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Human Rights violations: The responsibility of the

Joint Task Force

By

Stephen B. Clark

Copyright © 2010

All rights reserved. No part of this publication may be reproduced, stored in a retrieval

system or transmitted, in any form or by any means, electronic, mechanical, photocopying,

recording or otherwise, without prior permission.

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Abstract

The concept of International Human Rights Law has evolved over the years; however,

different Nation States have accepted and ratified in varying degrees international human

rights law as the body of rules governing members of the international community.

Recognition of fundamental human rights is expected all over the World where humans exist

in any given situation i.e. in conflict or peace. However, the variation in implementation of

Human Rights borders on the intricate debate between purported theories of universalism

and that of relativism and the question of the possibility of imposing a common legal

standard for human rights.

This paper would analyse available International Human Rights provisions such as the Right

to life and the Prohibition of torture or cruel, inhuman or degrading treatment or

punishment, National law provisions. This paper would also seek to explore the perplexity of

the Joint Task Force of Nigeria1 in ensuring obligations to International Human Rights

provisions are met whilst carrying out its designated responsibilities in recent armed

conflicts.

1 The Joint Task Force of Nigeria (JTF hereafter)

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Introduction

International human rights law provides a framework for protecting the inherent rights of a

‘person’ and ideally these rights should apply in the ordinary day to day existence of a

recognised ‘person’ habiting the earth. Steiner and Alston noted that under international law,

approval by the General Assembly of a declaration will have solemn effects as the formal act

of a deliberative body of global importance.2 A Covenant on the other hand binds the state

parties in accordance with its terms, subject to such formal matters as reservations.3 However,

State parties likely subject the content of important provisions of a treaty to different

interpretations.4

These basic tenets of the international framework set the focal for a plethora of human rights

theories and implementation approach. According to Capotorti, it would be extremely

incorrect to affirm that international law remained fundamentally the same, from the point of

view of respective positions of the State and the individual and it would be an exaggeration to

consider that since a body of international rules on human rights has been formed everything

has changed as to the relationships between State and the individual in international law.5

International law can attempt to suffice individual human rights however has not or may not

be able to suffice the States’ (including its institutions) responsibilities and/or obligations

inter alia to the individual. Capotorti further highlighted that the birth of an international

system of regulation of human rights has constituted a form of evolution still largely

incomplete.6

Violation of the fundamental socio-political human rights of citizens or a particular group of

citizens of a region within a sovereign state as a result of systematic actions or in-actions of

government(s) could lead to armed conflicts.

2 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, p.142, 2nd Edition, (Oxford: Oxford

University Press, 2000) 3 Ibid. Steiner, p.142 4 Ibid. Steiner, p.142 5 Francesco Capotorti, Human Rights: The Hard Road Towards Universality, in R.St.J. Macdonald and Douglas M. Johnston (Editors), The

Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory, (The Hague, Lancaster: Martinus Nijhoff Publishers, 1986), p.978 6 Francesco Capotorti, Human Rights: The Hard Road Towards Universality, in R.St.J. Macdonald and Douglas M. Johnston (Editors), The

Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory, (The Hague, Lancaster: Martinus Nijhoff Publishers, 1986), p.978

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Bartels noted that the International Criminal Tribunal for the former Yugoslavia (ICTY)

established, in its Tadic´ ruling, that ‘resort to armed force between States or protracted

armed violence between Governmental authorities and organized armed groups or between

such groups within a State’ is to be considered an armed conflict.7 These armed conflicts

further lead to other violations of human rights such as the right to life or a right to the

respect of the dignity inherent in a human being and prohibits all forms of exploitation and

degradation of man8 particularly torture, cruel, inhuman or degrading punishment and

treatment.

The Federal Republic of Nigeria currently constitutes of 36 states geo-politically is divided

into north, south, east and west, with a population of 149,229,0909 composed of more than

250 ethnic groups.10

As a result of ongoing-armed conflict and violence over the last two

decades, a distinct region in the south south of Nigeria known as the Niger Delta has been

prominent. The Niger Delta geo-politically comprises of nine states namely, Abia, Akwa

Ibom, Bayelsa, Cross River, Delta, Edo, Imo, Ondo, and Rivers states.

All Nigerian constitutions since independence recognise both individual and collective rights;

however, collective rights are not given to ethnic groups but to communities or the state.11

The States of the Niger Delta are defined by boundaries within which esoteric communities

exist consisting of members with shared subjective context of identity; collective rights

allocated to these communities invariably are distributed amongst members of dominant

ethnic groups within the community and this has been the bedrock of ethnic conflicts within

the Niger Delta. These armed conflicts have either been between

indigenes/communities/militants and government authorities, or between ethnic communities

such as the Urohobo and Itsekiri, the Ijaw and the Itsekiri or between Ijaw communities.

International law provisions and National Law

The two instruments composing the International Bill of Rights recognised as the core of

universal human rights provisions for the Right to life and the Prohibition of torture or cruel,

7 Rogier Bartels, ‘Timelines, borderlines and conflicts. The historical evolution of the legal divide between international and non-

international armed conflicts’, International Review of the Red Cross, Volume 91 Number 873 (March 2009), 37-38 8 The word ‘Man’ is used generally to refer to a human being 9 CIA Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ni.html#People 10 ibid CIA Factbook 11 Abubakar Momoh, ‘The philosophy and Theory of the National question’, in Abubakar Momoh and Said Adejumobi (eds), The National Question in Nigeria, (Aldershot: Ashgate, 2002), p.22

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inhuman, or degrading treatment or punishment are the Universal Declaration of Human

Rights12

and the International Covenant on Civil and Political Rights.13

Article 2 of UDHR provides that everyone is entitled to all the rights set forth in the

declaration and stipulates unequivocally on the basis with which no distinctions should be

made. Such rights provided by the UDHR include Article 3, which provides the right to life,

and Article 5, which prohibits torture or cruel, inhuman, or degrading treatment or

punishment. Article 30 further stipulates that nothing the UDHR may be interpreted as

implying for any State or group (in this discussion group would refer parties to the conflict)

any right to engage in any activity or perform any activity aimed at the subversion of

provisions such as Articles 3 and 5.

The ICCPR provides a right to life protected by law14

and prohibits torture or cruel, inhuman,

or degrading treatment or punishment.15

The ICCPR also provides the right to recognition as

a person before the law16

equality before the law and entitlement to protection of the law.17

The ICCPR recognises the need for a State to derogate from its obligations in time of public

emergency, which threatens life,18

however clearly stipulates that there can be no such

derogation with regards to Articles 6, 7 and 16.19

According to Capotorti, civil and political rights are capable of immediate realization for the

benefit of individuals by means of the legal systems of the States i.e. the existence of

corresponding provisions in the laws of the State and by the possibility of requesting the

courts to enforce those provisions.20

12 On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights

(UDHR hereafter)

13 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49 (ICCPR hereafter)

14 Article 6 (1) of the International Covenant on Civil and Political Rights, 1966

15 Article 7 of the International Covenant on Civil and Political Rights, 1966 16 Article 16 of the International Covenant on Civil and Political Rights, 1966 17 Article 26 of the International Covenant on Civil and Political Rights, 1966 18 Article 4(1) of the International Covenant on Civil and Political Rights, 1966 19 Article 4(2) of the International Covenant on Civil and Political Rights, 1966 20 Francesco Capotorti, Human Rights: The Hard Road Towards Universality, in R.St.J. Macdonald and Douglas M. Johnston (Editors),

The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory, (The Hague, Lancaster: Martinus Nijhoff Publishers, 1986), p.978

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The African Charter on Human and Peoples’ Rights21

in Article 4 provides a right to life and

prohibits arbitrary deprivation of this right; a further provision for a right to life is stipulated

in Article 20 (1). Incidentally as provided in Article 5 of the UDHR, Article 5 of the African

Charter provides a right to the respect of the dignity inherent in a human being and prohibits

all forms of exploitation and degradation of man22

particularly torture, cruel, inhuman or

degrading punishment and treatment.23

The African Charter further provides equality of all

before the law24

and equal protection of the law.25

The African Charter imposes duties on an individual to ensure the rights and freedoms of

each individual subject to the Charter provisions shall be exercised with due regard to the

rights of others, collective security, morality and common interest.26

The individual shall

also have the duty not to compromise the security of the State who’s national or resident

he(she) is,27

to preserve and strengthen social and national solidarity particularly when

security is threatened.28

The State retrospectively is obligated to recognize Human and

Peoples’ rights and ensure its implementation.29

The African Charter imposes liability on the

State to guarantee the independence of the Courts and established national institutions

entrusted with the promotion and protection of the rights provided.30

It is pertinent to note that within the African Charter no provision has been made for

derogation of rights in time of public emergency.31

Steiner and Alston pointed out that the

African Charter goes well beyond the conventional notion that duties may be correlative to

rights ...................... by defining duties that are not simply the ‘other side’ of individual

rights, and that run from individuals to the State as well as other groups and individuals.32

The Nigerian Constitution provides a right to life and this right shall not be deprived

intentionally.33

The Nigerian Constitution provides an entitlement to respect for the dignity of

21 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986 (African Charter hereafter) 22 The word ‘Man’ is used generally to refer to a human being 23 Excerpts of Article 5 of the African Charter on Human and Peoples’ Rights, 1981, have be taken and used pertinent this paper, please refer to full context of the Article for other purposes 24 Articles 3 (1) & 19 of the African Charter on Human and Peoples’ Rights, 1981 25 Article 3 (2) of the African Charter on Human and Peoples’ Rights, 1981 26 Article 27 (2) of the African Charter on Human and Peoples’ Rights, 1981 27 Article 29 (3) of the African Charter on Human and Peoples’ Rights, 1981 28 Article 29 (4) of the African Charter on Human and Peoples’ Rights, 1981 29 Article 1 of the African Charter on Human and Peoples’ Rights, 1981 30 Article 26 of the African Charter on Human and Peoples’ Rights, 1981 31 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, p.355, 2nd Edition, (Oxford: Oxford University Press, 2000) 32 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, p.355, 2nd Edition, (Oxford: Oxford

University Press, 2000) 33 Chapter IV, Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999

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a person34

and prohibits torture or inhuman or degrading treatment.35

However, the Nigerian

Constitution further provides that the right to life can be deprived36

for the defence from

unlawful violence or for the defence of property;37

or in order to effect a lawful arrest;38

or

for the purpose of suppressing a riot, insurrection, or mutiny;39

or during any period of

emergency.40

A “period of emergency” means any period during which there is in force a Proclamation of a

state of emergency declared by the ruling President41

when there is actual breakdown of

public order and public safety within its sovereignty to such an extent as to require

extraordinary measures to restore peace and security;42

or when there is a clear and present

danger of an actual breakdown of public order and public safety within its sovereignty to

such an extent as to require extraordinary measures to avert such danger;43

and when there is

any other public danger which clearly constitutes a threat to the existence of the Federation.44

Droege noted that most human rights can be derogated from in time of public emergency,

which includes situations of armed conflict.45

It is a common misconception, however, to

dismiss the application of human rights in time of armed conflict, because derogability is

understood as entirely suspending the right.46

However, this is not what international law

says; derogation clauses all limit the possibility for derogation.47

Derogations are only permissible to the extent strictly required by the exigencies of the

situation, provided that such measures are not inconsistent with states’ other obligations

under international law and do not involve discrimination solely on the ground of race, color,

sex, language, religion, or social origin.48

34 Chapter IV, Section 34(1) of the Constitution of the Federal Republic of Nigeria, 1999 35 Chapter IV, Section 34(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 36 Chapter IV, Section 33(2) of the Constitution of the Federal Republic of Nigeria, 1999 37 Chapter IV, Section 33(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999 38 Chapter IV, Section 33(2)(b) of the Constitution of the Federal Republic of Nigeria, 1999 39 Chapter IV, Section 33(2)(c) of the Constitution of the Federal Republic of Nigeria, 1999 40 Chapter IV, Section 45(2) of the Constitution of the Federal Republic of Nigeria, 1999 41 Chapter IV, Section 45(3) of the Constitution of the Federal Republic of Nigeria, 1999 42 Chapter VIII, Part II Section 305(3)(c) of the Constitution of the Federal Republic of Nigeria, 1999 43 Chapter VIII, Part II Section 305(3)(d) of the Constitution of the Federal Republic of Nigeria, 1999 44 Chapter VIII, Part II Section 305(3)(f) of the Constitution of the Federal Republic of Nigeria, 1999 45 Cordula Droege, ‘The Interplay Between International Humanitarian Law And International Human Rights Law In Situations Of Armed

Conflict’, Israel Law Review, Vol. 40 No.2, December 2007, 310-355, Hebrew University International Law Research Paper No. 14-07 46 Cordula Droege, ‘The Interplay Between International Humanitarian Law And International Human Rights Law In Situations Of Armed

Conflict’, Israel Law Review, Vol. 40 No.2, December 2007, 310-355, Hebrew University International Law Research Paper No. 14-07 47 ibid Droege 48 ibid Droege

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Recent armed conflicts and Human Rights violations

The indigenes/communities sitting on the bedrock of oil in the core oil producing Niger Delta

have being involved in some environmental activism or peaceful protests or stakeholder

dialogues where Human Rights violations have been negligibly addressed. However, recent

armed conflicts have claimed very many lives, which apart from indigenes of the

communities’ involved, included indigenes from neighbouring communities and foreign

nationals living and working within the region.

In the Niger Delta, thousands died in mass killings when conflict erupted over control of oil

in the late 1990s and again in 2003 and 2004, much of it involving the Ijaw and Itsekiri ethnic

communities.49

The recent upsurge of armed conflict between

indigenes/communities/militants and government authorities is quite different to the 12 day

revolution of late Isaac Boro50

in 1966 which (has been attributed as the source of inspiration

for some parties to the conflicts) had far less fatalities, or Human Rights violations.

According to Amuta, the “Enemy Militant” who has emerged from the crucible of the sad

picture in the Niger Delta can be distinguished as the numerous armed individuals and groups

who in recent times have converted the entire Niger Delta region into a zone of perennial

instability.51

Amuta further described their activities to include blowing up strategic

installations, engaging each other and security forces in periodic fire fights, kidnapping and

abducting anyone from oil and construction workers to housewives, senior citizens and

hapless children in return for ransom.52

Human Rights Watch visited Koko in September 2003, according to residents, dozens of

militants carried in up to nine speedboats attacked the village from the river without warning

at around four in the afternoon set a building afire and while the house was burning, “the

enemy,” threw four children, aged from around seventeen down to about six, into the fire.53

The well published reports of international observer organizations such as the Human Rights

watch has yielded no significant response from the international community.

49 Amnesty International, ‘Nigeria: Claiming rights and resources Injustice, oil and violence in Nigeria’, Amnesty International Publications, (Oxford: Alden Press 2005), http://www.amnesty.org/en/library/asset/AFR44/020/2005/en/deab5753-d4b6-11dd-8a23-

d58a49c0d652/afr440202005en.pdf 50 Late Major Isaac Adaka Boro in 1966 was one of the founders of Niger Delta Volunteer Force (NDVS) a key militant group involved in recent armed conflicts in the Niger Delta 51 Chidi Amuta, ‘Niger Delta: Paradox of the ‘Enemy Militant’’, The Nigerian Law…A Legal Perspective, 30.05.2009 52 Ibid. Amuta 53 Bronwen Manby, The Warri Crisis: Fueling Violence, Human Rights Watch, Vol.15, No. 18(A) (2003), 2-29

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It is expected that the primary objective of the International Human Rights community in an

armed conflict situation revolves around upholding International Human Rights law to

protect the inherent rights of a person. Although armed conflict situations involving the

international community are usually conflicts between sovereign states within the

international community, non-international conflicts where gross, human rights violations are

perpetuated need to be addressed following lessons from Rwanda.54

The recent conflicts in the Niger Delta has been intrinsically characterised as non-

international armed conflicts or ethnic/political conflicts between non-state actors requiring

state intervention by way of peacekeeping/enforcement within a restricted sovereign state

territory. Peacekeeping is essentially a third party activity, which plays a limited but

important role in the peacemaking process, to keep a peace that has been arranged, or about

to be concluded.55

From a human rights perspective, peacekeeping forestalls violation of

individual rights. Peace enforcement on the other hand is employed to bring about peace by

literally forcing the adversaries in a conflict to the negotiating table when the diplomatic

option has been exhausted via political, economic, or military means.56

Again, from a human

rights perspective, the extent of force necessary for the protection of collective rights as

opposed to individual rights should be of vital consideration.

Since the police killings of oil protesters at Umuechem in 1990, the execution of activists

from the Ogoni ethnic community in 1995, right up to the recent killings and destruction of

homes in the Niger Delta in 2005, the government has frequently responded with excessive

force to demands made by communities.57

An example was the massive shelling of the tiny

Niger Delta community of Odi on November 20

1999.58

Odi was deliberately, systematically completely razed to the ground and the

inhabitants indiscriminately massacred by the rampaging federal occupation forces consisting

of over 1,500 troops heavily armed with machine guns, armored personnel carriers, bullet

proofs, Navy gun-posts, bazookas.59

Despite a return to civilian government in 1999, those

54 The Republic of Rwanda in 1994 was engulfed in an internal armed conflict which resulted gross human rights violations and human fatalities to a genocidal extent 55 ‘Funmi Olonisakin, ‘Reinventing Peacekeeping in Africa, Conceptual and Legal issues in ECOMOG Operations’, p.6, (The Hague:

Kluwer Law International, 2000) 56 Ibid. Olonisakin, p.10 57 Amnesty International, ‘Nigeria: Claiming rights and resources Injustice, oil and violence in Nigeria’, Amnesty International

Publications, (Oxford: Alden Press 2005) 58 Sam Onwuemeodo, ‘Bayelsa Leaders Ask For Judicial Inquiry To Ascertain Truth About Military Invasion’, A Vanguard Report of a

press conference in Port Harcourt, Rivers State, Nigeria, December 7, 1999, speech by Dr Kimse Okoko [Ijaw National Congress] On Odi

Massacre 59 Sam Onwuemeodo, ‘Bayelsa Leaders Ask For Judicial Inquiry To Ascertain Truth About Military Invasion’, A Vanguard Report of a

press conference in Port Harcourt, Rivers State, Nigeria, December 7, 1999, speech by Dr Kimse Okoko [Ijaw National Congress] On Odi Massacre

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responsible for human rights violations under military governments have not been brought to

justice.60

As an extraordinary measure required in a “period of emergency” to restore peace, the

Federal Government of Nigeria adopted peacekeeping/enforcement methods involving

armed response via military/JTF. The JTF was set up in 2004 constituting of soldiers, navy

and paramilitary mobile police (MOPOL), Nigerian police force (NPF) specially drafted to

provide support to armed contingent deployed to Niger Delta, operating out of the David

Ejoor Barracks, Effurun, and Warri Naval Base previously used by a similar task force called

‘Operation Restore Hope’.61

The JTF through facilitating peacekeeping and utilizing peace enforcement where/when

necessary where mandated to restore peace, law and order within the conflict ridden region;

curtail activities of militants and protect individuals within and around conflict affected

communities from being subjected to torture or cruel, inhuman or degrading treatment or

punishment and prevent human fatalities; protect oil facilities and personnel at risk of being

kidnapped or subjected to other human right violations.

In carrying out its expected responsibilities accredited reports of use of excessive lethal force

and incidents of extrajudicial killings, of torture or cruel, inhuman or degrading treatment or

punishment, have been attributed to the JTF. Amuta noted that the JTF has seen the sacking

of the major camps of the militants; however, the collateral damage has produced unintended

casualties and a stream of internally displaced persons.62

Analyzing a catalogue of accredited

reports on activities of the JTF, from a human rights perspective it is incontrovertible that the

JTF intervention has not been efficacious in forestalling human rights violations attributed to

the militants but inadvertently perpetrating comparable human rights violations.

The following accredited reports from international observers tell it all. As direct

consequence of actions of ‘enemy militants’, at least 17 people were reported to have been

killed and two women raped when members of the JTF raided the Ijaw community of

60 Amnesty International, ‘Nigeria: Claiming rights and resources Injustice, oil and violence in Nigeria’, Amnesty International

Publications, (Oxford: Alden Press 2005) 61 Bronwen Manby, The Warri Crisis: Fueling Violence, Human Rights Watch, Vol.15, No. 18(A) (2003), 2-29 62 Chidi Amuta, ‘Niger Delta: Paradox of the ‘Enemy Militant’’, The Nigerian Law…A Legal Perspective, 30.05.2009

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Odioma in gunboats and other vessels.63

Odioma is on the coast of Bayelsa State in the centre

of the Niger Delta region.64

On 4 February 2005, soldiers from the JTF fired on protesters at the Escravos oil terminal on

the coast of the western Niger Delta.65

Bawo Ajeboghuku, a fisherman in his early thirties,

was shot and later died from his injuries.66

At least 30 other demonstrators were injured,

some of them seriously, by blows from rifle butts and other weapons.67

Another attack on 19 February 2005 was ostensibly to arrest members of an armed vigilante

group suspected of killing four local councilors and eight others earlier that month.68

The

suspects were not captured but, over a period of a few days, 80 per cent of homes were razed,

most of them near the waterfront.69

Two of those killed, Balasanyun Omieh, a woman said to

be 105 years old, and two-year-old Inikio Omieye, burned to death and three people were

reportedly shot dead. Many inhabitants fled the violence and did not return mainly because

those whose homes were destroyed had no homes to return to.70

No action is known to have

been taken to determine the number or identity of those killed; to order the exhumation of

graves; to investigate the responsibility of the security forces for deaths, injuries or the

destruction of homes; or to bring to justice those suspected of human rights violations,

Odioma’s victims have been denied justice and redress.71

A paramount traditional ruler Cadbury George Omieh, Igno XXI, Amanyanabo (King) of

Odioma, reported an example of violation of Article 5 of UDHR, "I was told to kneel down

on the beach with some of the chiefs, and their hands were tied behind their backs. Then the

soldiers started beating them with horsewhips, and told us to eat sand." 72

In a more recent incident, in May 2009 20,000 people from several communities of the

Gbaramatu Kingdom, including Okerenkoko and Oporoza of Delta State where trapped in

63 Amnesty International, ‘Nigeria: Claiming rights and resources Injustice, oil and violence in Nigeria’, Amnesty International

Publications, (Oxford: Alden Press 2005) 64 Ibid Amnesty International 65 Ibid Amnesty International 66 Ibid Amnesty International 67 Ibid Amnesty International 68 Ibid Amnesty International 69 Amnesty International, ‘Nigeria: Claiming rights and resources Injustice, oil and violence in Nigeria’, Amnesty International

Publications, (Oxford: Alden Press 2005) 70 Ibid Amnesty International 71 Ibid Amnesty International 72 Wende Gozan and Mila Rosenthal, ‘Ten Years After Saro-Wiwa Execution, New Evidence of Human Rights Violations in Oil-Rich Niger Delta, Says Amnesty International’, (Amnesty International USA Press Release, November 3, 2005)

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the cross fire between the JTF using helicopters equipped with machine guns and armed

groups while hundreds of people including women and children, are believed to have been

killed and injured.73

Implementing Human Rights

The absence of an International government and the recognition of States sovereignty assigns

to individual States the responsibility of enshrining International Law into National Law. As

a result, inter alia absolute rights provided in International Law would vary in interpretation

and implementation in National Law.

International human rights bodies agree that where a state has effective control over a

territory or over a person, their respective human rights law.74

Retrospectively protecting

these rights is the ultimate responsibility of the State. Thus while the UDHR, ICCPR and the

African Charter duly signed; ratified and ostensibly binding upon the Federal Republic of

Nigeria as International Law, its National Law takes precedence. Sieghart noted that if

international human rights treaties obligations are not incorporated in the State’s domestic

law, the courts will be confined to the interpretation, application, and enforcement of the

provisions about human rights to be found in the State’s own domestic legal system.75

The Constitution of the Federal Republic of Nigeria76

establishes its supremacy and binding

force on the authorities and persons within its sovereignty.77

The Constitution incorporates

international human rights provisions however, also integrated derogation clauses that

debilitate otherwise absolute rights provided in international human rights treaties.

An analysis of the perplexity in implementing international human rights law by the JTF can

be drawn from a dualistic approach of the understanding of human rights. The perspective of

advocates of universalism on rights such as the Right to life and the Prohibition of torture or

cruel, inhuman or degrading treatment or punishment is that these rights should be enshrined

and implemented equivocally by all members of the international community. According to

Steiner and Alston, the UDHR adopted as international law in clear universal

73 Amnesty International news report 22 May 2009, http://www.amnesty.org.uk/news_details.asp?NewsID=18217

74 Cordula Droege, ‘The Interplay Between International Humanitarian Law And International Human Rights Law In Situations Of Armed Conflict’, Israel Law Review, Vol. 40 No.2, December 2007, 310-355, Hebrew University International Law Research Paper No. 14-07 75 Paul Sieghart, ‘The International Law of Human Rights’, p.45, (Oxford: Clarendon Press, 1992) 76 Constitution of the Federal Republic of Nigeria, 1999 (the Nigerian Constitution hereafter) 77 Chapter 1, Part I, Section 1(1) & (3) of the Constitution of the Federal Republic of Nigeria, 1999

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terms such as ‘everyone’, ‘all persons’, ‘no one’, make no explicit concession to cultural

variation.78

The push to universalization of norms is said by some relativist to destroy diversity of

cultures and hence to amount to another path toward cultural homogenization in the modern

world.79

Advocates of cultural relativism claim that (most, some) rights and rules about

morality are encoded in and thus depend on cultural context, the term ‘culture’ often being

used in a broad and diffuse way that reaches beyond indigenous traditions and customary

practices to include political ideologies and institutional structures.80

These institutional

structures consists of the legislative system, courts which determine how international

human rights law are enshrined into domestic law; furthermore, law enforcement bodies

which determine the interpretation, application and enforcement of ‘universal’ human rights.

At this point it pertinent to note that the actions or inactions of the JTF in effectively

implementing human rights provision from the relativist perspective is intrinsically as a result

of the interpretation, application and enforcement of human rights required in its precarious

position. Suffice to say then responsibility of the JTF to implement human rights provision

ultimately shifts to the States’ machinery directing its activities and inhibiting redress to the

individuals or group of individuals or communities whose rights have been violated. The

States’ machinery has to decipher between its obligations to protect the collective rights of

people within the region of conflict or people within its territorial sovereignty who are

directly or indirectly victims of human rights violations as a result of armed conflicts.

Sieghart noted that where domestic remedies exist, redress would depend on provision that

such rights are protected by domestic law; the domestic legal system affords a procedure for

such redress; and the preconditions for that procedure are satisfied.81

Here the cultural

diversity variants inter alia that give plausibility to relativism can be drawn from the

complexity of the subjective context of identity athwart domestic legal system and human

rights.

78 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, p.366, 2nd Edition, (Oxford: Oxford

University Press, 2000) 79 Henry J. Steiner and Philip Alston, International Human Rights in Context, Law, Politics, Morals, p.367, 2nd Edition, (Oxford: Oxford

University Press, 2000) 80 Ibid Steiner, pp 366-367 81 Paul Sieghart, ‘The International Law of Human Rights’, p.46-47, (Oxford: Clarendon Press, 1992)

14

The intricacy of diverse perceptions of identity within a multicultural territorial sovereign

state like Nigeria where hegemonic struggle for control of the States machinery

predetermines the efficacy of the domestic legal system in implementing universal human

rights.

The crucial perception of the JTF on ‘what human rights’ or ‘who’ or ‘why’ such rights

should be protected or violated revolve around its optimistic mandate, the domestic legal

system and its quixotic recognition of absolute rights.

In examining, the perception of what human rights should be protected, as established the

Constitution clearly provides for the protection of human rights however also provides for

derogation in a “period of emergency”. Hence a few eggs had to be broken to make an

omelette perception of the JTF irking as it may, is a knock-on effect of previously noted

extant hegemonic struggle for control of the States machinery that determine the efficacy of

the domestic legal system recognising absolute human rights.

The JTF as we have established is tasked with the responsibility to terminate armed

insurgency. The JTF perceptions of whose absolute human rights and why such rights should

be protected, juxtaposes between the quixotic notion of truth and moral values and its

repercussion in terminating armed insurgency. Amuta noted that the greatest handicap of the

JTF in containing the violence in the Niger Delta derives from a basic doctrinal quandary, the

military mindset recognizes only two categories of people: enemy or friend.82

Amuta further

stated that the precise status of the Niger Delta militants is unclear, they are not, strictly

speaking, “enemies” as defined by the laws of warfare; neither are they friends of either the

state or the larger Nigerian society.83

Amuta stated that the actions of “enemy militants” hurt people abridge the fundamental

Human Rights of other citizens (kidnapping for ransom) and infringe on the fundamental

Human Rights of legal aliens to carry out legitimate undertakings.84

Nonetheless, the accredited reports of extrajudicial killings, torture or cruel, inhuman or

degrading treatment or punishment perpetuated by the JTF are clearly in breach of Articles 3

82 Chidi Amuta, ‘Niger Delta: Paradox of the ‘Enemy Militant’’, The Nigerian Law…A Legal Perspective, 30.05.2009 83 Ibid Amuta 84 Ibid Amuta

15

and 5 of the UDHR, Articles 6 and 7 of the ICCPR, Articles 4, 20(1) and 5 of the African

Charter.

Remedies

International human rights bodies that have jurisdiction to hear complaints often limit

themselves to finding facts and issuing declaratory judgements, or recommend that

compensation of an unspecified amount be paid to the claimants.85

However, a retrospective

look at the basic tenets of international human rights law and the concept of marginalizing

initial recourse to remedies for human rights violations in non-international armed conflicts to

the State (in this paper, directly or indirectly party to the Niger Delta armed conflicts hence

vicariously liable) further exacerbates the inherent propulsion of relativism.

Shelton noted that national judges might interpret the procedural and substantive concepts of

remedies to human rights violations differently.86

Shelton further noted that it is essential

that a duty to provide independent remedial institutions and procedures to which victims who

assert an arguable claim that their rights have been violated should be enforced to ensure the

obligation to afford remedies for violations could be fulfilled.87

The question of who is a

victim from a human rights perception is best answered looking into the human rights law

applicable to the human rights violation.

Sieghart noted that the UDHR does not provide international machinery for supervision,

interpretation, application, or enforcement of universal human rights.88

However, the Human

Rights Council complaint procedure89

provides an avenue for communications on human

rights violations to be brought to the attention of the Council provided a factual description of

the alleged violation is submitted by a victim even whereby domestic remedies have not

exhausted it would be ineffective or unreasonably prolonged.90

Sieghart noted that under the ICCPR if no remedy is available within the domestic legal

system, redress through the international procedure will depend on if the State is party to the

Treaty; that Treaty provides an appropriate procedure before an international institution; the

85 Dinah Shelton, ‘Remedies in International Human Rights Law’, p.1, 2nd Edition,(Oxford: Oxford University Press, 2005) 86 Ibid Shelton 87 Ibid Shelton, p.8 88 Paul Sieghart, ‘The International Law of Human Rights’, p.45, (Oxford: Clarendon Press, 1992) 89 The Human Rights Council complaint procedure in pursuant of Council resolution 5/1 consists of the Working Group on Communication

(WGC) designated to assess admissibility and merits of communications and recommendations; the Working Group on Situation (WGS)

examine these communications and recommendations and presents a report to the Council, UN Human Rights Council 90 UN Human Rights Council

16

State has accepted the competence of that institution for that purpose where the treaty

requires this; and the preconditions for that procedure are otherwise satisfied.91

The ICCPR

through reports submitted by States provide supervision, interpretation, application, or

enforcement of the present Covenant.92

In addition to the victim requirement93

in the Mauritian Women’s Case (35/78) and further

confirmed in the case of Poongavanam v. Mauritus (567/93), the Committee established that

a petitioner may claim to be a victim only if he/she is personally affected by the act or

omission which is at issue.94

Exceptionally, a third party may submit the communication on

behalf of a victim; however, a victim must always be involved in the communication.95

The

victim must be a natural rather than an artificial person.96

The African Charter by way supervision requires States to provide reports on interpretation or

application of the present Charter.97

It also provides that anyone may bring a complaint to the

attention of the African Commission on Human and Peoples' Rights98

alleging that a State

party to the African Charter has violated one or more of the rights contained therein.99

Communications to the Commission are sent after exhausting local remedies, if any, unless it

is obvious that the procedure is unduly prolonged.100

Communications must be submitted

within a reasonable period of time.101

It should be noted however that registration of a

communication is no guarantee that it is going to be seized by the Commission102

as this

would depend on the decision of a simple majority of its members.103

The African Charter does not explicitly recognise a victim but the author104

whose

responsibility it is to provide evidence and has the burden of proof.105

The mandate of the

91 Paul Sieghart, ‘The International Law of Human Rights’, p.46-47, (Oxford: Clarendon Press, 1992) 92 Article 40 (1) of the International Covenant on Civil and Political Rights, 1966 93 Article 1 of the Optional Protocol to the International Covenant on Civil and Political Rights, Adopted and opened for signature,

ratification and accession by General Assembly resolution 2200A (XXI) of 16.12.1966, entry into force 23.03.1976, in accordance with Article 9 94 Sarah Joseph, Jenny Schultz and Melissa Castan, ‘The International Convention on Civil and Political Rights, Cases, Materials and

Commentary’, p.41,(Oxford: Oxford University Press, 2000) 95 Ibid Joseph et al., p.41 96 Ibid Joseph et al., p.43 97 Article 62 of the African Charter on Human and Peoples’ Rights, 1981 98 The African Commission on Human and Peoples’ Rights (The Commission hereafter) established in Article 30 of the African Charter on

Human and Peoples’ Rights, 1981; to promote Human and Peoples’ Rights, Article 45 (1) of the African Charter on Human and Peoples’

Rights, 1981 99 The African Commission on Human and Peoples’ Rights, Information Sheet No.3, Communication Procedure 100 Article 56 (5) of the African Charter on Human and Peoples’ Rights, 1981 101 Article 56 (6) of the African Charter on Human and Peoples’ Rights, 1981 102 The African Commission on Human and Peoples’ Rights, Information Sheet No.3, Communication Procedure 103 Article 55 (2) of the African Charter on Human and Peoples’ Rights, 1981 104 Article 56 (1) of the African Charter on Human and Peoples’ Rights, 1981 105 The African Commission on Human and Peoples’ Rights, Information Sheet No.3, Communication Procedure

17

Commission is quasi-judicial and as such, its final recommendations are not in themselves

legally binding on the States concerned and have not laid down procedure to supervise the

implementation of its recommendations.106

The National Human Rights Commission of Nigeria inter alia receives and investigates

complaints from individuals or groups on alleged human rights abuses and often relies on

conciliation or arbitration in the resolution of complaints.107

The NHRCN is mandated inter

alia to protect rights guaranteed by the Constitution, the African Charter, the UDHR, and the

ICCPR to which Nigeria is a signatory; assist victims of human rights violations and seek

appropriate redress and remedies on their behalf; and publish reports on the state of human

rights protection in Nigeria.108

The NHRCN identified torture, extra-judicial, summary and arbitrary executions;

independence of the judiciary and access to justice; and communal conflict and other related

violence amongst its thematic areas of focus.109

The NHRCN stipulates the requirement for

the victim to produce evidence of torture or degrading treatment in order to establish

compliant.110

The NHRCN in pursuance of the protection of the right to life helps to ensure

prosecution of perpetrators through the Attorney General and the Inspector of Police.111

The NHRCN has no publicised accredited reports of investigations into human rights

violations specifically attributed to the JTF or representations on behalf of its victims.

However, the NHRCN recorded a total of 109 complaints received of degrading treatment by

law enforcement agencies between 2004 and 2006; 24 complaints received of extra judicial

killing between 2004 and 2006; and 84 complaints received of threat to life between 2004

and 2006 nationwide.112

106 The African Commission on Human and Peoples’ Rights, Information Sheet No.3, Communication Procedure 107 The National Human Rights Act, 1995, established the National Human Rights Commission of Nigeria (NHRCN hereafter) is a

component of National Human Rights Institutions (NHRIs) which are government bodies established for the promotion and protection of

human rights within their respective jurisdictions. 108 The Mandate of the NHRCN is set out under its functions in Section 5 of the enabling Act 109 The National Human Rights Commission of Nigeria (NHRCN hereafter) 110 NHRCN 111 NHRCN 112 K.F. Ajoni, ‘My Experience In Driving The Mandate Of The National Human Rights Commission Of Nigeria And Challenges Of NHRI’s

In The African Sub Region’, Presented at the Conference for Commonwealth National Human Rights Institutions, (Marlborough House, London, 26-28 Feb 2007)

18

Conclusion

International human rights legislation strives to permeate a common legal standard for

protecting implicit rights of a person. The UDHR, ICCPR and the African Charter as

established, provide universal human rights to life and the prohibition of torture or cruel,

inhuman or degrading treatment or punishment violated during the recent Niger Delta armed

conflict.

The complexity of the intertwining of people from diverse multicultural societies is often

used as the premise on which relativist theories revolve. In other words, understanding of

fundamental human rights by people of diverse multicultural societies would depend on the

interpretation and application into domestic law of diverse multicultural nation states. In the

wordings of international human rights law, the onus is on these diverse states to interpret,

apply, enforce its provisions, and ensure adequate avenue for redress where violations have

occurred. Remedies available within the nation-state vary from one nation-state to another

within the international community depending on the democratic development ensuring the

efficacy of the domestic legal framework, which is not universal.

Within Nigeria’s territorial sovereignty, there are some subjective contexts of identity,

however variant from one individual to another interfuse as individuals interact and are

contextualised in wider subjective context of national identity. These variants of national

identity amongst the diverse multicultural people within Nigeria’s territorial sovereignty

strongly determine the understanding and implementation of fundamental human rights.

Level of democratic development, domestic legal structure, and obligations to international

legislation of diverse nation states within the international community predetermine to a

measurable extent how armed conflict situations are approached and effectively resolved.

Expectedly from a universal human rights perspective adopting alternative measures to armed

conflict resolution such as peacemaking, which begins on a bilateral level and is

fundamentally a diplomatic exercise aimed at achieving a settlement or resolution of a

conflict,113

would probably ensure human rights violations are abridged and victims are able

to seek appropriate redress.

113 ‘Funmi Olonisakin, ‘Reinventing Peacekeeping in Africa, Conceptual and Legal issues in ECOMOG Operations’, p.2, (The Hague: Kluwer Law International, 2000)

19

However, in its approach to the Niger Delta conflict the federal government of Nigeria has

continuously adopted peacekeeping/enforcement measures culminating in its recent

establishment of the JTF as its effective method to resolve the crisis. Core universal human

rights provided by international law such as the ICCPR recognise the need for a State to

derogate from its obligations in time of public emergency, which threatens life.114

Reverting

to the mandate of the JTF, the Constitution of Nigeria provides a single code of legal rights

and duties adhered to by law enforcement agencies, hence during a period of emergency,

human right provisions protected by the domestic legal structure take precedence.

Accepted the conception of human rights and victims whose rights have been violated in the

recent Niger Delta armed conflict vary within the nation-states territorial sovereignty,

nonetheless the gravity of the human rights violations reported unequivocally falls below

fundamental human rights standard within and beyond. As previously noted redress for

violation of international human rights provision is initially reverted to the state; victims are

expected to exhaust all options provided by the domestic legal structure. The JTF is an

offspring of the nation-states machinery; the very nation-state expected to provide

independent remedial institutions and procedures for victims who assert an arguable claim

that their rights have been violated. 115

Thus, the diversity of nation-states actions or inaction

involving its institutions would run parallel to the universality of human rights or a common

legal standard for protecting implicit rights of a person.

The debate between universalism and relativism concentrates on the content of international

human rights legislation or its interpretation or application in domestic law, never on the

means itself.116

Nation-states are both creators and parties to international lawmaking hence

have not and would not tend to create universal or local structures that bypass their level of

control.117

Yes relativism when taken to the extreme is a threat to international human rights law

however, relativism checks the irregularities of an utopian attempt towards a universal legal

framework in a world and time where a confluence of distinctive perceptions of identity from

114 Article 4(1) of the International Covenant on Civil and Political Rights, 1966 115 Dinah Shelton, ‘Remedies in International Human Rights Law’, p.8, 2nd Edition,(Oxford: Oxford University Press, 2005) 116 Sophie M. Clavier, ‘Human Rights and the Debate Between Universalism & Cultural Relativism’, San Francisco State University, c/o

Center For Interdisciplinary Programs, http://userwww.sfsu.edu/~sclavier/research/hrdebate.pdf 117 Ibid Clavier

20

diverse multicultural backgrounds must adopt solutions to its conflicts within its territorial

sovereignty.

Analysis of the diversity within Nigeria’s territorial sovereignty, the Niger Delta armed

conflict situation involving the JTF and approach to international human rights highlights the

intricate probability of effective universality of human rights or a common legal standard for

protecting implicit rights of a person.

This proposition of relativism does not serve to perpetuate human rights violations but

establishes that without an effective international government to ensure universal

interpretation, application, and enforcement of international human rights law, universalism

would remain an aspiration for its advocates within the international community.

21

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