Four civil society organizations, Socio-Economic Rights & Accountability Project (SERAP), Committee for the Defence of Human Rights (CDHR), Women Advocates Research and Documentation Center (WARDC) and Partnership for Justice (PFJ) have asked President Umaru Yar’Adua to use his “position and leadership to ensure the immediate arrest of President Omar al Bashir of Sudan, who is expected to attend the forthcoming African Union Peace and Security Council meeting on Darfur in Abuja, starting 29 October 2009.”
The groups threatened that “in case your government does not act as requested, we will be compelled to file necessary applications before the UN Security Council for appropriate measures and sanctions in the circumstances.”
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Under Article 87 (7) of the Rome Statute of the International Criminal Court, the Court can refer the case of non-compliance back to the Security Council who may decide to take further measures.
In the open letter to President Yar’Adua dated 25 October 2009, and signed by SERAP Executive Director Adetokunbo Mumuni; CDHR President Olasupo Ojo; WARDC Executive Director Abiola Afolabi-Akiyode, and PFJ Managing Partner, Itoro Eze-Anaba, the groups expressed concerns that “despite Nigeria’s international legal obligations including under the Rome Statute of the International Criminal Court (ICC), your government has invited President al Bashir who is wanted by the ICC on charges of crimes against humanity and war crimes. Your government also has reportedly given assurances that he will not be arrested. This is a clear violation of the arrest warrant issued by the ICC on 4 March 2009 for President al Bashir.”
“Nigeria must arrest and surrender President al Bashir to the ICC to avoid complicity in the crimes against humanity and war crimes he is alleged to have committed in Darfur,” the groups insisted.
“Given its important leadership role in the African Union, its recent election to the UN Security Council, and its leadership of the Economic Community of West African States (ECOWAS) as the current Chairman of that sub-regional institution, Nigeria has a legal responsibility to deny a safe haven to the Sudanese President who is wanted by the ICC under warrant following the Security Council referral of the situation in Darfur to the ICC,” the groups further argued.
According to the groups, “under the principle aut dedere aut judicare, (extradite or prosecute), Nigeria has a legal obligation to extradite a suspect of crimes against humanity and war crimes and surrender to the ICC for prosecution or to submit the case to its competent authorities for the same purpose. Nigeria has also ratified the 1984 Convention against Torture, which requires it to extradite or submit cases of persons found in territory subject to their jurisdiction suspected of torture.
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The groups also said that “by arresting and surrendering President al Bashir to the ICC, Nigeria’s action would be consistent with Article 27 of the Rome Statute, which holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the Court from exercising its jurisdiction. This restrictive approach to immunity for incumbent Heads of State is a just, humane and progressive interpretation of traditional international law on immunity for sitting Heads of State and would help to create a world without impunity for international crimes.”
“Bringing individuals to justice, regardless of their official capacity, also demonstrates an ultimate respect for international law that will do greater good for the international community of states than the temporary damage that may be done to diplomatic relations. Therefore, President al-Bashir’s official capacity as a sitting Head of State does not exclude his criminal responsibility, nor does it grant him immunity against prosecution before the ICC.” the groups further argued.
“Although Sudan is not a state party to the Rome Statute, Nigeria, being a member of the UN Security Council must ensure full compliance with the warrant of arrest by the ICC given that the situation in Darfur was referred to the ICC by the Security Council. In addition to its obligation to cooperate with the ICC under the Rome Statute, Nigeria’s membership of the Security Council provides a legal obligation for your government to arrest and surrender President al-Bashir to the ICC to face justice for the allegations against him,” the groups concluded.
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Re: Request for the arrest of Sudanese President Omar al Bashir during his planned visit to Nigeria
Socio-Economic Rights & Accountability Project (SERAP), Committee for the Defence of Human Rights (CDHR), Women Advocates Research and Documentation Center (WARDC) and Partnership for Justice (PFJ) are writing to request you to use your position and leadership to ensure the immediate arrest of President Omar al Bashir of Sudan, who is expected to attend the forthcoming African Union Peace and Security Council meeting on Darfur in Abuja, starting 29 October 2009.
We are human rights non-governmental organizations whose mandates include promoting respect for human rights and ensuring accountability for crimes under international law.
We are very concerned that despite Nigeria’s international legal obligations including under the Rome Statute of the International Criminal Court (ICC), which Nigeria has ratified, your government has invited President al Bashir who is wanted by the International Criminal Court (ICC) on charges of war crimes and crimes against humanity. It should be pointed out that the ICC on 4 March 2009 issued an arrest warrant for President al Bashir.
We contend that under the principle aut dedere aut judicare, (extradite or prosecute), Nigeria has a legal obligation to extradite a suspect of crimes against humanity and war crimes and surrender to the ICC for prosecution or to submit the case to its competent authorities for the same purpose. Nigeria has ratified the 1984 Convention against Torture, which requires it to extradite or submit cases of persons found in territory subject to their jurisdiction suspected of torture.
Furthermore, just recently, on 14 October 2009 the African Union in a statement at the end of the 13th Africa-EU Ministerial Troika Meeting in Addis Ababa Ethiopia underlined its commitment to fighting impunity at the national, regional and international level in conformity with the principles of international law. Given its important leadership role of the African Union, its recent election to the UN Security Council, and its leadership of the Economic Community of West African States (ECOWAS) as the current Chairman of that sub-regional institution, Nigeria has a legal responsibility to deny a safe haven to the Sudanese President who is wanted by the ICC under warrant following the Security Council referral of the situation in Darfur to the ICC.
We contend that by arresting and surrendering President al Bashir to the ICC, Nigeria’s action would be consistent with Article 27 of the Rome Statute, which holds that neither the immunity of a head of state nor the official position of a suspected international criminal will bar the Court from exercising its jurisdiction. This restrictive approach to immunity for incumbent Heads of State is a just, humane and progressive interpretation of traditional international law on immunity for sitting Heads of State and would help to create a world without impunity for international crimes.
We further contend that bringing individuals to justice, regardless of their official capacity, also demonstrates an ultimate respect for international law that will do greater good for the international community of states than the temporary damage that may be done to diplomatic relations.
We therefore contend that President al-Bashir’s official capacity as a sitting Head of State does not exclude his criminal responsibility, nor does it grant him immunity against prosecution before the ICC. Article 27 of the Rome Statute explicitly provides that the Statute applies equally to all persons without distinction based on their official capacity. State parties are thus obliged to comply with a request by the Court for surrender or assistance if a person the subject of an arrest warrant is found on their territory.
Although Sudan is not a state party to the Rome Statute, Nigeria, being a member of the UN Security Council must ensure full compliance with the warrant of arrest by the ICC given that the situation in Darfur was referred to the ICC by the Security Council. In addition to its obligation to cooperate with the ICC under the Rome Statute, Nigeria’s membership of the Security Council provides a legal obligation for your government to arrest and surrender President al-Bashir to the ICC to face justice for the allegations against him.
We therefore call on your government to act swiftly to arrest the Sudanese President once he enters Nigerian territory and surrender him to the ICC to avoid complicity in the crimes against humanity and war crimes he is alleged to have committed in Darfur, and possible UN Security Council sanctions. Under Article 87 (7) of the Rome Statute of the ICC, the Court can refer the case of non-compliance back to the Security Council who may decide to take further measures.
We hope that your government would provide the required leadership in this matter in the overall interest of the victims of crimes against humanity and war crimes committed in Darfur; some of these victims may be Nigerians. In case your government does not act as requested, we will be compelled to file necessary applications before the UN Security Council for appropriate measures and sanctions in the circumstances.
Yours sincerely,
Adetokunbo Mumuni
Executive Director, SERAP
Olasupo Ojo
President, CDHR
Abiola Afolabi-Akiyode
Executive Director, WARDC
Itoro-Eze Anaba
Managing Partner, PFJ
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