CHAPTER ONE:

GENERAL INTRODUCTION

1.1. Background of the Study

Crime may be defined as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in a special proceeding. Crime can also be viewed as an act or omission which is rendered punishable by some legislative enactment.2 It is simply an act in violation of the penal laws of a state. In encapsulation, crime is an act inconsistent with the norms acceptable in any society. The general characteristic of crime is that it affects the community as a whole, as distinct from evil wrong. If the definition of any particular offence is thoroughly scrutinized, it will be deciphered that it nearly always consists of two sorts of elements – physical and mental. Succinctly, mensrea refers to the mental element of the offence that accompanies the actusreus. In some jurisdictions the terms mensrea and actusreus have been superseded by alternative terminology. In Australia, for example, the elements of all federal offences are now designated as “fault element” and “physical element.”5 This terminology was adopted in order to replace the obscurity of the latin terms with simple and accurate phrasing. Every crime is a violation of law but it is not every violation of the law that counts as a crime.

It is also pertinent to point out that it is not every crime that is an international crime. In Re List &ors the United States Military Tribunal at Nuremberg defined international crime thus:

An International Crime is such act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the state that would have control over it under ordinary circumstances.

Consequently, it is the international community of nations that determines which crime falls within this definition in the light of the latest developments in law, morality and the sense of criminal justice at the relevant time. It is apt to contend that what acts should be characterized as international crime depends on the machinery by which such acts are to be dealt with.

Generally, the terms actusreusandmensrea as developed in English law, are derived from principle stated by Edward Coke, namely, actus non facitreum nisi mens sit rea which means that “an act does not make a person guilty unless the mind is also guilty”. Hence the general test of guilt is one that requires proof of fault, culpability or blameworthiness both in behaviour and mind. Lord Halsham L. C. pointed out in Haughton v. Smith9 that it is not the actus which is reus but the man and his mind respectively.

Genocide is a conspiracy aimed at the total annihilation of a group. It requires a concerted plan of action. The instigators and initiators of genocide are cool-minded theorists and barbarians. The specificity of genocide does not arise from the extent of the killing, nor their savagery or resulting infamy, but solely from intention; the destruction of a group. This work sets out to examine the International Criminal Law on the crime of genocide with a view to establishing what significance, if any, the

International Criminal Law on genocide has for Nigeria and other African countries.

1.2. Statement of the Problem

It is difficult and depressing to admit it, but Nigeria is fast assuming the character and attributes of a failed state. It is becoming increasingly ungovernable. Violence by all kinds of alienated social groups is never too far from the surface in Nigeria. The Nigerian state is too weak and fragile to contain this violence. Nigeria seems unable to protect its own citizens and enforce her own laws in most respects. The primary duty of a state is to offer its citizens protection and safety from violence and insecurity of lives. When a state is no longer able to fulfil this basic duty to its citizens and foreigners on legitimate business then it is deemed to have failed in the discharge of its basic responsibility. It could easily break up. Nigeria has witnessed mayhems in the Jos area which have led to the death of nearly five hundred people. There is conflict which is allegedly between Fulani herdsmen and the Berom farmers in which some four hundred people lost their lives in Plataeu State of Nigeria. There is also the Boko Haram insurgency which has claimed uncountable number of lives. These skirmishes are among bloodiest of the ethno-religious conflicts that have become widespread particularly in the Northern part of Nigeria. The authorities are no doubt concerned about this ugly trend but appear helpless and unable to take the necessary security measures to halt the massive assault on law and order in the nation. Neither the police nor the armed forces have shown that they have the professional capability, diligence, and competence to bring the nation-wide violence under control. In January 2010, a similar eruption of violence took place in the region. Commissions of inquiry were set up to investigate the sources of the violence. But the security authorities have shown little or no diligence in beefing up intelligence gathering in the area so as to prevent or mitigate the consequences of any future clash between the Fulani herdsmen (the settlers) and the Beroms, the indigenes. Thus both tribes that were entangled in the sanguinary skirmishes raised alarm claiming that there is an ongoing genocide campaign against them. This has prompted the need to examine the constituents or ingredients of genocide in the international legal framework.

1.3. Research Questions

This study will address the following research questions:

1. Are the claims by various groups that there is genocide campaign against them in the past or in the present sustained in Nigeria?

2. Have there has been any act of genocide in Nigeria?

3. What significance does the International Criminal Law on genocide have for

Nigeria and other African countries?

1.4. Objectives of the Study

The objectives of this study is to examine the term “genocide” in the realm of International Law and review of historical instances of genocide. This will be done with an eye on Nigeria with particular reference on the various claims by various groups in Nigeria that there is a genocide campaign against them in the past or in the present. This work will lay bare whether there has been any act of genocide in Nigeria or not. In doing this, international treaties and conventions will be appraised to ascertain what precisely genocide under the International Law is. Again, the historical instances of genocide will be assessed to decipher the practical interpretation of the word genocide. The focal point of this work is to examine the International Criminal Law on the crime of genocide. This is done with a view to establishing what significance, if any; the International Criminal Law on genocide has for Nigeria and other African countries.

1.5. Significance of the Study

This work is significant because it attempts to lay bare the meaning, purport and constituents of the term “genocide” within the precincts of International Criminal law while at the same time evaluating the unfolding ethno-religious violence in Nigeria. This work advocates that the best way to respond to genocide is to stop genocide. The work also shows that the prosecution of the crime of genocide can go a long way to apply the needed restraint on the perpetrators of the crime of genocide.

1.6. Methodology

The study relied on the following primary source materials: observations, interviews and comments of international law pundits. The secondary source materials used are statutes, policies, case law, textbooks, journal articles, conference papers, the internet and other legal literatures. The methodology adopted is descriptive, analytical and doctrinal. It is descriptive and analytical because the work describes and analyses the position of International Criminal Law on the Crime of genocide as it relates to the area in focus. It is also doctrinal because relevant doctrines as they affect the crime of genocide are examined.

1.7. Literature Review

Many scholars have cast a deep intellectual glance at the execution of genocide; its purport and the reasons for its execution. However, there are still paucity of works on the best approach to respond to genocide within the international communities in order to forestall it or indeed stop genocide when it occurs again.

In the Encyclopaedia of Public Health genocide is said to be the deliberate and systematic destruction of a group of people defined by their nationality, or by their ethnic, cultural, or religious background. Genocide may include a direct assault on public health as it did in Bosnia-Herzegovina. There, public health came face to face with genocide when acts were committed to destroy the public health of the population, thereby threatening to destroy people through inflicting serious harm to their health. Food, fuel, electricity, running water, and medical supplies were cut off from Sarajevo and its environs during the siege of that city. Since many things are essential to public health, including housing, nutrition, sanitation, and access to public health, any acts committed to destroy or seriously undermine the conditions needed for health are potentially acts of genocide if they are committed against a specific population. For instance, during the siege of Sarajevo, waterborne diseases such as hepatitis A increased because the sanitation systems no longer worked properly, 10 percent of the city’s population was moderately malnourished, and the combined effects of malnutrition, cold, and lack of adequate medical care led to increased illness and deaths. In the case of Bosnia-Herzegovina, genocide disproportionately affected the most vulnerable Bosnians; very young, the elderly, women, the chronically ill, and the disabled.

Genocide may also include indirect assaults on public health, as it did in Rwanda in 1994. There, massive displacement of persons from their homes created large-scale health risks to the internally displaced and refugees. While the high morbidity and mortality in the Rwandan refugee population was recognized as a public health crisis, it was also the product of genocide. Refugees from the genocide who were living in camps did not contract cholera solely because of the infectious agent, but also because they were forced to flee their homes and encounter grossly unsanitary conditions due to their status as members of an ethnic group (the Tutsi) and resultant attacks by the Hutu government.

According to Schabas, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.

Yecoubian noted that every tragedy whispers again of past tragedies. This affirmation is perhaps most germane to the matter of genocide. The 20th century had barely begun when, under cover of World War I, Armenians living under the Turkish yoke suffered massacres and deportations that eliminated over 1.5 million men, women, and children. Though the crime of genocide is ancient, the concept itself is relatively new.15