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EndSARS: Is Lekki armed response a case for ICC?

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Protesters gesture as they hold placards at a live concert at the Lekki toll gate in Lagos, on October 15, 2020, during a demonstration to protest against police brutality and scrapping of Special Anti-Robbery Squad (SARS). (Photo by Pierre FAVENNEC / AFP)

The EndSARS protest recently staged in many parts of the country to demand an end to police brutality was called off by the organizers after hordes of disenchanted irate youths took advantage of the widespread outrage at the shooting of peaceful and unarmed protesters at the Lekki Toll Gate in Lagos to loot and destroy property worth several billions of naira. Unlike previous rudderless protests that fizzled out before achieving their aims, the #EndSARS protest coordinated by the little known Feminist Coalition group went on for almost a fortnight, garnering widespread local support and in the process gaining worldwide attention.

As the debate rages as to whether or not the protest achieved its objectives and what should be the way forward, I have, rather than join the debate opted to examine a related issue that has become a topic for discussion on social media and wider society since the protesters were fired upon by soldiers in total disregard for all civil and military rules of engagement. Many who were justifiably outraged by the maiming and killing of yet to be determined number of unarmed and peaceful civilian protesters at the Lekki toll gate by men of the Nigerian Army deployed to enforce the curfew imposed by the Governor of Lagos State are certain that the acts of the soldiers constitute international crimes under the Rome Statute of the International Criminal Court and should be put on trial at the Court. Already, some civil society groups have done more than just talk and have taken the proactive step of formally reporting to the ICC, urging its Prosecutor to investigate and prosecute the perpetrators of the cruel attack.

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A most pertinent question that must be posed at this juncture is whether the acts of the soldiers come within the categories of crimes proscribed by the Rome Statute to trigger the Court’s jurisdiction. This is so as the court cannot and will not act without requisite jurisdiction. To answer this question, it is imperative to take a brief look at the Court’s raison d‘etre, its nature and the elements of the crimes proscribed by its Statute.

The setting up of the ICC in The Hague on 17 July, 1998 was in response to the international community’s vision of a widely accepted global criminal justice system previously obstructed by the doctrine of state sovereignty which affirms the full right and power of a nation to govern itself without any interference from outside sources or bodies. The ICC Rome Statute which exclusively governs the Court’s work came into force on July 1, 2002, upon attaining 60 ratifications, including Nigeria and several African countries, thus creating a new system to deal with the world’s most egregious crimes: war crimes, crimes against humanity, genocide and aggression. As stated in its preamble, the goal of the Rome Statute is to end impunity for the most serious crimes of concern to the international community as a whole and to contribute to their prevention.

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For a better understanding of how the Court works, it is important to note, as a preliminary, that the ICC is a complex sui generis entity which does not fit into the general scheme of court systems in national jurisdictions. The most important feature of the court defining its relationship with states parties, and especially, its response to crimes committed in those States is the principle of complementarity put in place to avoid tension and jurisdictional overlap between the ICC and domestic courts of States parties. As the complementarity principle goes, the ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings. The principle of complementarity is based both on respect for the primary jurisdiction of States and on considerations of efficiency and effectiveness, since States will generally have the best access to evidence and witnesses and the resources to carry out proceedings. This implies that even if the soldiers who shot at the peaceful protesters are found to have committed crimes under ICC’s mandate by the Prosecutor, the culprits will not be flown to The Hague for trial unless Nigerian authorities fail to prosecute them, either because the government is unwilling or unable to do so. Experience has shown that there is no quick fix to this as it often takes years rather than months to determine.

Crimes proscribed by the Rome statute
The International Criminal Court has jurisdiction over four categories of crimes: genocide, crimes against humanity, war crimes and aggression. In both the preamble to the Statute and in Article 5, these are variously described as ‘the most serious crimes of concern to the international community as a whole’. Our discussion here will center on a consideration of whether the Lekki Toll Gate shooting amounts to genocide or crime against humanity as the acts of the soldiers, even at their most egregious, can by no stretch of imagination amount to war crimes or crime of aggression since the acts were not committed in the context of an internal armed conflict or a clash between State actors.

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Genocide
For the benefit of those not familiar with the legal definition of genocide, it is important to note that the term ‘genocide’ had not always been known to international criminal law nor considered part of customary international law before it was used to describe a crime in the Convention on the Prevention and Punishment of the Crime of Genocide signed in Paris on December 9, 1948. Prior to that, the Polish jurist Rafael Lemkin first used the term in 1943 to characterize the deliberate plan of the Nazis to exterminate the Jews and Gypsies then taking place in Europe. In apparent response to Churchill’s disquieting statement of August 1941 that ‘we are in the presence of a crime without a name’, Lemkin had coined the term “genocide” from a union of the Greek word genus, “race” and the Latin word cide, “killing”. Not only is the term ‘genocide’ now universally accepted as a legal term with a precise meaning, the Genocide Convention has been subsequently ratified by many nations, and considered part of international customary law.

The definition of genocide and the related punishable acts contained in Article 6 of the Rome Statute of the International Criminal Court is reproduced verbatim from Articles II and III of the 1948 Genocide Convention. Article 6 provides as follows:

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Article 6: Genocide 
For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.

As will be observed from the above provision of ICC’s governing law, the main focus of the proscription of genocide is the protection of groups as opposed to individuals per se. From a combined reading of Article 6, it is mandatory that for genocide to be committed, the perpetrator must have committed one of the acts listed in paragraphs a-e with the intent of destroying, in whole or in part, any of the four enumerated groups- viz; national, ethnical, racial or religious group. Therefore, to conclusively resolve the issue of genocidal intent of the accused, She must intend “to destroy” a protected group. This is because customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. So, contrary to popular belief, the crime of genocide does not imply killing of a large number of people or the actual extermination of a group in its entirety, but is understood as such, if any of the acts in paragraphs a-e is committed against any protected group with the requisite intent.

To be continued tomorrow.

Jegede is a practising lawyer and former Prosecutor at the United Nations International Tribunal for Rwanda.

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