PERISCOPING THE CRIME OF GENOCIDE UNDER MUNICIPAL LAW: NIGERIA AS

A CASE STUDY.

*D. O Okanyi, Esq.

ABSTRACT

Nigeria as a country today is going through very difficult times. One of the greatest
challenges facing the country is that of insecurity perpetrated by non-state actors. It is
getting to a level where the citizens are finding themselves in a state of helplessness.
Worse still, the security agencies are ironically constituting themselves as agents of
destruction, perpetrating all sort of atrocities against some sections of the country with
implicit genocidal consequences. This paper x-rays the crime of genocide under
International Law as well as its application under municipal law. We discovered that
genocide has to do with attacking a particular group with the intention to destroy them
wholly or in part. This is captured under the Genocide Convention. Unfortunately,
Nigeria is not a signatory to the Genocide Convention. This paper argues, however, that
Nigeria is a signatory to the Rome Statute of the International Criminal Court, which fully
implements the Genocide Convention's provisions. Because genocide has the status of
a jus cogen, the Rome Statute has vested on Nigeria treaty obligations on the crime of
genocide, as well as extra obligations conferred by customary principles of international
law, which cannot be waived. In spite of this obvious obligation, Nigerian government
has failed to protect its citizens. This paper argues that irrespective of the notorious
principle of sovereignty, instances where the international community can interfere in
the affairs of a state includes failure of a state to protect its citizens from mass atrocity
crimes such as genocide, crimes against humanity, war crimes, and ethnic cleansing.
The paper urges the international community, to as a matter of urgency interfere in the
affairs of Nigeria on the basis of the R2P principle and recommends a quick ratification
and domestication of the relevant international treaties relating to Genocide. The
research method adopted in this research is essentially doctrinal.
Key words: genocide, Nigeria, international community, Genocide Convention, Crimes.

1.1 Introduction

Nigeria is rapidly assuming the characteristics of a failed state, which is difficult and
distressing to admit.1 It's becoming more and more uncontrollable. In Nigeria, violence
by
1

*senior Lecturer, Department of Criminal Litigation, Nigerian Law School, Enugu-okanyi@nigerianlawschool.edu.ng

Ben Nwabueze, "Why ‘NIGERIA’ is now qualified as a failed state" (2018) available at
https://www.vanguardngr.com/2018/02/nigeria-now-qualified-failed-state/ accessed on October 14 and Robert I.
Rotberg, "Nigeria is a Failed State" available at https://foreignpolicy.com/2021/05/27/nigeria-is-a-failed-state/
accessed on October 7, 2021

1
various disenfranchised social groups is never far from the surface. A state's principal
responsibility is to provide protection and safety to its population from violence and life
insecurity2. When a state can no longer fulfill this essential commitment to its inhabitants
and foreigners conducting lawful commerce, it is considered to have failed to fulfill its
basic responsibility. It may easily fall apart.

The commitment of state parties to the Genocide Convention to punish and prevent
genocide is beset by a lack of willingness to act. Despite their willingness to punish
genocide as a crime against international conscience and morality, state parties have
shown little willingness to prevent the crime or halt its progression. 3

The fact that, since the 1948 Genocide Convention entered into force in January 1951,
problems as basic as the conceptualization of the crime have remained vague and
gloomy, far from a consensus on the concept's import, is particularly concerning. Why is
it that, even if the term "genocide" is accurate, it is frequently used in a limited sense?
Why is the term "genocide" only used in the context of mass murder? Why are policies
that impair the culture of particular human groups in other ways not termed genocide,
even if they are aimed at eradicating the group? Why is it that only mass murder is
considered as genocide and not some other ways of destroying the group’s structure
and/or reducing the group to a number of individuals with no common identity? This
paper will interrogate some of these issues.

The association of genocide solely with killing has become a widespread phenomenon
affecting people of all social classes. This is the widely held belief, even among eminent
jurists.4 If there are no deaths or simply a few deaths but no mountain of heaped
bodies, the term "genocide" is not used. There appears to be no genocide without
widespread murder. However, a cursory review of the various international legal
instruments on genocide reveals that it includes acts such as causing grievous bodily
2
Section 14(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that “security
and welfare of people shall be the primary purpose of government”
3
Kelly Maddox " 'Liberat[ing] Mankind from such an Odious Scourge': The Genocide Convention and the Continued
Failure to Prevent or Halt Genocide in the Twenty-First Century" (2015-2016) Vol. 9 (1) Open Access Journals
4
W. Churchill, Kill the Indian, save the man: The Genocidal Impact of American Indian Residential School, (2004)
City Height, San Francisco, pp.3 – 12.

2
harm to members of the targeted group, inflicting a condition of life calculated to cause
the victim group's physical destruction, and forcible transfer of children from the victim
group to the perpetrator group. It is against the backdrop of the foregoing that this
research intends to discuss genocide under domestic laws and to question the basis of
silence of the international community in the state of this damning affairs.

Furthermore, the following questions shall also be addressed by the research:

1. In international law, what constitutes the essential elements of the crime of

genocide?
2. Has the international legal definition of genocide provided a sufficient platform for
the protection of all vulnerable victim groups?
3. Does Nigeria have a history of genocide? In other words, are there incidences of
genocide in Nigeria?
4. To what extent are international instruments on genocide applicable to Nigeria?

1.2 Nature and Scope of Genocide

Genocide is an international crime that entails acts that cause substantial physical and
mental harm with the goal of destroying a national, ethnic, racial, or religious group,
partially or fully. Article 6 of the Rome Statute defines genocide as “as any of the
following acts committed with intent to destroy in whole or in part a national, ethnic
racial or religious group” by:

a. Killing members of the group

b. Causing serious bodily or mental harm to members of the group

c. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part

d. Imposing measures intended to prevent births within the group

e. Forcibly transferring children of the group to another group

This definition is a good adaption of the one found in Article II of the 1948 Convention
on the Prevention and Punishment of Genocide. Genocide, which is defined as the
deliberate killing, destruction, or elimination of groups or individuals of groups, was

3
previously thought to be a sub-category of crimes against humanity. 5 The Genocide
Convention of 1948 established a firm definition of genocide, which defines it as one of
five categories of acts committed with the specific aim to eliminate, in whole or in part, a
national, ethnic, racial, or religious group. Genocide gained autonomous relevance as a
specific crime as a result of this Convention.6

As a result, three main factors are required to maintain an accusation of genocide.

1. To begin, there must be an identifiable national, ethnic, racial, or religious group

against which any of these acts of genocide are committed.
2. Second, there must be a desire to destroy the group in its entirety or in part. 7 This
is the offender's mental element. To prevail, the prosecution must show that any
of the identified identifiable groups was specifically targeted for destruction.
3. Finally, the actus reus must show that any of the enumerated acts were
committed against a specific group.

1.2.1 Destruction of a group in whole or in part

Before proceeding to identify and discuss the various genocidal incidences in Nigeria,
there is need to make a comment on the definition of genocide by the Genocide
Convention of 1948 which speaks of the destruction of a group in “whole” or in “part”.
The drafters made a valiant effort to establish an agreement, but in fact, the General
Assembly employed confusing phrases and left their interpretation to judges in following
prosecutions. Is it genocide to murder only a few people because they belong to a
certain ethnic group? Such an interpretation appears to be supported by a literal reading
of the definition. Nonetheless, two main ways to defining the scope of the term "in part"
have arisen, each altering the word "part" with a modifying adjective such as substantial
or major.

Where a conviction for genocide is based in part on the purpose to destroy a protected
group, the part must be a considerable part of that group, according to the Appeals
Chamber of the International Criminal Tribunal for the former Yugoslavia. The Appeals
Chamber noted that the Nazis did not realistically intend to exterminate all Jews, but
5
Cassese, Antonio, International Criminal Law, (Oxford University Press, 2003) p.97
6
Article II and III of the Genocide Convention
7
ICTY, Krstic, (Trial Chamber), August 2, 2001, para.550; see also: ICTY, Krstic, (Trial Chamber), August 2, 2001,
para.580 and ICTY, Jelisic, (Trial Chamber), December 14, 1999, para.62. )

4
only those in Europe, and that Hutu extremists in Rwanda sought to kill Tutsis within
Rwanda, saying: A perpetrator of genocide's intent to destroy will always be limited by
the opportunity presented to him. 8 While this element alone will not reveal if the targeted
group is significant, it can help inform such an analysis when combined with other
criteria. At the facts, the Appeals Chamber determined that the Bosnian Muslim
community in Srebrenica was a significant portion of the Bosnian Muslim population as
a whole, and that its destruction amounted to genocide.

Another technique, reading in the adjective significant, adopts a qualitative rather than
quantitative approach. According to Whitaker, the term "in part" refers to a major portion
of a group, such as its leadership, or a relatively considerable number, relative to the
total of the group as a whole. 9 An expert panel appointed by the United Nations Security
Council10 to investigate violations of international humanitarian law in the former
Yugoslavia found that "in part" had both a quantitative and qualitative dimension, citing
Whitaker's report.

The definition in the Genocide Convention, according to the Commission's chair,

Professor M. Cherif Bassiouni, was deemed sufficiently pliable to encompass not only
the targeting of an entire group, as stated in the convention, but also the targeting of
specific segments of a given group, such as the Muslim elite or Muslim women. 11 In
some of the original indictments, the Prosecutor of the International Criminal Tribunal for
the Former Yugoslavia took this strategy, which was later supported by trial judges.

Although not explicitly endorsing the significant part gloss on the Convention, the
Appeals Chamber of the Tribunal considered the relevance to the Srebrenica Muslim
community of the destruction of approximately 7,000 men. It referred to an observation
of the Trial Chamber about the patriarchal character of Bosnian Muslim society in
Srebrenica, and the consequent impact upon the future of the community that would
result from the killing of its adult male population. Evidence introduced at trial supported
8
Prosecutor v. Krstić (Case No. IT-98-33-A), Judgment, 18 August 2004, para. 8 available at
www.eda.admin.ch/politorbis p.93 accessed on October 15, 2021
9
Benjamin Whitaker, “Revised and Updated Report on the Question of the Prevention and Punishment of the
Crime of Genocide” UN Doc. E/CN.4/Sub.2/1985/6, para. 29) available at www.eda.admin.ch/politorbis p.93
accessed on October 3, 2021
10
In 1992
11
“Final Report of the Commission of Experts”, UN Doc. S/1994/674, para. 94). Available at
www.eda.admin.ch/politorbis p.93. Accessed on October 8
PM

5
this finding, by showing that, with the majority of the men killed officially listed as
12
missing, their spouses are unable to remarry and, consequently, to have new children.

As a result, the men's bodily annihilation had serious procreative consequences for the
Srebrenica Muslim community, potentially leading to the community's extinction. In other
words, adult males were a considerable portion of the community, the Srebrenica
Muslims, who were themselves a significant part of the larger group, Bosnian Muslims.

1.3 Incidences of Genocide in Nigeria

Nigeria has recently seen a number of crises. Despite the fact that there are many of
them, each one is distinct and comes in a variety of colors. The descriptive
nomenclature employed to identify these crises is meaningless to the average sufferer
who only realizes and comprehends the nature of his suffering in a crisis situation. In
the realm of international criminal law, however, recognizing the nature and character
of crises, as well as placing them effectively within their own descriptive nomenclature,
is critical for identifying and utilizing suitable preventive and curative measures.

The heterogeneous nature of Nigerian society, as well as the dynamics of her

collectivity in the face of overwhelming mistrust, sectionalism, regionalism, tribalism,
and nepotism, among other dis-unifying forces, have undoubtedly created fertile
grounds for the emergence of multi-dimensional conflicts, ranging from political, ethnic,
social, and religious crises, over time.

Whatever the cause, one thing is certain: Nigeria has recently experienced a
resurgence of various forms of identity struggle. Some of these have ethnic and
religious form,13 while others may be the result of government policies. 14 The desire
for domination and significance of dichotomized identities has often resulted in the loss
of lives and property, as well as the relocation of communities and ethnic nations, in
the Nigerian state and its structures.

Because of the multi-dimensional nature of Nigeria's difficulties at this time in her

history, attempting a comprehensive understanding of the multiple crises that have
enveloped our democracy is extremely challenging. As a result, this paper will only

12
Ibid
13
E.g. Jos Crises between 2001 to Date.
14
E.g. Civil War, Zaki-Biam Massacre and Odi Slaughter.

6
look at a few specific crises in Nigeria in the context of the international crime of
genocide, in the hopes that understanding the selected crises in the context of
genocide will provide the necessary background for assessing other crises and placing
them in their proper descriptive nomenclature.

1.3.1 The Odi Massacre

The Nigerian military launched an offensive on the largely Ijaw town of Odi in Bayelsa
State on November 20, 1999.15 The incident took place amid a raging battle in the Niger
Delta over indigenous rights to oil and environmental preservation. On the instructions
of the Commander-in-Chief, President Olusegun Obasanjo, the Nigerian armed forces
invaded the town of Odi in Bayelsa State on November 20, 1999, killing many innocent
men, women, and children in what has been called as the government's worst human
rights violation. The expedition team's purpose in Odi was to arrest a gang of thugs who
had murdered twelve Nigerian police officers and men .16

A Non-Governmental Organization (NGO), the Environmental Right Action lamented

that: “it was a mission to wipe out the community from the face of the earth. Nothing
was spared”17 According to another NGO, the Civil Society Mission, “the action of the
soldiers at Odi amounted to genocide”. 18 The publication of Environmental Right Action
in 2002 styled the situation as; “…images of Odi Genocide”. 19 A lot more observers,
commentators and journalists have often referred to the Odi massacre by the Obasanjo
led Federal Government as genocide against the Odi people.

The actus reus of genocide was established by the preceding consideration of the Odi
issue. That is, killing Odi residents and causing substantial bodily and mental injury to
Odi residents. Even some of the ravaging and raging soldiers' actions could be
interpreted as an act of purposely inflicting circumstances of life on members of the Odi
community in order to cause its physical destruction in whole or in part. As a result, the
presence of a physical element of genocide in the Odi massacre may not be debatable.

15
Human Rights Watch "The Destruction of Odi and Rape in Choba
December 22, 1999" available at https://www.hrw.org/legacy/press/1999/dec/nibg1299.htm accessed on October
5, 2021
16
New York, USA Release, Monday November 20 th 2000
17
Ibid.
18
Ibid.
19
Ibid.

7
The mental element of genocide is defined as “the intent to destroy in whole or in part, a
national, ethnical, racial or religious group” The countless acts of violence perpetrated
against the Odi people by the Nigerian army, as well as the explicit statements left
behind on the ruins of Odi's fallen walls, suggests that the Obasanjo-led administration
intended to bring about the existence of a prohibited conclusion – genocide. Again, an
imputation of a wish to create the presence of a banned act - genocide – is an extreme
act of reckless disregard for life and property.

However, the second arm of the mental element, or mens rea, of the crime of genocide,
as defined in the Genocide Convention and the Rome Statute of the International
Criminal Court, poses a dilemma in classifying the Odi massacre as genocide from a
strict legal perspective. That is, a member of the protected group, such as a national,
ethnic, racial, or religious group. The most important question is whether the Odi
community is a protected group under the law of genocide.

The Odi community is neither religious, racial, nor national in nature. Is the Odi
community, then, an ethnic group? The Odi people are from Southern Nigeria's Ijaw
ethnic group, which is today known as Nigeria's South-South geopolitical zone. The Ijaw
ethnic group is represented in a number of local governments in Rivers, Bayelsa, and
Delta states. As a result, the Ijaw ethnic group is not entirely concentrated in the Odi
community. The Odi ethnic group is a tiny part of the Ijaw ethnic group, which is
sometimes referred to as the Ijaw nation. The perpetrators of the Odi massacre were
restricted to the Odi community — a definite and recognizable geographical location
that served as a hideout for the hoodlums who kidnapped and killed seven police
officers.

Aside from this locality, the soldiers are claimed to have targeted no other Ijaw
communities within or outside of Bayelsa state. This suggests that the slaughter was
directed at the Odi community as a whole, rather than the Ijaw ethnic group or the Ijaw
nation. It may also be sufficient to mention that Odi's residents are not all Ijaws, and that
the killing also afflicted residents of other ethnic nationalities.

Unfortunately, the current law on genocide does not include an attack on a community
or defined geographical area as a protected group for genocide purposes. As a result, it
may be reasonable to conclude that major violations of human rights occurred at Odi, as

8
well as the commission of crimes against humanity against the Odi people. However,
the crime of genocide did not occur in Odi from a legal standpoint. This tragic
conclusion should be viewed as a result of the law of genocide's inadequacies and
shortcomings.

Even though Hon.Justice Lambo Akambi of the Federal High Court Port Harcourt once
gave a judgment in favor of the Odi community, ordering the Federal Government to
pay the Odi community N37.618 billion in compensation for the human rights violations
done against them by troops in 1999, 20 the Court's decision was not based on a finding
of Genocide.

1.3.2 The Tiv Massacre

Soldiers picked up and slaughtered nearly 200 unarmed civilians in four ethnic-Tiv
villages in Benue. Zaki- Biam, a 20,000-person town, was completely devastated. The
executions were retaliation for the kidnapping and killing of 19 troops in the same district
two weeks earlier. They were dispatched to settle conflict between two local tribes, the
Tivs and the Jukuns, and the army accused Tiv militias of being responsible for their
killings.21.

In an operation that resulted in the deaths of hundreds of people and the devastation of
20 Tiv villages, 1,000 houses were demolished, including that of Benjamin Chacha,
former Speaker of the House of Representatives in the Second Republic. 22

The destruction that followed did not spare government buildings. The Ukum Local
Government Secretariat, as well as the official residence of the Council Chairman, were
both destroyed. The Divisional Police Station at Zaki-Biam was also damaged.
According to Chacha, many individuals were slain in Zaki-Biam alone during the
operation. When Newswatch arrived in Zaki-Biam on October 26, 2001, the town was
still littered with bodies and several buildings were still burning… 23 The town had been
left by the majority of the residents, who feared additional military retaliation. Strange
refugees, women and children who appeared pale, worn out, and hungry, were spotted
20
The Nation, Tuesday February 26, 2013, p. 30.
21
Trevor, J. and Barbara, S. (2001) Nigeria Soldiers carry out Massacres 27 th October, 2001
22
Newswatch Magazine, 24th October, 2001
23
Ibid

9
in the town. Commercial vehicles have stopped traversing the route, therefore access to
the area has been closed off…24

While a segment of the soldiers were carrying out their retaliatory act in Zaki-Biam,
another detachment was dispatched to Tse -Adoor, a village in Katsina-Ala Local
Government Area of Benue State, 16 kilometers away from Zaki-Biam.25

Soldiers, without a doubt, committed the actus reus of genocide. The acts of troops as
actus reus will fall under the sequence of acts listed in (a) – (b) in the Genocide Law
(i.e. killing members of the group and causing serious bodily or mental harm to
members of the group). Over 150 people were claimed to have died in Gbegi; twenty to
thirty people in Zaki-Biam; six people in Tse-Gube; two individuals in Sankera; five
people in Tse-Adoor; and seventeen people in Vaase. At Anyiin and Kyado, no one was
killed. All of the settlements attacked by soldiers were subjected to a great deal of
torture, which resulted in numerous physical injuries. They also suffered mental harm as
their houses were burnt and their barns destroyed.

Many questions arise when determining whether the mental element of genocide
existed or not in the Zaki-Biam pogrom, such as: Will the victim communities fall under
the group(s) protected by the legislation of genocide? Is the massacre's nature
suggestive of genocidal intent? The victim communities are distinct Tiv communities
that exist on their own. The whole communities targeted for the alleged "vengeance"
were Tiv speaking communities, which means they are Tiv ethnically. It was also found
that soldiers had made derogatory remarks about their race to them. 26

It should also be remembered that some troops stopped a moving bus and inquired if
there were any non-Tiv speakers on board before unleashing their vitriol on all the Tiv
males on board.27 Soldiers burned down a food storage facility in Sankera that was
intended to serve Tiv refugees arriving from Taraba State.

Soldiers in another local government district (Katsina-Ala) committed grave human

rights violations against Tiv people, including widespread rape of Tiv women and girls.

24
Ibid
25
Ibid
26
NIGERIA-Military Revenge in Benue,Human Rights Watch interview at Federal Medical Centre, Makurdi,
December 14, 2001, p. 14.
27
Ibid.

10
We respectfully venture to conclude that the Tiv people as an ethnic group had been
targeted for destruction "in part" as a result of these efforts. As a result, the entire
targeted communities can simply fall under the definition of an ethnical group as a
protected group under the legislation of genocide.

On whether the nature of the massacre depicts genocidal intent, it is humbly submitted
that in criminal law, intentions are often derivable from the acts or circumstances of a
crime and not often by express declaration or proclamation by the perpetrator of a
crime. It is also trite that in criminal law, intention to cause a prohibited result may be
imputed by law, flowing from the nature of the act. This falls within the premise of
imputation of mens rea consequent upon extreme recklessness. In this situation,
recklessness is a form of mens rea.28 A reckless person in relation to criminality is one
who does not give a damn as to whether or not a prohibited consequence results from
his action.29 In relation to the crime of genocide, such a reckless person is one who acts
with extreme recklessness not giving a damn that his acts may constitute genocide.

1.3.3 Boko Haram Insurgency

The inception of the organisation is crucial to its self-definition and justification of violent
tactics used against Nigeria's government and its allies. 30 A group of roughly 200
persons, many of whom were university students and unemployed youths, went to a
remote section of Yobe state in 2003 and established a camp near the Republic of
Niger's border.31 The Nigerian Taliban, then known as Ahl Sunna Wal Jamma (followers
of the Prophet's Teachings), intended to secede from Nigeria's "corrupt," "sinful," and
"unjust" secular state in order to establish a new community based on Islamic
injunctions, law, and mandates. Mohammed Yusuf was the name of the group's
leader.32

Boko Haram, as the group is now known, is derived from a mix of the Hausa word
"Boko," which means "Western education," and the Arabic word "Haram," which means

28
K. S. Chukkol, The Law of Crimes in Nigeria, (ABU Press, 2010), p. 44.
29
Ibid.
30
Spiraling Violence: Boko Haram Attacks and Security Forces Abuses in Nigeria, (2012) Human Rights Watch, U.S.A,
p. 30.
31
Ibid
32
Nigeria: Trapped in the Cycle of Violence AFR 44/043/201, Amnesty International, London, 2012, p.7.

11
"ungodly or sinful." As a result, "Boko Haram" is not only the group's common moniker,
but also a slogan declaring Western education (and its products) to be sacrilege. 33

The Boko Haram insurgency, despite its widespread nature, is difficult to place in the
context of the group's specific aim. This is due to the fact that the nature of the group's
various attacks reveals little about the group's main goal and primary target. However, a
statement attributed to Boko Haram leadership, specifically Abu Shekau, may allude to
the group's mission and target:

…our war is with government that is fighting Islam

with the Christian Association of Nigeria (CAN) that
are killing Muslims…and those who help them to
fight us even if they are Muslims. Any one who is
instrumental to the arrest of our members is assured
that their own is coming.34

Boko Haram appears to have explicitly identified three groups as potential foes in its
proclamation of war; The government, Christians, and some Muslims among them.
According to Human Rights Watch, numerous Christians have been killed by terrorists,
and many churches have been demolished by Boko Haram members. Boko Haram's
atrocities against Christians have included torching and blowing up churches, as well as
kidnappings, forced conversions, and attacks with weapons and explosives or suicide
bombers during religious services.35 A fifteen-year-old girl described how she sought
sanctuary in a church with her pastor, a security guard, and the pastor's brother:

They (Boko Haram) asked the guard who he was.

He said he was the gateman. He begged them to
spare his life. The next thing I saw they cut his neck
and push his body into the chair….The pastor’s
brother try to run they cut him by the head. He fell
down inside the church. The pastor and I were hiding

33
Okpaga, et al. (2012) “Activities of Boko Haram and Insecurity Question in Nigeria”. Arabian Journal of Business
and Management Review, Vol. 1, No. 9, p. 82; See also: Phaon, P.J., “Boko Haram‟s Evolving Threat” News Brief:
African Centre for Strategic Studies (2012) Vol. 20, p. 2.
34
See “Boko Haram Drops Flyer All Over Kano after Bombing” African Spotlight, 21 January, 2013. cited in Nigeria:
Trapped in the Cycle of Violence, op. cit., p. 10.
35
Spiraling Violence, op. cit., p. 45.

12
 by the usher’s table. (It was dark inside) they asked
the pastor if he was a woman. They then cut him on
his hand and head…That was the last I saw of him. 36

Another Christian woman who recounted how Boko Haram killed her husband for
refusing to renounce his Christian faith said:

They told us to kneel down in front of the house…

They asked me to do the Muslim prayer. I say, “No, I
will not do the prayer”. They then turned to my
husband. They asked him if he was going to pray
and he said “No”. Then they told him to lie down. …
They said if he won‟t pray they would kill him. After
he refused, one of them took a knife and cut his
throat. They then stood there quietly. They picked
me up and took me to their mosque at the
compound.37

Human Rights Watch also spoke with three Christian males who were kidnapped by
Boko Haram fighters in July 2009 and taken to Yusuf's camp. The three men claimed to
be alive because they consented to say Muslim prayers and then adopt Muslim names.
Boko Haram leaders told the three men that they were only battling corruption and
injustice in Nigeria, according to the three men. They then set them free and let them
go.38

Boko Haram members have also been sighted attacking churches on Christmas Day, a
strategy that appears to be geared to maximize casualties. 39 Gunmen allegedly stormed
two churches in Maiduguri on Christmas Eve 2010, killing six people, including a pastor.
Boko Haram fighters assaulted St. Theresa's Catholic Church in Madalla, Niger State,
on Christmas Day 2011, murdering 43 people. Boko Haram claimed responsibility for
the said attack.40 On the same day, a church in Jos was attacked, killing a police officer.
Churches were also targeted in Gombe, Yola, Bauchi, Kaduna, and Zaria, sparking
36
Ibid.
37
Human Rights Watch Interview with a Christian Widow (name withheld), Maiduguri, July 10, 2010.
38
Human Rights Watch Interview with Christian Man, Maiduguri, July 2010.
39
Spiraling Violence, op. cit., p. 48.
40
Hamza, I., “Boko Haram Claims Responsibility”, Daily Trust Newspaper, December 27, 2011.

13
days of retaliation and counter-retaliation attacks between Christians and Muslims that
resulted in hundreds of deaths.41

The nature of the ongoing attack against Christians and churches appears to be rather
hazy. Is the sect's ultimate goal the destruction of her institutions in Northern Nigeria?
Observers have argued that Boko Haram's attacks against Christians are premeditated
acts aimed at destabilizing Nigeria's existing government and exploiting existing ethnic
and religious fault lines, even though the group's intention in this regard remains a
mystery.42 In this regard, a Nigerian journalist who conducted an interview with some
Boko Haram leaders stated the following:

It is…a strategy by Boko Haram to bring

government to its knees by creating a war
situation… They know that the most important area
that can bring down law and order is religion. So
they are attacking Christians. When Christians
decide to retaliate they don‟t know who is a Boko
Haram member, so Christians will just retaliate
against Muslims and that will further polarize the
country.43

Regardless of the foregoing, Boko Haram commander, Abubakar Shekau, stated that
his organization was at war with Christians because “they killed our fellows and even
ate their flesh in Jos”.44 Shekau appears to be alluding to the attack on Muslims in Jos
on August 29, 2011, which resulted in the deaths of twelve persons during the Muslim
festival of Eid-el Fitr.45

The operations and atrocities of the Boko Haram rebels, which were previously
analyzed, reveal a distinct target group - Christians, despite the fact that security
agencies and Muslims were also victims. The insurgents had committed the actus reus
of genocide, that is, killing and causing serious bodily and mental suffering to Christians
"in part" with the essential particular purpose to exterminate.
41
Spiraling Violence, op. cit., pp. 47-51.
42
Human Rights Watch Interview with a Senior Government Security Official, Abuja, July 2012.
43
Human Rights Watch Interview with Ahmad Salkida, Abuja, May 29, 2012.
44
“Boko Haram: Nigerian Islamist Leader Defends Attacks”, BBC Newsonline, January 11, 2012.
45
See: Bashir, “Police Begin Enquiry into Jos Eid Ground Clash”, Daily Trust Newspaper, August 31, 2011.

14
1.3.4 The Plateau State Religious Crisis

Plateau State was formerly known as "Nigeria's home of peace and tourism," but the
Plateau's conflicts paradoxically converted the state into a phantom. While Nigeria was
preparing to ratify the ICC Statute, which it did on September 27, 2001, 46 the previously
quiet tranquility of Jos47 was shattered by the emergence of violent religious disputes in
September 2001.

The Nigerian Government could and should have prevented the mass killings in Jos in
September 200148. As many as more than one thousand people are believed to have
been killed in just six days as Jos, the capital of Plateau State was rocked by
unprecedented violence between Christians and Muslims. The conflict in Plateau has
ethnic, political, economic and religious components which over the time, became
inextricably linked. The population in Plateau State is ethnically and religiously diverse
like that of most central states of Nigeria. Generally speaking, while Christians in
Plateau State could be said to be in the majority, however, Muslims make up a large
minority49 in the recent years, influential positions in the Plateau State Government have
tended to be dominated by Christians leading to feelings of resentment and
marginalization by the Muslims. Conversely, the Christian in Plateau State have
complained of economic dominance and monopolization by the Muslims. Christians and
Muslims were both perpetrators and victims in the conflicts in Plateau State which have
led to recruitments and counter recruitments of allies by parties to the conflicts which
make the conflict increasingly more complex. This is in spite of the fact that even among
the parties to the conflict, there are families who have members that profess the Islamic
faith while others profess the Christians faith. Whatever the propelling factors to the
conflict, what is hardly disputable, is that the conflict in the Plateau, has assumed more
religious than ethnical dimension. At the root of the conflict is the competition between
“indigenes”50 and “non indigenes”. The September, 2001 conflicts in Jos, later spilled
over to Yelwa Shendam in the same dimension and character like the one in Jos, and
46
Ladan M.T. (2006). An overview of the Rome Statute of the International Criminal Court. In An Introduction to
the Rome Statutes and International Criminal Court. (Nigerian Institute of Advance Legal Studies, 2006) , p.27
47
www.hrw.org/en/report/2001/04 Nigerian-govt-inactions-cost-lives-in-jos accessed on October 12, 2021
48
Ibid
49
Human Right Watch Report: Revenge in the Name of Religion a Cycle of violence in Plateau and Kano
State (May, 2005) Vol.17 No.8(A), p7
50
The concept of indigeneship was formalized in the 1979 Nigerian Constitution and further identified in Section
147(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

15
with similar propelling factors, to the extent that by the years 2002 and 2004. Yelwan
Shendam was equally affected. The root of the crisis has its bane from the “indigenes”
and “non-indigenes” dichotomy which ordinarily should have been ethnically based, but
became more polarized on religious lines than ethnical. The crisis continued on and off,
from Jos to Yelwa and to Jos unabated. Ethnic groups including the Fulanis, the Tarok
and a number of smaller groups from other local government areas have taken sides
largely on religious sides. For example, a Christian from Angas ethnic group in Yelwa
told Human Rights Watch that “As indigenes of Plateau State, we can’t leave this place
for them (the Muslim) including the Gamai who are indigenes of Shendam Local
government. The Angas perceive ourselves as indigenes of Plateau State. The Muslims
who are in Yelwa are non- indigenes. They come from the northern states (…) it is a
religious war. They said they are indigenes of this place and want to chase us out. They
want to occupy the place”51.

Another Christian witness who was also interviewed by the Human Right Watch stated
that:52

Some of those in military uniform arrived at the

church in a pickup truck, others in a vehicle
similar to a fuel tanker. As the pickup truck
reached the Langtang South road, the
attackers shouted “that they should start”
witnesses heard the attackers shouting “Allahu
akbar” (God is great) and “let‟ fight those arna
as they (the Muslims) were the ones who
founded Yelwa and they didn‟t want the
Christians there. Another witnesses was able
to identify some of the individual attackers as
Muslim residents of Yelwa; she recognized
some of their faces, including that of a man
who appeared to be one of the Commanders,
but did not know their names.

51
Human Rights Watch interview Yelwa (July, 10, 2004).
52
Op.cit, p.17

16
In the same Jos communal conflict, it was reported in 2004 that 67 Christians were
killed by Moslems in Yelwa village in February of that year 53. This killing was followed by
a revenge massacre of about 650-700 Moslems in May 2004 54. This no doubt qualified
as crime of genocide on which the ICC Statute could apply.

1.3.5 IPOB Killings

The Indigenous People of Biafra (IPOB) is the main organisation which represents all
who consider themselves to be Biafrans. IPOB pursues the right to self-determination
for Biafrans. Biafra is usually associated with the Nigerian civil war between 1967 and
1970 when a proclamation of independence of the Republic of Biafra resulted in millions
of deaths, mainly from starvation, and millions of displacements.

Since 2015, members of IPOB have faced arbitrary arrests, torture and extrajudicial
executions, predominantly as a result of demonstrations. These killings have been well
documented,3 including by Amnesty International in a damning report in 2016 55 and
which led a number of organisations to call on the Nigerian government to ensure an
independent investigation into the allegations. 56 Individuals have been targeted because
of their membership or support for IPOB and these violations have continued after the
proscription of IPOB by the Nigerian government and despite calls from the African
Commission on Human and Peoples’ Rights (ACHPR) which, as noted below, has
called on the government “not to take any further action so as to avoid irreparable
damage to the victim, IPOB and its members”.

Between 2015 and 2016, it is alleged that law enforcement officials killed at least 100
IPOB members in different events in Aba (Abia State), and Awka and Onitsha (Anambra
State).57 On 29 and 30 May 2016, during a demonstration, the Nigerian military opened
fire on IPOB members and bystanders in Onitsha. At least 60 persons were killed and
53
See Tribune 12th May 2004 front page
54
See Daily Trust 14th May, 2004 Front page
55
Amnesty International "At least 150 peaceful pro-Biafra activists killed in chilling crackdown" available at
https://www.amnesty.org/en/latest/news/2016/11/peaceful -pro-biafra-activists-killed-in-chilling-crackdown/
accessed on October 19, 2021
56
The Guardian Nigeria, “42 rights organisations seek probe into alleged repression of pro-Biafra activists”
available at https://guardian.ng/news/42-rights-organisations-seek-probe-into-alleged-repression-of-pro-biafra-
activists/ accessed on October 20, 2021
57
“End of visit statement of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her visit to
Nigeria . Agnes Callamard, United Nations Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions”,
2 September 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24934&LangID=Eis
accessed on October 18, 2021

17
over 70 injured, mainly shot in the back. 58 The exact number of deaths remains
unknown.

Between 12 and 14 September 2017, IPOB followers gathered at the family home of
their leader, Nnamdi Kanu, in Afara-Ukwu (Abia State) to take part in a peaceful vigil.
The military operation (as part of Python Dance II) carried out in the afternoon of 14
September 2017 is alleged to have resulted in the killing of 150 persons. 59 The IPOB
leader went in exile and some of its followers remain disappeared since then. No
Nigerian soldiers were killed in the operation. Following this event, the Federal High
Court in Abuja proscribed IPOB and designated it as a terrorist group.

A number of those arrested are allegedly held incommunicado before being detained
without charges. When charges are finally made, they include membership to a terrorist
organisation, unlawful gathering and in some cases kidnapping. It is alleged that not a
single conviction against IPOB members has been secured since 2015, due to
discontinuance or dismissal of charges. None of the killings of IPOB members have
been investigated. In September 2015, the International Business Times UK quoted
IPOB member Ifeanyi Adibe thus:

[M]ass arrests, kidnappings, torture and killings of pro-Biafrans

are ‘not a new thing’. Hundreds are known to have been
abducted in the middle of the night from their homes and [they]
undergo torture in various underground Nigerian torture
chambers. Many more are unaccounted for. The number of
those already killed cannot yet be established, but we know
many are missing.60

On 30 May 2016 the NSF raided a hospital to arrest injured patients, some of whom
were never heard from again. Amnesty International reported:

58
Ibid
59
“End of visit statement of the Special Rapporteur on extrajudicial, summary or arbitrary executions on her visit to
Nigeria . Agnes Callamard, United Nations Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions”,
2 September 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24934&LangID=Eis
accessed on October 18, 2021
60
“Nigeria: Credible evidence that pro-Biafrans are targeted by police says Amnesty International”, International
Business Times, 10 September 2015, https://www.ibtimes.co.uk/nigeria-credible-evidence-that-pro-biafrans-
aretargeted-by-police-says-amnesty-international-1519127. Accessed on October 21, 2021

18
 A witness told Amnesty International that at Crown hospital in
Ontisha [sic], soldiers arrested 19 men, including 14 wounded,
and took them to state CID. They were not informed of the
reason for their arrest and were returned to the hospital after
several hours. Others did not return, as 46-year-old civil
engineer Markus (not his real name) told Amnesty International
about his missing brother: ‘I was told by IPOB members that he
was shot during the protest. He was taken to a hospital ... with
another injured IPOB member. Soldiers came inside the hospital
to take him away.’ Markus still does not know what happened to
his brother.61

On 16 August 2016, the Nigerian Security Forces shot and abducted 30-year-old
Sunday Chucks Obasi from his home in Anambra State. 62 Amnesty International
reported:

On 16 August 2016 at around 9 p.m., five armed men in plain

clothes, believed to be DSS [Department of State Security]
officers, arrested Sunday Chucks Obasi, the Nnewi-Ichi
Coordinator of IPOB in Anambra State, at his home in Amuko
Nnewi, Anambra State. Witnesses say he was shot in the legs
and then taken away. His whereabouts remain unknown. 63

Members of the IPOB were also attacked at Obigbo, Rivers State. The scenario was
sad since there were alleged accusations that IPOB members clashed with youths from
the north, including Hausas and Fulanis, a situation that devolved to the point where
River State Governor, Mr Nyesom Wike, issued a proclamation outlawing IPOB in the
state.64 He also placed a curfew on the entire council area of Obigbo.

He then proceeded to impose a N50 million Naira bounty on the head of IPOB's local
leader. Soldiers allegedly moved into the community after hearing the broadcast, killing,
61
Ibid, p. 49.
62
Amnesty International, “Urgent Action: Pro-Biafran Activist Released”, 27 April 2017, available at:
https://www.amnesty.org/download/Documents/AFR4461222017ENGLISH.pdf. Accessed on October 19, 2021
63
United States Department of State, “2016 Country Reports on Human Rights Practices – Nigeria", 3 March 2017,
available at: https://www.refworld.org/docid/58ec89ed6.html. Accessed on October 17, 2021
64
Anayo Okoli, "How Obigbo killings affected Igbo nation" available at
https://www.vanguardngr.com/2020/11/how-obigbo-killings-affected-igbo-nation/ accessed on October 20, 2021

19
torturing, and maiming residents. 65 They were said to have gone house to house looking
for Igbo youths who had been labeled as IPOB members. International and local civil
society organizations have expressed concern about the graphic images that have been
circulated on social media. The focus turned to Rivers State, particularly the
underserved Obigbo region.

Intersociety on the other hand sees the actions of the military and other security
personnel as attempt to wipe out Igbo Christians. Since January 2021, no fewer than
150 defenseless Igbo Christians have been hacked to death by Jihadist Fulani
herdsmen across the Southeast, according to the organization, while security authorities
have looked the other way, with not a single Fulani herdsman arrested and placed on
trial.66

According to the report, the heinous war crimes act of depopulation, which aims to
eliminate the productive and reproductive young male generation of the current Igbo
Nation-State and reduce its future male population, is also underway in Abia, Anambra,
Ebonyi, Enugu, and Imo, as well as the Igbo parts of Rivers, Delta, Cross River, and
Akwa Ibom states. According to latest data, Imo and Abia states have been hit the
hardest, with the majority of the killings, disappearances, abductions, and arrests
occurring there.67 The current increase in massacres in the two states was so terrible
and distressing that not less than 140 civilian killings were independently projected to
have occurred between May 25th and June 1st, 2021, with Imo recording at least 100
and Abia 40. Since the 5th of April, security forces have been targeting and killing
defenseless civilians in Imo, and the situation has gotten even worse between the 25th
of May and the 2nd of June 2021, following a sit-at-home on the 31st of May 2021 in
honor of the persecuted and massacred Igbos during the Civil War. 68

Intersociety also reported that unknown to most global citizens, human rights and
democratic institutions, including international observers, no fewer than 500 civilians, all

65
Ibid
66
International Society for Civil Liberties and Rule of Law, "Looming genocide in South-East Nigeria: 350 killed in
160 days, 600 missing and 2,500 abducted or arrested by security agents" (2021) available at
https://sundiatapost.com/looming-genocide-in-south-east-nigeria-350-killed-in-160-days-600-missing-and-2500-
abducted-or-arrested-by-security-agents-intersociety/ accessed on October 21, 2021
67
Ibid
68
Ibid

20
Igbo Christians, have been slaughtered in eight of the named nine states. 69 The killings
took place over a period of 160 days, from January 1 to June 10, 2021. While Nigerian
army and police officers are liable for 350 deaths, state-backed Fulani Jihadists are
responsible for at least 150 deaths, largely in Ebonyi State. 70 Not less than 600 civilians
have also gone missing mostly in the hands of soldiers and other military personnel and
2,500 others in all including the 600 disappeared civilians have been abducted or
arrested and thrown into custody after being controversially labeled. 71

If these turn of events are not genocide, then nothing else is. The actus reus of inflicting
injuries on and killing IPOB members and igbos are clear in these reports. It has been
mentioned in this research in numberless times that the mens rea of intention to wipe
out the targeted group is discerned from an objective perspective. Thus, man intends
the natural consequences of his act. 72In other words, genocide can be assumed in the
light of atrocities committed.

1.4 Application of the international instruments on Genocide in Nigeria

The existing law of genocide has been enshrined in two major international
documents,73 as well as some instruments establishing ad hoc tribunals and courts. 74
The Convention for the Prevention and Punishment of the Crime of Genocide, 1948, is
the primary statute on genocide from which these other documents were derived. This
instrument is commonly referred to as the "Genocide Convention," which, as previously
said in this work, embodies humanity's conscience, projected to combat man's impunity
and inhumanity to his human family.

The Genocide Convention's provisions, which enumerated and criminalized acts that
may constitute genocide75 in international law as well as other acts of genocide but not
involving actual genocide, were completely adopted by the Rome Statute of the
International Criminal Court (ICC) as its provision on genocide. The provisions of the

69
Ibid
70
Ibid
71
Ibid
72
K. S. Chukkol Op cit
73
Convention for the Prevention and Punishment of the Crime of Genocide, 1948 (Genocide Convention) and
Rome Statute of International Criminal Court (ICC).
74
Statute of International Criminal Tribunal for former Yugoslavia (SICTY) & Statute of International Criminal
Tribunal for Rwanda (SICTR).
75
Art. 2 Genocide Conventions, 1948.

21
Genocide Convention of 1948 were also adopted by the Statute of the International
Criminal Tribunal for the former Yugoslavia (SICTY) and the Statute of the International
Criminal Tribunal for Rwanda (SICTR).

The provisions of the Genocide Convention contained in the 1948 instrument is not
applicable in Nigeria for the simple reason that, it is an instrument that is not ratified by
Nigeria. The implication of this stance is that the Genocide Convention of 1948, being
an international document, does not bind Nigeria on an international level and is not
applicable in Nigerian courts. However, as stated previously in the Birds Galore Case76
and A.G. Botswana vs. Unity Dow,77 treaties not ratified by a country may not be
completely useless; they can be used for guidance where the parliament has not
expressly stated that such an instrument is prohibited, and they can aid in the
interpretation of domestic laws.

Despite the fact that Nigeria has not ratified the Genocide Convention, it is important to
note that the crime of genocide is recognized as a customary norm of international law;
it is erga omnes, a jus cogen78 recognized as binding on all civilized countries, even
those not bound by treaties, from which no exceptions are permitted. The upshot of this
enhanced status of genocide as a crime against humanity is that a civilized state like
Nigeria is imbued with the responsibility to prevent and punish genocide as a crime
against humanity even though it has not signed any treaties imposing such a
responsibility.

Nigeria has a treaty commitment to prevent and punish genocide as a crime under
international law, while not being a party to the Genocide Convention of 1948. This is
because Nigeria has joined the Rome Statute of the International Criminal Court (ICC),
an instrument that forbids genocide and places a heavy burden on state parties to
combat the scourge of genocide, which has decimated man and his environment
throughout the years. Nigeria has not yet domesticated the provisions of the Rome
Statute of ICC in her domestic legislation. It therefore means that, the Rome Statute of
ICC only has the status of an instrument that is ratified, but not domesticated by Nigeria.

76
Supra
77
Supra
78
Jus cogen is defined as a mandatory or preemptory norm of general international law, accepted and recognized
by international community as a norm from which no derogation is permitted – See Black‟s Law Dictionary 9 th edn.
p. 937.

22
The consequential effect is that, her provisions cannot apply in Nigerian courts, 79 like the
provisions of the African Charter on Human and People’s Rights, which currently enjoys
the pleasure of domestication in Nigeria. By her status of only ratification, Nigeria is
under obligation to observe her provisions at international domain; without much effect
on the application of any domestic legislation, even if such domestic legislation runs
counter to the provisions of Rome Statute of ICC.

This is likewise the case in Canada, where treaties must be re-enacted into domestic
legislation to have force in the legal system. 80 In the absence of implementing
legislation, an international treaty to which Australia is a party has no direct impact in
Australian law.81As previously indicated, Nigeria is in the process of incorporating the
Rome Statute into its local legal framework.

In Nigeria, the process of implementing the Rome Statute as part of domestic legal
order is in progress. The Federal Government of Nigeria constituted a Special Working
Group (SWG), which has since submitted her preliminary report on the modalities for
the domestic implementation of Rome Statute. 82 The special working group was
commissioned by the then Honourable Attorney-General of the Federation and Minister
of Justice, Mohammed Bello Adoke (SAN) on the 22 nd March, 2011. The objective of the
special working group is to among others, assess and proffer the best strategy for
promoting the domestication of Rome Statute of International Criminal Court in Nigeria.
The group completed its mandate and furnished the Attorney General with a preliminary
report on 14th day off September, 2011.83
79
African Re-insurance Corporation vs. Fataye, op. cit. See also section 12 of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) which provides that “(1) No treaty between the Federation and any other
country shall have the force of law to the extent to which any such treaty has been enacted into law by the
National Assembly.”
80
Manirabona, A.M. and Crepeau, F. (2012) “Enhancing the Implementation of Human Rights Treaties in Canadian
Law: The Need for a National Monitoring Body” Canadian Journal of Human Rights, Vol. 1:1, p. 28.
81
Dietrich vs. The Queen (1992) 177 CLR 292; Kruger v. Commonwealth (1997) 190 CLR 1, all cited in Triggs, G.
(2003) “Implementation of the Rome Statute of International Criminal Court: A Quiet Revolution in Australian
Law” Sydney Law Review, Vol. 23, p. 516.
82
See preliminary report of the special working group on the implementation of the Rome Statute of International
Criminal Court in Nigeria; submitted to the Honourable Attorney-General of the Federation and Minister of Justice,
Muhammed Bello Adoke (SAN) on September 14 th 2011. The Nigeria government constituted a special working
group of highly proficient experts. The membership of this group included: Chief Joe-Kyari Gadzama (SAN),
(Chairman), Professor Muhammad Tawfiq Ladan, Professor Adedeji Olusegun Adekunle, Professor Ademola
Popoola and Professor Ademola Abass, other members includes representatives of Nigeria Bar Association,
National Human Rights Commission etc.
83
Ibid., Detail of the preliminary report of the special working group, will be examined in the next chapter of this
work, which shall dwell on the domestic implementation of the law of genocide in Nigeria.

23
1.5 1999 Constitution and Other Nigerian Penal Laws on Genocide.

The Constitution of the Federal Republic of Nigeria 1999 as amended is the grundnorm
of the existing legal order in the geographical entity constituting the Nigerian state. 84 It
follows therefore, that, all persons or authorities in Nigeria are subject to the supreme
powers of the constitution.

In regard to the crime of genocide, it should be noted that neither the 1999 Constitution
nor any of the secondary legislations regulating crime and criminality in Nigeria 85 made
any explicit mention of the crime of genocide, its prohibition, or sanction. However,
some activities could potentially be considered genocide, even if they are not labeled as
such, provided they are carried out with the required purpose. For example, the
constitution guarantees the right to life, making the deprivation of life illegal. It provides:
“Every person has the right to life, and no one shall be deprived intentionally of his life,
save in execution of the sentence of a court in respect of a criminal offence of which he
has been found guilty in Nigeria”.86

Aside from the constitutional clause forbidding the denial of life, Nigerian criminal law
also expressly outlaws the murdering of a person, in acknowledgment of the sanctity of
life.87 As a result, killing members of a targeted group because of their group’s identity
may only result in charges of unlawful killing, but legally falls under the definition of
genocide.

It may also follow that the violation of some other constitutionally guaranteed rights,
which may constitute derogation of human dignity 88 will only be a violation of
constitutionally guaranteed right and not genocide if done to a targeted group with the
required intent, even if such acts appear to be clearly genocidal.

1.6 International Intervention in Nigeria on genocide

84
Supremacy of the Constitution, section 1(1) CFRN, 1999( as amended.)
85
The Legislations regulating crimes and criminality in Nigeria are: The Criminal Code, which finds application in
Southern Nigeria; the Penal Code, which is applicable in Northern Nigeria; and the Sharia Penal Code, which is an
Islamic criminal justice Code, which operates side by side with the Penal Code in some Northern States of Nigeria.
86
Section 33(1) CFRN, 1999 as amended. Subsection (2) of same section provides further exceptional situation
where one can suffer lawful deprivation of life, i.e. (a) self defence (b) effecting lawful arrest or escape of a felon
(c) suppression of riot insurrection or muting.
87
See: Sections 306, 308 and 316 of the Criminal Code; Sections 220, 221 and 223 Penal Code and Section 200 of
the Sharia Penal Code of Zamfara State.
88
S. 34, CFRN, 1999.

24
One of international law's primary goals is to promote international cooperation, peace,
security, and friendly ties among nations. Internal disputes, on the other hand, continue
to represent a threat to world peace and development. As a result, the Responsibility to
Protect (R2P) principle, which enjoins the international community to intervene when
countries fail to protect their populations from mass atrocity crimes such as genocide,
crimes against humanity, war crimes, and ethnic cleansing, has recently gained
recognition as an emerging norm of international law. 89

An intervening state's deployment of force across state lines is known as intervention. It

could be a dictatorial intervention by one state in the affairs of another in order to
maintain or change the current state of affairs. 90 Its goal is to prevent or terminate
widespread grave abuses of people' and citizens' fundamental human rights, with or
without the authorization of the state whose territory is invaded. 91 Intervention is a term
that refers to a set of coordinated and methodical operations carried out beyond defined
boundaries. It is an attempt aimed at influencing the target State's political authority and
structures.92

Thousands of people have died in Nigeria as a result of the operations of the Islamic
sect known as 'Boko Haram.' Churches, mosques, and public parking lots were all
bombed, and numerous structures were set on fire. Other actions, such as intermittent
killings and kidnappings, are ongoing threats to the lives and property of people in
Nigeria's northern regions. The kidnapping of over 300 children from the Government
Girls Secondary School in Chibok, Borno State, is the most recent example of this. 93
The world community, on the other hand, cannot remain oblivious to news of these
atrocities and must raise important questions. How can the Nigerian government
explain the several international organizations' reports of mass killings in Nigeria? What

89
Oyeniyi Ajigboye, "International Law and the Responsibility to Protect: Legal and Theoretical Basis for
International Intervention" in Nigeria (2014) 3:1 Afe Babalola University: Journal of Sustainable Development Law
and Policy p. 88
90
Lassa P. Oppenheim, 1 International Law § 134 (Sir Hersch Lauterpacht ed., 8 th ed. 1955).
91
See J L Holzgrefe, “The Humanitarian International Debate” in J L Holzgrefe and R O Keohene (ed) Humanitarian
Intervention: Ethical, Legal and Political Dilemmas. (Cambridge University Press, 2003) 18
92
Oran R Young, Systemic Bases of Intervention, in Law and Civil War in the Modern World 111, 111 (John Norton
Moore ed, 1974).
93
Ajigboye Op cit

25
is the Nigerian government doing to investigate the crimes and bring the culprits to
justice..?94

The United Nations' preamble lays the groundwork for international intervention in order
to attain a worldwide aim, namely, global peace. Even while states have the obligation
to decide the fate of their citizens under international law, the states' discretion is
limited. This is true because violations of fundamental human rights, national
persecution, and internal strife are all justifiable reasons for the international community
to interfere.95

R2P should be understood as consisting of three conceptual pillars, according to the

UN Secretary-General’s Report:

1. A State has a responsibility to protect its population from genocide, war crimes,
crimes against humanity, and ethnic cleansing.96
2. The international community owes it to the State to assist it in carrying out its
primary responsibility.
3. If the state fails to protect its citizens from mass atrocities and peaceful measures
fail, the international community must intervene with coercive measures such as
economic sanctions. Military action is regarded as a last resort. 97

There are, however, some disagreements over the international intervention

framework.98 One of the main points of contention is the nature of humanitarian
intervention, with some arguing that states are self-interested and will never intervene
solely for humanitarian grounds. As a result, the question of whether a state's or a

94
Dr. Ewelina U. Ochab "Is Genocide Happening In Nigeria As The World Turns A Blind Eye?" (2020) available at
https://www.forbes.com/sites/ewelinaochab/2020/06/15/is-genocide-happening-in-nigeria-as-the-world-turns-a-
blind-eye/ accessed on October 7, 2021
95
See L F Oppenheim, International Law: A treatise, New York, David Mckay Co, 1995, page 312. S.C. Res. 1373,
para 2(c)–(d), U.N. Doc. S/RES/1373 (Sept. 28, 2001).
96
For an overview of crimes which R2P seeks to prevent the continuous perpetration, see Tarun Chhabra and
Jeremy B Zucker, Defining the Crimes, in the Responsibility to Protect 37 (Jared Genser and Irwin Cotler eds, 2012).
97
U.N. Secretary-General, Implementing the Responsibility to Protect, para 2, U.N. Doc. A/63/677 (Jan. 12, 2009)
[hereinafter Implementing the Responsibility to Protect]. At the subsequent General Assembly debate, over fifty
states explicitly endorsed the Secretary-General’s three-pillar formulation.
98
In a way, R2P conflict with the importance international law attaches to state sovereignty. See U.N. Charter art 2
para 7 (“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.”).

26
group's intervention can ever be solely humanitarian in its goals and purpose continues
to elicit debate, particularly from the perspective of developing countries.

Applying this to Nigeria, there is concern that countries such as the United States will
only intervene in Nigeria to safeguard their economic interests in Nigeria's massive oil
and gas resources, prolonging the Boko Haram crisis rather than allowing it to be
resolved quickly and efficiently.

However, it is submitted that under international law, the concept of intervention is yet
desirable. Because fighting does not take place on the intervening state's territory, the
cost of intervening in another state's internal strife is often lower. This appears to be the
case in Nigeria, where the Nigerian military appears to acknowledge that the Boko
Haram sect has more modern weapons than they do 99 and that combating the terrorists
will be difficult. As a result, the cost of ending the domestic conflict will be reduced since
intervening countries, such as the United States, will provide the military weapons now
required.

The major challenge of intervention, however, remains the actual costs in terms of long-
term sustainable development: human costs, such as loss of life or health, and
economic costs, such as destruction of infrastructure and disruption of local trade,
which affects a country's development either positively or negatively, as well as the
devastation of a country's ecological and environmental balance due to weapon
proliferation. Interventions may obstruct states' ability to achieve long-term
environmental, social, and economic growth if they are not accompanied by appropriate
methods and regulatory mitigation.

As a result, it is critical for the international law community to put in place proper
mechanisms for the evaluation of an intervening State's operations in another State's
internal conflict. External states that intervene in internal conflicts incur human costs as
well; however, these costs are restricted to the military troops involved, whereas the
biggest human costs in civil wars are borne by the civilian population. The consequence
is that a weak state will become even weaker, and the greater economic costs for the

99
Will Ross, "The soldiers without enough weapons to fight jihadists" available at
https://www.bbc.com/news/magazine-30930767 accessed on October 15, 2021

27
target state will further impair the target state's national economy. The consequence is
frequently irreversible.

1.7 Conclusion

The paper looked into genocide under Nigerian law. It was discovered that the current
law of genocide only recognizes physical annihilation of a collectivity as genocide if it is
accompanied with the required genocidal intent (dolus specialis). Biological acts that
could lead to genocide could just be a means to an end: the physical elimination of the
targeted collectivity. It was also found that no act of mass destruction or mass tragedy
can be considered genocide if it is not directed at a specific group.

Such an act directed at a specific group must be motivated by the desire to completely
or partially destroy that group. It was noted that, despite the fact that the existing law of
genocide in international law recognizes other acts 100 as constituting the actus reus of
genocide, physical atrocities of murder are frequently seen as the essential condition for
establishing the crime of genocide. The current trend is for shouts and intense agitations
for intervention to stop genocide to occur only when there is a pile of dead bodies in a
crisis situation.

The paper also discovered that, while the act of killing as an actus reus of genocide as
stipulated in Article II(a) of the Genocide Convention, as well as other paragraphs of
Article II, grammatically suggests that though the killing should be of at least two
members of the group, the law's interpretation indicates that only one victim is
required101 to satisfy the killing requirement, which must be perpetrated with the requisite
intent.

This paper also discovered that Nigeria is not a signatory to the 1948 Genocide
Convention. Nigeria, on the other hand, is a signatory to the Rome Statute of the
International Criminal Court, which fully implements the Genocide Convention's
provisions. Because genocide has the stature of a jus cogen, the Rome Statute has
vested on Nigeria treaty obligations on the crime of genocide, as well as extra

100
Other acts that may constitute the actus reus of genocide as contemplated by the law of genocide include:
(i) causing grievous bodily and mental harm; (ii) deliberately inflicting on the group a condition of life
calculated to bring about physical destruction in whole or in part; (iii) imposing measures intended to prevent
both within the group; (iv) forcibly transferring children of the group to another group.
101
Prosecutor vs. Mpampara (Case No. ICTR – 01-65-T), Judgment of September 11, 2006, para. 8.

28
obligations conferred by customary principles of international law, which cannot be
waived. As a result, it was discovered that the prohibition of genocide is not reliant
solely on the signing or ratification of a treaty; as a customary rule of international law,
all civilized governments should obey it even if they are not bound by a treaty.

In the light of the foregoing, it is recommended as follows:

1. The law of genocide, as enshrined in the Genocide Convention and the Rome
Statute of the International Criminal Court, should be examined to ensure that all
groups are protected. Apart from the four groups stated in the rule of genocide,
any other group that is unified by a common trait and disposition should be
included.
2. Despite the fact that the Genocide Convention and the Rome Statute of the
International Criminal Court clearly list other acts that may constitute genocide if
committed with the requisite genocidal intent, 102 the general trend is that genocide
is only declared when there is a heap of dead bodies and nothing more. This is a
completely incorrect understanding of genocide. As a result, it is urged that the
Genocide Convention's wordings and spirit be implemented, as this would be a
significant step forward.
3. Nigeria should take steps to domesticate the international instruments on
genocide so that her domestic courts can give effect to their provisions. Though it
is gratifying that Nigeria has already begun the process of domesticating the
articles of the International Criminal Court's Rome Statute (ICC), the pace of the
measures taken thus far is simply too chameleonic. Nothing has been done since
a Special Working Group (SWG) established by the Federal Government of
Nigeria delivered its preliminary report on the domestication of the Rome Statute
of the International Criminal Court (ICC) in 2011. Nigeria should consequently
speed up its efforts to ensure that international instruments on genocide are
implemented in her domestic realm, particularly at a time when the country is
beset by a slew of identity crises that have the potential to lead to genocide.
Furthermore, when domesticating international instruments on genocide, Nigeria
should keep in mind the flaws in the existing law of genocide, as identified in this
102
These other act includes: (i) causing grievous bodily and mental harm; (ii) deliberately inflicting on the group a
condition of life calculated to bring about physical destruction in whole or in part; (iii) imposing measures intended
to prevent both within the group; (iv) forcibly transferring children of the group to another group.

29
 paper, so that a better law of genocide and other international crimes can be
developed..
4. Nigeria must build institutions as soon as possible to carry out her policy and
laws on genocide and related conflicts.
5. Good governance is one of the most essential measures of a country's growth
and a critical tool for crisis prevention, resolution, and management. This is
because, in the absence of good governance, the desired changes in policy and
attitude in the polity would not occur.
6. The international community should as a matter of urgency interfere in the affairs
of Nigeria on the basis of the R2P principle. The country has failed to protect its
citizens!

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