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EndSARS: Is Lekki armed response a case for ICC? – Part 3

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Article 7(1) provides: For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(I) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
  
As pointed out in regards to genocide, an ordinary crime or an inhumane conduct of whatever dimension does not automatically become a ‘crime against humanity’ in international law unless committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. In practical terms, what this implies is that even though crimes, such as murder, torture or rape are denoted as crimes under national law, it is the threshold conditions stated in the chapeau (heading) of Article 7(1) that elevate any of the underlying prohibited acts mentioned in Article 7(1) (a) – (k) of the Statute to a crime against humanity.           

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What is a ‘widespread or Systematic attack’?      
Since the inquiry as to whether a given prohibited act qualifies as a crime against humanity begins with an assessment of the widespread or systematic element, it is critical to understand how Judges of the ICC have interpreted these concepts. The ICC Pre-trial Chamber in Prosecutor v. Jean–Paul Bemba, following the position taken in Prosecutor v. Akayesu, has affirmed that the act must not just be a random act of violence but must be committed as part of a widespread or systematic attack. In the court’s view the concept of ‘widespread’ denotes a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims, while ‘Systematic’, as a concept connotes a thoroughly organised attack following a regular pattern on the basis of a common policy involving substantial public or private resources. The thrust of this requirement is to exclude a random act that was not committed as part of a broader plan or policy. In almost all the cases decided by the Rwanda Tribunal, the “widespread” requirement was met, mainly on the scale of the events that took place around the country where a massive number of killings, targeting Tutsis, took place within a very short time frame. The ‘systematic’ nature of the attack was evidenced by the unusually large shipments of machetes into the country shortly before the attacks began. In addition, the trial chambers also took account of uncontroverted evidence of the structured manner in which the attacks took place.
  
When viewed against the established position in international law can it be said that the attack on protesters by soldiers was carried out in the context of a widespread or systematic attack, so as to bring the Lekki incident under the jurisdiction of the ICC? It does appear from all known accounts concerning the EndSARS protesters in Lagos and other parts of the country that a coordinated military intervention occurred only at the Lekki Toll Gate, while protests in other locations occurred without any military involvement. Consequently, on the basis of this easily verifiable fact, it is out of the question that the attack on civilian protesters at the Lekki Toll gate on 20th October 2020 was part of a widespread or systematic in terms of the Rome Statute of the ICC.
  
Having concluded on the basis of available evidence that the attack launched by soldiers on peaceful protesters is most unfortunate and cruel, it is incontrovertible that the attack does not qualify as genocide or a crime against humanity for failing to meet the high threshold set for the legal elements required to prove the two categories of international crimes. This is so because the protesters at the Lekki Toll Gate were not a “group” in terms of the genocide convention, and no doubt an example of the random attacks sought to be excluded by the Rome Statute which requires that any of the proscribed acts mentioned in Article 7(1) a-k of the Rome Statute must be widespread or systematic to qualify as a crime against humanity.    

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It bears pointing out, however, that on no account must the conclusion made above be interpreted to mean an approval of the utterly condemnable act of firing on protesters, on the contrary, it is no more than a product of legal analysis regarding whether the acts of the trigger happy soldiers constitute international crimes. From evolving facts, it is certain that even if no crimes triable by the International Criminal Court were committed at Lekki, the rights of the protesters spelt out in the Nigerian Constitution and various international instruments were flagrantly violated with the active cooperation of Lagos State and the federal government.
 
The federal government must recognize that Nigeria is a State party to several treaties enshrining the obligation to respect and protect human rights. The obligation to respect implies that the government must not only refrain from curtailing the enjoyment of human rights, it must likewise take positive action to facilitate the enjoyment of those rights. In particular, the right to life and the right not to be tortured or treated in an inhuman or degrading way are absolute and cannot be restricted in any way. Responsible governments mindful of their obligations therefore take great care to guard against actions that may inflict on their citizens the sort of treatment meted out to the protesters. While the Lekki incident may have significantly undermined Nigeria’s claim to a civilized and rule of law society, the government must now save face by mustering the will and resources needed to carry out effective investigation and prosecution of the masterminds of the attack if the international community is not to conclude that killing and maiming of lawful protesters by soldiers in Nigeria was state sanctioned.
Concluded.
Jegede is a practising lawyer and former Prosecutor at the United Nations International Tribunal for Rwanda. 

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