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Prosecuting Terrorist offenders in Nigeria: A Human Right Perspective

by Chioma Angela Okeke

Introduction

Terrorism is a global phenomenon,[1] with devastating consequences for the enjoyment of human rights.[2] It can jeopardise peace and security, threaten social and economic development, and undermine civil society.[3] Thus, there have been calls, including the Security Council Resolutions on State Parties to ensure that ‘any person who participates in the financing, planning, preparation or perpetration of terrorist acts or who supports terrorist acts is brought to justice’.[4] States, however, do not find the ordinary criminal justice system with its delicate balances between respecting the rights of the individuals and preserving public order effective enough in responding to terrorism.[5]  They, therefore, have adopted measures which pose serious challenges to the human rights of terrorist offenders. They justify derogating from human rights principles for public safety and emergency,[6] and have engaged in torture and ill-treatment;[7] continued detention;[8] and extrajudicial killings.[9]

This essay adopts a human rights approach into presenting an overview on the challenges of human rights and the rule of law in the trial of terrorist offenders, and it is divided into three sections. Flowing from this introduction, section one shall describe the concepts of human rights and terrorism, and further, explains the impact of terrorism on human rights. Section two shall address firstly, the different approaches to the treatment of terrorist offenders. Secondly, it shall discuss specific human rights principles triggered off by the prosecution of terrorist offenders, and highlight the role of the judge, prosecution, and defense counsel in upholding these human rights principles. Finally, this section shall examine the flexibility built into human rights to aid in striking a balance between the human rights of terrorist offenders and the rights of the public to safety.

Section three focuses on the prosecution of terrorist offenders in Nigeria. It states briefly, Nigeria’s legal framework on terrorism and human rights. It further, with the aid of facts within this writer’s knowledge[10] and scholarly works, discusses the extent to which practices regarding to the prosecution of terrorist offenders pose a threat to their human rights, and conclude by stating that although, Nigeria, like many States, may justify derogations from human rights principles with respect to terrorist offenders, States should employ appropriate measures to ensure such derogations are in accordance with the conditions specified by relevant laws.[11]

Section 1: Human rights and Terrorism: Background and Definitions

1.1: Human Rights

Human rights are legal guarantees and universal values that protect an individual or group against acts and omissions, which interfere with human dignity, freedom, and entitlements.[12] They are basic rights inherent to all human beings, whatever our language, nationality, sex, religion, or any other status.[13] The international human rights law is enshrined in several human rights treaties[14] but they are not limited to those guaranteed under the treaties. They also include those rights and freedom that have assumed part of the customary international law, which binds all states irrespective of whether they are parties to a treaty.[15] Also, some rights are recognised as norms of jus cogens, meaning that there are no circumstances whatsoever in which derogation from them is allowed. Examples are prohibitions of genocide,[16] torture,[17] slavery,[18] racial discrimination and crimes against humanity,[19] and the right to self-determination.[20] However, although human rights should be inalienable, some human rights may be taken away, subject to conditions specified by the law.[21] For example, the right to liberty of a person may be restricted if a court of law finds such a person guilty of a crime.[22]

1.2: Terrorism          

Terrorism is a contested concept,[23] and one of the organized crimes that have plagued the world, and continues to represent one of the greatest global challenges to international peace, stability, and security.[24] Although there is no generally accepted definition of terrorism,[25] this seems not to present a legal challenge to practitioners since there are a comprehensive set of international laws on the subject.[26] The Security Council’s definition of terrorism as, ‘criminal acts, including against civilians committed with the intent to cause death or serious bodily injury … with the purpose to provoke a state of terror in the general public  …’, is neither binding nor have legal authority.[27] According to the Federal Bureau of Investigation of the United States of America, terrorism is the ‘unlawful use of force and violence to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives’.[28] Any person who participates in the financing, planning, and perpetration of terrorist acts, is deemed to be a terrorist offender.[29]

1.3: The Impact of Terrorism on Human Rights

Terrorism aims at the destruction of human rights,[30] with a direct impact on its enjoyment.[31] It is one of the greatest violators and threats to human rights,[32]and attacks the very values that lie at the heart of the United Nations Charter, and other international instruments.[33] It destabilises a Government, causing anarchy and chaos in different parts of a State. Further, it threatens the dignity and security of innocent citizens, adversely affect the establishment of the rule of law, and the social and economic development of a State.[34] These destructive impacts on human rights have been recognized at the highest level of the United Nations, by the Security Council, the General Assembly, the former Commission on Human Rights, the new Human Rights Council etc.[35] It is, therefore, imperative that States take all necessary and appropriate steps to safeguard the lives of those within their jurisdiction.[36]

Section 2: The Relationship between Terrorism and Human Rights.

2.1: Approaches to the Treatment of Terrorist Offenders vis-à-vis Their Human Rights

The relationship between terrorist offenders and human rights raises the issue on the formulation the relationship should take in the fight against terrorism. Different approaches to this relationship issue shall be examined.

2.1.1: Right-based approach

 The proponents of this approach argue that where authorities ignore procedural and rights safeguards while responding to threats of terrorism, it would be to equate actions of the state to that of the terrorists, and consequences that are counterproductive may result.[37] Such actions of the authorities will, instead of reducing the level of violence, increase it even to the extent of radicalising groups.[38] For instance, in response to the Boko Haram Terrorist attacks, the Nigerian government captured the Boko Haram’s leader, Mohammed Yusuf, handed him over to the police for interrogation.[39] Yusuf was not prosecuted but was allegedly killed extra-judicially.[40]  This counter-terrorism measure adopted, was targeted to suppress the group, unfortunately, this won them more followers and sympathizers.[41] This approach have also been criticised as giving human rights a higher status, with scant attention to security,[42] and assumes human rights are indispensable in the fight for security.[43]

2.1.2: Criminal justice approach

 This approach is retributive and presupposes that the best response to a crime is a proportionate punishment.[44] States usually, claim the monopoly to use force within their territories.[45] So, persons who use force against other people or the authority have no right to do so, and States regard their actions as criminal. Terrorists’ offenders fall within such classes of persons, and States have often felt justified in treating them in disregard of their fundamental human rights.[46] Thus, they often employ all means at their disposal in the fight against terrorism.[47] The proponents of this approach, in fact, perceive themselves as the true defenders of human rights.[48] They even suggest that the no concession doctrine should be used in dealing with terrorist offenders as giving in to terrorist demands tends to encourage another terrorist to believe that violence pays.[49] For instance, detaining alleged terrorists in Guantanamo Bay was seen as helping to prevent future terror attacks on the United States while the human rights activists perceive this as a violation of international law.[50]

2.3: Rule of law based criminal approach

This approach combines the right-based approach and the criminal justice approach. The UN has advocated for the rule of law-based criminal approach to terrorism.[51] International and regional organizations have also formally affirmed the importance of respecting the rule of law and human rights in preventing terrorism.[52] States are obliged to respect the right to life, liberty, and security of persons, thus they should prosecute and punish terrorist offenders in a manner that is consistent with the promotion and respect of human rights.[53] However, practical challenges may arise with this approach. For example, what happens where terrorist offenders standing trials, engage in acts of violence? How can a balance be struck between their right to be tried, or continue their trial and the right of the public to safety? In effect, what options are available where both rights contradict. Before the modifications introduced into the law to achieve the appropriate balance between these two rights are examined, the next part shall highlight the specific human rights principles triggered off by the prosecution of terrorist offenders and the roles of key actors in upholding these rights.

2.4: Specific Human Rights of a Terrorist Offender under Trial

Every person charged with any criminal offense, terrorist offenders inclusive, should have access to a fair and public trial by a competent, independent, and impartial tribunal or court established by law.[54] These rights are conveniently classified into three groups, and they are:

1.Fair and Public Hearing: The right to a fair trial is one of the fundamental guarantees of human rights.[55] Many universal terrorism-related conventions require compliance with this right.[56] This right is linked to the enjoyment of other rights, such as rights against torture or other ill-treatment, right to life, and it is one of the most contentious human rights issues in respect to terrorist offenders.[57] Although this right is not listed as a non-derogable right under the ICCPR, article 4, the Human Right Committee (HRC) accords this right the elevated status of being a peremptory norm of international law.[58] Thus, ‘States parties may in no circumstances invoke article 4 of ICCPR as justification for acting in violation of humanitarian law …, for instance by deviating from fundamental principles of fair trial…’[59] It further notes that the principles of legality and rule of law require that fundamental requirements of fair trial be respected during a state of emergency.[60]

The essential elements of fair hearing include presumption of innocent unless proven guilty,[61] equality of arms between the parties to a criminal proceeding, equality of all persons before the court,[62] the privilege against self- incrimination,[63] respect for the dignity of human persons, adequate opportunity to prepare a case,[64] present argument, examine witnesses,[65] and challenge opposing arguments.[66] It also includes right to legal representation,[67] presence during trials,[68] the assistance of an interpreter if necessary, right to have one’s case determined within a reasonable time,[69] and to appeal to a higher court.[70] The court should also discharge and acquit the suspects where the case of the prosecution do not establish guilt and suspect convicted, where guilt is established. The right to a public hearing is a qualified right and entails having all necessary information about the sitting of court public, and the right of the general public to watch proceedings. The public and the media, however, may be excluded from hearings in the interest of justice, for public order or national security.[71]

2. Right to be heard by a competent, independent, and impartial court established by law:[72] This right presupposes that the tribunal must be established by the law. Secondly, that the tribunal is competent. That is, having judicial officers of suitable qualifications and experience, who can make binding decisions. Thirdly, that the tribunal is independent and impartial. The HRC has repeatedly stated that the right to an independent and impartial tribunal is ‘an absolute right that may suffer no exception’.[73] Independence refers to the individual judge as well as to the judiciary and applies to all judicial proceedings.[74] It means the freedom of judges in a judicial system to decide matters before it in accordance with its impartial assessment of the facts without any improper influence, inducement, threats, pressure, directly or indirectly from anywhere [75] In determining whether a court or tribunal is independent, the appointment procedures, tenure, removal, and remuneration of the judges must be taken into consideration.[76] An independent tribunal is more likely to administer justice fairly and credibly and ensure the confidence of the public in the quality of its decision.[77] Impartiality entails that judicial officers exercise their functions without personal prejudice, bias, or preconceptions about the particular case before them.[78]

A more controversial aspect of this right has been the intervention of military and special courts in hearing cases related to terrorism. The HRC calls for the prohibition of ‘the trials of civilians by military tribunals in any circumstances, except where it is unavoidable.[79] The High commissioner for Human Rights stressed further the need to strengthen the regular courts to meet the challenges of trying terrorist cases rather than establishing special courts.[80] The reason being its lack of legal training and capability to try cases involving human rights violations, lack of a system for appeal procedure, lack of adequate mechanisms for redress, lack of public trials, no assurances on the impartiality and independence of the judges etc.[81] Civil courts is argued, can effectively adjudicate on terrorism-related cases without compromising constitutional rights, or causing harm to national security,[82] however, they are not without their limitations. These limitations are manifest in the use of the beyond-a-reasonable-doubt standard, stricter standard on use of evidence obtained under coercive interrogations,[83] disclosure of classified information.[84] On the other hand, those who advocate for the prosecution of terrorist offenders in military tribunal argue that these offenders should be treated as enemy combatants, not common criminals.[85] Whichever argument is accepted, however, the court with the jurisdiction to try these terrorist offenders should uphold human rights and rule of law principles.

3.Right of access to justice: This right includes the right to seek and obtain effective remedies and reparation[86] for acts violating the rights granted by the Constitution.[87] This right is available to all person, who find themselves within the territory or jurisdiction of a State, regardless of their nationality or status.[88] This means that persons accused of acts of terrorism must always have access to judicial proceedings in the determination of the person’s rights and obligations. For instance, under article 9 (4) of ICCPR, all detained persons (terrorist suspects inclusive) have the right to apply to the court to compel the detaining authorities to provide detailed and accurate information regarding the conditions of the suspect’s detention or to produce the detainee suspect before the court. Thus, a terrorist offender, whose rights, including the right to fair trial are violated, the State should ensure such a person is provided with an effective remedy.[89] These remedies may come in form of order for retrial or compensation.[90]

2.5: The Role of Court actors in upholding the Rights of a Terrorist Offender Under Trial

 2.5.1: Role of the presiding judge

The courts play a pivotal role in promoting the rule of law and human rights while the trial of terrorist offenders subsist. It is detrimental to any criminal proceedings when a judge has made up his mind that the suspect is guilty as charged even before taking and analysing evidence. The right to trial by an independent and impartial tribunal is central to the due process of law, and judges should disqualify themselves from presiding over any matter where this right has been compromised. The trial judge should ensure the observance of the equality of arms between the defense and the prosecution,[91] and that trials are conducted orally and publicly, except for reasons of morals, public order, national security etc.[92] The principle of equality of arms ensures that each party, without being disadvantaged, is afforded a reasonable opportunity to present its case should be observed.[93] This principle by extension, includes the right to legal counsel, the right to be present at the trial, and the right to call and examine witnesses.[94]The terrorist offenders should not be compelled to testify against himself or to confess guilt,[95] and should have the right to appeal.[96]

2.5.1.1: Who should prosecute and before which court?

Although terrorism is a threat to international peace and security, prosecution of terrorism-related matters does not fall within the jurisdiction of the international criminal court, but under the national criminal justice system.[97] Therefore, criminal justice response is basically framed by national laws, which must be consistent with the international law in the related area. Terrorism has been argued to have political motives, and therefore needful for authorities outside the State to handle terrorist offences.[98] Such external authorities may be the International Criminal Court, UN Security Council, or a third-party State operating under

universal jurisdiction.[99] This argument for the prosecution of terrorist offenders by external authorities is to prevent these offenders from being shielded from justice by the State that sponsored the terrorist acts.[100] In such instance, States may be required to extradite such offenders for trials by external authorities.[101]

2.5.2: Role of the Prosecuting Counsel

The effective prosecution of terrorist offences, wherever they are committed and wherever the perpetrator takes refuge, is crucial in order to deny safe haven to the perpetrators of such crimes.[102] Prosecution services also play important roles, and without their commitment to human rights and to upholding the rule of law, the criminal justice system and governing institutions risk losing credibility and moral authority.[103] Prosecutors, in contributing and ensuring due process and the smooth functioning of the criminal justice system must perform their duties in accordance with the law. They must act fairly, expeditiously, consistently, respect and uphold human rights. [104]

Prosecutors must remain vigilant, ensuring that the actions of the police, corrections and other law enforcement authorities are lawful and respectful of human rights. They should bring to the attention of the courts any instance of unlawful or corrupt behaviour by agents of the State or other officials in positions of authority and vigorously prosecuting such offenders to the full extent of the law. [105] The universal instruments against terrorism provide necessary mechanism for extradition and mutual legal assistance that enable national authorities to cooperate with each other to ensure that there are no safe havens for terrorist suspects shielding them from prosecution.[106] Such international cooperation mechanism may come in form of extradition, transfer of proceedings in criminal matters, transfer of prisoners, international cooperation for the purposes of confiscation of criminal proceeds and asset recovery.[107]

2.5.3: Role of the Defence Counsel

Defence counsel, like the prosecution, is a priest in the temple of justice, and therefore must conduct their case with all due diligence. They should advise the suspects as to their legal rights and obligation, and assist them in every appropriate way. They should raise objections when appropriate and make applications where necessary. They should conduct their cases without undue delay, and observe all the guarantees necessary for the defence of the terrorist offender.[108] A defence counsel may, if necessary, apply to expunge illegally obtained evidence during a trial.

2.6: Striking a Balance between the Rights of Terrorist Offenders and the Rights of the Public.

As earlier stated, States have an obligation to protect the public from terrorist acts and to bring to justice persons who prepare, assist, or commit acts of terrorism.[109] On the other hand, terrorist offenders have their rights. This part, therefore, examines the flexibility built into human rights, which aims at striking a balance where the human rights of terrorist offenders and the public conflicts. The human rights framework is not rigid nor inflexible in the face of extraordinary dangers, and a complex derogation jurisprudence has developed to balance rights against the imperative needs of security. [110] The State, however, find their way in dealing with those complex circumstances. For example, in exceptional circumstances, like in case of national security, public emergency[111], public order, public property, public health etc, a State may lawfully impose some restrictions upon the enjoyment of certain human rights. Any derogation by State must be as required by the exigency of the situation.[112]

General comment No 29[113] of the HRC engages the issue of states of emergency in detail. Though States may suspend some rights in such states of emergency, ‘it is not a “blank check” for State action or inaction.[114]They may legitimately, subject to certain conditions, limit the exercise of certain rights, including the right to respect for one’s private and family life, the right to freedom of expression, the right to freedom of movement, the right to freedom of association and assembly.[115] These conditions are that the limitations must be prescribed by law, be in pursuance of one or more specific legitimate purposes, and is necessary and proportionate.[116] A terrorist offender has the confidentiality right to his counsel, but this may be restricted sometimes in regard to the arrangements for access to and contacts with counsel, counsel’s access to the case file and the use of anonymous testimony. [117] A security clearance system for lawyers who will have access to special files or information may be established.[118] Again, the right of the terrorist offender to a public hearing may be restricted if necessary and proportionate, in the interest of public peace and security.[119]

Further, States may employ the use of ‘faceless judges’ (anonymous judges) where necessary, for the protection of the judges due to threats to their security caused by terrorism.[120] For instance, in 1985, some members of the Columbian judiciary were seized and murdered by the M-19 guerrilla group.[121] Again, a terrorist offender may be tried in absentia in some exceptional circumstances, like where he or she absconds,[122] or if it is in the interest of justice.[123] However, such trial must be in strict observance of the rights of the defence,[124] and the State has the burden of proving that all reasonable step were taken to inform the defendant of the charges and details of proceedings.[125] Also, although the prosecution should disclose all information and evidence relating to a particular case based on the principle of equality, such disclosure may be restricted in the interest of national security,[126] protection of witnesses,[127]the present for investigative safeguards.[128]

Section 3: Prosecuting Terrorist Offenders in Nigeria: The Legal Framework and Practices vis-à-vis their Human Rights.

3.1: The Legal Framework on prosecuting Terrorist Offenders and their Human Rights

3.1.1: Human Rights Legal framework

Most of the human rights principles discussed under the international regime are protected under the Constitution of the Federal Republic of Nigeria 1999 (1999 Nigerian Constitution) and other laws.[129] Chapter IV of this Constitution prescribes all the fundamental rights of every Nigerian citizen, while section 36 of the chapter, specifically, provides for the right to fair hearing.  Under this section, every person (by extension, terrorist offenders also) charged with a criminal offence shall be entitled to a fair hearing in public within a reasonable time by a court or tribunal.[130] The judge may also exclude the public, but not parties or their legal practitioners in the interest of defence, public safety, public order etc.[131] The terrorist offender should also be  presumed innocent until proven guilty,[132] be informed promptly in the language he understands the nature of the offence,[133] be given adequate time and facilities to prepare his case,[134] examine witnesses,[135] and defend himself in person or by a legal practitioner of his own choice.[136] The Nigerian Constitution further protects offender from being compelled to give evidence at the trial,[137] or be tried twice for the same offence,[138] or be tried for an offence for which the offender has been pardoned.[139]

3.1.2: Terrorism Legal Framework

Terrorist activities in Nigeria are criminalised, and penalties prescribed under the Terrorism (Prevention) Act 2011 (TPA), which was later amended in 2013 as the Terrorism (Prevention) (Amendment) Act, 2013 (TPAA).[140] These two laws shall collectively be referred hereinafter as the TPAA. Before the enactment of these two laws, Nigeria has been a signatory to many international conventions on terrorism,[141] and human rights.[142] The TPAA recognises various categories of persons as terrorist offenders. They are those who involve in terrorist meetings,[143] those who provide personal or corporate support,[144] those who habour offenders,[145] those who train offenders,[146] and those who obstruct terrorism investigations.[147] In effect, the TPAA criminalises all forms of conspiracy and criminal associations involved in acts of terrorism.[148]

Under the TPAA, the Attorney-General of the Federation (AGF) has the responsibility to ensure the effective prosecution of terrorism matters,[149] while the office of the National Security Adviser (ONSA) is the coordinating body for all security and law enforcement agencies in matters relating to terrorism.[150] The AGF may delegate his power to any agency charged with the responsibility of terrorist investigation to institute criminal proceedings.[151] The jurisdiction to try and punish terrorist offences ‘whether or not the offence was committed in Nigeria and completed outside Nigeria’, is vested in the Federal High Court,[152] which may adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters.[153] The TPAA has generated concerns from human rights activists as some aspects are perceived as constituting serious threats to some of the fundamental human rights enshrined under chapter IV of the 1999 Nigerian Constitution.[154] For example, the TPAA gave very broad and sweeping powers to intelligence and security operatives without judicial oversight.[155] Again, the wide powers conferred on the government under section 2, to proscribe organisations are considered capable of being abused, especially in declaring opponents as terrorists.

3.2: Prosecuting Terrorist Offenders and its Human Rights Challenges

The ACJA[156] applies to criminal trials for offences established by an Act of the National Assembly, and other offences punishable in Abuja, the Federal Capital Territory.[157] Terrorism is an offence established by TPAA, an Act of the National Assembly, thus, the prosecution of terrorist offenders in Nigeria is regulated by the ACJA.[158]  The ACJA has very detailed provisions on criminal trials, however, in practice, prosecuting these offenders is faced with several challenges.[159] These challenges include lack of cooperation from those who should furnish relevant information, lack of transparency of investigation, lack of competent and committed defence counsel, lacunas in the law, jurisdictional problems, the high cost of investigation and prosecution etc.[160] Due to these challenges and the threats posed by terrorist activities to national peace, safety and security, many of these terrorist offenders are not prosecuted, but are extra-judicially killed,[161] and these killings without proper trial have in fact infringed on their right to fair trial, and other related rights.

In some instance, the security agencies constituted themselves into court of laws; trying and executing suspects,[162] thereby violating the offenders’ rights to a public hearing. They also infringe on their rights to dignity of persons[163] by engaging in all forms of torture, cruel treatment and other human or degrading treatment or punishments,[164] while terrorist offenders are in detention during their trial.[165] These offenders also have the right to be heard by a competent, independent, and impartial court established by law. The qualifications and appointments, [166] independence and impartiality of the judges of FHC are guaranteed under the Constitution.[167] Unfortunately, this right to an independent and impartial judge falls within the fundamental objectives, which are non-justiciable.[168] Again, these offenders are entitled to be tried within a reasonable time, and the TPAA empowers the FHC to refuse to entertain applications for stay of proceedings,[169] yet these offenders still face delays in trials.[170] These delays from experience, are often due to the incessant filing of frivolous applications and interlocutory appeals by counsel, or the non-appearances of either the prosecution, defence, or the presiding judge.

In 2015, this writer witnessed alleged gang members of the terrorist offenders under trials invading the court premises and shooting sporadically, leaving a prison official dead. These acts of violence by these terrorist offenders or their gang members during court proceedings have caused the judiciary to employ armed security operatives to guard the court.[171] Where these armed security operatives are not available, the court often adjourns pending their availability, and this may cause delays in the trial. Further, the law requires that confessional statements tendered by the prosecution in proof of guilt must be voluntary,[172] however, there has been frequent use of involuntary confessions obtained by way of torture and coercion as evidence in trials.[173] This is the reason in most trials of terrorist offenders, courts conduct trials within trials to ascertain the voluntariness of the confessional statement,[174] and from experience, most are involuntary.

Conclusion

No doubt terrorism has a devastating effect on the enjoyment of the human right, and those who indulge in such heinous crime must be brought to justice. The national, regional, and even, international human rights legal framework have guaranteed criminal offenders, including terrorist offenders, certain rights. These rights of terrorist offenders, however, should be weighed against other rights, like the right of other citizens to safety. The attempt in balancing these two rights was made by exploring options available within the human rights framework.

Nigeria was used as the case study to show how these two rights play out, and reasons States offer to justify their acts of derogating from rights of terrorist offenders.  It has also shown that prosecuting terrorist offenders in Nigeria affects constitutionally enshrined rights of individuals, and generally human rights. The imminent question is whether to forfeit human rights while prosecuting terrorist offenders. The obvious answer is no, because suspending human rights amount to suspending the constitution, and invariably the enjoying one’s right. Therefore, human rights principles, especially right to fair trial procedures should be observed while prosecuting terrorist offenders, and any derogation should be in accordance with the requirement of the law.

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  • General Assembly Resolutions A/46/825, S/23306, 31 December 1991; and Security Council Res No 748, UN Doc No S/RES/748 at 1 (1992)
  • General Assembly Resolutions on Measures to Eliminate International Terrorism (resolution 49/60)
  •  Human Rights Committee, general comment N° 31
  • Human Rights Council Resolution 6/28
  • Human Rights Council Resolution on the protection of human rights and fundamental freedoms while countering terrorism 2008
  • Security Council Resolution 1373 (2001)
  • Security Council Resolution 1566, Threats to International Peace and Security caused by Terrorists Acts 2004
  • Security Council Resolution No 748, UN Doc No S/RES/748 at 1 (1992)
  • Security Council Resolution SC 731 21 January 1992
  • Security Council, Resolution 1373 (2001), adopted on 28 September 2001 pursuant to Chapter VII of the Charter of the United Nations
  • Human Rights Committee Resolutions 2001/37 and 2004/44.
  • Human Rights Committee, views on communication N° 859/1999

Websites

. Richard B. Zabel and James J. Benjamin Jr, ‘In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts: 2009 Update and Recent Developments’ (July 2009) <www.humanrightsfirst. org/pdf/090723-LS-in-pursuit-justice-09-update.pdf> accessed 30 March 2017

[1] Daniel O’Donnell, ‘International Treaties Against Terrorism and the use of Terrorism During Armed Conflict and by Armed Forces’ (2006) 88 (864) International Review of the Red Cross 854.

 

[2] Office of the United Nations High Commissioner for Human Rights (OUNHCHR), ‘Human Rights, Terrorism and Counter-terrorism Fact Sheet No. 32’ 1<www.ohchr.org/Documents/Publications/Factsheet32EN.pdf> accessed 7 April 2017.

 

[3] ibid.

 

[4] Security Council, Resolution 1373 (2001), adopted on 28 September 2001 pursuant to Chapter VII of the Charter of the United Nations.

 

[5] Counter-Terrorism Committee Executive Directorate (CTED) Practitioner’s Seminar, ‘The Role of the Prosecutor in Terrorist Cases’ (Algiers, 5-7 June 2012) 3 < http://www.un.org/en/sc/ctc/docs/2012/2012-06-prosecutor-terroristcases-algiers.pdf> accessed 29 March 2017.

 

[6] International Covenant on Civil and Political Rights (ICCPR), art 4.

 

[7] Ruth Blakeley, ‘Why Torture?’ (2007) 33(3) Review of International Studies 381.

 

[8] Deborah Pearlstein, ‘Detention Debates’ (2012) 110 (6) Michigan Law Review 1045.

 

[9] See generally David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 (2).

[10] This writer has been a staff of the Nigerian judiciary for 10 years.

[11] (n 6).

 

[12] OUNHCHR (n 2) 3; Charter of the United Nations, Art. 55 (c), Universal Declaration of Human Rights (UDHR), art. 2.

[13] Ankit Gautam, Human rights, and Terrorism: An overview’ (2015) 2 (1) International Journal of Multidisciplinary Research and Development 421.

 

[14] Some of them are International Covenant on Economic, Social and Cultural Rights; ICCPR and its two Optional Protocols; Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol; Convention on the Elimination of All Forms of Racial Discrimination; Convention on the Rights of the Child and its two Optional Protocols; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol.

 

[15] Most Universal Declaration of Human Rights (UDHR) hold this character.

 

[16] The Genocide Convention, 1951, art 1.

 

[17] Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT).

 

[18] UDHR, art 4; ICCPR (n 12), art 8.

 

[19] ICCPR (n 6), art 10.

 

[20] OUNHCHR (n 2) 4.

 

[21] ICCPR, art 4.

 

[22] OUNHCHR (n 2) 23.

 

[23] Alex Schmid, ‘The Revised Academic Consensus Definition of Terrorism’ (2012) 6(2) Perspectives on Terrorism 158.

[24] Edwin Bakker, Terrorism and Counterterrorism Studies (Leiden University Press, 2015) 23.

 

[25] Jessie Blackburn, ‘The evolving definition of terrorism in UK law’ (2011) 3(2) Behavioral Sciences of Terrorism and Political Aggression 131.

[26] International Convention for the Suppression of Acts of Nuclear Terrorism 2005; International Convention for the Suppression of the Financing of Terrorism 1999 (ICSFT 1999); Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963; Convention for the Suppression of Unlawful Seizure of Aircraft 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation1971; International Convention against the Taking of Hostages 1979.

 

[27] Ben Saul, ‘Definition of “Terrorism” in the UN Security Council: 1985-2004’ (2005) 40(1) Chinese Journal of International Law 141.

 

[28] Office of Justice Programs, ‘Terrorism’ (March 23 2017) <www.nij.gov/topics/crime/terrorism/Pages /welcome.aspx> accessed 23 April 2017.

 

[29] The Security Council, in its Resolution 1373 (2001), adopted on 28 September 2001 pursuant to Chapter VII of the Charter of the United Nations

 

[30] (n 2) 7.

 

[31] ibid.

 

[32] Ankit Gautam (n 13).

[33] ibid.

[34] ibid.

 

[35] Security Council resolutions 1373 (2001) and 1377 (2001); General Assembly resolutions 48/122, 49/185, 50/186, 52/133, 56/160 and 58/174, as well as its Declaration on Measures to Eliminate International Terrorism (resolution 49/60); Human Rights Council resolution 6/28 and its recent resolution on the protection of human rights and fundamental freedoms while countering terrorism (28 March 2008); Commission on Human Rights resolutions 2001/37 and 2004/44.

 

[36] Human Rights Committee, views on communication N° 859/1999, Luis Asdrúbal Jiménez Vaca v. Colombia, 25 March 2002 (A/57/40 (vol. II), annex IX, sect. W, para. 7.3.

 

[37] See generally Boniface Ewulum, ‘Terrorism and human Rights Protection: Nigeria Perspective’ (2015) 37 International Affairs and Global strategy

 

[38] ibid.

 

[39] Boniface Ewulum (n 32) 66.

[40] ibid.

 

[41] ibid.

 

[42] B Duner, ‘Disregard for security: The Human Rights Movement and 9/11’ in M Ranstorp and p. Wilkinson(eds) Terrorism and human rights (Routledge 2008).

 

[43] ibid.

 

[44] See generally Robert Imre and Brian Mooney, ‘Responding to Terrorism: Political, Philosophical and Legal Perspectives (Routledge, 2008).

 

[45] Colin Warbrick,’The European Response to Terrorism in an Age of Human Rights’ (2004) 15(5) The European Journal of International Law 990.

 

[46] ibid.

 

[47] OUNHCHR (n 2) 17.

 

[48] Conor Gearty, ‘Terrorism and Human Rights’ (2007) 42(3) Government and Opposition 351.

 

[49] Carolin Goerzig, Talking to Terrorists: Concessions and the renunciation of violence (Taylor and Francis 2010) 136.

 

[50] See generally Alfred de Zayas, ‘Human Rights and Indefinite detention’ (2005) 87(857) International Review of the Red Cross.

 

[51] UN, ‘Handbook on Criminal justice Responses to terrorism’ (2009) 1<https://www.unodc.org/ documents/terrorism/Handbook_on_Criminal_Justice_Responses_to_Terrorism_en.pdf> accessed 30 March 2017.

 

[52] Inter-American Convention against Terrorism, art 15; Organization of African Unity Convention on the Prevention and Combating of Terrorism of 1999, art 22; African Charter on Human and Peoples’ Rights, art 9; Council of Europe Guidelines on Human Rights and the Fight against Terrorism.

 

[53] UNODC (n 51) 18.

[54] ICCPR, art 14 and 16; UDHR, art 7, 8, 10 and 11; Geneva Conventions 1949, art 3(1)(d); Protocol I to the Geneva Conventions 1977, art 75; Protocol II to the Geneva Conventions 1977, art 6(2).

[55] UN Counter-Terrorism Implementation Taskforce (UNCTITF), Basic Human rights Reference Guide: Right to a fair Trial and due Process in the Context of Countering Terrorism (UNHR, 2015), 7

[56] ICSFT 1999(n 23), art 17 and 21.

 

[57] (n 53).

[58] General comment No. 29, CCPR/C/21/Rev.1/Add. 11, paras 11 and 16 (2001).

 

[59] ibid.

 

[60] ibid.

 

[61] ICCPR, art 14 (2).

 

[62] ICCPR, arts 14 (1) and (3).

 

[63] ICCPR, at 14 (3) (g).

 

[64] ICCPR, art 14 (3) (b).

 

[65] ICCPR, art 14 (3) (e).

 

[66] Principles and Guidelines on the Right to a Fair Trial and Legal Assistant in Africa (Guidelines to Fair Trial), 1.

[67] ICCPR, art 14 (3) (d).

 

[68] ICCPR, art 14 (3) (d).

 

[69] ICCPR, art 14 (3) (c).

 

[70] ICCPR, art 14 (5); Guidelines to Fair Trial, principle 2.

 

[71] ICCPR, art 14 (1).

[72] ICCPR, art 14 and 16; UDHR, art 7, 8, 10 and 11; Geneva Conventions 1949, art 3(1)(d); Protocol I to the Geneva Conventions 1977, art 75; Protocol II to the Geneva Conventions 1977, art 6(2).

 

[73] Communication No 263/1987, Case of Miguel Gonzalez del Rio v Peru, para 5.2

 

[74] Case 110/1995 Findlay v. The United Kingdom [1997] ECR 335-37; Papageorgiou v Greece [1997] ECR

 

[75] United Nation Basic Principles on the Independence of the Judiciary (UNBPIJ), principle 2.

 

[76] UNCTITF (n 51)

[77] Report of the UN High Commissioner for Human rights on the Protection of human rights and Fundamental Freedom while Countering Terrorism (A/HRC/22/26), para 40.

[78] ibid.

[79] (n 54) CCPR/C/79/Add. 79, para 20 (1997); CCPR/C/79/Add.78, para 14 (1997); CCPR/C/79/Add. 76, para 34(1997); CCPR/CO/76/EGYAdd.109, para 16 (2002); Richard B. Zabel and James J. Benjamin Jr, ‘In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts: 2009 Update and Recent Developments’ (July 2009) <www.humanrightsfirst. org/pdf/090723-LS-in-pursuit-justice-09-update.pdf> accessed 30 March 2017

 

[80] Report (n 61), para 46.

 

[81] ibid.

 

[82] Richard B. Zabel and James J. Benjamin Jr, ‘In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts: 2009 Update and Recent Developments’ (July 2009) <www.humanrightsfirst. org/pdf/090723-LS-in-pursuit-justice-09-update.pdf> accessed 30 March 2017.

 

[83] Jeffrey Addicott, ‘Is the use of coercive interrogation or torture permissible and effective as a counterterrorism method?’ in Richard Jackson and Samuel Sinclair (eds), Contemporary Debates on Terrorism (ProQuest Ebook Central, Taylor and Francis 2013) 152.

 

[84] Kenneth Jost ‘Prosecuting Terrorists: Should Suspected Terrorists be given Military or Civil Trials?’ (2010) 20(10) <http://library.cqpress.com/cqresearcher/document.php?id=cqresrre2010031200> accessed 30 March 2017.

 

[85] ibid.

 

[86] ICCPR, art 2 (3).

 

[87] (n 49)

[88] Human rights Committee, General comment 32 (Article 14: right equality before courts and tribunals and to a fair trial (General Comment 32), para 9.

[89] ICCPR, art 2 (3).

[90] ICCPR, art 14 (6); UNCTITF (n 51) 37.

[91] Lawyers Committee for Human Rights, What is a Fair Trial? A Basic Guide to Legal Standards and Practice   (LCHR, USA, 2000) 12.

 

[92] ICCPR, art 14(1).

 

[93] Ofner and Hopfi nger v Austria (EHRCt Applications Nos. 524/59 and 617/59).

 

[94] UN, ‘Handbook on Criminal Justice Responses to Terrorism: Criminal Justice Handbook Series’ (New York, 2009) 85.

 

[95] ICCPR, art 14(3).

 

[96] ICCPR, art 14(5)

[97] UNODC (n 51) 9.

 

[98] Madeline Morris, ‘Terrorism: The Politics of Prosecution’ 5(2) Chicago Journal of International Law 405.

 

[99]  ibid 406.

 

[100] ibid 407.

 

[101] See UN Doc. A/46/825, S/23306, 31 December 1991; SC 731 21 January 1992 and Security Council Res No 748, UN Doc No S/RES/748 at 1 (1992) – the Security Council’s Resolution on Libya in respect of the Lockerbie Bombing’s case.

 

[102] UNODC (n 51) 73.

 

[103] Yvon Dandurand, “The role of prosecutors in promoting and strengthening the rule of law”, (2007) 47(4-5) Crime, Law and Social Change 247-259.

[104] Guidelines on the Role of Prosecutors (Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990, para 11-12: report prepared by the Secretariat (United Nations publication, Sales No. E.91.IV.2), chap. I, sect. C.26, annex) <http://www2.ohchr .org/english /law/pdf/prosecutors.pdf.> accessed 11 April 2017.

[105] UN Handbook (n 46) 74.

 

[106] Security Council Resolution 1373 (2001), paras 2 and 3.

 

[107] UNDOC 17.

[108] UDHR, art10. See also ICCPR, art 14.

[109] Security Council resolution (n 4); UN Global Counter -Terrorism Strategy, adopted under General Assembly resolution 60/288 (2006), para 2.

 

[110] Joan Fitzpatrick, ‘Speaking Law to Power: The war Against Terrorism and human Rights’ (2003) 14 European Journal of International Law 243.

 

[111] International Covenant on Civil and Political Rights (ICCPR), art 4, para 1.

 

[112] ICCPR, art 4, para 1.

 

[113] UN General Comment No 29 on States of emergency (art 4), CCPR/C/21/Rev.1/Add.11; CCPR/C/79/Add. 78, para 10 (1997); CCPR/C/79/Add.109, para 12 (1999); R Burchill, ‘International Human Rights Law: Struggling between Apology and Utopia’ in A Bullard(ed), Human rights in Crisis (Ashgate, 2008).

 

[114] See generally Salma Yusuf, ‘Protecting Human Rights while Countering terrorism’ 2012 E- International relations students. <www.e-ir.info/2012/02/14/protecting-human-rights-while-countering-terrorism/> accessed 23 April 2017.

[115] OUNHCHR (n 4) 23

 

[116] See Human Rights Committee, general comment N° 31, para. 6, and Siracusa Principles on the limitation and derogation of provisions in the International Covenant on Civil and Political Rights (E/CN.4/1985/4, annex).

 

[117] UNODC (n 51) 86.

 

[118] UNODC (n 51) 87.

 

[119] ICCPR, art 14 (1).

 

[120] Vivanco v Peru, Communication No. 678/1996, UN Document CCPR/C/74/D/678/1996 (2002).

 

[121] United Nations, ‘United nations Office on Drugs and Crime: Digest of Terrorist Cases’ (UN, 2010) 65.

[122] Statute for the Special tribunal Lebanon, art 2291) (c).

 

[123] HRC, Mbenge v Zaire, Communication No 16/1977, UN Document CCPR/C/18/D/16/1977 (1983), para 14. 1.

[124] UNCTITF (n 51), 25.

 

[125] ibid.

 

[126] ECtHR Mirilashvili v Russia, Application No. 6293/04 (2008), para 202.

 

[127] ECtHR Doorson v Netherlands, Application No. 20524/92 (1996), para 70.

 

[128] ECtHR Rowe and Davis v UK, Application No. 28901/95 (2000), para 61.

[129] See also the Administration of Criminal Justice Act 2015 (ACJA) (Nigeria).

 

[130] 1999 Nigerian Constitution, sec 36 (4); Garba v University of Maiduguri (1986) 2. Supreme Court of Nigeria Law Report (SCNLR) 1.

 

[131] 1999 Nigerian Constitution, sec 36 (4)(a); ACJA, sec 259(2).

 

[132] 1999 Nigerian Constitution, sec 36 (5); Okoro v State (1988) Nigeria Weekly Law Report (NWLR) (Part 74). 255.

[133] 1999 Nigerian Constitution, sec 36 (6) (a); Nwachukwu v State (1985) 2 NWLR (Part 8) 27.

 

[134] 1999 Nigerian Constitution, sec 36 (6) (b); Udo v State (1988) 3 NWLR (Part 82) 316.

 

[135] 1999 Nigerian Constitution, sec 36 (6) (d); ACJA, sec 241 – 251; Ali v State (1988) 1 SCNJ 17.

 

[136] The Nigerian Constitution, sec 36, 36 (6) (c); ACJA, sec 6 (2)(b).

[137] 1999 Nigerian Constitution, sec 36 (11).

 

[138] 1999 Nigerian Constitution, sec 36 (9).

 

[139] 1999 Nigerian Constitution, sec 36 910).

 

[140] TPAA, sec 1.

 

[141] Terrorist Financing Convention 1999; Terrorist Bombings Convention 1997; 1970 Convention for the Suppression of Unlawful Seizure of Aircraft 1970;  Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971.

 

[142] ICCPR became a State Party since 1993; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified since 2001 etc. Regional Convention- African Charter on Human and Peoples’ Rights, ratified in 1983.

 

[143] TPAA, sec 3.

 

[144] TPAA, sec 4, 10.

 

[145] TPAA, sec 5.

 

[146] TPAA, sec 6.

 

[147] TPAA, sec 8.

 

[148] UNODC (n 51) 40.

 

[149] TPAA, sec 1A (2) (a) (b) and (c).

 

[150] TPAA, see s.1A (a) (b) (c) & (d.

 

[151] TPAA, sec 30(1).

 

[152] TPAA, sec 32.

 

[153] TPAA, sec 32(5).

 

[154] See generally M A Saulawa, ‘Terrorism in Nigeria: an overview of terrorism (Prevention), Act 2003′ (2015) 8(4) International Journal of Business, economics, and Law.

 

[155] TPAA

[156] (n 124).

 

[157] ACJA, sec 2 (1).

 

[158] ibid.

 

[159] Okoi Obono-Obla, ‘Towards Effective Prosecution of Terrorism, Economic and Other Organized Crimes in Nigeria’ (26 August 2016) <http://crossriverwatch.com/2016/08/towards-effective-prosecution-of-terrorism-economic-and-other-organized-crimes-in-nigeria-by-okoi-obono-obla/ accessed> 14 May 2017.

[160] ibid.

 [161] Boniface Ewulum (n 32) 66.

 

[162] Ewulum (n 88).

[163] 1999 Nigerian constitution, sec 34.

 

[164] European Convention on Human Rights, art 3 and 15(2); American Convention Human Rights, art 5 and 27(2).; African charter on Human Peoples’ rights, art 5; Nigerian constitution, sec 34.

 

[165] Amnesty International Annual Report for 2012 <www.amnesty.org#en#region#nigeria#report-2012#section-15-5> accessed 21 April 2017.

[166] 1999 Nigerian Constitution, sec 250.

[167] ibid, sec 17 (1) (e).

[168] 1999 Nigerian Constitution, sec 6 (6) (c); Ogugua Ikpeze, ‘Non -Justiciability of Chapter II of the Nigerian Constitution as an Impediment to Economic Rights and Development’ (2015) Developing Country Studies 5 (18) 48.

[169] TPA as amended, sec 32 (6).

 [170] Amnesty International (n 120).

 [171] Chidi Nkwopara and Ifeanyi Okoli, ‘How gunmen Stormed Owerri High Court; Killed 2, Freed Serial Killer’ (28 January 2017) The Vanguard <www.vanguardngr.com/2017/01/gunmen-storm-owerri-high-court-kill-2-free-serial-killer/> accessed21 April 2017.

 [172] Evidence Act 2011 (Nigeria), sec 28.

 [173] Amnesty International (n 120).  276.

 [174] Moses Jua v The State (2010) 4 NWLR (part 1184) 249.

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