Individuals, whether civilians or military, who commit certain violations of international humanitarian law and grave abuses of human rights can be held criminally responsible for these actions under international criminal law.
All states have an obligation to investigate and, where enough admissible evidence is gathered, prosecute genocide, crimes against humanity and war crimes, as well as other crimes under international law such as torture, extrajudicial executions and enforced disappearances.
Grave breaches of the Geneva Conventions and Additional Protocol I and most other serious violations of international humanitarian law are war crimes. Definitions of these crimes are included in the Rome Statute. The list of war crimes in Article 8 of the Rome Statute of the International Criminal Court basically reflected customary international law at the time of its adoption, although they are not complete and a number of important war crimes are not included.
According to the Rome Statute, certain acts, if directed against a civilian population as part of a widespread or systematic attack, and as part of a state or organizational policy, amount to crimes against humanity. Such acts include, among others, murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, persecution, rape and other sexual crimes, and enforced disappearances.
Given the serious and credible allegations that war crimes and crimes against humanity have been committed and Nigeria’s apparent unwillingness and inability to ensure justice and reparation for victims of crimes under international law, it is vital that the regional and international human rights bodies step up in ensuring that thorough, independent, impartial and transparent investigations are conducted. Nigeria should seek international assistance and advice in the conduct of these investigations and any subsequent prosecutions.
In particular, Amnesty International has the following recommendations:
TO THE AUTHORITIES OF THE GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA:
• Take immediate and effective measures to guarantee the safety, security and protection of civilians and their properties in the affected communities and States, and in the entire country at large, and increase efforts to secure the lives and integrity of the persons of the civilian population in accordance with its regional and international human rights obligations.
• Ensure that its security forces and members of the “civilian JTF” adhere strictly to their obligations under international human rights law and international humanitarian law, in particular, ensure that detainees are protected from extrajudicial executions, torture and other ill-treatment and are treated humanely at all times.
• Provide unhindered access to the National Human Rights Commission and other human rights monitors to visit places of detention run by the military in Borno, Yobe and Adamawa states.
• Initiate independent, impartial, and thorough investigations into allegations of unlawful killings and extrajudicial execution of former detainees from Giwa barracks following the 14 March 2014 attack and seek the assistance of international experts in conducting these investigations; all the dead bodies in the mass graves in Dunomari should be exhumed with a view to conducting an independent autopsy by recognised Nigerian and international forensic pathologists to determine cause and circumstances of death.
• Invite and ensure unhindered and secure access, as a matter of urgency, to human rights monitors from the African Commission on Human and Peoples’ Rights and the UN to investigate violations and abuses committed by all parties to the armed conflict.
• Ensure immediate, unhindered and secure access for humanitarian agencies to the displaced and other civilians in need of assistance.
TO BOKO HARAM:
• Immediately end deliberate attacks against civilians, schools and other civilian objects, and indiscriminate and disproportionate attacks.
• Publicly condemn, from the highest level of leadership, all unlawful killings and other human rights abuses and violations of international humanitarian law committed by their forces.
• Instruct their forces that such abuses will not be tolerated under any circumstances.
• Remove from the ranks anyone suspected of responsibility for ordering or committing serious violations of international humanitarian law and human rights abuses.
• Cooperate with independent and impartial investigations into violations.
TO THE AFRICAN UNION (AU), THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES (ECOWAS) AND THE AU PEACE AND SECURITY COUNCIL
• Urgently assess the conflict situation in north-eastern Nigeria and provide full and effective support to the Government of the Federal Republic of Nigeria in its efforts to end these acts of violence against civilians, war crimes and crimes against humanity and closely monitor the human rights situation in the country.
• Strongly and publicly condemn the on-going war crimes and crimes against humanity committed by all parties to the conflict in north-eastern Nigeria and draw the situation to the attention of the AU assembly with recommendations to end the on-going crimes under international law by all parties to the conflict.
• Publicly encourage the Government of Nigeria to initiate urgently thorough, independent, impartial and transparent investigations as well as seek regional and international assistance and advice in the conduct of these investigations and any subsequent prosecutions.
TO THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
• Further to its resolution passed on the 5th Extra- Ordinary Session 14 March 2014, publicly condemn the on-going war crimes and crimes against humanity in north-eastern Nigeria and draw the attention of the matter to the Chairperson of the AU Assembly and the AU Peace and Security Council in accordance with Article 58(3) of the African Charter.
• Urgently assess the situation in north-eastern Nigeria and initiate immediate protection measures, including carrying out a fact-finding mission to Nigeria to investigate allegations serious violations of human rights.
TO THE UN HUMAN RIGHTS COUNCIL
• Convene as a matter of urgency, a special session on Nigeria, to explore immediate options of sending international human rights monitors to the affected areas in collaboration with the Nigerian government, the African Union and other relevant stakeholders to the conflict.
TO THE INTERNATIONAL CRIMINAL COURT PROSECUTOR:
• Consider these latest allegations of crimes, especially the killings on Friday 14
March 2014, in its on-going preliminary examination of the situation in north- eastern Nigeria.
1. The names used in this report are not the real names
2. The names used in this report are not the real names
3. The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions (Principle 9)
4. Not her real name
5. See http://reliefweb.int/sites/reliefweb.int/files/resources/NigeriaSituationOverview- Regional_February_2014.pdf accessed on 27 March 2014
6. Implemented in domestic law in 1983 in the African Charter on Human and Peoples’ Rights
(ratification and enforcement) Act Cap 10 Laws of the Federation of Nigeria
7. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, 9 July 2004, paragraph 104; Human Rights Committee, General Comment no 31, paragraph 11.
8. Red Cross study, Customary International Humanitarian Law: Volume 1: Rules, J-M Henckaerts and L Doswald-Beck, eds, 2005 (“ICRC Customary IHL Study”)
9. ICRC Customary IHL Study, Rule 1; see also Protocol I, article 48 and Protocol II, article 12(2).
10. ICRC Customary IHL Study, Rule 5; see also Protocol I, article 50.
11. ICRC Customary IHL Study, Rule 6; see also Protocol I, article 51(3); Protocol II, article 13(3).
12. ICRC Customary IHL Study, Rules 8 and 9; Protocol I, article 52.
13. ICRC Customary IHL Study, Rule 10.
14. Protocol I article 52(3). See also ICRC Customary IHL Study, pages 34-36.
15. ICRC Customary IHL Study, Rule 156, pages 591,593,595-598. See also Rome Statute of the ICC, articles 8(2)(b)(i) and (ii) and 8(2)(e)(i)(ii)(iv) and (xii) [see also discussion in ICRC Customary IHL Study, page 27]
16. ICRC Customary IHL Study, Rule 2; see also Protocol I, article 51(2) and Protocol II articles 12(2).
17. ICRC Customary IHL Study, Rule 11; Protocol I, article 51(4).
18. ICRC Customary IHL Study, Rule 12; Protocol I, article 51(4)(a).
19. ICRC Customary IHL Study, Rule 14; Protocol I, articles 51(5)(b) and 57.
20. ICRC Customary IHL Study, Rule 156, pages 599-601.