AJCR 2007/1

The Case against Taylor’s Asylum

A Review of Nigeria's Domestic and International Legal Obligations

Abstract

The Charles Taylor-led rebellion to oust the then incumbent President of the West African State of Liberia, Mr. Samuel Doe, in 1989 triggered off more than a decade of civil war. This seemed to have been resolved with the special election in 1996 of which Taylor emerged the winner amidst claims of intimidation and corruption. However, in 2000 there was renewed fighting when another rebel group revolted against the Taylor government and once again the seemingly unending catastrophe of brutal proportions was re-ignited. By July 2003, as the Liberian capital was at the verge of being over-run by the rebels, Nigeria finally brokered what appeared to be the final Cease-fire Agreement that all the parties would respect, when it persuaded Mr. Taylor to resign and granted him asylum. That decision prompted a plethora of criticism both within Nigeria and internationally. The government of the country maintained that it had the moral and even legal obligation to grant asylum to Mr. Taylor and despite the criticism, it continued to harbour the man indicted by an ‘international court’ – The Special Court for Sierra Leone.

In November 2005 a domestic court in Nigeria held in a preliminary ruling that it had the jurisdiction to review the grant of asylum to the former Liberian President. Finally, in March 2006 Nigeria eventually handed Mr. Taylor over to Liberia who immediately transferred him to the Special Court.

The purpose of this study is to consider the international and domestic legal issues that arose as a result of the decision to house Taylor and shield him from justice from 2003 to 2006. It attempts to address the question of Nigeria’s obligations towards both the international community and its citizens. It argues that though Nigeria’s asylum offer to Mr. Taylor was a breach of its international legal obligations (under international humanitarian law), the effect of the breach (if any) is assuaged by such factors as the country’s obligations to maintain international peace and to ensure stability in Liberia (these being part of the core purposes of the United Nations). It also argues that the decision to give refuge to Mr. Taylor was not to sustain impunity, as there is no time bar for the prosecution of those accused of international crimes, but to make certain the sub-region is stabilised first before Mr. Taylor could be prosecuted. It concludes that Nigeria was not obligated to hand Taylor over to the Special Court, thereby handing him over to Liberia, when it felt the sub-region was stable enough to handle his trial without erupting into the violence it had exerted so much to stop.

1. Introduction

The legal dilemma of the grant of asylum by Nigeria to Mr. Charles Taylor, the erstwhile President of Liberia, revolves around his indictment by the Special Court for Sierra Leone (the Court). Mr. Taylor was the guest of the Nigerian government from August 2003 to March 2006. The issue is compounded further by the fact that the Special Court was created by an agreement between the United Nations (UN) and the government of Sierra Leone.1 Nigeria, then being a third party to the agreement, did not think it should comply with the Court’s directive and hand over Mr. Taylor. Although Nigeria eventually extradited Mr. Taylor to Liberia in 2006, the core question is whether there were any international legal obligations breached by Nigeria for failing to prosecute or arrest Mr. Taylor throughout the period he was in Nigeria.

In this study, the international obligations of Nigeria will be reviewed against its relationship to the UN; its erga omnes obligations to the international community (arising from both customary international law and multilateral treaties); and its domestic law duties and the Rule of Law. This study will also examine certain factors that may have mitigating effects on the demand for Nigeria’s compliance with its international obligations, factors such as the conflicting issues of peace and post-conflict reconciliation against the demands of justice.

2. An Examination of Nigeria’s International Legal Obligations

Every State, as a member of the international community, may have entered into certain treaties which require the State parties to comply with the principles laid down in those treaties. The International Law Commission (ILC) in its Commentary to the Draft Articles on State Responsibility made it clear that the provisions apply to obligations of States notwithstanding the origin of such an obligation (International Law Commission 2001:126). The Commission further noted that ‘[i]nternational obligations may be established by a customary rule of international law, by a treaty or by general principles applicable within the international legal order’ (International Law Commission 2001:126). It noted that the phrase ‘regardless of its origin’ in Article 12 of the Draft Convention will cover all the various ways of creating legal obligation which are recognised by international law (International Law Commission 2001:126). The Commission went on to explain that ‘these various grounds of obligation interact with each other, as practice clearly shows. Treaties, especially multilateral treaties, can contribute to the formation of general international law; customary law may assist in the interpretation of treaties; an obligation contained in a treaty may be applicable to a State by reason of its unilateral act, and so on’ (International Law Commission 2001:126-127).

In line with the subject of this study, our examination of Nigeria’s international obligations will be restricted to those that may have been affected by the grant of asylum to Mr. Taylor, a man indicted by an international criminal tribunal.2 To this end, it is fundamental to consider whether Nigeria bears any obligation to the Special Court for Sierra Leone. This section will therefore consider Nigeria’s obligation under the UN Charter and its erga omnes obligations under the complementing principles of international humanitarian law and international criminal law.

2.1 United Nations Charter obligations

In order to establish whether Nigeria’s obligations to the UN have been breached by the decision to shield Taylor from the Special Court’s jurisdiction for three years, it is appropriate to first establish the status of the Court in relation to the UN and also with respect to third States (States not party to the international agreement that established the Court).

It will be appropriate to first determine the issue of the status of the Special Court and the obligations (if any) owed to it by third States, especially UN members who are ordinarily bound to comply with the obligations they have accepted under the Charter.3 Our aim of reviewing the status of the Special Court is to examine whether it is an organ of the world body such as would enable it to impose obligations on UN member States. It is arguable to say that the Special Court was established as an independent body by an agreement between the UN and the government of Sierra Leone and was not created as an organ of the UN.4 On the other hand, it may also be argued that the Court was created pursuant to the powers of the Security Council under Chapter VII of the Charter. The Council in Resolution 13155 determined that the situation in Sierra Leone was a threat to peace and also recommended, under Article 39 of the Charter, that the Secretary-General enter into negotiations with the Sierra Leone government to create a court to curb the impunity prevalent at that time. It should be noted that Article 41 of the Charter provides that the Council may decide (after the determination of a threat to peace) what processes not involving the use of armed force may be applied to give effect to its decision. The Council may then choose the process it intends to apply. For instance, in establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), both of which were international tribunals,6 the Council expressly stated that it was acting under its Chapter VII powers. The effect of this express assertion was that all UN member States were under the obligation to cooperate with the tribunals (Knoops 2003:2-12).7 However, in the case of the Special Court, the Council did not act under its Chapter VII powers, neither did it call on member States to cooperate with the court (which would have meant requiring them to comply with the Special Court’s requests).8 The Court has taken a view that the power of the Security Council, to enter into such an agreement with a State, was derived from the Charter both in regard to the general purpose of the UN and the Council’s powers (in Art. 39 and 41).9 It went on to hold that:

Article 39 empowers the Security Council to determine the existence of any threat to the peace. In Resolution 1315, the Security Council reiterated that the situation in Sierra Leone continued to constitute a threat to international peace and security in the region. Much issue had been made of the absence of Chapter VII powers in the Special Court. A proper understanding of those powers shows that the absence of the so-called Chapter VII powers does not by itself define legal status of the special court. It is manifest from the first sentence of article 41, read disjunctively, that (i) The Security Council is empowered to ‘decide what measures not involving the use of armed force are to be employed to give effect to its decision;’ and (ii) It may (at its discretion) call upon the members of the United Nations to apply such measures. The decisions referred to are decisions pursuant to Article 39. Where the Security Council decides to establish a court as a measure to maintain or restore international peace and security it may or may not, at the same time, contemporaneously, call upon the members of the United Nations to lend their cooperation to such a court as a matter of obligation (Special Court for Sierra Leone 2003: par 37-38).

The Special Court, therefore, having been created by a bilateral agreement between an international organisation and a State, is an independent body and not an organ of the UN. It has its own separate legal personality and does not derive its existence from any body. Its existence is derived from the bilateral agreement creating it and from its Statute much like any other international organisation.10 But is it owed any obligation by UN member States? There is some debate on this issue. One commentator has argued that:

As the Agreement is between the UN and Sierra Leone, its primacy is limited to that State alone…as is the obligation to co-operate with the Special Court. If the Security Council wished to extend the obligation to co-operate to all UN members, it could do so with a Resolution adopted under Chapter VII of the UN Charter (Cryer 2001:440).

Another scholar has supported this view, asserting that:

The Statute (of the Special Court) contains no provisions imposing an obligation to cooperate upon other States, thus sensibly differing from the ICTY and ICTR Statutes, which contain comprehensive obligations binding all States. This is not surprising, since the Special Court is neither an organ mandated by an international organisation having the power to impose obligations upon States (as are the ICTY and ICTR), nor is it based on a multilateral treaty (as is the ICC [International Criminal Court]). On the contrary, it is established by a bilateral agreement, which cannot bind third parties (z tertis nec nocent nec prosunt) (Frulli 2000:861-862).

The Court, on the other hand, proffered a reasoning that takes this debate to another level. In the Taylor case, referred to above, it held that the Security Council may call upon member States of the UN to co-operate with a court established in the efforts to sustain or restore international peace and stability at any time (either before or after setting up the Court) (Special Court for Sierra Leone 2003: par 38). It also went on to pronounce that:

It is to be observed that in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations. The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community (Special Court for Sierra Leone 2003: par 38).11

The assertion that the UN was acting on behalf of the international community when it entered into the agreement with Sierra Leone, infers that third States owe certain obligations to the court which is an independent creation of a treaty. This takes us to the issue of the consequences or effects of the attribution of legal personality to an international organisation. While the Agreement creating the Court was clearly within the powers of the UN according to its Charter, it does not impose obligations expressed in the treaty on member States. An organisation which has a separate legal personality would, on its own, therefore stand to enjoy and bear the privileges and responsibilities of any treaty it enters into as a party (Sands & Klein 2001, Akande 2003:269,274). This is in line with the 1986 Vienna Convention on the Law of Treaties Between States and International Organisations or Between International Organisations (Vienna Convention 1986),12 which codified the customary rule of pacta tertis nec nocent nec prosunt. Article 34 of that treaty stipulates that ‘[a] treaty does not create either obligations or rights for a third State without its consent’. The only way in which such a treaty would be binding on a third State is where that third State expressly consents in writing (Vienna Convention 1986: Art. 35), or where the rule so reflected in the treaty is or becomes customary international law (Vienna Convention 1986: Art. 38).

The Special Court being an independent creation of a bilateral agreement between the UN and Sierra Leone does not therefore require any form of cooperation from third States such as Nigeria. Unless, as Robert Cryer opines, where the Security Council wishes to broaden the obligation to cooperate to include all UN members, the Council can easily do so by passing a Resolution adopted under Chapter VII of the Charter (Cryer 2001:440). Therefore, the Special Court is an international judicial body which, like other similar bodies, is set up by an international treaty, governed by international law and whose powers are as set out in its statute. The statute in this case does not require Nigeria or any other third State, not a party to the treaty creating it, to cooperate with it in line with the international customary norm of pacta tertis nec nocent nec prosunt. This may have informed the Nigerian President’s viewpoint that he would only hand Mr. Taylor over to a duly elected Liberian government (if it so requests) and not to the Special Court (BBC News 2005). Nigeria stood its ground in eventually handing Mr. Taylor over to the Liberian government when the latter requested the former warlord’s surrender. In the light of the foregoing argument Nigeria was not obligated to comply with the directive/request of the Special Court as it was not a party to the agreement creating the Court.

2.2 Security Council Resolution 1638 of 2005

The UN Security Council has been publicly appreciative of Nigeria’s role in preventing the conflicts in Liberia and Sierra Leone from spreading to other States in the West African sub-region (UN Security Council 2005). Nigeria continued to play that role when trouble flared up again to wrest the fragile peace from the war-weary citizens of Liberia in 2003. The Nigerian Government convinced the then President to resign and take refuge as a guest in Nigeria, even though he had already been indicted by the Special Court. The objective was to achieve lasting peace for that war-torn country. Two years down the line and with a legitimately elected President in Liberia, the Security Council passed another Resolution on Liberia at its 5304th meeting on 11 November 2005 (UN Security Council 2005).

Resolution 1638 was adopted to extend the mandate of the United Nations Mission in Liberia (UNMIL) to include powers ‘to apprehend and detain former President Charles Taylor in the event of a return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone’ (UN Security Council 2005: par 1). It should be noted that UN Security Council 2003b (Resolution 1509), which established UNMIL, did not include such a mandate. Implicit in Resolution 1638 is the objective of maintaining peace and stability in Liberia. This would not be achieved if for any reason, and in the nearest future, Taylor ventures back into that country. The Resolution also commended Nigeria’s role and contribution in restoring stability in Liberia and West Africa and acknowledged that ‘Nigeria acted with broad international support when it decided to provide for the temporary stay of Mr. Taylor’ (UN Security Council 2005: par 3).

The Council did not, in any way, try to compel Nigeria to hand over Taylor to the Special Court, although it noted that Taylor ‘constitutes an impediment to stability and a threat to the peace of Liberia and to international peace and security in the region’ (UN Security Council 2005: par 4). The Council, however, did not close the door to future Resolutions which may compel Nigeria to hand Taylor over to the Court. The objective of Resolution 1638 was to prevent Taylor from returning to Liberia and destabilising the peace efforts. Moreover, with the election of Mrs. Ellen Johnson-Sirleaf as the President of Liberia in November 2005, an individual with the capacity and history as Charles Taylor could easily capitalise on the fragile situation (Mrs. Johnson-Sirleaf is the first female President in Africa and the country was just recovering from 14 years of conflict). Hence the need for the Council to expand the mandate of UNMIL to include the arrest of Taylor if found on Liberian soil. The Security Council, not having used the Resolution to compel Nigeria to hand over Mr. Taylor to the Court, was in essence recognising that Nigeria would be within its rights to hand over Mr. Taylor to Liberia and not to the Court. Therefore, to facilitate his trial and in the interest of the region’s stability, the mandate of UNMIL was extended to provide for Mr. Taylor’s arrest and transfer to the Special Court.

2.3 Treaty and customary international law obligations

The next issue in this review of Nigeria’s obligations and the Taylor asylum is a question of whether the crimes Charles Taylor is accused of, as reflected in his indictment by the Special Court, have evolved into norms of criminality in customary international law. A further query would be whether the asylum granted to Mr. Taylor could bring Nigeria into any material breach of its treaty obligations. It is recalled that the Special Court indicted Taylor with ‘crimes against humanity, violations of Article 3 Common to the Geneva Conventions and Additional Protocol II and other serious violations of international humanitarian law, in violation of Articles 2, 3 and 4 of the Court’s Statute’.13

Regarding Nigeria’s treaty obligations, our concern here would be in relation to treaties that may have been affected by the asylum and which have not transformed into customary law.14 The difference between a State’s obligations with respect to a treaty and its obligations to customary international law is that the former is owed to another State or group of States while the latter is owed to the entire international community. The International Court of Justice in the Barcelona Traction case aptly expressed this when it held that: ‘In particular, an essential distinction should be drawn between the obligations of the State towards the international community as a whole, and those arising vis-í -vis another State… By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have legal interest in their protection; they are obligations erga omnes‘.15

This study is not the appropriate place to discuss the issue of whether or not all the provisions of the relevant international humanitarian law treaties have evolved into customary international norms. The focus here will be guided by the indictment of Mr. Taylor. Consequently, the question that will be examined is whether the crimes he was indicted for are part of the provisions of the treaties Nigeria has ratified or are part of the provisions of the relevant treaties that have evolved into customary international law. Mr. Taylor was indicted by the Special Court for Sierra Leone for crimes that fall under the core provisions of the Geneva Conventions of 1948 and are also serious violations of international humanitarian law. It should be noted that Nigeria is a party to the Geneva Conventions and its Additional Protocol I, the 1984 Torture Convention and other treaties whose objective is the penal implementation of these norms (for instance the Rome Statute of the International Criminal Court).16 However, the International Court of Justice (ICJ) had, in the Nicaragua case, held that the Geneva Conventions give expression to the general principles of humanitarian law.17 In other words, the provisions of the Geneva Conventions have crystallised into customary international law. In a later case, the Court (ICJ) seized the opportunity to expressly hold that the fundamental rules enunciated in the Geneva Conventions ‘are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law’.18 The grant of asylum to Taylor is not in itself a breach of any of the provisions of the treaties concerned, even as it is also in line with Nigeria’s obligations to the 1981 African Charter on Human and Peoples’ Rights, which is also an international treaty.19 Article 12(3) of that treaty stipulates that ‘(e)very individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with laws of those countries and international conventions’.20 It is arguable that Mr. Taylor was, as at the time of the asylum offer, a man persecuted by LURD (Liberians United for Reconciliation and Democracy) and other rebel groups who were besieging Monrovia with the objective of killing Mr. Taylor or getting him out of power.21 The foundation for questioning Nigeria’s compliance with the international Rule of Law may, however, be based on the country’s reluctance to bring Mr. Taylor to trial for the international crimes he committed in Sierra Leone and Liberia.

In response to the question whether the charges against Taylor form part of customary international law, a commentator opined that:

One of the traits of the unconditional rules of humanitarian law is the intransigent nature of the values protected… and apart from their transformation into customary law, the Geneva Conventions virtually accepted by the entire international community are about to become sources of obligations erga omnes. Thus the imperative character of the protection and its universality often show that a mere contractual humanitarian norm is being elevated to jus cogens (Kamenov 1989:169,200).

The question that arises from this view is whether the provisions regarding the crimes in issue have been transformed into jus cogens norms. In other words, this section will be reviewing whether Taylor’s alleged crimes belong to a category falling under the status of peremptory norms. The term jus cogens has been defined as ‘a norm of general international law accepted and recognised by the International Community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.22 There is still some debate among scholars on which international provision or humanitarian rule has been elevated to a peremptory norm, and how such a rule or principle may rise to that level.23 However, there is some consensus among scholars that crimes such as genocide, crimes against humanity, war crimes, piracy, slavery and torture have been transformed to fall under jus cogens.24 The consensus that this set of crimes has been transformed to fall under that hallowed norm may be because they affect the interests of the international community as a whole by threatening the peace and security of mankind (Bassiouni 1996:65). It is recalled, as noted earlier, that the indictment of Mr. Taylor by the Court included crimes against humanity and other serious violations of international humanitarian law.25

The consequence of a norm being categorised as jus cogens goes to the enforcement of that norm (De Hoogh 1996:91). Therefore the international community seriously requires a broader and weightier compliance from States, as the obligation is owed to the international community as a whole and not just to other State parties to a treaty.26 According to Professor Bassiouni (1996:64):

The term erga omnes means ‘flowing to all’, and so obligations deriving from jus cogens are presumably erga omnes. Indeed, legal logic supports the proposition that what is ‘compelling law’ must necessarily engender an obligation ‘flowing to all’.

He went further to argue that the consequences of recognising an international crime as jus cogens places erga omnes obligations upon States and does not merely give them certain rights to prosecute the perpetrators of such crimes (Bassiouni 1996:64). He asserted further that the effect of a jus cogens norm on States is that it does not give them optional rights from which they may choose to act or not to act. On the contrary it requires from them a duty to act (Bassiouni 1996:64).

Nigeria, therefore, owed the international community as a whole the erga omnes obligation to arrest Mr. Taylor and either prosecute him or hand him over to another State or body with a superior jurisdictional claim, in this case, Liberia or the Special Court.27 Goodwin-Gill (1999:220), in voicing his support for this view, said:

International crimes,’by their very nature’, produce an obligation erga omnes to extradite to another competent State, prosecute locally, or surrender the person concerned to the jurisdiction of a competent international tribunal; it is the jus cogens/erga omnes combination that makes prosecution (somewhere) unavoidable as a matter of duty.28

In other words, Nigeria’s obligation under the principle of aut dedere aut judicare, found in multilateral treaties such as the Geneva Conventions, was to either extradite or prosecute Mr. Taylor in Nigeria and this is not invalidated by any other norm of international law. The Nigerian government had acknowledged that it had such an obligation to extradite Mr. Taylor to Liberia; it also maintained that it would not hand him over to Liberia until the Liberian government expressly requests for Taylor’s extradition.29

3. Nigeria’s Obligation under its Domestic Rule of Law

Though Nigeria’s grant of asylum to a person indicted by an international criminal tribunal is an act governed by international law, it may also have direct effects on the rights of some its citizens. Therefore it has certain domestic legal implications. It is then fundamental to examine the domestic legal questions on the asylum granted to Mr. Taylor.30

Nigeria owes its citizens the duty to protect and preserve their rights, whether such rights evolved from international or domestic norms. Where the State is negligent on its duty, the injured citizen can apply to the courts of law to compel the State to comply with its duties. However, as rightly asserted by Professor Cassese:

National courts do not usually undertake proceedings for international crimes only on the basis of international customary law, that is, if the crime is only provided for in that body of law. They instead tend to require either a national statute defining the crime and granting national courts jurisdiction over it, or, if a treaty has been ratified on the matter by the State, the passing of implementing legislation enabling the courts to fully apply the relevant treaty provisions (Cassese 2003:303).

Professor Denza, in clarifying the relationship between international law and its application by domestic courts noted that international law used to be concerned mainly with the relationship between States (Denza 2003:415). She went further to state that:

Now, however, it permeates and radically conditions national legal orders, its rules are applied and enforced by national authorities, and national courts are often asked to resolve its most fundamental uncertainties. Yet international law does not itself prescribe how it should be applied or enforced at the national level. It asserts its own primacy over national laws, but without invalidating those laws or intruding into national legal systems. National constitutions are therefore free to choose how they give effect to treaties and to customary international law (Denza 2003:415-416).

Scholars have over the years set out various theories regarding the relationship between international and domestic law, monism and dualism being the most persistent of the theories.31 Nigeria takes the dualist approach in implementing the effects of international law in its domestic legal system. The constitution of Nigeria accords no special status to treaties, the rights and obligations created by them having no legal effect in its domestic arrangement unless legislation is in force to give effect to them. Article 12(1) of the country’s 1999 Constitution expressly provides that ‘(n)o 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’ (Constitution of the Federal Republic of Nigeria 1999). However, when a legislation is specifically enacted for this purpose, the rights and obligations are then said to be ‘incorporated’ into Nigeria’s domestic law (Aust 2000:150).

The treaties in issue have been ratified by Nigeria, one of which has also been ‘incorporated’ into domestic law by the Geneva Convention Act (Laws of the Federation of Nigeria 1990: chap 162). Hence the rights and obligations of the Convention therefore have effect in the domestic legal system of Nigeria. Nigeria will only be responsible in international law and not municipal law for any breach of its treaty obligations as a result of a later amendment to the legislation or its repeal (Aust 2000:151). But if there is no later amendment or repeal of the legislation and the government still fails to uphold the rights of the convention or breaches it (as in this case), the domestic legal institutions can be triggered by anyone who has the locus standi (locus in this case will be a proof that the failure by the State to comply with its treaty obligations have directly affected the rights of the aggrieved person, such rights having been given effect by the Act). This failure to comply with treaty obligations is currently being challenged by two Nigerian businessmen who had their limbs amputated by the rebel forces in Sierra Leone.32 The two men initiated proceedings against the Federal government, Mr. Taylor and four other government institutions (the Federal Commission for Refugees, the National Commission for Refugees, the President of the Federal Republic of Nigeria, and the Attorney-General of the Federal Republic of Nigeria).33 They urged the court to review the government’s decision to grant Taylor asylum in Nigeria. The applicants had challenged the asylum on the grounds that their rights were affected and that Nigeria ought to prosecute or extradite Taylor rather than shield him from justice.

The government countered by raising a preliminary objection arguing that the Court did not have jurisdiction due to the applicants’ lack of locus standi, that the question in issue was a political non-justiciable question, and that the action was barred by the Statute of Limitations. The applicants, on the other hand, argued that they challenged an administrative act of granting refugee status to Mr. Taylor and that this was not a political issue. Regarding the government’s objection on grounds of statute of limitations, the applicants submitted that ‘a well known exception to the limitation period is where it can be shown that a public officer has breached or abused his office’.34 It is remarkable that both the arguments of the applicants and the respondents were based on domestic law concepts. This is because, as noted earlier, the whole issue of the rights of the Geneva Conventions can now be directly applicable to individuals in Nigeria as a consequence of the implementing legislation.

The court, however, rightly ruled in favour of the applicants, holding that the statute of limitations had not run out, because Taylor’s asylum in Nigeria was a continuing damage or injury to the applicants’ rights. Consequently, their statutory right of action would not have come to an end as they had personal rights that were being violated by the continued asylum. The court, therefore, held it had the jurisdiction to hear the matter.35

The ruling by the Nigerian domestic court does not mean that it would rule on the breach of treaty or customary international law obligations. It only has the jurisdiction to order the Nigerian government to desist from continuing any act which is affecting the right of a citizen. Such right may have, as in this case, emanated from an international treaty. It remains to be seen what the court would have decided in its final judgment. However, it was spared the rigours of deliberating further on the issue when the Nigerian government handed over Taylor to Liberia in March 2006 as there was no more ground for continuing the hearing before the domestic court (BBC News 2006).

Prior to Nigeria extraditing Taylor, there was yet another international legal obligation which it had implemented into its domestic legal norms by enacting the Geneva Convention Act (Laws of the Federation of Nigeria 1990: chap 162): the principle of aut dedere aut punire. As noted earlier, Nigeria had implemented the Geneva Conventions Act, therefore the onus was on it to implement the principle as provided in all the four Geneva Conventions.36 Each of which provides that:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.37

This principle has also been reflected in the Statute of the International Criminal Court, which provides that ‘it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’.38 This obligation is owed to the international community, which requires a general obligation of international cooperation from States for the prevention and punishment of the most odious international crimes (Cassese 2003:302). Nigeria, in line with its obligations, helped prevent the commission of more crimes in the region by persuading Mr. Taylor to leave Liberia. The question is whether it failed to carry out its obligations under international law by ensuring that Mr. Taylor was prosecuted.39 As stated earlier, there is no time limit within which this principle should be applied, therefore Nigeria’s intent to keep Taylor out of Liberia, thereby aiding the restoration of the sub-region’s peace and stability, is worthy of commendation. Furthermore, being unwilling to prosecute Taylor, the country eventually handed him over to Liberia, ensuring that it complied with its obligations.

4. Mitigating Factors

In the three years that Taylor was shielded from appearing before the Special Court by Nigeria, the international community did not publicly condemn Nigeria for breaching its obligations. The question could then be asked whether there were mitigating factors which may have held the international community back from demanding that Nigeria comply with its international obligations. If not, why did the international community and the UN Security Council overlook the obvious breach of such peremptory international norms between 2003 and March 2006 when Taylor was Nigeria’s guest? The Security Council, in Resolution 1638, even went as far as commending Nigeria’s efforts in both Liberia and Sierra Leone without directing it to hand Mr. Taylor over to the Special Court (UN Security Council 2005).

The reason for this may not be due to the international community’s lack of interest in Nigeria’s evident breach of its obligations. On the contrary, it may be as a result of a conflict of two international interests and principles. The principle of accountability for the violations of international humanitarian law (which developed from the efforts of The Hague and Geneva Conventions to control how wars were fought and curb the brutality of war on protected persons) and the concept of the maintenance of international peace and stability (which evolved from the efforts of the 1928 Kellogg-Briand Pact40 to prohibit war and was given much weight and greater acceptance by the 1945 UN Charter). It is important to note that the underlying purpose of the UN and the present-day international legal paradigm is the maintenance of international peace.41 In this case there seems to be a conflict between the two principles – the need for the stability of Liberia, Sierra Leone and the whole of the West African sub-region against the need for accountability for violations of international humanitarian laws (the prosecution of Charles Taylor for crimes committed in the course of the conflicts in the two West African States). Within the chain of events in the West African State of Liberia, Mr. Taylor was the principal reason for the instability and conflict. It is recalled that Mr. Taylor started the insurgency against the administration of Samuel Doe in December 1989 and was instrumental in prolonging the war by opposing the ECOMOG (Economic Community of West African States Monitoring Group) peace-keeping efforts.42 And in 2003, after 14 years of war, there was a dire need to restore peace and stability to that country. The chance came through the Nigerian-led ECOWAS (Economic Community of West African States) efforts to mediate between the parties. However, the rebels insisted on Mr. Taylor resigning from the Office of the President of Liberia. Mr. Taylor accepted Nigeria’s offer of asylum, resigned and left the country. Arguably, Mr. Taylor, who had just then been indicted by the Special Court, would not have agreed to resign unless he was assured of some sort of amnesty from prosecution which in turn would have prolonged the crisis. Nigeria, while leading the negotiations, opted to grant him a safe haven from the Court so as to realise the more immediate goal of regional peace and stability. It should be appreciated that Nigeria’s act (the asylum offer) prevented much bloodshed in Liberia. Furthermore, it was essential to keep Mr. Taylor out of Liberia, and crucial not to prosecute him until such a time when the stability of the two States (Liberia and Sierra Leone) was ensured. The object was to prevent a fresh outbreak of fighting by Mr. Taylor’s supporters. In 2006, after the election of a new government in Liberia and after both States had regained some measure of stability, Nigeria extradited Taylor to Liberia where he was arrested by UNMIL and transferred to the Special Court (BBC News 2006).

It may also be observed that the efforts of Nigeria towards the stability of the West African coast have been noted by the world body in several of its Resolutions on the situation.43 In view of the urgent quest for international peace and stability in the sub-region at that time, the Council in Resolution 1638 expressed ‘its appreciation to Nigeria and its president, Olusegun Obasanjo, for their contributions to restoring stability in Liberia and the West African sub-region’.44

Though Mr. Taylor was granted asylum in Nigeria, and was thus shielded from the reach of the Special Court whose jurisdiction did not empower it to force Nigeria to transfer Taylor to its custody,45 he was nevertheless not free from the arms of the law and was still subject to the jurisdiction of the Court as there is no time bar for the prosecution of an international crime; this principle has been codified by the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.46 In paragraph 7 of its preamble, the Convention provides that ‘…it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application’.47 Even upon the termination of the temporal jurisdiction of the Special Court,48 Mr. Taylor could have still been tried by any State upon establishing its jurisdiction to prosecute him, under the principle of universal jurisdiction or under any of the treaties that expressly permit it.49

The international community was pragmatic in its handling of the conflict or struggle for hierarchy between the two norms. By supporting Nigeria’s efforts to first deal with the more momentous and pressing issue of peace and stability, the international community did not set out a hierarchy between the norms. But practically handled the situation based on necessity – it was necessary and urgent to achieve peace but not immediately urgent to prosecute Mr. Taylor.

The conflict of principles between accountability and international peace and stability cropped up again when Mr. Taylor was eventually arraigned before the Special Court. The Liberian government (fearing a backlash from Taylor’s remaining loyalists in Liberia) and the Court (not willing to provoke another round of conflicts) negotiated with the Security Council, the ICC and the government of the Netherlands to have the Court sit at The Hague, using the facilities of the ICC. There are grave implications in moving the trial outside Sierra Leone where most of the victims and witnesses are located.50 This time the Court, in many ways bearing the dual responsibility of ensuring that individuals account for their acts in breach of international humanitarian law on one hand and maintaining international peace on the other hand,51 acted with both principles in mind by deciding to sit at The Hague for Mr. Taylor’s trial. By so doing, the Court was ensuring that Mr. Taylor is tried and that the peace and stability of the region is not compromised.

5. Concluding Remarks

The question of whether Nigeria was in breach of its legal obligations by granting asylum to Charles Taylor is not so clear cut. The erga omnes obligations the country owes to the international community must be discharged appropriately. However, the country seems to have deliberately breached these legal requirements and, to make it worse, the international community and its watchdog – the UN and its Security Council – were silent on the issue. However, it can be seen from the above that Nigeria did not blatantly decide to play the rogue State, as it had justifications for acting (granting asylum to Taylor) or not acting (failing to prosecute him) from 2003 to 2006. The international community seemingly did not respond to the situation by triggering the mechanism of State Responsibility to coerce Nigeria to hand over Taylor to the Special Court in those three years that the country shielded him from justice. A core consideration that drove Nigeria’s action or inaction was to preserve the foundation of the contemporary international system. The same motivation drove the world body, thus the UN desisted from compelling Nigeria to hand over Taylor throughout the period.

The core purpose of the contemporary international system is to ensure and maintain international peace and stability. Though Taylor was indicted for violating the norms of international humanitarian law which are deemed to be jus cogens, the dilemma was that had he been arrested and prosecuted in 2003, the West African sub-region would have erupted once again into violence. Therefore, the practical importance of maintaining the stability in the war-torn State(s) was ranked higher in importance and urgency at that time than holding him accountable for his crimes during the war. It is understood that there is no time limit within which to prosecute a person accused of crimes prohibited by international law, and so Nigeria and the international community opted to preserve the peace and stability of the two States involved. This does not condone the violations of international humanitarian laws but rather gives peace a chance. It is also a way of giving the Liberian community the opportunity to stabilise in order to effectively see that justice is done. Without a peaceful and stable community, the problem of accountability and justice cannot be achieved. Moreover, the pursuit of peace and stability in Liberia and the region as a whole will inevitably lead to the effective implementation of the rules of international humanitarian law, a crucial part of which is international criminal law. It is commendable that Nigeria endeavoured to ensure that the nascent and fragile peace of Liberia and Sierra Leone, which took more than a decade to achieve, was nurtured until such a time that these States would be strong enough to deal with Taylor’s past. Significantly, this has proved to be in the right direction. The events after the arrest of Taylor show that the leaders of the two countries involved and the Court are also of this view, hence the subsequent transfer of the trial to The Hague.52 Therefore, Nigeria’s attempt to first ensure the stability of Liberia and the West African sub-region can be deemed to have mitigating effects on Nigeria’s breach of its international humanitarian law obligations.

On the other hand, it does not seem that the domestic legal obligations would in any way be diminished by a factor such as the pursuit of peace in the sub-region. This position was not seriously maintained in the preliminary hearing of the Nigerian Federal High Court when the government argued that the issue was a political act of the State and so non-justiciable.53 The Court’s rejection of this view may be because an international obligation (such as the UN purposes as laid down by the Charter) would not have domestic legal effects in a State with a dualist ideology, unless such an obligation is ‘incorporated’ by legislation into that State’s domestic laws thereby giving direct rights to the individual citizens of that State (Aust 2000:150).

Sources

  1. Akande, Dapo 2003. International Organisations, in Evans, Malcolm (ed.) International Law. Oxford: Oxford University Press.
  2. Amnesty International 2003. Amnesty International Report Profile: Liberia. Accessed at <http://web.amnesty.org/report2003/lbr-summary-eng> (last visited on 11 January 2006).
  3. Amnesty International 2006. Amnesty International Report. Profile: Special Court for Sierra Leone Issues for Consideration regarding the Location of the Trial of Charles Taylor. Accessed at <http://web.amnesty.org/libraryprint/ENGAFRS510052006>.
  4. Aust, Anthony 2000. Modern Treaty Law and Practice. Cambridge: Cambridge University Press.
  5. Bassiouni, M. Cherif 1996. International Crimes: Jus Cogens and Obligatio Erga Omnes, Law and Contemporary Problems 59 (Autumn 1996).
  6. BBC News 2003. Africa/Profile: Liberia’s Rebels (10 June 2003). Accessed at <http://news.bbc.co.uk/2/hi/africa/2979586.stm> (last visited on 11 January 2006).
  7. BBC News 2005. Africa/Profile: Liberian Taylor’s Fate Discussed (30 November 2005). Accessed at <http://news.bbc.co.uk/1/hi/world/africa/4485682.stm> (last visited 27 February 2007).
  8. BBC News 2006. Africa/Profile: Taylor sent to War Crimes Court (29 March 2006). Accessed at <http://news.bbc.co.uk/i/hi/world/africa/4858692.stm> (last visited on 28 February 2007).
  9. Brownlie, Ian 2003. Principles of Public International Law. 6th ed. Oxford: Clarendon Press.
  10. Cassese, Antonio 2003. International Criminal Law. Oxford: Oxford University Press.
  11. Christenson, Gordon 1988. Jus Cogens: Guarding interests fundamental to International society. Virginia Journal of International Law 28.
  12. Constitution of the Federal Republic of Nigeria 1999. Accessed at <http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm#Arrangement_of_Sections> (last visited 12 January 2006).
  13. Cryer, Robert 2001. A ‘Special Court’ for Sierra Leone? 50 International and Comparative Law Quarterly 440.
  14. De Hoogh, Andre 1996. Obligations erga omnes and International Crimes. The Hague, London: Kluwer Law International.
  15. Denza, Eileen 2003. The Relationship between International and National Law, in Evans, Malcolm (ed.) International Law. Oxford: Oxford University Press.
  16. Fitzmaurice, G. 1957. The General Principles of International Law Considered from The Standpoint of The Rule of Law. Hague Recueil 5, in Cases and Materials on International Law 68-71 (5th ed.), (D.J. Harris ed. 1998).
  17. Frulli, Micaela 2000. The Special Court for Sierra Leone: Some Preliminary Comments. European Journal of International Law.
  18. Gardiner, Richard K. 2003. International Law. Harlow: Longman Pearson Educational.
  19. Goodwin-Gill, Guy S. 1999. Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute. In Goodwin-Gill, G. & Talmon, S. (eds.), The Reality of International Law: Essays in Honour of Ian Brownlie. Oxford: Clarendon Press.
  20. Human Rights Watch 2006. Trying Charles Taylor in The Hague: Making Justice Accessible to Those Most Affected. Report, June 2006.
  21. International Law Commission 2001. Report of the International Law Commission, on its fifty-third session, 23 April – 1 June and 2 July – 10 August 2001. Chapter IV, ‘State Responsibility’. In United Nations General Assembly, Official Records, Fifty-fifth Session, Supplement No. 10(A/56/10), accessed at <http://www.untreaty.un.org/law/ilc/reports/2001/2001report.htm>.
  22. Jorgensen, Nina 2000. The Responsibility of States for International Crimes. New York: Oxford University Press.
  23. Kamenov, Tihomir 1989. The Origin of State and Entity Responsibility for Violations of International Humanitarian Law in Armed Conflict. In Kalshoven, Frits (ed.), Implementation of International Humanitarian Law. Dordrecht, London: Martinus Nijhoff Press.
  24. Knoops, Geert-Jan Alexander 2003. An Introduction to the Law of International Tribunals: A Comparative Study. Den Haag: BJu.
  25. Laws of the Federation of Nigeria 1990. Accessed at <http://www.nigeria-law.org/LFN-1990.htm>.
  26. May, Larry 2005. Crimes against Humanity. New York: Cambridge University Press.
  27. Meron, Theodor 1989. Human Rights and Humanitarian Norms as Customary Law. Oxford: Clarendon Press.
  28. Mitchell, David 2005. The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, Duke Journal of Comparative and International Law 15.
  29. Orentlicher, Diane F. 1991. Settling Accounts: The Duty to Prosecute Human Rights Violation of a Previous Regime, Yale Law Journal 100.
  30. Parker, Karen & Neylon, Lyn Beth 1989. Jus Cogens: Compelling the Law of Human Rights, Hastings International and Comparative Law Review 12.
  31. Randall, Kenneth 1988. Universal Jurisdiction under International Law. Texas Law Review 66.
  32. Reydams, Luc 1996. Universal Jurisdiction over Atrocities in Rwanda: Theory and Practice, European Journal of Crime, Criminal Law and Criminal Justice 1.
  33. Romano, Cesare & Nollkaemper, Andre 2003. The Arrest Warrant Against The Liberian President, Charles Taylor, in American Society of International Law Insights (June 2003). Accessed at <http://www.asil.org/insights/insight110.htm>.
  34. Sands, Philippe & Klein, Pierre (eds.) 2001. Bowett’s Law of International Institutions. 5th ed. London: Sweet & Maxwell.
  35. Sesay, Alpha 2006. Trying Charles Taylor: Justice cannot be fully achieved at The Hague. Accessed at <www.nd.edu/~cchr/publications/trying_Charles_Taylor.pdf>.
  36. Sieh, Rodney 2006. Taylor’s Trial Dilemma: Freetown or The Hague? Liberian Times 31 March 2006. Accessed at <http://www.globalpolicy.org/intl’justice/tribunals/sierra/2006/0331dilemma.htm>.
  37. Special Court for Sierra Leone 2003. Prosecutor v. Taylor. Decision on Immunity from Jurisdiction, Case No. SCSL-2003-01-I. Accessed at <http://www.sc-sl.org/Documents/SCSL-03-01-I-059.pdf>.
  38. Special Court for Sierra Leone 2004. Prosecutor v. Moinmina Fofana, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion on the Lack of Jurisdiction Materiae: Illegal Delegation of Powers by The United Nations May 25, 2004. Accessed at <http://www.sc-sl.org/Documents/SCSL-04-14-PT-100-6836.pdf>.
  39. Sunga, Lyal 1997. The Emerging System of International Criminal Law. The Hague, Boston: Kluwer Law International.
  40. UN Security Council 2003a. Resolution 1497. Accessed at <http://www.un.org/Docs/sc/>.
  41. UN Security Council 2003b. Resolution 1509. Accessed at <http://daccessdds.un.org/doc/UNDOC/GEN/N05/600/30/PDF/N0560030.pdf?OpenElement> (last visited 17 November 2005).
  42. UN Security Council 2005. Resolution 1638. Accessed at <http://daccessdds.un.org/doc/UNDOC/GEN/N05/600/30/PDF/N0560030.pdf?OpenElement> (last visited 17 November 2005).
  43. Vienna Convention 1986. Law of Treaties between States and International Organisations or Between International Organisations. Accessed at <http://www.un.org/law/ilc/texts/trbtstat.htm>; cf Vienna Convention on The Law of Treaties (1969), 1155 United Nations Treaty Series 331, <http://www.un.org/law/ilc/texts/treaties.htm>.
  44. Weller, M. (ed.) 1994. Regional Peace-keeping and International Enforcement: The Liberian Crisis. Cambridge: Cambridge University Press.
  45. Wipman, David 1993. Enforcing the Peace: ECOWAS and the Liberian Civil War. In Damrosch, Lori (ed.), Enforcing Restraint: Collective Intervention in Internal Conflicts. New York: Council on Foreign Relations Press.

Notes

  1. See the full text of the agreement at <http://www.sc-sl.org/scsl-agreement.html>; see also the preamble of the Statute of the Court at <http://www.sc-sl.org/scsl-statute.html> (last visited November 14, 2005).
  2. In Special Court for Sierra Leone 2003: par 37-42 this court held that it was an international court.
  3. See Art. 4 & 25 of the UN Charter: State members are primarily obliged to comply with its objects which are to the furtherance of the purposes of the UN as laid out in Chapter 1.
  4. See note 1 above for the text of the agreement; see also the Taylor case, referred to in note 2 above.
  5. Accessed at <http://daccessdds.un.org/doc/UNDOC/GEN/N00/605/32/PDF/N0060532.pdf?OpenElement>.
  6. See UN Security Council Resolutions 827(1993) and 955(1994), accessed at <http://www.un.org/Docs/sc/unsc_resolutions.html>.
  7. See also Romano & Nollkaemper 2003.
  8. Note that the Council in par 1 of Resolution 1315 specifically requested the Secretary-General to negotiate an agreement with the government of Sierra Leone to create an independent court. See note 1 above, for the full text.
  9. Special Court for Sierra Leone 2003: par 37.
  10. See the preamble of the Statute of the Court, note 1 above.
  11. See also Prosecutor v. Moinmina Fofana, Case No. SCSL-2004-14-AR72(E), Decision on Preliminary Motion On the Lack of Jurisdiction Materiae: Illegal Delegation of Powers by The United Nations May 25, 2004, accessed at <http://www.sc-sl.org/Documents/SCSL-04-14-PT-100-6836.pdf>.
  12. See the full text of the treaty, accessed at <http://www.un.org/law/ilc/texts/trbtstat.htm>; cf Vienna Convention On The Law of Treaties (1969), 1155 United Nations Treaty Series 331, <http://www.un.org/law/ilc/texts/treaties.htm>.
  13. See Charles Taylor’s indictment, accessed at <http://www.sc-sl.org/Documents/SCSC-03-01-I-001.html>.
  14. The country’s obligations with regard to customary rules are discussed below.
  15. See Barcelona Traction Light and Power company Limited (Belgium v. Spain), 1970 International Court of Justice 32 (2nd Phase Merits Judgment) at par 33.
  16. For a list of the treaties Nigeria has ratified see <http://www.hri.ca/forthere-cord2003/vol2/nigeriarr.htm> Profile: Nigeria-Treaties: Ratifications and Reservations. The country has even gone ahead to enact into its domestic legal system the implementing legislations for the Geneva Conventions and the ICC Statute. This will be discussed later in this paper.
  17. Military and Paramilitary Activities (Nicar. v. USA,) 1986 International Court of Justice 14 (June 27) – Merits, par 220 at 114; also accessed at <http://www.icj-cij.org/icjwww/icases/inus/inusframe.htm>.
  18. See the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 (1) International Court of Justice 35 (July 8) at par 79, accessed at <http://www.icj-cij.org/icjwww/icases/iunan/iunanframe.htm>.
  19. Accessed at <http://www.africa-union.org/Official_documents/Treaties_%20Conventions_%20Protocols/Banjul%20Charter.pdf>.
  20. Accessed at <http://www.africa-union.org/Official_documents/Treaties_%20Conventions_%20Protocols/Banjul%20Charter.pdf>.
  21. See BBC News 2003. See also Amnesty International 2003.
  22. See Vienna Convention on the Law of Treaties 1969: Art. 53.
  23. See for example, Brownlie 2003:488-490, De Hoogh 1996:44-56, Christenson 1988:585, Parker & Neylon 1989:411, Mitchell 2005:219-256, Bassiouni 1996:63-76, May 2005:24-55.
  24. See for example Bassiouni 1996:65 – where he asserted that there is abundant legal basis to conclude that all of these crimes are categorised as jus cogens. He cited the following to support this view: (1) the ICTY and ICTR Statutes address genocide, crimes against humanity, and war crimes; (2) the 1996 Code of Crimes. (Draft Code of Crimes Against Peace and Security of Mankind: Titles and Articles on the Draft Code of Crimes Against Peace and Security of Mankind adopted by the International Law Commission on its Forty-Eight Session, UN General Assembly Official Report, 51st Session, U.N. Doc. A/CN.4L.532 (1996), revised by U.N. Doc. A/CN.4L.532/Corr.1 and U.N. Doc. A/CN.41.532/Corr.3, arts. 16-20). See also Mitchell, 2005:232, Sunga 1997:246, Meron 1989:9.
  25. See note 13 above. Note that Articles 3 & 4 of the Court’s Statute which provide for violations of Article 3 common to the Geneva conventions and other serious violations of international humanitarian law are made up of categories of crimes that have been accepted as war crimes. (See a codification of international customary law on the extent of war crimes in Article 8 of the Rome Statute of the International Criminal Court, accessed at <www.un.org/law/icc/statute/romefra.htm>).
  26. See Jorgensen 2000:97, Randall 1988:785, Reydams 1996:18.
  27. See Articles 49, 50, 129 & 146 respectively of Geneva Conventions I, II, III & IV of 1949, accessed at <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions>. See also Articles 5(2) & 7 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), accessed at <http://www.un.org/documents/ga/res/39/a39r046.htm>.
  28. For further reading on the obligation to extradite or prosecute see Bassiouni 1996:64, Cassese 2003:277-300, Orentlicher 1991:2551-2592.
  29. Nigeria was not obligated to surrender Taylor to the Special Court, but it did eventually hand him to the Liberian government when that government made the request. Further to the argument, and as would be elaborated later in this paper, international law has set no time frame for a State to apply this principle of aut dedere aut punire. Hence a State such as Nigeria can wait for an appropriate political and factual atmosphere before effecting the requirements of the principle. In this case the stability of the region was more important than the immediate trial of Mr. Taylor, which on its own had the potential of destabilising the fragile peace in Liberia and Sierra Leone.
  30. Note that in the context of this essay, the legal issues to be examined are issues concerning Nigeria’s legal obligations.
  31. See especially Brownlie 2003:31-34. See also Denza 2003:421, Gardiner 2003:130, Fitzmaurice 1957:92, Hague Recueil 5, in Cases and Materials on International Law 68-71 (5th ed.), (D.J. Harris ed. 1998).
  32. Charles Taylor’s indictment was for acts carried out in Sierra Leone. He is accused of giving financial support, military training, personnel, arms, ammunitions etc to the rebels throughout the duration of the conflict in that country. See Charles Taylor’s indictment, accessed at <http://www.sc-sl.org/Documents/SCSC-03-01-I-001.html>.
  33. See the Case of Emmanuel Egbuna & Another v. Charles Ghankay Taylor & 5 Others (Unreported) Suit No. FHC/ABJ/216/2004, Ruling on Preliminary Objection of November 1, 2005, accessed at <http://www.justiceinitiative.org/db/resource2?res_ id=103008> Profile: Taylor: Court Dismisses FG’s Preliminary Objection (last visited November 20, 2005). See also International Law in Brief (15 November, 2005), accessed at <http://www.asil.org/ilib/2005/11/ilib051115.html>.
  34. See the Justice Initiative Report in the Egbuna v. Taylor case (note 33 above).
  35. See the Justice Initiative Report in the Egbuna v. Taylor case (note 33 above).
  36. See Articles 49, 50, 129 & 146 respectively of Geneva Conventions I, II, III & IV of 1949, accessed at <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions>.
  37. See Articles 49, 50, 129 & 146 respectively of Geneva Conventions I, II, III & IV of 1949, accessed at <http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions>.
  38. See par 6 of the preamble of the Rome Statute of the International Criminal Court, accessed at <www.un.org/law/icc/statute/romefra.htm>.
  39. Note that Mr. Taylor was not prosecuted in Nigeria between 2003 and 2006 when he was granted asylum and was free in the coastal Nigerian city of Calabar.
  40. Accessed at <http://www.yale.edu/lawweb/avalon/kbpact/kbmenu.htm>.
  41. See Article 1 of the UN Charter for the Purposes of the United Nations, accessed at <http://www.un.org/aboutun/charter/>. See also pars. 3 & 7 of the Preamble of the Rome Statute of the International Criminal Court, accessed at <www.un.org/law/icc/statute/romefra.htm>.
  42. Weller 1994:33. See also Wipman 1993:157,160.
  43. See for example UN Security Council 2003: pars. 8 & 15, UN Security Council 2003a: par 6.
  44. UN Security Council 2005: par 3.
  45. See section on Nigeria’s international obligations above.
  46. Accessed at <http://www.unhchr.ch/html/menu3/b/p_limit.htm>.
  47. See also Art. 29 of the Rome Statute of the International Criminal Court, accessed at <www.un.org/law/icc/statute/romefra.htm>, which provides that: ‘The crimes within the jurisdiction of the court shall not be subject to any statute of limitation’.
  48. Note that the court’s temporal jurisdiction is not expressly stated. However, the agreement establishing the court provides in Art. 23 that ‘the agreement shall be terminated by the agreement of the parties upon the termination of judicial activities’.
  49. Such as the relevant provisions of the Geneva and Torture Conventions (see note 27 above).
  50. This is not the appropriate platform for the analysis of the implications of moving Taylor’s trial to The Hague. For an excellent account and analysis, see Sesay 2006, Amnesty International 2006, Human Rights Watch 2006, Sieh 2006.
  51. See the preambles of the statutes of the various international criminal courts and tribunals for further clarification on the twin responsibilities of the courts.
  52. The Special Court will be sitting at The Hague for the trial using the facilities of the International Criminal Court. The Special Court can choose to sit away from Freetown if it considers it necessary for the efficient exercise of its functions (Article 10 of the Agreement, see note 1 above).
  53. See the Egbuna v. Taylor case, note 33 above.
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