ANALYSIS OF GENOCIDE AND INSURGENCY IN NORTHERN

ANALYSIS OF GENOCIDE AND INSURGENCY IN NORTHERN

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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.[1] 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.[2] 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.[3] 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 In some jurisdictions the terms mensrea and actusreus have been superseded by alternative terminology.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[4] 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.[5] 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. [6]

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.[7] 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[8] 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.[9]

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.[10]

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.[11]

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

The word genocide comes from the ancient Greek word genos[12] and the latincaedes[13], the latter of these two also appearing in words such as tyrannicide[14], homicide[15], infanticide[16], etc.[17] The term 'genocide' was coined relatively recently by the jurist Raphael Lemkin,[18] whose remarkable achievement initiated a one-man crusade for a genocide Convention. Early in 1933, he submitted a proposal to the International Conference for Unification of Criminal Law to declare the destruction of racial, religious or social collectivizes a crime (of barbarity) under the law of nations.

Although every mass killing involves unique circumstances, certain underlying conditions are common to most genocide acts. The offending nation, or perpetrator, is usually a non-democratic country that views the targeted group as a barrier or threat to maintaining power, fulfilling an ideology, or achieving some other goal.[19] Most genocide occurs during a crisis such as war, state breakdown, or revolution, and the crisis is blamed by the perpetrators on the victims. In addition, the governments of other countries that might have interfered with or kept silent about the genocide, may support the perpetrators directly or indirectly by their lack of action.

Perhaps the most difficult part of the definition of genocide is the intent. It is hard to prove and easy to deny. Usually genocidalists do not document their guilt, and evidence can be hard to find or prove. Some light can be shed on the definition of intent in the Genocide Convention by an examination of the discussion that took place during the drafting of the Convention that preceded its inclusion. Much of the refinement of the original version of the Genocide Convention that had been prepared by Lemkin, Donnedieu de Vabres and Pella, was carried out by an ad hoc Committee of the United Nations Economic and Social Council.[20]

Article II of the Ad Hoc Committee's draft defined genocide as "deliberate acts committed with the intent to destroy a national, racial, religious or national political group on grounds of the national or racial origin, religious belief, or opinion of its members." The work of drafting the Convention was later referred by the United Nations General Assembly to the Assembly's (Legal) Sixth Committee. The Sixth

Committee's Draft of the Convention was adopted without amendment by the General Assembly.[21] Commenting on some of the Sixth Committee's amendments from the

Ad Hoc Committee's version, Lippman notes:

In the end, there was uncertainty over interpretation of the phrase 'as such'. It was pointed out that the phrase 'as such' might mean either 'in that the group is a national racial religious or political group' or 'because the group is a national racial, religious, or political group'. It is clear that under Art II the requisite intent to commit genocide must be accompanied by proof of motive, however the motive requirement may be interpreted. Delegates feared that if intent was not linked with a motive requirement that situations such as 'bombing which might destroy whole groups ... might be called a crime of genocide; but that would obviously be untrue.[22]

'Grave breaches,' as defined in the Conventions, include wilful killing or inhuman treatment, causing great suffering or serious injury to body or health, and other serious violations of the laws of war.[23]

A serious weakness in the Conventions is that they require the exercise of universal jurisdiction for offences committed only in international armed conflict, and not in internal armed conflict.[24] However, the Statutes of the International Criminal Court and the International Criminal Tribunals for former Yugoslavia and Rwanda do specifically give jurisdiction for these courts over violations committed in an internal armed conflict.[25]

Quigley[26] noted that the Genocide Convention is seen as potentially having greater significance as an instrument relating to wrongful acts of a state. Whereas in penal law alternative offenses are available, for genocide committed by a state there may be no other jurisdictional base if a state is to be brought to account. With international jurisdiction limited, genocide provides one of the few legal categories under which one state can gain jurisdiction over another that is committing genocide. Genocide may be of greater utility in the state-to-state context than in criminal prosecution. The Convention on the Prevention and Punishment of the Crime of Genocide defined genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group: (1) killing members of the groups; (2) causing serious bodily or mental harm to members of the groups; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. 

1.8. Definition of Terms

1.8.1. International Criminal Law

International criminal law is the law that governs international crimes. It may be said that this discipline of law is where the penal aspects of international law, including that body of law protecting victims of armed conflict known as international humanitarian and the international aspects of national criminal law converge.[27] International criminal law is an autonomous branch of law which deals with international crimes and the courts and tribunal set up to adjudicate cases in which persons have incurred international criminal responsibility. It represents a significant departure from classical international law which was mainly considered law created by states for the benefit of state but tended to ignore the individual as a subject of the law. International criminal law is the sum of internationally recognized rules which civilized states have agreed to be binding on them in their dealings with one another.[28] Origins and sources of International Criminal Law include three out of the four sources of international law. The four sources of international law which are enumerated in Article 38 of the Statute of the International Court of Justice are as follows:

a.      International Conventions whether general or particular establishing rules expressly recognized by the contesting States;

b.      International Custom as evidence of a general practice accepted as law;

c.      The general principles of law recognized by civilized nations; and

d.      Judicial decisions and the teachings of the most highly qualified publicists of the various nations.[29]

According to Bassiouni,[30] only the first three of the sources apply to International Criminal Law since writings of the most distinguished publicists [31] and even surveys of national criminal laws cannot create supra-national binding laws in the same way that local legislative and adjudicatory bodies might do. The reasoning here seems to be that even the so-called jus cogens crimes 36 requires application by and through the cooperation of national states, even parties to a treaty. There are issues of notice, specificity and legality as recognized within individual criminal justice systems at stake and even the United Nations system is not yet one of international legislation except in so far as the treaty-making process might be looked at that way.37 National cooperation is required to make any form of international criminal law effective and this principle will be recognized by member states under the Rome statute of the international criminal court as well.[32] In Nigeria, no treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the national Assembly.[33] Since World War II, treaties have assumed a clear prominence as the primary source of law-making on the international plane especially multilateral treaties. Even so, international tribunals have clarified customary international law in ways which have developed the legal principles governing the laws applying to treaties. For example, the International Court of Justice has done a lot of clarifying the general rules for the interpretation of treaties.[34] With the increased focus on relation between States that comes with globalization, there has been greater pressure and demand to codify rules obtaining between those States. This codification has been done mainly through treaties because they are a relatively simple, clear and quick way of crystallizing existing international rules and developing new ones. Indeed, it is now common place for legal scholars to classify those treaties which lay down universal rules governing international society as law-making or normative treaties. The Hague Peace Conference of 1898 and 1907 are often cited not, only as a watershed in the institutionalization of international co-operation, but also as the first major international law-making conferences.[35] The so-called normative treaties are characterized metaphorically as international legislation and extolled as necessary to accommodate the urgent dynamics that are transforming international relations.

1.8.2. Sovereignty

Sovereignty is the ultimate overseer or supreme authority in state.[36] It is the supreme authority in an independent political society.[37] Sovereignty is the quality of having supreme, independent authority over a territory. It can be found in the power to rule and make law that rests on a political fact for which no purely legal explanation can be provided. The source or justification, of sovereignty (by God or by people) must be distinguished from its exercise by branches of government. In democratic states, sovereignty is held by the people.[38] It may be exercised directly or indirectly through election of representatives to government.45 The doctrine of sovereignty was first enunciated explicitly in 1576, by Jean Bodin in his treaties De Republica based on his observations of political facts in France at that time. Statehood as the unity of its government under Majesta (sovereignty) from which a state’s law proceeded.46 The essential manifestation of sovereignty was the power to make laws and as the sovereign made laws he is not bound by the laws made by him but bound only by the divine law of nature and reason.[39]

In international law, sovereignty is the legitimate exercise of power by a state. De jure sovereignty is legal rig


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