Extra Judicial Killing and Torture in Nigeria - Assignment Example

Task One Human rights are decent principles or norms that depict certain standards of human conduct and are commonly protected as permissible rights in civic and international law[i]. The Office of the High Commissioner for human rights defines it as “rights innate to every human beings, whatsoever of their nationality, place of residence, sex, national or cultural origin, colour, religion, verbal communication, or whichever other position.” [ii]Therefore human rights abuse can be described an act that contravenes or denies any person his fundamental human rights. The black’s law dictionary defines an extrajudicial act as “That which is done, given or effected in the course of regular judicial trials and is not founded upon the act of a court of law, such as extrajudicial evidence, or an extrajudicial oath.” [iii]Thus, extrajudicial killing may be defined as a deliberated killing not authorized by an earlier judgment that is manifested by a regularly composed court affording all the judicial agreements that are recognized as obligatory by civilized peoples. Extrajudicial killings do not ensue from the due process of the legal jurisdiction in which they occur. Torture, on the other hand, is defined by Article 1.1 of the UN Conference on torture and other cruel, callous or undignified treatment or punishment [iv] as: “……. Every act by which ruthless pain or suffering, regardless of being physical or mental, is deliberately inflicted on an individual for such reasons as obtaining from him, or a third person, information or an admission, punishing him for an act he or a third person has committed or is alleged of having committed, or threatening or coercing him or a third person, or for any reason founded on prejudice of any kind, when such hurting or suffering is caused by one in a public capacity or another individual stand-in as an official power. It does not contain pain or suffering cropping up only from, inborn, or incidental to, legitimate sanction."In this light, therefore, extrajudicial killings and torture are human right abuses. Themainkillingsandtorturethecivillawenforcementagenciesincludedmenandwomenuniformandthemilitaryshownthereportpresidentialcommissiontheconfirmedthatpolicingwastaintedillegalarrestanddetentionextortiontorturerapekillingsotherformsviolence[v] Certain factors contribute to this unfortunate circumstance. They include: i) Historical and Political factors The modern West African state of Nigerian was a former British Colony, which was granted independence in 1960. It consists of several culturally and ethnically diverse groups of amalgamated by the British colonial government and christened Nigeria. British interest in the West African area was preceded by the trading activities of the Royal Niger Company, which operated under a British charter. Consequently, upon the perceived economic benefits of controlling the territory, the British government decided to consolidate its control over the territory where the company operated and thus colonized the area. The colonization was achieved by means of war and the British conquered the independent kingdoms that would become Nigeria in the late 19th and early 20th centuries. For example, the Conquest of Benin in 1897[vii] the conquest of Lagos [viii], the Anglo-Aro War[ix] (1901–1902). For administrative convenience, the independent kingdoms were merged into the Colony of Lagos, Northern and Southern Protectorates. These were subsequently amalgamated in 1914 to form the Colony and Protectorate of Nigeria. These instruments of coercion would later transform into the Nigeria Police and the Nigerian Armed Forces. ii) Post-Independence Nigeria gained independence from British on October 1, 1960. The first government was formed by a coalition of parties with distinct ethnic/tribal coloration. The ethnic composition of the first government of Nigeria was not inclusive and, as a result, therw was a struggle for power.The different regionsfought for control . The country was so divided into regions and ethnic groups that it forced the sitting government to make use of all means an attempt to remain in power. This led to human rights abuses from police and army who worked for the government. iii) Military rule The country was subjected to military rule for many years following its independence. The military took over power via a bloody coup in January 1966 (the Kaduna Nzeogwu coup). That was the first in a succession of army interventions, coups, and military-led governments. Nigeria has since been ruled by the military between 1966–1979, and 1983-1998, cumulatively for a period of about 30 years out of the 55 years since its independence. Military rule [xi] in Nigeria was characterized by an absence of the rule of law and widespread human rights abuses from the often brutal regimes. The law enforcement agencies were given a carte-blanche to quell dissident voices and ensure the perpetuation of the regime in power. A culture of impunity and high-handedness was thus entrenched in institutions such as the Police and the Army, and a total disregard for the sanctity of life was the norm. In of of Nigeria Police: Historical Perspectives Structural Problems, [xii] “The concerned about fervently to as to its “These routinely out extra-judicial without during by itself!”[xiii] iv) Economy Since independence, the economy of Nigeria is heavily dependent on proceeds from crude oil that is the primary source of government revenue [xiv]. Throughout, corporate has interconnected with during, Nigerian up with that them under of multinational, as Chevron Corporation dreadfully, Royal Dutch Shell. The crude oil deposits in Nigeria are also mainly found in the Niger Delta area that is populated by minorities. Becausetheimportancetheoilrevenuethefocuseachgovernmentalwaysbeenprotectrevenueandensurethecontinuedflowtheoiloftenresultedhumanrightsabusesbecausecontroltherevenueusuallymeanscontrolthepowerstructurethecountry Forexamplehadbeenunprecedenteddegradationtheenvironmentthepollutionproducedtheoilindustrythehostcommunitiestheresultedprotestsandoppositionthecontinuedactivitiestheoilcompaniescitizens Itstartedpeacefulledgroupssuchbutlaterturnedviolentledgroupssuchthemovementfortheemancipationthethethreatstheseprotestsposedoilrevenuesthegovernmentdecidedquelltheprotestsandensurethattheoilproductionkeptflowingusingextremeviolenceresultinghumanrightsviolationsincludingkillingsandtorture v) The origin and makeup of the Nigeria Police The formation and composition of the Nigeria Police is also a crucial factor in deciphering the root of the problem of extrajudicial killings and torture in Nigeria. Nigeria Police traces its origin to the consular guard formed in 1861 in the colony of Lagos, and the armed paramilitary Hausa Constabulary established in 1879 which were consequently merged to become the Nigeria Police Force in 1930.The primary role of these police units was ensuring the primacy of the economic interests of the colonial powers and subduing any opposition from the locals. These objectives were achieved through the use of violence against dissidents without any form of checks. Thus, the Police started out as a tool for control and oppression. It carried over the same mentality into the post-colonial era and continued to be a crude tool of the government rather than be a proper law enforcement agency that serves the community. [xviii] [xix] [xx] This historical perspective demonstrates why, in the absence of a concerted reform program, the Nigeria Police is a notable perpetrator of extrajudicial killings and torture in Nigeria. As a report of a Committee on the Reform of the Nigeria Police Force stated, the Nigeria police lacks “the capacity to conduct proper criminal investigations and relies instead on torture to elicit “confessions.” Several reports by the United Nations and other N.G.O’s corroborate this situation. For example, the recent Amnesty International Annual Report for 2014/15 which states “The employment of torture remained extensive and routine within Nigeria’s police force and military. Many people were subjected to bodily and psychological agony from the ill-treatment. Suspects under police and military supervision from different corners of the country were exposed to torture as scolding or to extract “confessions”, mostly in cases linking armed robbery and murder, or interrelated to Boko Haram.” The situation is prevalent despite the existence of laws in the Nigerian Constitution which protects fundamtal rights. There are also international laws that have been domesticated (and thus have full operative effect) in Nigeria that prohibit torture and extrajudicial killings such as the African Charter on Human and People’s Rights. Nigeria is also a signatory to several international treaties and has ratified nine of them which directly protect various Human Rights like: I. Conference against torture and possible cruel, inhumane and undignified treatment or punishment II. Optional 2009 Protocol to the UN Convention on Torture and other cruel, inhumane or degrading treatment or punishment. III. Convention on the rights of the child. IV. International conference on the removal of every form of racial discrimination. V. Optional protocol to the convention on the rights of the child on the involvement of children in armed conflict. VI. Optional procedure to the reunion on the rights of the kid on the sale of children, child prostitution and child pornography. VII. International covenant on civil and political rights. VIII. International agreement on economic, public and cultural rights. IX. Convention on the elimination of all forms of discrimination against women Of particular significance is the ‘convention against torture and other cruel, inhumane and degrading treatment or punishment’ which Nigeria is a signatory to and has ratified. Under Articles 2 and 4, it prohibits extrajudicial killings and torture in its Article 2 and 4. These laws have continued to be broken with impunity by the law enforcement agencies in Nigeria. International laws usually exist by way of: i. Treaties A treaty is defined by the Article 2 of the Vienna Convention 1969 as, “An international pact concluded between states in written form and governed by international law, whether personified in a single implementer in two or more related instruments and whatever its exacting designation."According to the Black’s Law Dictionary, a treaty is an agreement under international law entered into by sovereign states and international organizations. It also is known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters. The governing principle of treaty law is the principle of ‘pacta sunt servanda’ which means sanctity of agreements." Parties to a treaty must intend to create legal relations between themselves by means of their agreement and accept that it is binding and must be performed in good faith. Treaties have priority as against rules of customary law among states, with particular exceptions. The evil practices of torture and extrajudicial killings in Nigeria and the absence of a law that make torture a criminal offence or compensates the victims of torture are violations of the provisions of article 2 of the Convention Against Hound and Possible Cruel, Inhumane or Undignified Treatment or Punishment. Another violation is the refusal to recognize the capability of the Committee Against Torment to receive communications initiating individuals under article 22 of CAT. ii) Customary International Law The customary International Law outlines the international requirements arising from established state performance, as opposed to obligations emanating from official written global agreements. Article 38(1) (b) of the ICJ law, recognises customary international law is one of the bases of international law The International Law Association has defined a statute of customary international law as single that is “created and constant by the invariable and uniform application to states in situations that give rise to the rightful expectation of similar manner in the future.”Customary international laws are practices that states follow because they have a legal requirement to do so. The American law institute defines customary international law as resultant “of a universal and consistent application of states followed by them from a logic of legal obligation.” The international court of integrity identified three elements necessary to constitute a customary rule of law namely: a. The pre-requisite must be of a norm-creating quality such that it could be regarded as forming of a general rule of law. b. The provision must be a normal practice which is based on the acts of state actors. c. The provision should be such, or be carried out in such a manner, as to be evidence of a subjective confidence that the practice is rendered and enforced by the existence of a rule of law involving it, i.e. opinio juris. According to Shaw uniform practice of states can be found in: 1. Official statements of policy made by its state institutions, officers, and political leaders. 2. Historical records and official publications. 3. How states act in their diplomatic relations. 4. Decisions of international judicial institutions. 5. Resolutions of the General Assembly. 6. State municipal laws. The basic test as accepted by the International Court of Justice is continuity of actions and repetitions by states. ii) Legal Obligation (opinio juris) The conscious acceptance of a legal obligation (opinio juris) to act in a particular way by a state is also essential to the status of a custom as international law. The International Court noted in the Nicaragua Case that: “For a fresh customary rule to be created, not only must the acts concerned ‘amount to a settled practice’. However, they must go along with by the opinio juris sive neccessitatis. The Countries taking such actions should be in a position to respond to it and must have acted such that their conduct is considered st by the  law." iii. Peremptory Norms Peremptory norms are also known as jus cogens. They are “fundamental principles of international law that are acknowledged by the international society of states as a custom from which no derogation is allowable”. It is a type of customary international act so fundamental to the inter-relationship of States that a State cannot, during its treaty practice or custom, move away from. Peremptory norms cannot be violated by any state through international treaties or local or special customs. A pactis considered to be void “if, at the time of its termination, it conflicts with an authoritative norm of general international act” while Article 64 of the Vienna Convention also provides that where a treaty precedes an emergent peremptory norm, such treaty shall terminate from the date of emergence of the norm. According to Shaw, for a norm to be accorded status of jus cogens it must satisfy the following conditions: i. it must be established as a rule of; and general international law ii. It must be accepted as a peremptory norm by an overwhelming majority of the international law community of states. Only rules based on customs or treaties may form the foundation of jus cogens norms. All states have a legal interest in the protection of jus cogens norms, and its protection is an obligation ergo omnes (an obligation owed to all.) Prohibition on torture has been accorded the status of jus cogens in the Furundzija Case [xliv]as so is prohibition of extrajudicial killings in Alejandre v Cuba [xlv]. Therefore, the perpetration of extrajudicial killings and torture by law enforcement agencies in Nigeria are in direct contravention of these peremptory norms. The United Nations primary medium of response to the violation of International Human Rights is its Human Rights Council. The Human Rights Council was formed through the United Nations General Assembly on 15 March 2006 by resolution 60/251 to replace the former United Nations Commission on Human Rights. The Human Rights Council is “an inter-governmental organization in the United Nations system liable for strengthening the support and safeguard of human rights around the world and for addressing states of human rights violations and make references to them. It can converse all thematic human rights concerns and situations that require its interest throughout the year.” The Human Rights Council deals with human rights desecration, including “gross and systematic violations,” and make recommendations after that. It also works to promote and coordinate the mainstreaming of human rights within the United Nations system. The Council is comprised of 47 United Nations constituent States that are voted by the General Assembly of the United Nations. The ways and systems of the Human Rights Council are found in its “institution building” resolution popularly known as Resolution 5/1 which serves as a guide for its work. The mechanisms enumerated by resolution 5/1 are: 1. The Universal Periodic Review mechanisms. 2. The Special Procedures of the United Nations. 3. The Advisory Committee. 4. The Complaint Procedure. a) Universal Periodic Review “This kind of a system Universal Periodic Review (UPR) is the unique course of action that involves an appraisal of the human rights reports of entire UN Member States. The UPR is a State-driven course, under the sponsorship of the Human Rights Council, which offers the opening for each State to proclaim what actions they have taken to recover the human rights circumstances in their countries and to execute their human rights obligations.”The United Nations General Assembly via resolution 60/251 on 3 April 2006 established the Universal Peer review mechanism to examine the human rights performance of all UN Member States periodically. It is designed to complement other human rights mechanisms and not duplicate their work. All states in the United Nations body are members of a ‘Working Group which carries out the review, and the Group is chaired by the President of the Human Rights Council. The Group sessions are also open to N.G.Os, national institutions, and other United Nations agencies. Paragraph 1A of resolution 5/1 provides to facilitate the appraisal shall assess to what widely spread States respect their human rights mandates contained in: i. The Charter of the United Nations; ii. The Universal Declaration of Human Rights; iii. Human Rights mechanisms to the extent by entire States is party (human rights agreements ratified by the State affected); iv. Voluntary pledges and promises offered by the State (such as the one taken on when hand in the submission for election to the Human Rights Council); v. Applicable international humanitarian law The primary documents used to review each state are: i. A 20 page nationalized report on the human rights situation in the country by the State being considered ii. Information from contract bodies, a particular procedures and UN agencies such as UNDP and UNICEF about the State compiled by the Office of the High Commissioner for Human Rights (OHCHR) iii. A summary of information from the civil society prepared by the OHCHR A group of three States, ‘the troika’, is selected by State members of the Human Rights Council, to facilitate the Working Group task. The troika is to receive questions raised by States ahead of the review, and cluster them in a way to the content and formation of the report prepared by the State under Review. The review takes place during an interactive meeting of the Working Group, and Member States can ask questions, comments and make recommendations to the States under review. Recommendations that are the key element of the review are prepared to the State after review to advance the human rights state of affairs in the nation and the review ends with the issuance of an ‘Outcome Report. According to Paragraph, 32 of Resolution 5/1 states can accept or note recommendations that they are required to communicate to the Council in writing. Additionally, responses to every suggestion have to be noticeably explained in writing in a particular document by the name "addendum". Hence, the addition is supposed to be submitted to the Human Rights Council in prior the adoption of the information at the Human Rights Council. The outcome Report is then submitted to the plenary of the Human Rights Council for adoption by a formal decision. After a review, the State is expected to implement the recommendations contained in the final outcome. States are expected to provide information on their implementation of the recommendations made during the preceding review at their next scheduled review. Assistance is to be given when required for implementing the recommendations. In the event of non-co-separation by a state with the review mechanism, the Human Rights Council is supposed to decide on the actions to put in place in dealing with such a situation. Shortcomings of the Universal Peer Review Mechanism include: the absence of sanctions to be applied to states that fails to participate in the review or implement the recommendations and reliance on  existing methods  and duplicates their work in particular instances which makes the process susceptible to politics. b) The Special Procedures of the United Nations "Special procedures" are the means established by the Human Rights Council to address human rights issues in specific countries or human rights thematic issues in all parts of the world. Special procedures can be individuals working on behalf of the United Nations contained by the extent of "Special Procedures" systems, which put up with a particular directive from the United Nations Human Rights Council (Mandate directed at a country or a theme).Special Procedures can also be a group of five independent human rights experts (one from each UN region), who are commissioned by the Human Rights Council with mandates to investigate, monitor, report and recommend solutions to human rights problems from a thematic or country-specific perspective. Special procedures are empowered by Human Rights Council resolutions. Special Procedures primary functions are monitoring, investigating, and reporting and some of their methods of work involve receiving and sending communications, urgent appeals to states, country visits, and follow-up. Their methods are enumerated in the Manual of Operations of the Special Procedures. Shortcomings of the Special Procedure mechanism include: susceptibility to external factors like restrictions on travel to mandate countries and refusal of mandate states to cooperate with them and grant them access to areas of interest. For example, the Special reporter on torture in his report on his visit to Nigeria in 2006 was denied access to the detention facilities of the Nigerian State Security Service. Another shortcoming of the Special Procedures is that their role is limited to observation and advisory. The Special procedures are limited in their capacity to impact directly instances of occurrence of human rights abuse. Again Special procedures serve in their personal capacity that leaves them open to criticism and allegations of bias that may affect the quality of work. c) Human Rights Councils Complain Procedures The Complaint Procedure is established by resolution 5/1 of the Human Rights Council to “address steady patterns of gross and constantly attested breach every human rights and all basic freedoms occurring in every part of the world and under any situation.” The system is designed to be victims-oriented thus conducted in an appropriate manner. In addition; it is also private in nature to increase cooperation with the State concerned and to make certain that the complaint practice is impartial and objective. The council refers complaints/communications to two groups (i.e., a Working Group on Communications and a Working Group on Situations) for screening of valid and qualified complaints to be brought to the attention of the Council. The Working Group on Communications comprises of five independent and well-qualified experts also is purely representative of the five provincial groups. The Working Group gathers twice an annually for a period of five operational days to evaluate the admissibility and qualities of communication(s). If these materialize to reveal a steady pattern of gross and consistently attested abuses of human rights and essential freedoms, they are sent, along with approvals to the Working Group on Situations. The Working Group on Situations is made up of five members chosen by the regional groups emanating amongst the States member of the Council. It meets twofold a year for a period of five working days so that to examine the communications transmitted to it by the Working Group on Communications, together with the replies of States after that. The Working Group on circumstances, on the beginning of the information and advices given by the Working Group on Communications, given to the Council with a statement of constant patterns of gross and reliably proved abuses of human rights and elementary freedoms and composes approval to the Council and the course of action to take. Communications not abandoned in the early screening are sent to the concerned State to respond to the allegation(s) of human rights violations. The individual or group that filed the objection is informed or each stage of the process, likewise the concerned State. Consequently, it is the role of the Council to acquire a decision about each situation thus brought to its consideration. Shortcomings of the Complaints Mechanism include; the existence of institution building guidelines gives a leeway of 24 months for resolution of a complaint by which time the complainant could be dead. Also the entire process of referring complaints to States for comments rather defeats the purpose in this writers view as it gives a chance to deny and cover up the Abuse or even further antagonize the victims of the abuse. Some member states have also refused to recognize the competence of the Committee against persecute to receive and judge communications from or on behalf of individuals focus to its jurisdiction who allege to be victims of a defiance by a State Party of the Convention as required by Article 22 of the CAT. This means communication cannot be received by the Committee against Torture if it concerns a State that has not made such a declaration. d) United Nations Advisory Committee The Institution building guidelines also create another Human Rights Council mechanism known as the Advisory Committee. The Advisory Committee is made of 18 experts nominated by United Nations member state with a regional bias, and subsequently elected by the Council. The Advisory Committee’s mandate & functions are to provide research-based expert advice to the Council on the approach and type requested by it and provide suggestions for further research to the Council for its consideration and approval. All of the committees work must be limited to issues pertaining to promotion and protection of the entire human rights within the range of the work set out by the Council for it. Shortcomings of the Advisory Committee lack of independence as it is directly tied to the Human Rights Council since it exists merely to offer advisory service to the Council when requested. The Advisory Committee is limited to the guidance provided by the Council to execute its mandate and therefore arguably does not add any value to the Human Rights protection project. Recommendations Upon examination of the various mechanisms put in place by the United Nations Human Rights Council and their shortcomings the following, strategies should be adopted to stop/prevent extrajudicial killings and torture in Nigeria: 1. The Human Rights Council should use the instrumentality of the Universal Peer Review to monitor and pressure the Nigerian Government into implementing the recommendations of the peer review and the recommendations of the Special Procedures report on Nigeria. 2. The Human Rights Council starts a media campaign to sensitize Nigerian citizens about its mechanisms. This can be done through human rights organizations in Nigeria. 3. Pressure on the Nigerian Government to implement Article 22 of the Convention against torture to recognize the Committee against Torture so that Nigerian Citizens can submit individual communications to the Committee 4. Pressure should be mounted on the Nigerian government to implement the much-needed Police Reforms. 5. Technical assistance for re-training and re-orientation of the Nigeria Police should be given by other member states to the Nigerian Government. 6. Pressure should also be mounted on Nigeria to pass laws to criminalize torture and extrajudicial killings in line with the requirements of the CAT and the Optional protocol on torture. 7. The Nigerian Government should be pressured given technical assistance to embark on law reforms like implementing a Federal Coroner system which shall be mandated to probe every case of killing, especially those done by the police and military to civilians. 8. Sanctions should be issued against Nigeria for large scale human rights violations such as those perpetrated by the military in the Niger Delta and the Northern Nigeria (war against Boko Haram) REFERENCES http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx  Paragraphs 75 – 78 of resolution 5/1 http://www.ohchr.org/EN/HRBodies/UPR/Pages/BasicFacts.aspx http://www.ohchr.org/EN/HRBodies/SP/Pages/Introduction.aspx Vienna Declaration and Programme of Action, UN doc. A/CONF.157/23, 12 July 1993, §95.http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx accessed on 4/3/2915 http://www.ohchr.org/Documents/HRBodies/SP/Manual_Operations2008.pdf http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/8/3/Add.3&Lang=E Paragraphs 85 to 109 of Resolution A/HRC/RES/5/1. A criterion is stated in paragraphs 85 to 88 of Resolution A/HRC/RES/5/1. Paragraph 105 of Resolution A/HRC/RES/5/1. Paragraphs 65 to 84 of Resolution A/HRC/RES/5/1.  Paragraphs 75 – 78 of resolution 5/1 https://www.amnesty.org/en/articles/news/2012/11/nigeria-security-forces-out-control-fight-against-terror-boko-haram/ http://dailyindependentnig.com/2014/08/troops-boko-haram-violating-human-rights-amnesty-international/ http://america.aljazeera.com/articles/2014/3/14/human-rights-nigeriasecuritybokoharam.html Read More