massacre and the on going Boko Haram insurgency. It must be noted that some of these crises may be adjudged as genocide while some may not be, but they all constitute atrocities of diverse propensity

The re-occurring phenomenon of mass destruction is no longer alien to man, this may possibly be because of the frequency of its occurrences. However, for any act of mass destruction, extermination, ethnic cleansing, crimes against humanity, war crimes and atrocity of any nature to be described as genocide, it must go far beyond the literal meaning of the word, and far beyond the social and political usage of the word “genocide”. For an act or omission to constitute genocide under international criminal law, such an act or omission must not only be viewed from its social and political context, but it must be situated within the strict legal meaning of the word “genocide”, the question and query as to whether the strict legal meaning of genocide is all encompassing to accommodate all perceived genocidal acts notwithstanding.

 

Literally, it has been argued that the term genocide is a hybrid of the Greek word “genos” which means race or tribe and the Latin suffix “cide”, which means killing.25 The word was coined and first used by a Polish Law Professor, Raphael Lemkin in 1944 in his work, “Axis Rule in occupied Europe”.26 Within one year of introduction of the word genocide into English and French Languages, it was used in the indictment of the International Military Tribunal for the Nuremberg, within two years it was a subject of United Nations General Assembly resolution, a resolution which spoke in the past tense describing genocide as a crime which had occurred in the past.27 By the time the United Nations General Assembly completed its work and the Convention on the Prevention and Punishment of the Crime of Genocide, was adopted in 1948, genocide had a quite elaborate

and highly technical definition as a crime against international law.28 The preamble to that instrument recognizes that at all period of history genocide has inflicted great loses on humanity.29 It follows, therefore, that genocide, though a recent coinage, is as old as humanity. Those atrocious acts that were committed in the past before the coinage of the word in 1944 such as Heroro massacre and Armenian solution could rightly be described as genocide.

 

The United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948 is supposed to be the historic document that set out to prevent and punish the crime of genocide. But the dream of “never again” has been brazenly shattered severally. Since 1970s, there have been several more horrendous acts and events of genocide across the world.30 Millions of innocent souls have been lost ever since.31 Realizing the continuity and complications it involves, intellectual and legal interest has ensued on the crime of genocide.32 Thus, high powered debate surrounds the nature, methods, typology, interest, causes and consequences of genocide.33 Consequently, this research examines the conceptualization of the crime of genocide in international law, in pursuit of an all embracing descriptive nomenclature. It also examines some incidences in Nigeria in the context of genocide.

1.2         Statement of the Problem

Because of the calamitous nature of genocidal atrocities perpetrated from pre-historic times, through the ancient period that was characterized by wars of annihilation of indigenous people, to the grave suffering of the Armenian nation from 1915 and the inglorious holocaust perpetrated against the Jews, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was invoked with a frequency, familiarity and reverence rarely associated with instruments of law.34 Sixty three years, after the draft of this Convention, which has come to represent the conscience of humanity, the moral promise of the Genocide Convention has not been redeemed. While states have belatedly honoured their responsibility to punish genocide, they have shown no corresponding will to prevent it, as required by the Convention.

 

Forty five years passed after the adoption of the Convention on Genocide before the first International Criminal Tribunal was established with jurisdiction over the crime of genocide.35 A similar tribunal was established a year later.36 Even in the face of growing genocidal atrocities world over, it was not until September 2, 1998 – a half century after the United Nations General Assembly adopted the Genocide Convention – that the first verdict interpreting the Convention was rendered by an International Criminal Tribunal.37

The obligation of state parties to the Convention on Genocide to punish and prevent genocide is bedevilled with the problem of lack of will to act. Even though state parties are willing to punish genocide as a crime against international conscience and morality, they possess no corresponding will to prevent the crime or halt its further progress. Thus, state

parties and even the United Nations tend to avoid the usage of the term “genocide” to describe crisis that clearly fall within the context of the crime. These, the state parties or United Nations often do by capitalizing on the inherent loop holes in the laws of genocide to suit their evasive purpose. For instance, when ethnic cleansing was going on in the territory of former Yugoslavia, legal experts in the U.S government were asked to perform legal gymnastics to avoid calling this “genocide”.38 As Tutsis were killed by Hutus in Rwanda the spokes persons of Clinton administration were instructed not to style what was happening as genocide to avoid public calls for action.39 The Clinton‟s government‟s refusal to describe what was happening in Rwanda as genocide, prevented spontaneous and effective intervention which could have saved lives.

The government of George W. Bush, however declared in September, 2004 that the atrocities committed in Darfur by the government supported Arab Janjaweed Militia against the black population is genocide.40 This however, is at variance with the opinion and position of the United Nations.41 Despite the fact that the Darfur crisis was described as genocide by the then U.S government, the want of effective and spontaneous responses to stop the violence had echoed a shivering and fearful reality, that invoking the term “genocide” in a crisis situation does not signify a political determination to halt the crisis. Most worrisome is the fact that, since the coming into force of Genocide Convention of 1948 in January 1951, issues as basic as conceptualization of the crime is still hazy and gloomy, distantly away from a consensual stand on the import of the concept. How to define genocide became a very big problem.

The meaning attributed to genocide seem confusing.42 If the term genocide even as described43 is genuine, then why is it often considered in a restrictive term? Why is the acronym “genocide” used only in relation to mass murder? Why are policies that are harmful in other dimensions to the culture of particular human groups not considered as genocide, even when such policies are aimed at bringing about the disappearance of the group? Why is it that only mass murder is considered as genocide and not some other ways of destroying the group‟s structure and/or reducing the group to a number of individuals with no common identity?

The identification of genocide, exclusively with killing has become a general phenomenon across all social strata. It is not limited to a vague, erratic or insufficiently informed opinion. Even amongst jurist of high eminence, this is the prevalent opinion.44 The term “genocide” does not get mentioned if there are no deaths or if there are only few deaths and not a mountain of piled bodies. There is apparently no genocide without mass killing. A built up of dead bodies is the only reason for international intervention to forestall the evil of genocide. However, a cursory examination of the different international legal instruments on genocide will show that it is not simply mass murder, but some other acts such as causing grievous bodily harm to members of the targeted group, inflicting a condition of life calculated to bring about physical destruction of the victim group and forcible transfer of children of the victim group to the perpetrator group.

Jurisdictional matters; whether genocide as a crime is to be tried domestically or internationally, has seriously hampered the development of this area of law. Thereby creating technicalities and sacrificing justice at its altar. Domestic prosecution of the crime of genocide seem hardly feasible. It is with no positive results, as the legal process of prosecution and sanction is often controlled by the perpetrators. It is also worthy to note that, the technical issues involved in the domestication and application of international treaties on genocide is equally an issue of great concern. This often leads to non-adoption of international instruments in domestic domain, which may consequently lead to insufficient domestic platform for prosecution of genocide and other international crimes.

 

In recent times, Nigeria has been facing a resurgence of several form of identity crises, some of which manifests in ethnic and religious crises, leading to destruction of lives and properties and consequent displacement of communities and ethnic nationalities.45 Faced with the history of numerous ethno-religious crises, can these numerous crises be rightly described as genocide, if situated in the context of the basic legal element of the crime? These are the issues and challenges emanating from the law of genocide in general and particularly the Nigerian situation which this work seek to address. Flowing from the foregoing, we have formulated the following research questions:

 

  • What actually constitutes the essential elements of the crime of genocide in international law?
    • Does the Nigerian Civil War, Odi Massacre, Zaki Biam Massacre and Boko Haram insurgency amount to the perpetration of genocide?Has the conceptualization of genocide in international law, provided sufficient platform for protection of all vulnerable victim group?
    • What is the level of applicability of international instruments on genocide in Nigeria?

AN APPRAISAL OF THE CRIME OF GENOCIDE IN INTERNATIONAL LAW: A CASE STUDY OF ITS APPLICABILITY TO SOME INCIDENCES IN NIGERIA
TABLE OF CONTENT
Title Page – – – i
Declaration – – – ii
Certification – – – iii
Dedication – – – iv
Acknowledgement – – – v
Table of Cases – – – viii
Table of Statutes – – – xii
List of Abbreviations – – – xvi
Abstract – – – xx
Table of Content – – – xxi

Chapter One
GENERAL INTRODUCTION – – 1
1.1 Background of the Research – – 1
1.2 Statement of Problems – – 7
1.3 Aim and objectives of the Research – – 11
1.4 Justification of the Research – – 11

1.5 Scope of the Research – – 13
1.6 Research Methodology – – 14
1.7 Literature Review – – 14
1.8 Organizational Layout – – 34

Chapter Two

CONCEPTUAL CLARIFICATIONS, ORIGIN AND NATURE OF GENOCIDE

2.1 Introduction – – 36
2.2 Conceptual Clarifications – – 37
2.2.1 Crime – – 37
2.2.2 Genocide – – 43
2.2.2.1 Founders View – – 45
2.2.2.2 Treaty Law Perspective – – 48
2.2.2.3 Case Law Perspective – – 51
2.2.24 View of Scholars – – 52
2.3 Origin and Criminalization of genocide – 56
2.3.1 Origin of Genocide – – 57

2.3.2 Criminalization of Genocide – – 60
2.4 Nature of Genocide – – 64
2.4.1 Typology of Genocide – – 64
2.4.1.1 Classification Based on Protected Groups – 65
2.4.1.2 Classification Based on Character of the Act – 73
2.4.2 Stages of Genocide – – 78
2.5 Element of Genocide – – 80
2.5.1 Physical Element (Actus reus) – – 81
2.5.1.1. Killing – – 82
2.5.1.2 Causing Serious Bodily or Mental Harm – 83
2.5.1.3 Deliberately Inflicting on the group Conditions of Life Calculated
to bring about its physical Destruction in whole or in part – 84
2.5.1.4 Imposing Measures Intended to Prevent Birth – 86
2.5.1.5 Forcibly Transferring Children – – 87
2.5.2 Mental Element – – 89
2.6 Inchoate Offences in Genocide – – 95
2.6.1 Conspiracy to Commit Genocide – – 97
2.6.2 Incitement to Genocide – – 100
2.6.3 Attempt to Commit Genocide – – 102
2.6.4 Complicity in Genocide – – 105

2.7 Conclusion- – – – – 109
Chapter Three
INTERNATIONAL LEGAL REGIMES FOR COMBATING THE CRIME OF
GENOCIDE
3.1 Introduction – – 111
3.2 Legal Regime for Combating the Crime of Genocide – 112
3.2.1 Convention for the Prevention and Punishment of the crime
of Genocide, 1948 – – 112
3.2.2 Statute of International Criminal Tribunal for Former
Yugoslavia (SICTY) – – 126
3.2.3 Statute of International Criminal Tribunal for Rwanda (SICTR) 135
3.2.4 Statute of International Court of Justice (SICJ) – 139
3.2.5 Selected Cases on Genocide Decided under SICJ – – 140
3.2.6 Statute of International Criminal Court (SICC) – 144
3.3 Conclusion –

Chapter Four

AN ASSESSMENT OF SELECTED NIGERIA CONFLICT IN THE CONTEXT OF GENOCIDE

4.1 Introduction – – 154
4.2 Nigerian Civil War (1967 – 1970) – – 156
4.2.1 Background to the Nigerian Civil War – – 156
4.2.2 The Question of Genocide – – 158
4.2.2.1 Nature of the War – – 160
4.2.2.2 The Law of Genocide – – 174
4.2.3 Resolving the Question of Genocide – – 175

4.2.3.1 Protected Group – – 179
4.2.3.2 Physical Element – – 179
4.2.3.3 Mental Element – – 181
4.3 The Odi Massacare – – 184
4.3.1 The Odi People – – 184
4.3.2 Background of Odi Massacre – – 185
4.3.3 Nature of Odi Massacre – – 186
4.3.4 The Question of Genocide – – 191
4.3.4.1 The Law of Genocide – – 192
4.3.4.2 Resolving the Question of Genocide in Odi Massacre – 193
4.4 The Zaki-Biam Massacre – – 195
4.4.1 The People of Zaki-Biam – – 195
4.4.2 Background of the Zaki-Biam Massacre – – 196
4.4.3 Nature of Zaki-Biam Massacre – – 197
4.4.4. The Question of Genocide – – 204
4.4.4.1 The Law of Genocide – – 204
4.4.4.2 Resolving the Question of Genocide in Zaki-Biam Masscre 205
4.5 Boko Haram Insurgency and Counter Insurgency – 208
4.5.1 General Overview – – 208
4.5.2 Boko Haram‟s Origin – – 210
4.5.3 Nature of Insurgency – – 211
4.5.4 Nature of Counter Insurgency – – 220
4.5.4.1 Extrajudicial Killings by JTF – – 220
4.5.4.2 Rape – – 223
4.5.4.3 Stealing/Beating – – 223

4.5.4.4 Wrongful Detention – – 224
4.5.4.5 Torture – – 224
4.5.4.6 Death in Custody of JTF – – 225
4.5.4.7 Baga Episode – – 228
4.5.5 The Question of Genocide – – 231
4.5.5.1 The Law of Genocide – – 231
4.5.5.2 The Insurgency and Counter Insurgency in
the Light of Genocide – – 233
4.5.5 Impact of Insurgency and Counter Insurgency on Nigeria 234
4.6 Conclusion – – 236
Chapter Five
DOMESTIC IMPLEMENTATION OF THE LAW OF GENOCIDE IN
NIGERIA.
5.1 Introduction – – 238
5.2 Relationship between International Law and Domestic Law 241
5.2.1 Monism – – 242
5.2.2 Dualism – – 243
5.2.3 Nihilism – – 244
5.3 Application of International Instruments in Nigerian Domestic Courts 245
5.3.1 Application of Customary International Law – 246
5.3.2 Application of Treaty Based Laws – – 249
5.3.2.1 Instruments not Ratified by Nigeria – – 249
5.3.2.2 Instruments Ratified by Nigeria but not Domesticated – 250
5.3.2.3 Instrument Ratified and Domesticated by Nigeria – 254
5.3.3 Treaty making and Implementation in Nigeria – 262
5.4 The Place of Treaties in the Hiearchy of Legal Norms in Nigeria 266
xxvi

5.5 Application of International Legal Instruments on Genocide in Nigeria 268
5.6 Constitution of the Federal Republic of Nigeria, 1999 (as amended) 272
5.7 Conclusion – – 276

Chapter Six

SUMMARY AND CONCLUSION
6.1 Summary – – 278
6.2 Findings – – 280
6.3 Recommendations – – 284
Conclusion – – 289
Bibliography – – 291