War is gradually taking the front burner in international politics. In some case peaceful resolution of a crisis is possible and fully exploited to achieve peace and order in a state. However, where such attempt to resolve crisis fails, skirmishes and clashes may snowball into war. The impact of war on human population has invariably been sanguinary, devastating and catastrophic. Sometimes, the population of a nation is completely extirpated through bloody massacre geared towards the complete extermination of a group in a state. Irrespective of the fact that such massacre occur in war situations, it is still considered to be a crime in the International Criminal Law. This is called genocide.In Nigeria, the Northern region has become a flashpoint of violent clashes. The region has been deeply enmeshed and suffused in political and ethno-religious conflicts characterized by genocidal attacks, bombing, maiming and killings of several persons, loss of business investments, and properties worth several billions of naira. Within the space of eleven years, several violent political ethno-religious conflicts have been reported in Northern Nigeria and all efforts to restore peace have not achieved the desired end. This dissertation examines 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. The methodology adopted in this work is descriptive, analytic and illustrative. The work describes what constitute the offence of genocide and analyses the principles of International Criminal Law on it. It also illustrates genocide by giving instances where genocide has occurred in the past. The main source of data for the work includes statute, case law, books and article written by pundits in the area of study. The result of the study shows that there is no serious commitment in International Criminal Law to ameliorate the commission of the crime of genocide. Worst still, there is no law of genocide in Nigeria and other African countries yet and recommends the need to fill this lacuna.

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.[3] 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.[4] 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[6] 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.[7] 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. [8]

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. Smith[9] 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.[10] 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:

Are the claims by various groups that there is genocide campaign against them in the past or in the present sustained in Nigeria?
Have there has been any act of genocide in Nigeria?
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[11] 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.[12]

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.[13]

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.[14]

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[16] and the latincaedes[17], the latter of these two also appearing in words such as tyrannicide[18], homicide[19], infanticide[20], etc.[21] The term ‘genocide’ was coined relatively recently by the jurist Raphael Lemkin,[22] 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.[23] 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.[24]

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.[25] 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.[26]

‘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.[27]

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.[28] 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.[29]

Quigley[30] 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.[31] 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.[32] 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:

International Conventions whether general or particular establishing rules expressly recognized by the contesting States;
International Custom as evidence of a general practice accepted as law;
The general principles of law recognized by civilized nations; and
Judicial decisions and the teachings of the most highly qualified publicists of the various nations.[33]

According to Bassiouni,[34] only the first three of the sources apply to International Criminal Law since writings of the most distinguished publicists [35] 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.[38] 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.[39] 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.[40] 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.[41] 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.[42] It is the supreme authority in an independent political society.[43] 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.[44] 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.[47]

In international law, sovereignty is the legitimate exercise of power by a state. De jure sovereignty is legal right to do so while de facto sovereignty is the ability in fact to do so. Consequently, a Sovereign State designates an independent State, a State which does not acknowledge any superior.Therefore, it must be stressed that within anygiven State, the term“sovereign” designates that authority which has no superior, the ultimate legal authority, whether it is an individual person or a collegiate body.[48]

Fundamentally, no one man has sovereignty over another. The American Declaration of Independence dictates that:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights that among these are life, liberty and the pursuit of happiness… that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.[49]

The implication of the foregoing analysis is that sovereign States are independent from one another and are recognized as such. For example, in theory, both the People’s Republic of China and the Republic of China consider themselves sovereign governments over the whole territory of mainland China and Taiwan. Though some foreign governments recognize the Republic of China as the valid State, most States now recognize the People’s Republic of China. However, de facto, the People’s Republic of China exercises its effective administration only over Taiwan and some outlying islands but not Mainland China. Since ambassadors are only exchanged between sovereign high parties, the countries recognizing the People’s Republic of China often entertain de facto but not de jure diplomatic relationships with Taiwan by maintaining offices of representations such as the America Institute in Taiwan, rather than embassies there. Again the autonomous province in Kosovo in Serbia provides a somewhat analogous illustration. The government of Serbia remains the de jure sovereign power but the United Nation has exercised de facto control since 1999. The province is still recognized as part of Serbia, though the Serbian government has no practical authority on the ground.

1.8.3. Genocide

Genocide is distinguishable from other crimes by the motivation behind it. Towards the end of the World War II, when the full horror of the extermination and concentration camps became public knowledge, Winston Churchill sated that the world was brought face to face with “a crime that has no name”[50].

The term genocide was coined by Raphael Lemkin[51] (1990-1995), a Polish-Jewish legal scholar firstly from the Latin “Gens gentis”, Meaning birth, race, stock, kind or the Greek root genos, secondly, from the latin “cidium” meaning cutting, killing via French “-cide”. Therefore, genocide is the deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious or national group. Mass destruction of people took several times in the 20^th century. Foremost in terms of notoriety were the destruction of Armenians by the Ottoman empire in 1915-1916 during World War I, the Holocaust of the Jews by Nazi Germany and the killing of millions of Cambodians by Khmer Rouge in Cambodia in the mid-1970s.[52]

Generally, 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 aimed at the destruction of essential foundations of the life, of national group with the intent to annihilate the groups themselves. The objectives of such plan will be the disintegration of the political and social institutions, of culture, language, national feelings, religion and economic existence of national groups and the destruction of personal security, liberty, health, dignity and even lives of the individuals belonging to such group.[53]

Since precise and concise definition of genocide varies among genocide scholars, a legal definition is found in Article 2 of the United Nations Convention on the Prevention and punishment of the Crime of Genocide thus:

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 groups; and forcibly transferring children of the group to another group.[54]

The International Court of Justice adumbrated the nature of crime of genocide thus:

A crime under international law involving a denial of the right of existence of the entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity and which is contrary to moral law and to the spirit and United Nations… The first consequence arising from this conception is that the principles which are recognized by civilized nations as bringing on states, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the cooperation required in order to liberate mankind from such an odious scourge.[55]

The definition of genocide as articulated by Article 2 of the 1948 United Nations Convention for the Prevention and the Punishment of Crime of Genocide is of remarkable significance. Some UN member States wanted to go further to include the notion of culture or economic genocide, others would have added political motivations. The French representative at that time noted that even if crimes of genocide were committed for racial or religious reasons in the past, it is clear that the motivation for such crimes in future will be mainly political.[56] Ironically and probably not without motives, the Soviet delegate gave the real reason for the exclusion of politically-defined groups arguing that their inclusion would be contrary to the scientific definition of genocide and would reduce the effectiveness of the Convention if it could then be applied to any political crime whatsoever.[57]

The final definition as it stands today is based on three constituent factors viz:

A criminal act
With the intention of destroying
An ethnic, national or religious group, either in whole or in part.

The question is, what amounts to either in part or in whole? It is not necessary for the perpetrators to have eliminated the entire group for there to be an act of genocide. It will suffice if only a section of the targeted group is destroyed. It is significant to always bear in mind that genocide is not committed against individuals, as individuals per se, but because the individual is member of a particular group. That is, the victim is selected as a result of his connection with that group. The poser becomes how many of that group must be destroyed in order for the words “in part” to constitute an element of genocide?[58] The International Criminal Tribunal for the Former Yugoslavia (ICTY) found in Prosecutor v. RadislavKristic[59]that genocide has been committed. In that case, the accused was charged inter alia, with genocide in relation to the massacre of Bosnian Muslim men of military age in Srebrenica between July 11 and November 1, 1995. One of the key issues was whether the accused intended to kill all the Bosnian Muslim men of military age at Srebrenica and whether those events constituted genocide within Article 4 of the Statute of the International Criminal Tribunal for the Former Yugoslavia.[60]The population of the town of Srebrenica comprised some 40,000 inhabitants, 73 per cent of which were Muslim and 25 per cent Serb. As part of the Yugoslav policy to force Bosnia and Herzegovina by Military means from remaining independent, the town of Srebrenica represented an important strategic position in Eastern Bosnia. There existed overwhelming evidence that the Serb forces did indeed specifically target the Bosnian Muslim men irrespective of their status and proceeded to kill those men in via mass execution, murders, beating and other acts which induced serious physical and mental harm on its victims. Based on the foregoing facts, the Trial Chamber I held that genocide had been committed. On Appeal[61], the Appeal Chambers addressed the issue of “in part” thus:

The part must be a substantial part of that group. The aim of the genocide Convention is to prevent the intentional destruction of entire human groups, and the part targeted must be significant enough to have an impact on the group as a whole.[62]

The determination of when the targeted part is substantial enough to meet this requirement may involve a number of considerations. The numeric size of the targeted part of the group is the necessary and important starting point, though not in all only cases the end point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms but also in relation to the overall size of the entire group. In addition to numeric size of the targeted portion, its prominence within the group can be a useful consideration. It a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial within the meaning of Article 4 of the Tribunals Statute.[63]

1.8.4.Actus Reus

In order for actusreusto be committed, there has to be an act or omission. Various common law jurisdictions define act differently but generally, an act is a bodily movement whether voluntary or involuntary. In Robinson v. California[64] the U.S Supreme Court ruled that a California law making it illegal to be drug addict was unconstitutional because the mere status of being a drug addict was not act and thus not criminal. The actusreusof a crime consists of an act or more rarely of an omission or more rarely still of what might be described as a passive state of affairs.[65]

Therefore, an act comprises commission, omission and possession. Omission involves a failure to engage in a necessary bodily movement resulting in injury. As with commission acts, omission acts can be reasoned causally using the but for approach.But fornot having acted, the injury would not have occurred. According to Prof. Okonkwo[66]:

The law is reluctant to punish omission; the majority of crimes can be committed only by the doing of something. But there are some notable exceptions where it is felt essential to force people to act, and a duty to act is imposed, breach of which is an offence.[67]

Therefore, if legislation specifically criminalizes an omission through a statute or a duty that would normally be expected was omitted and cause injury, an acutsreus has occurred. Possession occupies a special place in that it has been criminalized but under common law, it does not constitute an act. In Regina v. Dugdale[68]it was held that possession of indecent images with the intent to publish them was not a crime as possession did not constitute an act. Some countries like the United States have circumvented the common law conclusion in Regina v. Dugdale by legally defining possession as a voluntary act. As a voluntary act, it fulfils the requirement to establish actusreus.[69]

There is no gainsaying that voluntariness is one of vital points in establishing if an actusreus has been committed. A person suffering from a seizure who stabs somebody trying to help him has not committed an actusreusbecause it is an involuntary act. In Commonwealth v. Pestinkas[70]it was held that voluntariness does not exclude omission because it is implicit in omission that the actor voluntarily chose not to perform a bodily movement and thus caused an injury. Also in People v. Steinbreg[71] it was held the purposeful, reckless or negligent absence of an action is considered a voluntary action and completes the voluntary for actusreus.

1.8.5. Mens Rea

In criminal law, mensrea or guilt mind is usually one of the necessary elements of a crime.[72]Mensrea is a state of mind expressly or implied required by the definition of the offence charged. There is a presumption that it is an essential ingredient in every criminal offence, liable to be displaced either by the words of the statute or by the subject – matter with which it deals.[73] According to Okonkwo,[74]mensrea is used to refer to the mental element which required to be proved in respect of a particular crime. Secondly, it is used to refer to a general principle of statutory interpretation and of criminal responsibility.[75] There is hardly any difference between these two definitions because the first definition is merely a particular application of the general doctrine in the second definition.

Under the English Law, section 8 Criminal Justice Act 1967 provides a statutory framework within which mensreais assessed. It states that:

A court or jury, in determining whether a person has committed an offence,

Shall not be bound in law to infer that he intended or foresaw a result of his actions by reason only of its being a natural and probable consequences of those actions, but
Shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances.

In both Australia and South Africa, the position as postulated by the courts is that the defect in the traditional analysis of intention is that the whole scheme presupposes a mind which is continually working out what may happen in the future, and which gives orders to the body after it has worked out the future with sufficient clarity.[76]

The test for the existence of mensrea may be:

Subjective, where the court must be satisfied that the accused actually has the requisite mental element present in his or her mind at the relevant time;
Objective, where the requisite Mensrea element is imputed to the accused, on the basis that a reasonable person would have had the mental element in the same circumstances; or

Hybrid, where the test is both subjective and objective.

Clearly, if there is an irrebuttable presumption of doliincapax,[77] then the requisite mensrea is absent no matter what degree of probability might otherwise have been present for these purposes. Therefore, where the relevant statutes are silent and it is for the common law to form the basis of potential liability, the reasonable person must be endowed with the same intellectual and physical qualities as the accused and the test must be whether an accused with these specific attributes would have had the requisite foresight and desire.

1.9. Organization of the Study

This dissertation is divided into six chapters. Chapter one is general introduction. Chapter two examines genocide as a crime bringing out the elements of the crime-both mental and physical. Chapter three takes a historical perspective of genocide around the globe, while chapter four examines genocide as a theme in criminology. Chapter five examines the prosecution of the crime of genocide across the world. Chapter six embodies the summary of findings and recommendations and conclusion.

[1] S. Bone, Osborn’s Concise Law Dictionary, (9th edn., London: Sweet & Maxwell, 2001), p. 116.

[2] C. O. Okonkwo, Okonkwo and Nash Criminal Law in Nigeria, (2nd edn., London: Spectrum Law Publishing 1980), p. 43.

[3] S. A. N. Nweke, Principles of Crime Prevention and Detection in Nigeria, (Enugu: Ebenezer Productions Nigeria Limited, 2002), p. 3.

[4] This is usually expressed by the latinmaxinactus non facitreum nisi mens sit rea.

[5] That is mensrea and actusreus respectively.

[6]Hostages Trial, US Military Tribunal at Nurembreg, 19 Feb. 1948 (1953) 15 Ann. Dig.632 at 636.

[7] K. Kittichaisree, International Criminal Law, (Oxford: Oxford University Press, 2001), p. 1.

[8] M. M. Whiteman, Design of International Law, XI, (US Dept. of State, 1968), 835.

[9][1973] 3ALL E. R. 1109.

[10] D. Fafowora, “The Rising Culture of Violence in Nigeria” (18 March 2010), available at http://thenationonlineng.net/web2/articles/40000/1/The-rising-culture-of-violence-in-Nigeria/Page1.html (last accessed 13 March 2013).

[11]“Genocide”, Encyclopedia of Public Health, available at http://www.enotes.com/genocide-68599-reference/genocide-173162 (last accessed 17 March 2012).

[12]Ibid.

[13]Ibiid.

[14]W. Schabas, Genocide in International Law, (Cambridge: Cambridge University Press, 2000), p. 198.

[15] G. S. Yacoubian, Injustice Studies, vol. 1, No. 1, November 1997.

[16]Meaning race or tribe.

[17]Meaning killing.

[18]Killing of a tyrant.

[19]Killing of a human being.

[20]Killing of a child.

[21] R. Lemkin, Axis Rule in Occupied Europe, published in 1944.

[22]RaphealLemkin is a Polish Jewish scholar who taught law at Yale and Duke Universities.

[23] L. Kuper, Genocide : its Political Use in the Twentieth Century,(London: New Haven, 1981), p. 22.

[24] For a history of the drafting of the Convention, see M. Lippman, “The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide”, (1985) 3 Boston University International Law Journal 1.

[25]Ibid.

[26]Ibid.,p. 42.

[27]Fourth Geneva Conference, Art. 147.

[28] Geneva Convention, Art. 3.

[29] ICC Statute, Art. 8.2(c ) and ICTR Statute, Art. 4.

[30] J. Quigley, “The Utility of Genocide as a Vehicle for the Prosecution of Individual Persons and Legal Action against a State”, International Criminal Justice Review, vol. 19 Iss. 2 June 2009, pp. 115-131 at 120.

[31] J. J. Paust, M. C. Bassiouni, S. A. Williams, M. Scharf, J. Gurule, and B. Zagaris, (eds), International Criminal Law: Cases and Materials, (Carolina: Carolina Academic Press, 1996), pp. 3-19.

[32] See Trendex Trading Corporation v. Central Bank of Nigeria (1977) ALL E. R. 881 @ 901-902

[33] They constitute the subsidiary means for the determinations of rules of law.

[34] M. C. Bassiouni, International Criminal Law, (2nd edn.,Ardsley, New York: Transnational Publishers, 1998)

4-5.

[35] That is judges or jurists, especially of international courts or tribunals.

[36] Meaning crimes well-established in customary law

[37]Bassiouni, op. cit., p. 4.

[38]http://www.un.org/law/icc/statute/romefra,htm, UN Doc/A/CONF.183/9, as corrected by the process-verbaux of 10 November 1988 and 12 July, 1999.

[39] See Constitution of the Federal Republic, s. 12(1).

[40] C. G. Fitzmaurice, “The Law and Procedure of the International Court of Justice: Treaty Interpretation and other Treaty Points” 1951 BYBIL pp. 1-28.

[41]J., Hu, “The Role of International Law in the Development of WTO Law”, Journal of World Trade, vol. 7, No. 1.(2004) 143-167 at 167.

[42]J. Wilson, “What is sovereignty?” available at http://www.rightstandwrng.com.au/html/sovereignty.html (last accessed 26th February 2012).

[43] Bone, op. cit., p. 356.

[44] This is known as popular Sovereignty

[45] This is known as representative democracy

[46]Kittichaisree, op. cit., p. 4.

[47] J. L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, (6th edn.,Waldock: Clarendon Press, 1963) p. 7-10.

[48] J. M. Elegido, Jurisprudence, (Ibadan: Spectrum Law Publishing, 1994) pp. 50-51.

[49] T. Jefferson, The American Declaration of Independence adopted by second Continental Congress on July 4 1776.

[50]Cited in A. Destexhe, Rwanda and Genocide in the Twentieth Century, (New York: New York University Press 1995), p. 10.

[51] R. Lemkin, Axis Rule in occupied Europe: Laws of Occupation- Analysis of Government Proposals for Redress Chapter IX Genocide a New Term and New Conception for Destruction of Nations, (Washington: Carnegie Endowment for International Peace, 1994), pp. 79-95.

[52] H. Fein (ed), Genocide Watch, (Yale: Yale University Press, 1992) p. 15.

[53]Lemkin, op. cit., p. 79.

[54] This position is replicated inInternational Criminal Tribunal for Former Yugoslavia Statute, Article 2 of the International Criminal Court Statute, Art. 4(2).

[55] ICJ Rep. 1951, 15 23.

[56] Criminal Intention of Genocide http://www.pbs.org/wgbh/pages/fronline/shows/rwandi/reports/destexhe.html (Accessed: 23 march 2010).

[57]Ibid.

[58] C. Than, and E. Shorts, International Criminal Law and Human Rights (London: Sweet & Maxwell, 2003), p. 71.

[59] Trial Chamber I – Judgment – IT – 98-33(2001) ICTY 8 (2 August 2001).

[60] Tribunal’s Statute, Art. 4. is the equivalent of the 1948 United Nations Convention for the Prevention and the Punishment of Crime of Genocide, Art. 2.

[61] See Prosecutor v. RadislavKrsticAppeal Chamber-Jedgment-IT-98-33 (2004) ICTY 7 (19)

[62]See Paragraphs 8, 9, 10 and 11 of the Appeal Judgment.

[63] See Statute of the International Tribunal for the Prosecution of Persons Responsible for Service Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991. U.N. Doc. S/25704@36, annex (1993).

[64]370 U. S. 660 (1962).

[65] Okonkwo, op. cit., pp. 44-45.

[66]Okonkwo, op cit., p. 46.

[67] In Nigeria, Criminal CodeAct, s. 199 imposes a duty on peace officers to suppress. Also ss. 346-348 impose duties on those in charge of railway trains or of ships and on ships engineers, to ensure safety of passengers.

[68] I. EL. & BL. 435, 439 (J853).

[69] See New York Penal Law, s. 15.00(2) and Model Penal Code.

[70]421 Pa. Super.371 (1992).

[71]79 N. Y. 2d 673 (1992).

[72] E. A. Martins, Oxford Dictionary of Law, (Oxford: Oxford University Press, 2003), p. 578.

[73] S. Bone, Osborn’s Concise Law Dictionary, (9th edn., London: Sweet & Maxwell, 2001), p. 250.

[74] Okonkwo, op. cit., p. 49.

[75] This is said to run throughout English criminal law, namely that whenever a court is considering the definition of an offence it must presume, until the contrary is proved, that the definition requires proof of a guilty mind against the accused. See even the Criminal Code Act, s. 24 as applicable in Nigeria.

[76] See. Vallance v. R (1961) 35 A. L.J.R. 182 and State v. Mini (1963) 2 S. A. 188

[77] That is, that the accused does not have sufficient understanding of the nature and quality his actions

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ANALYSIS OF GENOCIDE AND INSURGENCY IN NORTHERN NIGERIA

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TABLE OF ABBREVIATIONS

TABLE OF CASES

TABLE OF STATUTES/CONVENTIONS

TABLE OF CONTENTS

ABSTRACT

CHAPTER ONE: GENERAL INTRODUCTION

1.1. Background of the Study

1.2. Statement of the Problem

1.3. Research Questions

1.4. Objectives of the Study

1.5. Significance of the Study

1.6. Methodology

1.7. Literature Review

1.8. Definition of Terms

1.8.1. International Criminal Law

1.8.2. Sovereignty

1.8.3. Genocide

1.8.4.Actus Reus

1.8.5. Mens Rea

1.9. Organization of the Study

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