Abduction of Sisiku And The Abuja 12: A Legal Perspective From The Manuscript of "Principles an
- Linda EYONG Suzy
- Apr 26, 2018
- 9 min read
Abduction of Sisiku and the Abuja 12: A legal Perspective (culled from Manuscript of "Principles and Practice of International Law" by Dr. Martin Tumasang, a soon to be published book).
Introduction
Since Sisiku et al were abducted in Abuja, I have been inundated with calls and emails asking for my opinion as an International Lawyer on the issue. I have been quiet in public generally and did not want to give an opinion. After much pressure, I have been obliged to copy part of a chapter in my soon to be published book titled "Principles and Practice of International law" and post on the issue. Below is material on the above issue from the manuscript I had already written. My publishers might not be happy with me but the issues at bar are so important that I have to post some material on it before publication.
Legality of the abduction and Transfer of Sisiku Tambe and the Abuja 12 to La Republique du Cameroun
A state is under a duty not to return a person to a place of persecution (the Principle of Non-refoulement), although it does not stop a state sending a person to another state where he is not persecuted. Interpreted broadly, duty not to return a person might include non-refusal at the border, and not only those who are already within the territory of the receiving state, with the exception to non-rejection "for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons"[1]. This broad interpretation to the non refoulement principle to allow it apply extra terrestrially is disputed by some scholars and states[2], hence permitting refusal of entry at borders to those fleeing persecution. Pursuant to Article 3(2) [Prohibition of Expulsion or Return ("refoulement")] of the 28 July 1951 Convention Relating to the International Status of Refugees, as supplemented by the New York Protocol of 31 January 1967 [Protocol relating to the Status of Refugees], "Each of the Contracting Parties undertakes, in all cases, not to return refugees across the frontiers of their country of origin.” Pursuant to Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, "No State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." The right to life and freedom from torture implies “a prohibition against refoulement”[3], and Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights also have similar provisions.
Whilst opinio jurist generally accepts the principle of non refoulement, there is no unanimity on whether it is now part of customary international law and some states still breach the principle when it suits their interest. An example of an egregious and blatant breach of this principle is in the case of the Abuja twelve (12), where twelve (12) Ambazonians (from Southern Cameroons, a former UN trust territory that unilaterally declared the restoration of its independence on 01 October 2017), including their President Sisiku Ayuk Tabi, who were abducted in the night, from Nera Hotel Abuja, by the Department of State Services (DSS) of Nigeria (perhaps with some Cameroonian agents), kept incommunicado for over a month, then most of them returned by night flight, together with another forty seven (47), without legal due process, to La Republique du Cameroun, from whom they were running from persecution (including those that had already gained refugee status in Nigeria).
La Republique du Cameroun later kept the returnees incommunicado for months without even a proof of life being shown to the international community. This is despite the fact that pursuant to Article II (1) of the 1969 Organization of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa[4], to which Nigeria is a signatory, member states of the OAU "shall use their best endeavors consistent with their respective legislations to receive refugees." Nigeria is also a signatory to the 1951 Convention relating to the Status of Refugees and pursuant to Article 32(1) of the Convention, State parties to the Convention are prohibited from expelling, "a refugee lawfully in their territory save on grounds of national security or public order" and Article 33(1) prohibits the expulsion/return ('refouler') of, "a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”, and Nigeria was privy to the fact that those returned faced a death penalty for their political views. Pursuant to Art. 3 (f)–(g) of United Nations Security Council Resolution (UNSC Res) 1373 [2001] [adopted on 28 September 2001]), adopted under chapter VII of the United Nations Charter, the UN enjoins states to take appropriate measures under relevant national, human rights and international laws, prior to granting refugee status, to ensure that the potential asylee has not planned, facilitated or participated in the commission of terrorist acts; and that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, but none of the Abuja 12 (including those already granted refugee status) had been indicted in any terrorist act in Nigeria or other countries. Pursuant to Article 1 (F) of the Geneva Refugee Convention, the provisions of the convention shall not apply to an individual, when there are serious reasons for considering that:
he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; or
he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
The Abuja 12 in question had not committed any serious crime, and their only purported crime is political in nature i.e. advocating for the restoration of the independence of the people of Ambazonia (former UN trust territory that had independence on 1st October 1961, but the independence was suppressed (or put in abeyance) by the occupation of the territory (post a plebiscite in Ambazonia), by the army of continuous state of La Republique du Cameroun). If accused or indicted for a crime such as sponsoring terrorism, the legal implication might have been different. In Matter of S-K (BIA 2006)[5], the U.S. Board of Immigration Appeals (BIA) held a Burmese national as a sponsor of terrorism for providing circa $700 to the Chin National Front, (considered a Tier III terrorist organization under U.S. law), hence inadmissible.
But Nigeria is not the only country that has breached the Non Refoulement Principle. The United Nations High Commissioner for Refugees observed that "number of countries, where the admission or presence of certain groups of refugees have been perceived as incompatible with national interests or domestic concerns, have ignored or undermined the principle of non refoulement."[6] The fact that some other states in the past have breached the non refoulement principle is not an excuse or condonation of the actions of Nigeria. Nigeria’s action is more condemnable because at times anyone, including possibly those that the persecuting state might call terrorists, can seek protection. For example, Article 3 of the European Convention of Human Rights is not subject to any limitations, hence any one, including perhaps so called terrorists, who might pose some danger for the internal security of a State, may rely upon this provision in order to seek protection against refoulement.[7]
Nigeria might argue that under the aut dedere aut judicare (extradite or prosecute) rule, a state may not shield a person in a territory subject to its jurisdiction suspected of certain categories of crimes. Instead, it is required either to exercise jurisdiction (which would necessarily include universal jurisdiction in certain cases) over a person suspected of certain categories of crimes or to extradite the person to a state able and willing to do so or to surrender the person to an international criminal court with jurisdiction over the suspect and the crime.But such arguments from Nigeria will fall flat because the Abuja 12 are accused of political crimes of declaring restoration of the independence of a former UN trust territory, and even where the aut dedere aut judicare rule applies, the state where the suspects are found must make sure that the State where it is extraditing the suspects provide guarantee of human rights of the suspects. La Republique du Cameroun’s human rights record is far below par as stated by various human rights organisations including Amnesty International, and the fact that they faced the death penalty upon extradition to La Republique du Cameroun should have made Nigeria to demur before refouling the Abuja 12 to La Republique du Cameroun, particular that Nigeria was not using due legal process in sending these abductees to La Republique du Cameroun.
In the case of Ruhumuliza, suspected of genocide in Rwanda, on 29 June 2009, the Swiss authorities expressed their refusal to extradite Ruhumuliza to Rwanda because of insufficient guarantees related to the respect of Ruhumuliza’s human rights in Rwanda, regardless of Rwanda’s suppression of the death penalty in 2007. This is in marked contrast to Nigeria’s approach on the Abuja 12, considering La Republique du Cameroun’s human rights record and the availability of the death penalty in its laws.In the case of the Abuja 12, there have been allegations that La Republique du Cameroun agents were together with Nigerian agents in the abduction of the Ambazonian leaders. If this is the case, the question that falls to be asked is whether such an act of sending agents into another country to abduct suspects and bring back home is a breach of international law and hence any subsequent trial in La Republique du Cameroun cannot stand since their abduction in the first place was illegal?. In the Alvarez-Machain case, the U.S. Government contracted mercenaries who went into Mexico, kidnapped Dr. Alvarez-Machain, and brought him back to the U.S. for trial for a crime committed in Mexico (assisting in the torture and murder of a U.S. DEA agent in Mexico). The trial court ruled his arrest was unlawful but the United States Supreme Court, in United States v. Alvarez-Machain[8], ruled that notwithstanding the existence of an extradition treaty with Mexico, it was still legal for the U.S. government to exercise self-help and essentially grab him off the street in Mexico ("forcible abduction") to bring him back to the U.S. for trial. This follows that it might be legal, for La Republique du Cameroun to send its agents to Abuja Nigeria (albeit with the connivance of the Nigeria Directorate of State Security (DSS)), to grab (forceful abduction) the Abuja 12 as an exercise of self-help principle, and bring them back to La Republique du Cameroun for trial. This position on self-help might be strengthened if there is no extradition treaty between Nigeria and La Republique du Cameroun on the date of the abduction as appears to be the case.
The right to asylum is that of the state and not that of the individual and a state has the sole control of its territory, who enters or leaves it (absent of relevant treaty obligations), and generally have the sole right or prerogative to grant or deny asylum to applicants[9], since an asylum applicant has no general enforceable right against the state to grant it asylum. Pursuant to Article 14 (1) of the Universal Declaration of Human Rights “everyone has the right to seek and to enjoy in other countries asylum from persecution” but this cannot be interpreted as an obligation of a state to admit asylum seekers into its territory. Pursuant to Article 31(1) of the 1951 Convention relating to the Status of Refugees, "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who.., enter or are present in their territory without authorization."
Conclusion
It might be legal for La Republique du Cameroun to send its agents to abduct Sisiku Tambe and the Abuja 12 and take them to La Republique du Cameroun for trial as the United States v. Alvarez-Machain case shows. On the other hand, Nigeria appears to have breached International Humanitarian Law by breaching the international principle of non refoulement, although many other countries have been noted for breaching the principle when its suits them or when their interest is at stake. Nigeria might argue that it is entitled to so breach the principle when its national security is at stake, particularly the security issue of Biafra taking advantage of the Ambazonian situation to also break away or at least form bases in Ambazonia.[1] Article 3(2) of the Declaration on Territorial Asylum, G.A. res. 2312 (XXII), 22 U.N. GAOR Supp. (No. 16) at 81, U.N. Doc. A/6716 (1967).[2] Sale v. Haitian Centers Council, 509 U.S. 155 (1993), held that “Refugee Convention/Protocol does not apply extraterritorially”.[3] R (on the application of) ABC (a minor) (Afghanistan) v. Secretary of State for the Home Dep’t [2011] EWHC 2937 (Admin.) (U.K.); ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011.[4] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Sept. 10, 1969, art. 11(1), 1001 U.N.T.S. 45, 48[5] Matter of S-K-, 23 I&N 936 (BIA 2006), the U.S. Board of Immigration Appeals (BIA) held that a Burmese national who had provided approximately 700 dollars to the Chin National Front[6] United Nations High Commissioner for Refugees, Note on International Protection, submitted to Executive Committee of the High Commissioner's Programme on Aug. 31, 1993, at 4, U.N. Doc. A/AC.96/815 (1993).[7] Kay Hailbronner, Jana Gogolin, Asylum, Territorial, Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.[8] United States v. Alvarez-Machain, 504 US 655 - 1992 - Supreme Court - Cited by 2254[9] Felice Morgenstern, The Right of Asylum, 1949 BRIT. Y.B. INT'L L. 327, 327.
Joseph ATEMS
SC Blogger, Lebialem County | For SCAR.press - The Ambazonians' Platform
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