Text of a Press Conference Hosted by HURIWA AND AAWPR

Our Reporter
 Text of a Press Conference Hosted by HURIWA AND AAWPR

 

TEXT OF A PRESS CONFERENCE HOSTED BY HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA AND ASSOCIATION OF AFRICAN WRITERS ON HUMAN AND PEOPLES RIGHTS AFTER A MEETING OF THE ABUJA HUMAN RIGHTS COMMUNITY YESTERDAY

Gentlemen of the forth estate of the realm you are welcomed. We meet to once more look at the Amnesty International's current report in which they investigated alleged violations of the Rights of BH terrorists and singled out some top retired and serving Generals for their so called indictment but left out the Chief of a army Staff when the real war on terror started during Yaradua's tenure which was even when Mohammed Yusuf the Founder of BH was extra judicially killed by the police. Who was the Chief if Army Chief then? Who is the NSA and who is in charge of counter terrorism war? Why did AI left those names out? Is Amnesty International also involved in the lobby for office of NSA under Buhari which the North is working so hard to appropriate even when tradition favours either the South East or South South? Could it be that General Buhari has made a move to appoint General Ihejerika his NSA and hawks in the North were rattled and therefore procured Amnesty International to do this poor hatchet job? We will talk about doctrine of command responsibility once more to show you how porous Amnesty International's watery report is. We also believe that if a probe is to be initiated then let it begin from when the anti terror war started and even up to how black market was used to allegedly purchase weapons for Nigeria.

 

The origin of the Concept of Command Responsibility dates back centuries around 500 BC to 1439, when Charles VII of France issued the Ordinance of Orleans imposing blanket responsibility on commanders, without requiring any standard of knowledge. Subsequently, the US Civil War trial – the Yamashita case before the US Military Commission – the first international trial of a Commander for Command Responsibility (in interpretation of Article 71 of the Lieber Code), adopted a similar approach. However, Post World War 11 trials following Yamashita, deviated from that interpretation. It clearly accepted that actual knowledge of unlawful acts of subordinates is a condition precedent for imputation of criminal responsibility on the part of commander(s). In concretizing the actual knowledge ingredient for Command Responsibility, the International Criminal Tribunal for the Former Yugoslavia (ICTY), paved the way, in its landmark Celebici case. I have taken the time to summarize the facts, the decision and reasoning in the case. But more importantly for you, is the call to emphasize the fact that no one is against the call for any probe, but that anything worth doing at all, is worth doing well. Any probe must be holistic, comprehensive and all encompassing of all relevant players / stakeholders; from the inception of the insurgency in 2009 to date – spelling out key players as discussed. Selective probing, with a view to witch-hunting is on its own, a crime against morality and all that modern human society stands for and should never be contemplated. The terms of reference must include, the immediate/remote cause of the insurgency, the masterminds, the sponsors, their collaborators and sympathizers, defence equipment, arms and ammunition procurement from 2009 to date including the Black market arms procurement saga etc.

 

The Celebici Case: The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY) - Case No.: IT-96-21-T - Judgement of: 16 November 1998. IN THE TRIAL CHAMBER: The PROSECUTOR v. ZEJNIL DELALI] ZDRAVKO MUCI also known as “PAVO” HAZIM DELI; ESAD LANDZO also known as “ZENGA” The trial of Zejnil Delalic, Zdravko Muci, Hazim Deli and Esad Landzo`, before the Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia – a trial that commenced on 10 March 1997 and came to a close on 15 October 1998. The Indictment was concerned solely with events alleged to have occurred at a detention facility in the village of Celebici (referred to as Celebici prison-camp”), located in the Konjic municipality in central Bosnia and Herzegovina, during certain months of 1992. The Indictment charged the four accused persons with grave breaches of the Geneva Conventions of 1949, under Article 2 of the ICTY Statute and violations of the laws or customs of war, under Article 3 of the same Statute, in connection with acts allegedly perpetrated within the Celebici prison-camp.

 

During the entire relevant period, the accused Esad Landzo is alleged to have worked as a guard at the Celebicii prison-camp. Hazim Deli}and Zdravko Muci were also alleged to have worked within the prison-camp and to have acted in the capacity of commanders; with Zdravko Muci being the main commander, and Hazim Deli being the deputy commander; from May to November 1992, when he replaced Zdravko Muci as commander. Zejnil Delali is alleged to have exercised authority over the Celebici prison-camp in his role, first, as co-ordinator of the Bosnian Muslim and Bosnian Croat forces in the area, and later as Commander of the First Tactical Group of the Bosnian Army. Esad Landzo and Hazim Deli were primarily charged with individual criminal responsibility pursuant to Article 7(1) of the Statute, as direct participants in certain of the crimes alleged, including acts of murder, torture and rape, while Zdravko Mucic and Zejnil Delalic were primarily charged as superiors with responsibility, pursuant to Article 7(3) of the Statute, for crimes committed by their subordinates, including those alleged to have been committed by Esad Landzo and Hazim Deli. Several counts in the Indictment also charged Hazim Deli in his capacity as a superior with command responsibility. The indictment against the accused persons was issued on 21 March 1996. It alleged that in 1992, forces consisting of Bosnian Muslims and Bosnian Croats took control of villages containing predominantly Bosnian Serbs within and around the Konjic municipality in central Bosnia in the then former Federal Republic of Yugoslavia. The persons detained during these operations were held in a former JNA facility in the village of Celebici, the Celebici prison-camp, where detainees were killed, tortured, sexually assaulted, beaten and otherwise subjected to cruel and inhuman treatment by the four accused.

 

The Judgement also entailed the first conviction of an accused person for rape as torture by the International Tribunal. It is the first elucidation of the concept of command responsibility by an international judicial body since the cases decided in the wake of the Second World War - a lengthy judgement of about 500 pages involving multiple defendants. The crimes alleged in the indictment were no doubt, serious violations of international humanitarian law and the Trial Chamber had to deal with many complex issues of fact and law previously unaddressed by any international judicial body.


The decision which has become the locus classicus on the interpretation of “Command Responsibility” emphasized that the doctrine encompasses "not only military commanders, but also civilians holding positions of authority and not only persons in de jure positions but also those in such position de facto. At the conclusion of the trial, Zejnil Delalic was found NOT GUILTY of the 11 counts of Grave breaches of the Geneva Conventions and Violation of the laws and customs for his alleged command over the Celebici prison-camp at the relevant time, as charged. He was also acquitted of the count charging him as a direct participant in the unlawful confinement of civilians. The Trial Chamber found that Mr. Delalic did not have command and control over the Celebici prison-camp and over the guards who worked there, such as to entail his criminal responsibility for their actions. The Trial Chamber was nonetheless appalled by the inadequacy of the food and water supplies, the medical and sleeping facilities that were provided for the detainees, as well as the atmosphere of terror which reigned in the Celebici prison-camp. The Chamber no doubt emphasized the duty of a commander of any detention facility during an armed conflict. Even in their decision to convict Mr. Mucic (who was directly in charge of the supervision of the detention facility), they accepted the fact that as commander of the Celebici prison-camp, he was the person with the primary responsibility for the conditions in which the prisoners were kept. However, they took into consideration the fact that Mr. Mucic was not named by any witness as an active participant in any of the murders or tortures for which he was charged with responsibility as a superior. They also took cognisance of the fact that Mr. Mucic’s alleged inaction was more as a result of human frailty rather than individual malice.

 

The ICTY in the Celebici case espoused the intendment of the provisions of Article 7(3) of the ICTY Statute to hinge on the word / phrase “KNEW” or “HAD REASON TO KNOW”. The Trial Chamber held that a superior can be held criminally responsible ONLY if some specific information was in fact available to him, which would provide notice of offences committed by his subordinates – information that would warrant additional investigation. On the other hand, the Trial Chamber of the same ICTY adopted a stricter interpretation of Command Responsibility in another case of BLASKIC, in holding a Commander criminally liable, triggering a dichotomy in the applicable standard by the Tribunal. However, this seeming disagreement, was resolved by the Appeal Chambers of the ICTY in adopting and upholding the view of the Trial Chamber in the Celebici case, as to the requisite standard of Mens Rea (Intention). The Appeal Chamber discountenanced the idea of making Command Responsibility an offence of Strict Liability and settled for a more liberal, broader interpretation. Consequently, the Rome Statute of the International Criminal Court , deriving inspiration from the retinue of legal jurisprudence on Command Responsibility and in seemingly aligning itself with the stance of the ICTY (it’s precursor), also adopts a broad interpretation of the doctrine of Command Responsibility. Thus, Article 28(a) of the Rome Statute, which highlights the potential uncertainty surrounding the interpretation that may be adopted by the ICC, qualifies the validity of the principle of superior responsibility for failure to act. It imputes such responsibility where the superior’s failure to take all necessary and reasonable measures to prevent or repress the crimes of subordinates under the superior’s effective authority and control ONLY where the superior either knew or consciously disregarded information, which clearly indicated that the subordinates were committing or about to commit such crimes.

 

Conclusively, though the knowledge element the characterization of the appropriate standard of constructive knowledge of Command Responsibility has remained a point of contention under International Law since the second World War, International law pundits consider the strict, narrow “should have known” standard in the Blaskic case (supra) as too imprecise and thus, unanimously urge for caution in rushing to conclusion in allegations of command responsibility.

 

God bless.

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