The Gruesome Death Toll Characterised by War Crimes, Crimes against Humanity and Genocide

A Legal Appraisal of the Crisis in the former Southern Cameroons


Master's Thesis, 2019

80 Pages, Grade: 2.3


Free online reading

Table of Contents

Dedication

Acknowledgments

List of legislation

List of cases

List of abbreviations

1. Introduction
1.1. Background of the research
1.2. Statement of the problem
1.3. Research questions
1.4. Research methodology
1.5. Research hypothesis
1.6. Significance of the study
1.7. Structure of the Thesis
1.8. Limitations of the study

2. Review of the Literature

3. The Jurisdiction of the International Criminal Court.
3.1. Overview of the Rome Statute
3.2. Overview of the ICC
3.3. Jurisdiction and admissibility
3.3.1. Jurisdiction of the ICC
3.3.2. Admissibility of a case before the ICC

4. Why the ICC has jurisdiction over crimes allegedly committed in Cameroon
4.1. Contextual evidence of crimes allegedly committed
4.1.1. Evidence of the crime of genocide
4.1.2. Evidence of crimes against humanity
4.1.3. Evidence of war crimes
4.2. Trigger mechanisms available for Cameroon’s case
4.2.1. UN Security Council referral
4.2.2. State Party referral
4.2.3. Consent by non-State Party (Defendant’s State of Nationality)

5. Self-defence as justification for the use of force, and the rights of victims of the crisis
5.1. The concept of self-defence
5.1.1. Self-defence under the UN Charter
5.1.2. Self-defence under customary international law and the Caroline principle
5.1.3. Self-defence under Cameroon law
5.1.4. Other justifications for the use of force by separatists
5.2. Who is a victim of the crisis?
5.2.1. Victims in the context of the Cameroon Criminal Procedure Code
5.2.2. Victims in the context of the African Charter
5.2.3. Victims in the context of the ICC

6. Findings of the research, Conclusions and Recommendations

List of references

Dedication

In loving memory of:

My father, Lekeaka; mother, Champnzi; and sister, Emengu

May their souls be infused with lasting peace!

Acknowledgments

I would like to, first of all, express my gratitude to the Almighty for this work. If not for Him, environmental constraints, human fallibility and social dynamism would have, perhaps, prevented me from realizing it, and on time. Therefore, I thank Him for the strength, enthusiasm and wisdom. I also thank Him for saving my breath throughout the knotty tasks.

I owe an incalculable debt to my supervisor, Prof. Dr. Christoph J.M. Safferling, Chair for Criminal Law, Criminal Procedure, International Criminal Law and Public International Law at the Friedrich Alexander University, Germany. Though very busy, Prof. Safferling has not only contributed immensely in coaching me at every stage of my work, but also added ideas which doubles it value. I could not have craved to miss an academic calibre of his type for my supervisor. His mastery of the subject, tolerance at my failings, and above all, his huge appetite for an outstanding research work are the valuable assets of this final piece, my thesis.

Besides my supervisor, I would like to thank the reviewer, Prof. Dr. Markus Krajewski, whose contributions have added much flavour to this work. I also thank the entire MA Human Rights professors and staff for their immeasurable support throughout this programme. To this end, I want to extend my unreserved appreciation to Prof. Dr. Heiner Bielefeldt, PD Dr. Michael Krennerich, Mrs. Ines Kalam - M.Soc.Sc., Ms. Silvia Krönig and the other staff.

Chief Barrister Taku, president of the International Criminal Court Bar, lead counsel of the United Nations International Criminal Tribunal for Rwanda (UNICTR) and the Special Court for Sierra Leone (SCSL), advocate of the Cameroon Bar Association, deserves my wholehearted appreciation for spotting out slip ups and redundancies, which I would not have been able to spot them out myself, even with an astute mind and a hawk’s eye or double lenses.

My beautiful wife; Charlotte and three lovely kids; Ritzy, Rynase and Karl, will forever receive registered loyalty for having stoically endured patience during this period of my conspicuous absence. Their comforting words are a great encouragement for this project. I reserve special appreciation to all my brothers and sisters, especially to Magdalene, Alice, Juliana, Appolonia, Richard, Rogers, Elvis, Tebong, and Esoka, Calice, Joseph, Gerald, Florence, for their indefatigable supports during the period of my research work.

List of legislation

International

African (Banjul) Charter on Human and Peoples’ Rights, 1981

Charter of the United Nations, 1945

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985

International Covenant on Civil and Political Rights, 1966

Limitation Acts, 1980

London Charter of the International Military Tribunal (The Nuremberg Charter), 1945

Rome Statute of the International Criminal Court, 1998

Rules of Procedure and Evidence - ICC (Rules)

Statute of the ICTR, 1994

Statute of the ICTY, 1993

Statute of the International Court of Justice, 1945

The Geneva Convention, 1949 – and its additional Protocols

The Genocide Convention, 1948

The Tokyo Charter, 1946

The Universal Declaration of Human Rights, 1948

National

Cameroon Criminal Procedure Code, 2005

Cameroon Penal Code, 2016

Constitution of Cameroon, 1996 (as amended)

U.S. War Crimes Act, 1996

UN Resolutions

Resolution 1593 (2005)

Resolution 1970 (2011)

Resolution ICC-ASP/14/Res.2

UN Security Council Resolution 827 (199)

United Nations General Assembly Resolution 96(1) of 11 December 1946

List of cases

1. Beckford v R, Case No. (1988) 1 AD 130.

2. Islamic Republic of Iran V. The United States of America, Case No. (2003) ICJ Rep 161.

3. Kevin Mgwanga Gunme et al v. Republic of Cameroon (Communication 266/03).

4. Palmer V. R, Case No. (1971- AC 814).

5. R V. McInnes, Case No. (55 Cr App R 551).

6. The People of Cameroon V. Ayuk Tabe Julius & others, (2018).

7. The Prosecutor V. Dominic Ongwen, (Case No. CICC-02/04-01/15).

8. The Prosecutor V. Francis Kirimi M. & Ors, (Case No.: ICC-01/09-02/11).

9. The Prosecutor v. Jean-Paul Akayesu, (Case No. ICTR-96-4-T).

10. The Prosecutor V. Joseph Kony et al,(Case No. ICC-02/04-01/05).

11. The P rosecutor v. Muammar Mohammed Abuminyar Gaddafi, (Case No. ICC-01/11-01/11).

12. The Prosecutor v. Saif Al-Islam Gaddafi, (Case No.: ICC-01/11-01/11).

13. The Rohingya Jurisprudence, (Case No. No. ICC-RoC46(3)-01/18).

14. Thigpen V. Smith, 792 F.2d 1507, 1514 (11th Cir. 1986.

15. United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992)

List of abbreviations

Abbildung in dieser Leseprobe nicht enthalten

1. Introduction

1.1. Background of the research

Cameroon, officially the Republic of Cameroon, is a country in Central Africa. It shares frontiers with . [1]

Cameroon was administered as a colony by the Germans between 1884 and 1915. After the defeat of the Germans in 1916, it was divided into two portions between Great Britain and France, that ruled their respective portions between 1919 and 1945 as mandated territories of the League of Nations.[2] Both territories (French Cameroon and British Cameroon), administered as trusteeship territories of the United Nations by the two colonial powers; France and Britain, gained their independence in 1960 and 1961 respectively.[3] Later, the British Cameroon united with the French Cameroon to form the Federal Republic of Cameroun. Following a 1972 referendum, a new Constitution was adopted, and the Federal Republic of Cameroun was replaced by the United Republic of Cameroon, the effect of which the British Cameroon lost its autonomous status, and became two of the Republic of Cameroon’s ten regions. In 1984, the United Republic of Cameroun became the Republic of Cameroon. Today, revolutionists - fighting for the independence of the British Cameroon (North-West and South-West regions) call it Southern Cameroons, because they believe that, the union between French Cameroon and the British Cameroon was entered without any legal foundation.[4] Simply, Southern Cameroons represented the Southern part of the British Mandate territory of British Cameroons. For administrative purposes, Cameroon is divided into 10 regions, 8 of which speak French while the other 2 regions (the South-West and North-West) speak English. These two languages were inherited from their colonial past; while the French language was inherited from the French, English was also inherited from the British – although 250 other languages, belonging to various tribes, are spoken in the country.

Therefore, the name 'Southern Cameroons' as used in this work does not refer to any particular 'State'. Instead, it refers, simply, to the two English-speaking parts of Cameroon. That is, the South-West and North-West regions of Cameroon, where the crisis is ongoing. It should be noted, therefore, that both expressions have been used interchangeably in this work.

However, many, especially Tembon, believes that the crisis in Cameroon has a historical underpinning, with the root cause being “the illegal dissolution of the State of West Cameroon on the 20th of May 1970”.[5] Without much, this research studies the crisis from 2016 up to date.

1.2. Statement of the problem

On November 8, 2016, lawyers of both the South-West and North-West regions of Cameroon took to the streets in Bamenda, the capital city of the North-West region, to protest against injustices plaguing their legal profession, and what they call 'erosion of the common law system' in Cameroon.[6] Amongst others, these lawyers, otherwise known as common law lawyers, were calling on the government to, as a matter of expeditiousness: (a) remove all civil law trained magistrates from the English-speaking courts, and send them to where they are best competent—the French-speaking courts; (b) translate into English all legal texts, such as the OHADA Uniform Acts, CEMAC Code and CIMA which, the lawyers decried, were exclusively in French; and (C) for the government to respect and promote Cameroon’s bilingual, bi-jural and bi-cultural values.[7] Importantly, the preamble of the 1996 Constitution states, “We, the people of Cameroon - Proud of our linguistic and cultural diversity”. In its Article 1(3), the Constitution goes ahead to say, “The official languages of the Republic of Cameroon shall be English and French, both languages having the same status. The State shall guarantee the promotion of bilingualism throughout the country. It shall endeavour to protect and promote national languages.” Irrespective of these constitutional bearings, reports say the protest was brutally cracked-down by the forces of law and order, who, in a bid to protect the government’s interest; used tear-gas, water canons, gunshots and others to disperse lawyers.[8]

On November 10, 2016, while trying to stage another protest in Buea, the capital city of the South-West region, the forces of law and order had militarised the entire Buea sub-division.[9] Thus, the lawyers were unable to assemble as planned. However, they split themselves into groups. Those who were already in Buea were disrupted – so they couldn’t stage any protest. Nonetheless, some managed to protest in towns like Limbe and Muyuka.[10] In these towns, especially Buea, where they initially planned to protest, lawyers were brutally repressed by the forces of law and order; who again used water canons, tear-gas, and their armoured cars to torture lawyers, invaded their offices and hotel rooms where some were lodging.[11] The lawyers’ keys, wigs and gowns, phones, and others were seized by the armed military men.[12]

When teachers realised the lawyers were still in high gear for their demands, they too took the courage in both hands, and protested against the government by boycotting from schools. Classrooms were shut as teachers and students stayed away. Both the North-west and South-west regions were marred with ghost towns. Amongst others, the teachers wanted the government to address lawyers’ demands and the overbearing use of French in English-speaking schools.[13] On November 28, 2016, students of the University of Buea converged on campus, to stage a protest against the university authorities on grounds of injustices and marginalisation.[14] They include: undue charges required for students to have access to their results, that the Anglosaxon nature of the university be respected, to name a few.[15] Regrettably, the forces of law and order inundated the premises with arms, water canons, etc. and disrupted their peaceful demonstration. Many of the students were inhumanely treated by armed military men. Some students, including females, were flocked in their buttocks while others were flocked under their feet.[16] Reports say it did not just end on campus, that the military stormed their hostels; looted their property.[17] Many were arrested, tortured, raped, maimed and some detained in various cells in Buea, Tiko, Muyuka, and others towns in Fako.

On September 22, 2017, the crisis spiraled out of control. Thousands took to the streets to protest for an independent Ambazonia, a country they intend to create after breaking away from the present Republic of Cameroon. They were carrying the Ambazonia flag, and those who were unable to, perhaps, own a flag, used any blue-white plastic wrappings, believing the colours to represent their flag. Also, they carried placards with inscriptions such as “we want freedom”, “we need independence. We need to be free. We are Ambazonians”.[18] Some lowered the Cameroon flag and hoisted that of Ambazonia. It was clear, therefore, that the protests had turned political from the mere demand for reform of their academic and legal systems. However, the protests were met with deadly confrontations as security forces responded with tear gas, bullets, while, it is reported, that separatist groups were targeting them with fabricated explosives, and other weapons. As a result, rebel groups have emerged, and many civilians have died in a crossfire confrontation between the military and armed separatist. The crisis has turned into an internal armed conflict. Villages, houses, schools, churches, transportation trucks and vehicles, hospitals, and many other properties have been burned down in the two English-speaking regions of Cameroon, believed to have been burned by both the military and armed separatist. It is reported that the rebels are kidnapping civilians and state authorities. Over 2000 people, including civilians and the military are said to have been killed—with some beheaded, 120 villages are said to have been burnt, the UN reports that over 160.000 people have been registered in Nigeria as refugees.[19] According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), over 437,000 people from the South-West and North-West are internally displaced persons.[20] Many, especially civilian CDC Tiko workers, have had their fingers chopped off by rebels.[21]

Today, many say the crimes constitute genocide. To some, they constitute crimes against humanity. While some others say the crimes allegedly committed are war crimes. Barrister Charles Taku, the President of the International Criminal Court Bar Association, says that genocide is being committed in Cameroon.[22] Still, many doubt why the ICC is silent about it.

Human rights issues

The Constitution guarantees the freedom of assembly, of a peaceful protest, of speech as well as it prohibits torture, arbitrary arrest, unlawful detention and a host of other rights. It should also be noted that Cameroon is signatory to several international human rights laws, all of which protect the above rights. For example, the African Charter of Human and Peoples’ Rights (right to opinion – Art. 9(2), freedom of association – Art. 10(2), freedom of assembly – Art. 11, rights to liberty and security – Art. 6), the Universal Declaration of Human Rights (freedom from torture – Art. 5, freedom from arbitrary arrest – Art. 9, right to property – Art. 17, rights to opinion and expression – Art. 19, rights of assembly and association – Art. 20), the International Covenant on Civil and Political Rights (freedom of opinion – Art. 19(1), freedom of expression – Art. 19(2), freedom of assembly – Art. 21, freedom of association – Art. 22, freedom from arbitrary arrest – Art. 9), to name a few. These instruments, according to Article 45 of the Constitution, override national laws. Therefore, the lawyers, teachers and other protesters enjoy these rights. Under no circumstance whatsoever should they be violated by the military or any. The above instruments also protect the rights to life and to own property.

1.3. Research questions

The research seeks to provide answers to the following questions:

- Does the ICC have jurisdiction over crimes allegedly committed in the former Southern Cameroons?

- Do victims of the alleged crimes have the right to reparation? If yes, against whom?

- Is there any justification under international law for incitement to violence, extra-judicial killings, torturing, kidnapping, destruction, etc. as a means of self-defence?

1.4. Research methodology

Besides being an eyewitness, this work has benefited from the works of others. First, I identified and studied a large volume of relevant documents, texts, images, videos, etc. on the subjects. This approach is qualitative, and it has been supported by Bridget and Darko. To them, the qualitative research method is a "systematic collection, organization and interpretation of textual information (also images/video)".[23] I equally sought information from libraries, where I read books, law journals, reports, journal articles, research papers and/or academic write-ups, etc. The research was equally assisted with information from the social media, including the Facebook pages of journalists and official authorities, WhatsApp groups, etc. Online sources, especially the official websites of international human rights organizations (The UN, for example) are also a great source upon which this research work benefitted. To this end, I explored the World Law Guide (https://www.lexadin.nl/wlg/legis/nofr/legis.php), the Office of the United Nations High Commissioner for Human Rights, official website of the International Criminal Court (https://www.icc-cpi.int/) and a host of others relevant to the work. According to Polkinghorne, “qualitative data are gathered primarily in the form of spoken or written language rather than in the form of numbers”. As such, this project has benefitted largely from interviews with some lawyers, teachers, human rights activists, journalists, university professors, judges, members of parliament, selected institutional respondents and the man on the streets in both the South-West and North-West regions.

1.5. Research hypothesis

This research was based on the following assumptions:

1. According to international law, especially the law of treaties, a state is bound by a treaty only upon ratification of the said treaty. As a result, I assumed, in the first place, that since the Rome Statute is a treaty, not ratified by Cameroon, the ICC lacks jurisdiction over crimes allegedly committed in the Cameroonian territory.
2. Since the crisis in Cameroon has escalated into an internal armed conflict, involving the military and armed separatists, I assumed, without a second thought, that the rules of self-defence under international law could not be applicable in a self-defence claim.
3. The killing, incitement to violence, kidnapping, although constitutes crimes as well as a breach of human rights, I assumed they could not be used as a means of self-defence.
4. The separatists could not be ordered to pay reparations to the victims who, upon trying to restore their so called independence, cause human and property loss to them. Or, in the alternative, that the State could not be liable for crimes committed by their agents.

1.6. Significance of the study

The purpose of this research is therefore to:

- Study the circumstance surrounding the crisis in the former Southern Cameroons to know whether or not they constitute crimes falling within the jurisdiction of the ICC. If they do, whether or not victims of the crisis are liable to reparation or compensation.
- Contribute to the few literature concerning the possibilities for the ICC to prosecute perpetrators of heinous or grave crimes committed in the former Southern Cameroons.
- Provide a brief presentation on the rules of self-defence, and to examine whether the measures used by the actors as a means of self-defence are in accordance with the law.
- Identify human rights violations on the lawyers, teachers et al involved in these rules.
- Make some recommendations that would benefit the government of Cameroon, the international community, NGOs and future researches on this research area or subject.

1.7. Structure of the Thesis

This thesis is made up of six Chapters. Chapter One presents a general introduction of the study. In particular, it discusses the background of the research, statement of the problem as well as it poses some questions, intended for the research to answer. Chapter One also spells out the research methodology, research hypothesis, significance as well as the limitations of the research. In its Chapter Two, the research presents a review of relevant literature on the subject. Chapter Three of the study examines the jurisdiction of the ICC. In which case, it carves out and discusses the four pillar jurisdictional requirements, namely: subject-matter jurisdiction; territorial jurisdiction; personal jurisdiction, and; temporal jurisdiction. Besides, the Chapter examines the issue of admissibility of cases before the ICC. To ease understanding, a few landmark cases are cited, amongst them is: The Prosecutor V. Muammar Mohammed Abuminyar Gaddafi. The ICC’s jurisdiction over crimes committed by nationals of a non-State Party, Cameroon, is explored in Chapter Four. Still, available trigger mechanisms are presented. In Chapter Five, the rules of self-defence are treated in three distinct levels: (1) international law; with a focus on Articles 2(4) and 51 of the UN Charter, (2) customary international law; with a focus on the Caroline’s doctrine, and (3) Cameroon’s domestic laws, with a focus on the Criminal Procedure Code. In addition, the Chapter explores the concept of a victim, and how they may seek legal redress in three levels: Cameroon—the African Commission—the ICC. Also, it spells out their rights and highlights the issue of reparation. Finally, Chapter Six summarises the findings of the research, conclusions and it provides recommendations for the ICC, NGOs and any study of this kind.

1.8. Limitations of the study

This research is short of the following:

- Because the government tries to conceal evidence, mobile phones are being seized, the internet was shut down for 230 days, and anyone who talks about the crisis in public is arrested – for example, a man called Joseph Ngwa was arrested for being in possession of a Newspaper with headlines on the crisis;[24] local media fear to report sensitive issues, which, of course, hampers the circulation of credible information for the international media, reputable NGOs, diplomatic offices, and individual activists; for these reasons, this research has had a little benefit from these sources, believed to be credible.
- Because of my involvement as an activist in the crisis, the government of Cameroon had wanted to arrest me, and when tipped off, I flew from the country. This has an impact in this research in that, I would have been in the field to make personal appraisals of the crisis. This, of course, would have positively decorated the findings.

2. Review of the Literature

The Rome Statute is quite explicit on the issue of crimes committed by non-State Party nationals.[25] Despite this, many legal scholars have written extensively on the subject too. Some of them, especially Jahun[26], has argued that by exercising its jurisdiction over nationals of non-States parties, the ICC puts sovereignty right, a right protected by treaty law, in the dock. In contrast, other scholars, especially John Dugard, argues that the ICC does not undermine the principle of States’ sovereignty.[27] That, instead, the ICC operates on the basis of complementarity. The effect of which, States still exercise their sovereignty rights. According to Dugard, the ICC is neither superior nor inferior to national criminal courts. Therefore, John Dugard’s approach is relevant to this work in that, as already seen in the Sudan and Lybia jurisprudence of 2005 and 2011 respectively, where the UN Security Council referred the situations there to the prosecutor of the ICC, although they’re not parties to the Rome Statute,[28] the ICC has uninterrupted powers over crimes committed in Cameroon.

Although much ink has been spilled concerning the ICC, and the exercise of its jurisdiction over nationals of non-State Parties. It should be noted, however, that the literature concerning the ICC’s jurisdiction over nationals of a non-State Party like Cameroon is not much. Relevance, therefore, necessitates that a few be cited here; and the gaps they create, which this work, as unique as it is in the subject, attempts to bridge them. With regards to the crisis in Cameroon, Abeng, in his article titled, Cameroon Anglophone crisis: Real threat of Genocide -- but not necessarily by the Military, argues that, there’s overwhelming evidence that war crimes have been committed as a result of the crisis in the English-speaking regions.[29] In his carefully scripted piece, he argues that the situation on ground lacks evidence of genocide, and that the crime of genocide looms in the said regions – if measures are not taken.

In his words, he says: “Some of the atrocities committed by the military rise to the level of war crimes, but, in my view, fall short of genocide.” He adds, further, that: “War crimes have, without a doubt, been committed in the armed conflict in the North-West and South-West regions”.[30] The atrocities that Abeng qualifies as constituting war crimes include the burning of villages, extra-judicial killing, torturing, and destruction of civilian’s properties and sources of livelihood. However, though brilliantly scripted, Abeng’s thesis is silent as to whether or not, the above crimes, which he qualifies as war crimes—and rightly so, constitute crimes against humanity, which is another category of crimes within the meaning of Article 5 of the Rome Statute. It should be recalled that the ICC deals with four main crimes—genocide, war crimes, crimes against humanity, and the crime of aggression. On account of the overwhelming evidence on the ground, any legal debate on Cameroon’s Anglophone crisis' and the ICC’s jurisdiction must clearly discuss, amongst others, the occurrence of crimes against humanity.

Therefore, the absence of crimes against humanity in Abeng’s work, is another gap that this work would fill. Abeng has stated that, “the atrocities include burning down of villages and houses, destroying sources of livelihood in civilian areas, torturing and killing captured suspected separatists”. It is settled law, that crimes against humanity also include the foregoing, provided “committed as part of a widespread or systematic attack directed against any civilian population”, with knowledge of the attack or commission. In Cameroon’s crisis, only the South-West and North-West regions are affected, the other regions are free and safe.

In yet another article captioned, Is Cameroon's Ratification of International Criminal Court Relevant?, the author, Yongabi, is of the opinion that whether or not Cameroon has ratified the Rome Statute of the ICC, the ICC has jurisdiction over crimes committed in Cameroon. He argues, further, that since Cameroon is an African State, and in view of the fact that the ICC was created to impeach only Africans, the ICC, from every indication, therefore, “has jurisdiction over Cameroon because Cameroon is an African nation.”[31] In a rather vociferous way, Yongabi maintains that, “whether Cameroon ratifies the Rome Statute or not, Cameroon’s nationals are subject to the International Criminal Justice System as practiced at the Hague.”[32] Nevertheless, it is not the business of this research whether the ICC has jurisdiction over Cameroon’s nationals simply because Cameroon is an African State, but because of the contents of Yongabi’s work, which fit squarely within the context of this research, in that the work highlights the relationship between the ICC’s jurisdiction over Cameroon – a non-State Party. However, it is important to mention that the work was published in June 2012, long before the crisis in Cameroon sparked up. Therefore, this work is relevant in that, it brings out sound legal arguments and authorities to support why the writer thinks that the ICC has jurisdiction over Cameroon, while Yongabi merely argues that the ICC has jurisdiction over Cameroon’s nationals simply because Cameroon is in African.

Initially, I thought the rules of self-defence under international law are not applicable in situations of internal armed conflict, like the case in Cameroon. After digesting a number of literature, it became clear to me that I was wrong. Most prominent of the works I read, was Hessbruegge’s, entitled: Human Rights and Personal Self-defense in International Law. According to him, apart from domestic criminal legislations, the rules of self-defence in internal armed conflict are also governed by international law, through human rights, and not the UN Charter. Admittedly, this is why he said personal self-defence interacts with human rights in three levels: state-to-individual, individual-to-individual, and individual-to-state.[33] From the above, this work has benefited in that, since the crisis in Cameroon is an internal armed conflict,[34] the applicable laws are Cameroon’s domestic legislations; and, because there are some human rights violations, other international human rights Conventions would apply.[35]

3. The Jurisdiction of the International Criminal Court.

3.1. Overview of the Rome Statute

On the 17th of July 1998, diplomats, members of the civil society and jurists from different parts of the world converged in Rome, Italy,[36] to adopt the Rome Statute. The Statute, claimed to be a treaty,[37] was accordingly adopted and it entered into force on 1 July 2002. At the conference, 120 countries voted in favour of the Statute – for the creation of an International Criminal Court (ICC). 7 countries, (including the United States, China, Yemen, Israel, Qatar, Iraq and Lybia) voted against, and 21 others abstained.[38] As of this day, the Statute have been ratified by 123 countries, continentally summarised as: 33 African states, 19 Asia-Pacific States, 18 Eastern European States, 28 Latin American and Caribbean States, and 25 Western European and other States.[39] It should be known that Cameroon is not a party to the Statute. Like the Constitution, the provisions of the Rome Statute constitutionalise the structure, jurisdiction and functioning of the ICC.[40] The Rome Statute is the founding treaty of the ICC.

In sum, the Rome Statute of the ICC has 128 Articles, with 13 Parts – captioned: Part1- Establishment of the Court; Part 2 - Jurisdiction, admissibility and applicable Law; Part 3 - General principles of criminal Law; Part 4 - Composition and administration of the Court; Part 5 - Investigation and prosecution; Part 6 - The trial; Part 7 – Penalties; Part 8 - Appeal and revision; Part 9 - International cooperation and judicial assistance; Part 10 – Enforcement; Part 11 - Assembly of States parties; Part 12 – Financing; and finally, Part 13 - Final Clauses.

Article 1 of the same provides, that: "an International Criminal Court ("the court") is hereby established."[41] It states, further, that: "the jurisdiction and functioning of the Court shall be governed by the provisions of this Statute."[42] The Statute gives the ICC jurisdiction to deal with crimes of international concern. For example, Article 5 says: "the Court has jurisdiction ... with respect to the following crimes: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; (d) the crime of aggression."[43] Note be taken, however, that these crimes are not subject to any statute of limitations (Article 29).[44] As such, the ICC can charge any suspect of the above crimes – irrespective of when the alleged crime was committed. It has been argued, however, that the non-applicability of statute of limitations defeats the purpose of justice. In Thigpen V. Smith, it was argued that, "evidence is, by its nature, fragile and susceptible to destruction over time, as memories fade and witnesses die or become otherwise unavailable."[45] On the other hand, Kok argues that, "by the use of modern evidentiary techniques, the investigation of a crime remains possible even decades after a crime has been committed."[46] With Treaties, consent is voluntary. Hence, the Rome Statute.

3.2. Overview of the ICC

The International Criminal Court (ICC), established by the Rome Statute of the ICC,[47] is an intergovernmental organization and a permanent international criminal tribunal, created to investigate, prosecute and try individuals for committing heinous international crimes.[48] One of its core objectives is to ensure that offenders of crimes within its jurisdiction do not go unpunished, and to contribute in preventing the occurrence or happening of any such crimes.[49]

Unlike the International Court of Justice (ICJ), a civil court that adjudicates on disputes between countries,[50] the ICC is a criminal court that investigates and prosecutes only persons.[51]

The seat of the ICC is at The Hague, The Netherlands,[52] although it may sit elsewhere. It is composed of 18 judges, elected for 9 years (non-renewable terms) by an assembly made up of State parties.[53] The judges are assigned into various chambers, namely: the Pre-trial chambers, the Trial chambers and the Appeal Chambers.[54] Officially, the ICC has six languages,[55] and only English and French are its working languages.[56] The ICC went operational on July 1, 2002, the same date that the Rome Statute of the International Criminal Court entered into force.

To realise its goals, the Rome Statute has structured the ICC into 4 primary organs. The Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The office of the president is the administrative organ and it represents the ICC externally. Also, the Office of the President of the ICC exercises legal or judicial functions. The Office of the Prosecutor is independent to those of the Judicial Divisions, but they both collaborate in the execution of their duties. While the Judicial Divisions are responsible for the judicial functioning of the Court, the Office of the Prosecutor conducts,investigates and prosecutes suspects or individuals alleged to have committed crimes of heinous nature.[57] Meanwhile, the Registry of the ICC is a neutral organ and it serves all the other organs.[58] To be a party, the concerned State must ratify the Rome Statute. And, only State-parties are bound by its norms.

Conversely, the ICC can investigate, prosecute and try non-State Party nationals or nationals of States that have not consented to its jurisdiction as provided for in Article 12 of the Statute.

This, for example, was the situation in Darfur,[59] where for the sake of international peace, the UN Security Council referred the matter to the Prosecutor of the International Criminal Court.

Unlike other international tribunals such as the former Yugoslavia (ICTY) and Rwanda (ICTR) with ad hoc statuses, as well as other UN tribunals created to deal with specific situations, the International Criminal Court (ICC) is permanent and autonomous.[60] It means, while the jurisdiction of the ICC stays on, the ad hoc tribunals are dissolved once their mandates are exhausted. For example, the ICTY was created by the United Nations (UN) to deal with the 1990s’ crisis in the Balkans, with a temporal mandate that lasted between 1993 to 2017. During this period, those involved in the commission of heinous crimes in the Balkans conflict were brought to task. Better still, the ICC, through the doctrine of complementarity, recognises a State’s right to prosecute villainous crimes within its jurisdiction, but with the ad hoc tribunals, the jurisdiction to prosecute crimes is imposed on States. Also, the ICC is governed by the Rome Statute, while the tribunals have their Statutes.

The ICC is funded by member States, and by voluntary contributions of States, NGOs, etc.

3.3. Jurisdiction and admissibility

3.3.1. Jurisdiction of the ICC

Legally, jurisdiction is the extent to which the court has legal powers to adjudicate in a case. The jurisdiction of the ICC is one of the most important - but complex matters dealt with extensively in the Rome Statute of the International Criminal Court (ICC). First, it is important in that it defines the functional competence of the ICC - which includes the ICC’s core objective. Second, it is complex because of its legal and political influences on State-parties – which by their Constitution or national legislations have sovereign rights over crimes committed within their territory. Regardless of national sovereignty right, the Rome Statute of the ICC empowers the ICC to, in cases where a State is unwilling or unable to prosecute crimes committed within its jurisdiction, step in and exercise its complementary jurisdiction.[61] It should be noted, however, that the ICC collaborates with national courts to procure evidence, facilitate the process of execution and others – capable of ensuring justice.[62] Article 1 of the Rome Statute provides that, the ICC: “... shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions...” Also, the ICC’s jurisdiction is complex in that, the Security Council may, in cases where a crime within the ICC’s jurisdiction is committed in the territory of a non-State Party by a non-State Party national, refer the matter to the Prosecutor of the Court, who may by way of his or her proprio motu powers, initiate investigations. For example, Article 15(1) of the Rome Statute provides that, “the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”On its part, Article 15(2) states that, “The Prosecutor shall analyse the seriousness of the information received He or she may seek additional information from States, ... or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the ...Court.”

Article 5 of the Rome Statute spells out the categories of crimes within the ICC’s jurisdiction. It provides that, “the Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression”. However, the Rome Statute has provided different forms of jurisdictions as well as some jurisdictional limitations. The various forms are: (1) temporal (ratione temporis) jurisdiction (See Article 11); (2) personal (ratione personae) jurisdiction; (3) territorial (ratione loci) jurisdiction (See Art. 12(2)(a)); (4) acceptance of jurisdiction by a non-State Party (ad hoc jurisdiction) (See Art.12(3)) and; (5) subject-matter (ratione materiae) jurisdiction[63] which, according to Article 5 (a) - (d) of the Rome Statute of the ICC, includes: the crime of genocide, war crimes, crimes against humanity, and the crime of aggression.

As already hinted above, the exercise of the ICC’s jurisdiction is subject to some limitations, some of which are enshrined in Article 16 (Security Council deferral); Article 17 (complementarity) Article 26 (age limit), Article 124 (reservation and/or declaration by a State).

Another very important aspect with the ICC’s jurisdiction is that, the Court is non-retroactive. The ICC may, according to Article 11(1) of the Rome Statute, exercise its jurisdiction only to crimes committed after the entry into force of the Rome Statute – 1 July 2002. If a State ratifies the Statute after this date, the exercise of the ICC’s jurisdiction shall run only with respect to crimes committed after July 1, 2002, date the Statute entered into force – except that upon ratification of the Statute, the new State-Party made a reservation accepting the jurisdiction of the International Criminal Court (ICC) retroactively. Article 11(2) of the Statute says, "if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3"

3.3.1.1. Subject-matter requirements

It is trite law that no one can be prosecuted for what the law does not prescribe. Put differently, Article 11(2) of the Universal Declaration of Human Rights (UDHR) provides that, "no one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed". Of course, it goes without saying that an individual can only be charged or prosecuted by the International Criminal Court (ICC) for the crimes listed in the Rome Statute. The Statute has categorically outlined crimes that form the subject-matter jurisdiction requirements of the ICC. They are contained in Article 5, and defined in Articles 6 (the crime of genocide), 7 (crimes against humanity), 8 (war crimes), 8bis (the crimes of aggression), and finally Article 70 (offences against the administration of justice), which has not been treated here.

3.3.1.1.1. The crime of genocide

Only a mandated judicial body can make a legal determination as to whether genocide did indeed occur, and who was responsible. Where there has been a legal determination of genocide in relation to specific events, use of the term may become less politically contested, though not necessarily free of controversy. Where such a determination has not been made, use of the term is likely to be vigorously contested by affected communities ...

The United Nations – When to refer to a situation as “Genocide”.

The term 'genocide' was coined by a legendary lawyer of Polish-Jewish descent, Raphael Lemkin, in his 1944 work, entitled "Axis Rule in Occupied Europe".[64] Troubled by the Holocaust, the massacres of the Albigense, the Waldenses; and more recently, the massacre of the Armenians,[65] Lemkin coined the word 'genocide' from the ancient Greek word 'genos' (race, nation or tribe) and the Latin suffix 'cide' (killing).[66] In 1946, barely two years after Lemkin wrote his book, his idea about genocide was in the spotlight. It was affirmed in the UN Resolution 96(1) of 11 December 1946 that, “genocide is a crime under international law which the civilised world condemns”[67] Besides, the Resoluion requested the United Nations Economic and Social Council (ECOSOC) to “...undertake the necessary studies, with a view to drawing up a draft Convention on the crime of genocide ”[68] The draft Convention was submitted to the General Assembly, and was later adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948 - relating to the Convention on the Prevention and Punishment of the Crime of Genocide,[69] entered into force on 12 January 1951. It is worth noting, however, that 'mass killing' is as old as mankind.[70] But, before 1944, no word existed for it, reason why Winston Churchill called it 'the crime without a name'.[71]

According to Lemkin, Genocide is defined as:

The destruction of a nation or of an ethnic group […] a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.[72]

In international law, the meaning of genocide is a little more simple.[73] In fact, the definitions provided for in Article 2 of the 1948 Genocide Convention and Article 6 of the 1998 Rome Statute of the ICC are written word-for-word. According to both provisions, genocide means:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. [74]

Comparatively, the definition by Lemkin is broader in scope than that of the United Nations. In effect, whilst Lemkin’s definition encomapasses political, cultural and other groups,[75] the United Nations, on their part, have limited the definition of genocide to the four groups stipulated in Article 6(a)-(e) of the Rome Statute, to wit: national, ethnical, racial and religious.[76] This, it should be noted, has attracted criticisms on account that the four groups are too limited and arbitrary.[77] Thus, the Rwandan genocide was cited as the quintessence –where, it was said that, “The two prevalent groups – the Tutsi and the Hutu – spoke the same language, shared the same customs and were both Christians. How could the victims then be a distinct ‘ethnic’ group?”[78] In response, the International Criminal Tribunal for Rwanda held that the definition of 'ethnic group' isn’t that provided by an encyclopaedia, “but whether the perpetrators have perceived the victims as members of a distinct ethnic, racial, etc. group.”[79] In another words, Lemkin puts it that, “genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group.”[80] Also, rape is said to constitute genocide where the perpetrator’s intention is to destroy—in whole or in part—a particular group. This was the decision in The Prosecutor v. Jean-Paul Akayesu,[81] where Akayesu was found guilty of 9 of the 15 counts proffered against him, including crimes against humanity and genocide.

Like the Rome Statute of the ICC, the Genocide Convention cannot be applied retro-actively. That is, it does not apply to crimes committed before 12 January 1951, the date of its entry into force. Also, the Convention makes genocide a crime at all times; be it war or peace (Art. 1).[82]

At a glance, the UN’s definition brings about two striking rudimentary elements. First, the mental element – styled in legal parlance as mens rea,[83] is the "... intent to destroy, in whole or in part, a national, ethnical, racial or religious group"[84] Second, the physical element – styled in legal parlance as the actus reus, [85] are the five acts enumerated or enshrined in Article 6(a)-(e). To constitute the crime of genocide, both the mental element (intent) and act must always coincide in point of time. Therefore, for the prosecution to sustain a conviction for the crime of genocide, he or she must be able to establish that the act - within the meaning of Article 6(a)-(e)) - was voluntarily omitted or committed by the perpetrator of the alleged crime.

The above rule, known as the 'contemporaneity rule' or the 'coincidence of actus reus and mens rea ' is a common law principle that has been incorporated into the Convention on the Prevention and Punishment of the Crime of Genocide and the Statute of the ICC. The rule is a test of criminal liability expressed in legal maxim as actus non reum facit nisi mens sit rea, that is to sayunless his mind (or intention) is guilty."[86]

Although the Genocide Convention dwells mainly on States, Article 4 of the same says that, “persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”[87] Technically, this could mean that non-State actors or other private individuals could be charged and prosecuted before a competent tribunal for crimes falling within the purview of Article 3 of the Convention, which defines acts that are punishable. It states, that:

The following acts shall be punishable:

(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.[88]

To date, only a few cases have been determined by the tribunals as constituting genocide.[89] This, therefore, is to say that, the crime of genocide is only determined by a competent judicial institution or body, and not private individuals, political institutions or NGOs. The International Criminal Tribunal for Rwanda (ICTR), which was established by the United Nations Security Counsel (pursuant to Resolution 955 (1994) of 8 November 1994), to "...prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994",[90] determined that the 1994 killings of Tutsi and moderate Hutus in Rwanda was genocide. This was also the case in Srebrenica, where the International Court of Justice (ICJ) and the International Criminal Tribunal for the former Yugoslavia (ICTY) determined that the events in 1995 between Bosnia and Herzegovina were genocide. At the national level, Article 6 of the Genocide Convention gives States the powers to, prosecute in a competent national court, any person charged with genocide or any other crime stipulated in Article 3 of the same. However, Article 8 gives States the latitude to seize the UN where they deem fit and apposite.[91]

3.3.1.1.2. Crimes against humanity

To me, the origin of the term 'crimes against humanity' is fuzzy, blurry and dim. Although much ink have flown on the topic, I think, nonetheless, that there is still a need for some clarity.

To justify my stand, I would like to make reference to the works of a few authors. Dube, for example, says that "crimes against humanity have origins from various conflict situations in the 19th and 20th century".[92] He adds, still in the same work, that "the term was first used in the Nuremberg trials".[93] Conversely, Fournet avers in her thesis that the term "was used long before Nuremberg and its first recorded appearance is in a 1915 joint declaration of the governments of Great Britain, France and Russia describing the Turkish massacres of Armenians as 'crimes against humanity and civilization'”.[94] According to Alemayhu, “the term was first used by the French revolutionary leader Maximilian Robespierre when he described King Louis XVI as “Criminel envers l’humanite” which means Crimes against Humanity.”[95] Meanwhile, Hochschild provides a completely different view of the term’s origin. To him, the term 'crimes against humanity' was first documented in a pamphlet published in 1890 by George Washington Williams, where he described the atrocities perpetrated in the Congo Free State by the Belgian administration under King Leopold II.[96]

Apparently, the acts constituting 'crimes against humanity' existed years before the name was ever used. 'Crimes against humanity' involves acts of physical violence; deportation, rape, murder, etc., and it is in records that considered as the bloodiest period in history.[97]

However, the obvious according to some reliable reports is that, the term 'crimes against humanity' was used for the first time in May 28, 1915, just after World War I—where, in a joint declaration, the governments of the allied nations (Great Britain, France and Russia) condemned Armenians in Turkey (the Armenian Genocide or Holocaust) as 'crimes against civilization and humanity'.[98]

At the end of World War II, confronted with the atrocities caused by the major war criminals of the European Axis countries,[99] the concept of 'crimes against humanity' was introduced into positive international law for the first time by Robert Houghwout Jackson (Associate US Supreme Court Justice,[100] appointed by President Truman as US Chief Prosecutor at the Nuremberg Trial) and Sir Hersch Lauterpacht QC (Polish-British lawyer and judge at the International Court of Justice), where Article 6(c) of the London Charter of the International Military Tribunal (otherwise known as the Nuremberg Charter) defined the term, as including:

...murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.[101]

Later, the concept of 'crimes against humanity' was incorporated into other international instruments adopted by the United Nations to counter inhuman atrocities. For example, the Tokyo Charter of 1946 gave birth to the International Military Tribunal for the Far East, which was set up to try and punish the major war criminals in the Far East (Article 1), for crimes against peace (Article 5(a), conventional war crimes (Article 5(b), and crimes against humanity (Article 5(c). On May 25, 1993, the UN Security Council pursuant to Resolution 827 (1993), establishedpersons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace[102] Let it be clear, however, that the above Resolution was several times amended, and an updated September 2009 Statute of the ICTY enlarged the ICTY’s jurisdiction to include: grave breaches of the Geneva Convention (Article 2), crimes of genocide (Article 4), crimes against humanity (Article 5).[103] As a result of the 1994 Rwandan genocide, the United Nations Security Council also established the International Criminal Tribunal for Rwanda (ICTR). Article 1 of the Statute that established the tribunal empowered it to “prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994”. Article 2 of that Statute defines genocide, Article 3 defines crimes against humanity, and Article 4 explores war crimes.

Finally, the International Criminal Court (ICC) was set up on July 17, 1998, by the Rome Statute with jurisdiction over, amongst others, the 'crimes against humanity'; defined differently, although slightly, from the definitions in the Nuremberg Charter, the Statutes of the ICTY and ICTR. Article 7(1) of the Rome Statute of the ICC defines 'crimes against humanity' as:

Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;(b) Extermination;(c) Enslavement;(d) Deportation or forcible transfer of population;(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture;(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;(i) Enforced disappearance of persons;(j) The crime of apartheid;(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. [104]

As said earlier, with ordinary crimes—as well as the crime of genocide, the rule is that to sustain a conviction for such crimes, the prosecution must prove two elements—intent and acts. Besides, Article 30 of the Rome Statute of the ICC, provides a person shall be responsible for a crime only if the material elements are committed with intent and knowledge. However, with crimes against humanity, the definition requires that the acts should have taken place under defined circumstances.[105] That is: “as part of a widespread or systematic attack directed against any civilian population”. Hence, this would add up to the above rudimentary requirements of 'intent' and 'acts', to constitute the crime. On a whole: First, Article 7 identifies some specific crimes; referred to as 'acts' (Article 7(1)(a)-(K)), which must be committed. Second, that the acts must be committed as part of a widespread or systematic attack. Third, that the attack must be directed against any civilian population. Fourth, that the perpetrator has the intent or knowledge of the attack on the civilian population.

Therefore, the court is likely to discharge the accused if any of the above elements is missing.

The 'acts' so stated are so vague, but have been conveniently defined in Article 7(1)(a)-(k).

It is germane to note, however, that unlike Article 7(1) of the Rome Statute, which says the attack must be against any civilian population, Article 3 of the Statute of the International Tribunal for Rwanda provides that, the attack must be against any civilian population on national, political, ethnic, racial or religious grounds. Therefore, in terms of applicability, the former is broader in scope. While the latter was limited in that it applied to any population of the 4 groups. According to customary international law, however, the attack must be against a civilian population.[106]

3.3.1.1.3. War crimes

The prosecution of Sir Peter Von Hagenbach, born in about 1420 by Alsatian-Burgundian family, constituted the first ever international war crimes trial in legal history.[107] Hagenbach was tried and convicted for violating “the laws of God and man” (murder, rape, perjury and others) by an ad hoc tribunal of 28 judges, created by the Archduke of Austria.[108]

He was a governor, appointed by Charles the Bold, Duke of Burgundy, to maintain order in Austria’s territories on the Upper Rhine.[109] Faced with a rebellion against him for ultra vires, and for crimes committed during the occupation of Breisach, Hagenbach was tried, found guilty of war crimes and beheaded on May 9, 1474, following an order of the ad hoc tribunal.[110]

According to legal scholars, Hagenbach’s trial is a landmark case since it is the first ever trial that constituted international war crimes in legal history. Also, that the trial brought about the principle of 'command responsibility' or 'superior responsibility' in international criminal law, because during his defence before the ad hoc international criminal tribunal, Hagenbach made a plea that he was simply acting upon instructions from his master, Charles the Bold. According to the Case Matrix Network (CMN), superior responsibility or “command responsibility, assigns criminal responsibility to higher-ranking members of military for crimes of genocide, crimes against humanity and war crimes committed by their subordinates.”[111]

However, it remains unclear whether or not there was a codified international criminal law at the time prohibiting war crimes, especially as Grant expresses it in her work, that, Hagenbach was charged for violating “the laws of God and man”, referring to murder, rape, etc.[112] For this simple reason, the questions which immediately come to my mind are, what about the legal doctrine that a person cannot be prosecuted for what the law does not prescribe? Was Hagenbach’s prosecution and subsequent execution based on equity and the rule of law?

After the above period, the concept of war crimes gradually gained grounds in international law, and was later codified in the Hague Conventions of 1899 and 1907 (which protect mainly soldiers and prohibit dangerous means and methods of warfare), the Geneva Convention of 1849 (which protects mainly persons not or no longer involved in hostilities) and its additional protocols I -1977 (relating to the Protection of Victims of International Armed Conflicts); II – 1977 (relating to the Protection of Victims of Non-International Armed Conflicts); and III – 2005 (relating to the Adoption of an Additional Distinctive Emblem), and the 1998 Rome Statute of the ICC, which applies not only to international armed conflict, but to non-international armed conflicts as well; and the Statute also makes individuals criminally responsible for committing international crimes or for actions of a country or its soldiers, etc.[113]

Article 8(1) of the Rome Statute gives the ICC power over war crimes; and in particular, “when it is committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Meanwhile, Article 8(2) provides a list of international crimes, which – if committed with the requisite intention (or knowledge) under Article 8(1), will amount to war crimes. Some examples of these prohibited acts or conducts are: 8(2)(a)(i) wilful killing; 8(2)(a)(ii) torture or inhuman treatment, including biological experiments; 8(2)(a)(iii) wilfully causing great suffering, or serious injury to body or health; 8(2)(a)(iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 8(2)(a)(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile power; 8(2)(a)(vi) wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; 8(2)(a)(vii) unlawful deportation or transfer or unlawful confinement; 8(2)(a)(viii) taking of hostages, and the list continues.

Further, Article 8(2) of the Rome Statute distinguishes four categories of war crimes, to wit: (1) grave breaches of the 1949 Geneva Conventions, related to international armed conflict; (2) other serious violations of the laws and customs applicable in international armed conflict; (3) serious violations of Article 3 common to the four 1949 Geneva Conventions, related to armed conflict not of an international character, and; (4) other serious violations of the laws and customs applicable in armed conflict not of an international character.[114] In a more substantive way, the United Nations have broken down the meaning of war crimes under Article 8 of the Rome Statute of the ICC into 5 categories, namely: (1) war crimes against persons requiring particular protection; (2) war crimes against those providing humanitarian assistance and peacekeeping operations; (3) war crimes against property and other rights; (4) prohibited methods of warfare; and (5) prohibited means of warfare.[115] It should be noted, however, that there is no single or particular instrument or treaty in international law which codifies all war crimes. Therefore, war crimes could be found in different sources like the international humanitarian law, international criminal law, and international customary law.[116]

Of great significance is the fact that Article 12(1)(2) of the Rome Statute imposes the ICC’s subject-matter jurisdiction (war crimes, crimes against humanity, genocide and the crime of aggression) on member States. Notwithstanding Article 12 - paragraphs 1 and 2, Article 124 of the Rome Statute gives a State the right to make reservations with war crimes (Article 8).[117] Until November 26, 2015, only France and Colombia had made their declarations under Article 124. While France withdrew its declaration in 2008, that of Colombia got expired in 2009.[118] However, Article 124 was finally deleted from the Rome Statute by Resolution ICC-ASP/14/Res.2, adopted at the 11th plenary meeting, on 26 November 2015, by consensus.[119]

Although war crimes, crimes against humanity and genocide are similar, they are, however, distinct concepts in that, like war crimes, crimes against humanity are not codified in any conventional instrument. Also, while war crimes can only be committed during armed conflict, crimes against humanity can be committed during war or peace.[120] On the other hand, while crimes against humanity focuses on the mass killing of a large number of individuals (attack on the population), genocide focuses on the killing or destruction of a group.

3.3.1.2. Territorial, personal and temporal requirements

The territorial jurisdiction of the ICC is defined in Article 12(2)(a) of the Rome Statute. As explained, the ICC exercises its jurisdiction over States-parties. However, there are exceptions to this rule, such as those contained in Articles 12(2)(3), 13(a)(b), etc. of the Rome Statute.[121] This, notwithstanding, the territorial jurisdiction of the ICC falls within the territorial surface of a State – that which is within the ICC’s jurisdiction, where the crime was committed. In a nutshell, a State’s territory includes its geographic area, vessels and/or aircraft registered in its name. Accordingly, territorial jurisdiction by virtue of Article 12(2)(a) of the Rome Statute refers to the geographic area or territory of a State-Party, the registered vessel and/or aircraft of any State that is a party to the Rome Statute or have accepted the ICC’s jurisdiction in a declaration filed at the registry of the Court pursuant to Article 12(3) of the Rome Statute.[122]

Personal jurisdiction simply refers to individuals. As it has already been said, the ICC, according to Article 1 of the Rome Statute, exercises its jurisdiction over persons – not States.

Finally, temporal jurisdiction refers to the time within which the ICC can exercise its jurisdiction over crimes committed. The temporal jurisdiction of the ICC is sufficiently covered by Article 11(1)(2) of the Rome Statute. In line with Article 11(1), the ICC can only exercise its jurisdiction with respect to crimes committed after the entry into force of the Rome Statute – that is, on July 1, 2002.[123] Conversely, to States whose membership to the Rome Statute are recognised only after the date of entry into force of the Statute, the ICC may exercise its jurisdiction only over crimes committed from the time the Statute becomes binding on a particular State, save and except where there’s a declaration under Article 12(3).[124]

3.3.2. Admissibility of a case before the ICC

The term 'admissibility', a derivative of 'admit', is defined by the Black’s Law Dictionary as, “the quality or state of being allowed to be entered into evidence in a hearing, trial, or other proceeding.”[125] In strict legal parlance, it means to prove a case before a court of competent jurisdiction, the evidence adduced must satisfy certain conditions for it to be admitted. For example, where the evidence adduced is a document, the rule of evidence law is that, to be admissible, the document adduced must be the original, and not copy.[126] If the adduced document or evidence is not original, although there’s an exception to the above rule,[127] it would likely be that the evidence adduced (copy) has failed the test of admissibility, and the Court will not be in any position to admit same in evidence. However, in the context of the ICC, admissibility is a different ball game – all together. Fundamentally, it extends to the threshold requirements for a case or cases to be admitted by the International Criminal Court.

Articles 53 and 17 of the Rome Statute are essential provisions on the issue of admissibility of cases before the ICC. Article 53 says that before the prosecutor initiates an investigation, he or she must ensure that, a) there is “a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed”[128], b) that “the case is or would be admissible under article 17”;[129] and c) that the investigation would serve the interest of justice. Meanwhile, Article 17 which touches on complementarity, says that – in line with the preamble and Article 1 of the Rome Statute, the ICC shall determine that a case is inadmissible where: a) it is being investigated or prosecuted by another State; save and except the State is unwilling or unable to do the case, b) where a State has investigated the case, but refuses or is unwilling to prosecute, c) where the case is res judicata; and, d) where the case lacks sufficient gravity to justify further action by the Court.[130] Some contested cases of admissibility before the ICC include: Saif Al-Islam Gaddafi and Abdullah Al-Senussi - Libya. In The Prosecutor v. Saif Al-Islam Gaddafi , formerly The Prosecutor v. Muammar Mohammed Abuminyar Gaddafi , the Court terminated the case against Muammar Gaddafi on November 22, 2011, following his demise; and the case against Abdullah Al-Senussi was declared inadmissible on October 11, 2013, by the Pre-Trial Chamber I on account that, the Libyan authorities were both willing and able to prosecute him for crimes allegedly committed.[131] Alternatively, the ICC found the cases against William Ruto, Joshua Sang, Francis Muthaura, Uhuru Kenyatta, Hussein Ali, and Henry Kosgey inadmissible, on account that, the parties before it (the ICC) – were not the same parties during investigation in Kenya.[132]

4. Why the ICC has jurisdiction over crimes allegedly committed in Cameroon

As of this day, the Rome Statute of the ICC has 138 signatories and 123 ratifications.[133] On July 17, 1998, Cameroon signed the Rome Statute of the ICC, but is yet to ratify same.[134] In international law, a State is bound by an instrument only after ratification—and not by signing. While ratification creates a binding legal obligation on the State, signing expresses the State’s desire to examine the instrument domestically so as to consider whether or not to ratify same.[135]

Regardless of the above, the International Criminal Court (ICC) purports to subject nationals of non-States Parties to its jurisdiction,[136] although other great nations, like the United States (U.S.), have consistently objected to the ICC’s jurisdiction over their nationals.[137] According to the U.S., their nationals should only be prosecuted by the U.S. Courts - not the ICC or other States,[138] even if the crimes allegedly committed are within their jurisdictional competence. Besides, the U.S. has argued that the Rome Statute is fatally flawed, and that if they ratify same, its application would be inconsistent with some entrenched provisions of their laws.[139] For example, war crimes, one of the four main crimes within the ICC’s subject-matter jurisdiction, are prosecuted in the U.S. Courts under the War Crimes Act of 1996, which gives the U.S. Courts the power to try U.S. citizens or military officers, residing in or out of the US.[140]

Admittedly, this is why[141] He added, that: "We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. ... We will do the same for any ... or State that assists an ICC investigation of Americans."[142]

However, for reasons of international peace and security under Article 39 of the Charter of the United Nations,[143] the ICC continues to exercise its jurisdiction over non-State Party nationals,[144] and this is what happened with Sudan (2005) and Libya (2011), where the UN Security Council referred the situations there to the ICC, although not parties to the Statute.[145]

Therefore, like Sudan and Libya, the ICC can exercise its jurisdiction over crimes committed in Cameroon; and this may take either of the three ways, to wit: 1) UN Security Council referral, 2) State Party referral, and 3) Consent by Defendant’s State (Rome Statute, Art. 12).

4.1. Contextual evidence of crimes allegedly committed

- , the research presents evidence of crimes committed in the two English-speaking regions.

4.1.1. Evidence of the crime of genocide

In a genocide case, 'intent to destroy' is the most complex element to prove. The absence of which, the crime committed would either be crimes against humanity or mass murder.[146] Essentially, the intent element is what makes genocide different from other heinous crimes. It can only be decided by the court, and this is on a case-by-case basis.[147] However, the elements presented below are based on a general assessment done by this Researcher, and they constitute evidence of the crime. Put differently, they’re proof that genocide is being committed.

Article 6(a) – Genocide by killing

Elements:

-The perpetrators have killed at least 2000 persons;[148] [149]

-These persons were Cameroonians from the English-speaking regions[150]

-The perpetrators acted upon instructions from their master, the government of Cameroon, whose economic interest the perpetrators seek to protect. Their intention is construed from the fact that, despite the sustained, calculated and systematic killing of these people for over 3 years now, non of the perpetrators has been investigated or charged to court or officially condemned for such. Also, the fact that the Head of State, President Paul Biya, declared war against the people of these regions whom he dubbed as terrorists[151] shows his intention to annihilate them, through his forces. Similarly, on December 31, 2018, he made a speech, saying the military will neutralize warmongers,[152] etc.

-The perpetrators employed tactical military advantage to kill. See Figs. 1 & 2 below.

Fig. 1. [153] Cameroon’s special forces in Buea, South-West Region – Cameroon

Abbildung in dieser Leseprobe nicht enthalten

Source: The New York Times. Also, Aljazeera (October 2018)[154]

Fig. 2. Video of showing the indiscriminate killings in Ekona, South West Region

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Source: https://www.youtube.com/watch?v=NpoKOTbfHmk. Accessed on the 21/02/2019.

Article 6(b) – Genocide by causing serious bodily or mental harm

Elements:

-The perpetrators have tortured and detained countless persons, private properties have been burnt to the ground, including 160 villages; thousands of children are out of school since 2016, [155] over 437.000 are IDPs,[156] and 50.000 as refugees in Nigeria.[157]

-These persons were Cameroonians from the English-speaking regions;

-The perpetrators acted upon instructions from their master, the government of Cameroon, whose economic interest the perpetrators seek to protect. Their intention is construed from the fact that, despite the sustained, calculated and systematic killing of these people for over 3 years now, non of the perpetrators has been investigated or charged to court or officially condemned for such. Also, the fact that the Head of State, President Paul Biya, declared war against the people of these regions whom he dubbed as terrorists[158] shows his intention to annihilate them, through his forces. Similarly, on December 31, 2018, he made a speech, saying the military will neutralize warmongers,[159] etc.

-The perpetrators used tactical military advantage to inflict the above pains on them.

4.1.2. Evidence of crimes against humanity

These include, but are not limited to:

Article 7(1)(a)(b) – Crime against humanity of murder / extermination

Elements:

-The perpetrators have killed at least 2000 persons;[160] [161]

-The persons, most of whom were civilians from the English-speaking regions of Cameroon, died in a large scale attack by armed State-sponsored military soldiers[162]

-The perpetrators intended it to be so, reason why they buried some in mass graves[163]

Article 7(1)(d) – Crime against humanity of deportation / forcible transfer of population

Elements:

- The perpetrator, the Senior Divisional Officer (SDO) for Manyu, Mr. Oum II Joseph, citizens of 16 villages in the Southern Cameroons, precisely in Manyu Division,“to relocate to safer neighbourhoods of their choices ...failure which they will be treated as accomplices or perpetrators of on-going criminal occurrences registered on security and defence forces.”[164] This, although later debunked by the Governor,[165] the crime, however, had been committed as citizens already relocated. In another case, the Ayuk Tabe’s case, who’s the interim president of the to be 'Ambazonia', the new country separatists want to form from the present day Cameroon, the government of Cameroon connived with the government of Nigeria, and Ayuk Tabe and others were arrested in Nigeria and deported to Cameroon, in total violation of the principle of non refoulement, protected by the 1951 Refugee Convention. Ironically, some were refugees while others had sought asylum there.[166]

-These persons were lawfully present in the areas they were transferred or deported.

-The perpetrators new their situations or status at the time the crimes were committed.

-The persons were civilians and the perpetrators conducts were exercised on a people.

-The perpetrators knew they were exercising their conducts on many a people, etc.

Crimes against humanity within the meaning of Articles 7(1)(c)(g)-2-3-4-5-6 & 7(1)(j). Elements:

-No element was found. Meaning, these crimes were never committed.

4.1.3. Evidence of war crimes

As already explained, it is trite law that war crimes are acts or conducts which violate the rules of war. Therefore, for an act to be qualified as a war crime, there must be war; and the act must be inconsistent with the rules of war (see the Geneva Conventions). According to Black’s Law Dictionary, War is defined as a “”. From this definition, I hold the opinion that once the above ingredients are met, there is war, irrespective of whether or not it is declared by any head of State or any other legally constituted competent body. Now, the question is, is there an armed conflict in Cameroon involving armed forces and organised groups? This research found the answer to be in the affirmative. Admittedly, there are two groups (state-sponsored agents, including the military and the separatist groups styled as Amba boys). In line with this indisputable fact, together with the evidence presented below, this research found that war crimes are being committed in Cameroon’s English-speaking regions.

The evidence includes, but are not limited to:

Article 8(2)(a)(i) – War crime of wilful killing

Elements:

-- The perpetrators have killed at least 2000 persons;[167] [168]

- The persons, most of whom were civilians from the English-speaking regions of Cameroon, died as a result of armed attacks by State-sponsored soldiers and rebels.[169] [170]

-The perpetrators, some of whom are state-sponsored agents, were aware of the protected status. For the president to have declared war against separatist rebels, who have resisted the government for years, means they were aware of the brutal aftermath.

Article 8(2)(a)(iv) – War crime of destruction and appropriation of property

Elements:

-The perpetrators, made up of soldiers and rebels have burned down schools, hospitals, villages, homes with persons inside, private transportation trucks, and others[171]

-The destruction of these properties was not orchestrated by military necessity.[172]

-The destruction was widespread (e.g. over 160 villages burned), systematic and cruel.

-The properties were protected properties, belonging to individuals, schools, churches, etc., even government-owned properties like hospitals, medical equipment, and others.

-The perpetrators were aware of the circumstances that necessitated their protection.

Article 8(2)(b)(i) – War crime of attacking civilians

Elements:

-The perpetrators attacked the English-speaking part of Cameroon;

-The object of attack is a civilian population – not involved in the hostility;

-The perpetrators intended to attack these civilians.[173]

-The perpetrators were aware of the circumstances that caused the armed conflict.

The below photos exhibit some inhumane treatments meted on innocent civilians:-

Fig. 3:

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Source: The Guardian. Available at: https://www.theguardian.com/global-development/2018/may/30/cameroon-killings-escalate-anglophone-crisis#img-1.

Fig. 4: Photo of a burned village in the English-speaking Cameroon.

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Source: BBC.

Fig. 5: Photo of burned Kumba hospital.

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Source: Cameroononline.org.

4.2. Trigger mechanisms available for Cameroon’s case

4.2.1. UN Security Council referral

The Security Council, made up of eleven members of the United Nations (UN),[174] is one of the six principal organs of the UN, including the General Assembly, the Economic and Social Council, the Trusteeship Council, the International Court of Justice, and the Secretariat.[175] Amongst others, and on behalf of members of the UN, the Security Council has, as primary objective, the responsibility to maintain international peace and security, which shall be in accordance with the purposes, principles and objectives of the United Nations.[176] To execute this task, the UN Charter has given the Security Council the powers to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and ... make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”[177] However, it would be unclear if Article 39 of the UN Charter (supra) is brought here in isolation—it must be in conjunction with Article 13(b) of the Rome Statute, which provides the legal basis for referral by the UN Security Council, especially where there’s a threat to international peace and security. Article 13(b) gives the UN Security Council the power to refer crimes within the meaning of Article 5 of the Rome Statute to the Prosecutor of the ICC.[178] However, the actions of the Security Council must be in the interest of international peace and security, and Art. 39 of the Charter.[179]

The situations in Sudan (2005) and Libya (2011), where the UN Security Council referred the crimes that resulted in the deaths of at least 300.000 people in Darfur,[180] and 2.500 deaths in Libyan Arab Jamahiriya,[181] to the Prosecutor of the ICC, isn’t different with what obtains in Cameroon in that, so far, Cameroon has registered at least 4.000 deaths from 2016 to date,[182] although the actual number is still unclear because of brutal repression by the military.

Also, all the three States are African States, and Yongabi strongly believes that the ICC was established solely to target African nationals or States,[183] especially dictators who violate human rights. It should also be recalled that like Sudan and Libya, Cameroon is not a State-Party to the Rome Statute of the ICC. As such, if the ICC could impose its jurisdiction on them, then it can as well impose same over nationals of Cameroon, irrespective of whether, as the U.S. argued, some provisions of the Rome Statute may be inconsistent with Cameroon’s domestic laws. However, unlike the U.S., Cameroon is known as a heavily indebted country,[184] and cannot flex its muscles with the ICC—just like the U.S. threatens the UN with economic sanctions,[185] and that the ICC judges would be barred from entering the U.S. if they dare prosecute U.S. citizens or its allies.[186] If Cameroon had an influence in the day-to-day affairs of the United Nations like the U.S., then the possibilities for a referral to the Prosecutor of the ICC by the UN Security Council of crimes allegedly committed by nationals of Cameroon would have been taken with a pinch of salt. Unfortunately, this isnt the case at all.

It could as well be argued on behalf of the State of Cameroon that, since some of the perpetrators of the crimes falling within the jurisdiction of the ICC are being prosecuted in Cameroon before the Yaounde military tribunal and other tribunals, the UN Security Council may only refer the matter to the Prosecutor of the ICC if it is established that Cameroon is unwilling or unable to investigate or prosecute the perpetrators of the crimes or conducts. See, for example, The People of Cameroon V. Ayuk Tabe Julius & others , arrested in Nigeria.[187]

Better still, there’s overwhelming evidence that there’s a gross violation of human rights in Cameroon, and that like Sudan and Libya, there’s brutal repression of the civilian population by the military, leading to extra-judicial killings, burnt properties of a group of people, etc.[188]

Therefore, in line with Articles 13(b) of the Rome Statute and 39 of the UN Charter, the UN Security Council may refer the crimes committed by nationals of Cameroon to the Prosecutor of the ICC. See Resolution 1593 (2005), adopted by the Security Council at its 5158th meeting, on 31 March 2005, where the UN Security Council decided to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court,[189] and Resolution 1970 (2011), adopted by the Security Council at its 6491st meeting, on 26 February 2011, where the UN Security Council Decideed to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court.[190] Also, Yongabi opines that “ whether Cameroon ratifies the Rome Statute or not, Cameroon’s nationals are subject to the International Criminal Justice System as practiced at the Hague . ” [191] And that, because Cameroon is an African State, the ICC has jurisdiction over it. [192] Cakmak’s opinion is also very illustrative here. It sheds lights upon this debate. He says:

Since a Security Council resolution is binding over both the UN members and non-members, once the Council adopts a resolution authorising the Court to investigate the situation concerned, the Court is granted a universal jurisdiction over the crimes.[193]

4.2.2. State Party referral

Article 13 of the Rome Statute of the ICC provides, that:

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14.

Meanwhile, as a follow up to Article 13(a) above, Article 14 states, that:

1) A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. 2)... a referral shall specify the relevant circumstances and be accompanied ... documentation as is available to the referring State.

In sum, the above expressions portray that, the right to a State-Party referral is conferred only to States that have ratified the Rome Statute of the ICC, and do not extend to non-States Parties.[194] They also reveal that the concerned State has the right to refer any such crime within the meaning of Article 5 of the Rome Statute to the Prosecutor of the ICC,[195] irrespective of whether or not the alleged crime or conduct was committed within the territory of a State Party.[196] On the strength of this, it means, therefore, that the ICC may prosecute conducts committed - (a) “on the territory of the State Party that makes the referral or on the territory of another State Party, or (b) by a national from the referring State Party or another State Party.”[197]

Let it be borne in mind that, the right to a referral under this head gives States-Parties the opportunity to be each others’ keeper. In a crisis situation of a State Party or a non-State-Party, for example, a State-Party to the ICC may refer the commission of any crime within the ICC’s jurisdiction to the ICC Prosecutor. It is immaterial whether or not the referring State has an interest in the matter. Put differently, State-Parties play the role of a watchdog, only to step in, then refer the matter to the Prosecutor of the ICC when there are sufficient grounds to believe that crimes within the meaning of Article 5 of the Rome Statute have been committed.

For example, Nigeria is a State-Party to the Rome Statute of the ICC, and Cameroon isn’t. Whether Nigeria suffers the consequences of the crisis in Cameroon or not, or whether Nigeria has an interest in it or not – although Nigeria is already so deeply involved, Nigeria has the right under Article 13(a) to refer crimes allegedly committed in Cameroon to the ICC – if within Art. 5.

Nonetheless, States are reluctant to make this referral on grounds of diplomatic relationships.

The above situation, however, is different from 'Self-referral', where a State-Party refers crimes committed within its own territory, and perhaps by its own citizens, to the Prosecutor of the ICC. Uganda is the quintessence of Self-referral. In a protracted conflict between the government of Uganda and armed rebel groups, led by the Lord’s Resistance Army(LRA), the life of tens of thousands were lost, hundreds were abducted and many were raped, etc.[198] This pain is said to have been inflicted on the Ugandan population by rebels, led by the LRA.[199] On June 14, 2002, Uganda ratified the Rome Statute. On December 16, 2003, Uganda referred itself to the International Criminal Court, and on July 28, 2004, the investigation was opened.[200] See The Prosecutor V. Joseph Kony et al.[201] See also, The Prosecutor V. Dominic Ongwen.[202] See also Self-referrals of the Central African Republic, DR of the Congo, Gabon and Mali.

4.2.3. Consent by non-State Party (Defendant’s State of Nationality)

In the Law of Treaties (Vienna Convention of 1969), only States-parties are bound by a treaty. Simply, this would mean that, unlike a State-Party to the Rome Statute whose acceptance of the ICC’s jurisdiction is automatic, binding and obligatory upon ratification, a State which is otherwise not a Party to the Rome Statute may accept the ICC’s jurisdiction on crimes committed within its territory, only when the conditions in Article 12(3) have been fulfilled.[203]

On September 8, 2015, the registry of the ICC received a declaration lodged in accordance with Article 12(3) by the Ukrainian government, accepting the jurisdiction of the Court over crimes within the meaning of Article 5 of the Statute, committed in its territory from 2014.[204]

Cameroon, for example, which is not a party to the ICC has the right under Article 12(3) of the Rome Statute to file a declaration at the Registry of the Court, accepting the Court’s jurisdiction over crimes committed in its territory or in aircraft or vessel registered in Cameroon. The question which immediately comes to mind is, if Cameroonian officials are the perpetrators of the crimes, will they readily accept the ICC’s jurisdiction over alleged crimes?

However, 'consent by a non-State Party' should not be confused with 'Self-referral'. While Self-referral involvesStates-Parties to the Rome Statute, as the name implies; consent by a non-State Party involves States that have otherwise not ratified the Rome Statute of the ICC.

In conclusion, the ICC has the power to exercise its jurisdiction over crimes committed by Cameroonian nationals, although Cameroon is not a party to the Rome Statute. For this to happen, the above three methods of referrals become absolutely necessary - without which, it would be so tough for the ICC to investigate and prosecute perpetrators of the alleged crimes.

5. Self-defence as justification for the use of force, and the rights of victims of the crisis

As the conflict rages on, despite several calls for disarmament, demobilization, and reintegration (DDR),[205] fierce battle continues between the military and the armed separatists. Both, according to reports, have resorted to unorthodox strategies as a means of self-defence. While the military kills and burn villages indiscriminately in the South-West and North-West regions, the armed separatist kidnaps, kills, burn protected properties like schools, trucks, transportation vehicles. They have also employed child soldiers, as well as ghost towns as a means to enforce boycotts; rebel leaders incite violence from abroad, others destroy, and lots.

The essence of this chapter, therefore, is to understand what constitutes self-defence in both international and Cameroon laws. Besides, it is a reality that most victims of violence do not know the rules of self-defence.[206] Therefore, if the rules are ill-lit, then this is a vital flashlight.

5.1. The concept of self-defence

Admittedly, the concept of self-defence originates from the natural law principle. To some, self-defence has a morally driven force.[207] That is to say, the mind dictates it when there is a threat. For example, a defendant faced with imminent danger is left with two options—act in self-defence or face the spleen.[208] That, self-defence is a fundamental human right – inherent in man.[209] As such, the possessor cannot be dispossessed of it. Or, as a natural right, it is inalienable. Also, that “self-defence is the clearest of all laws; and for this reason—the lawyers didn’t make it”.[210] Meaning, if it were not natural—it would have been very complex.

Other scholars, however, believe that as sovereign entities, the States are equally entitled to the right to self-defence,[211] and that it is natural for States to fight and preserve their sovereignty right. To them, the right originated from the 'just war' theory, which, according to classical Greek and Roman philosophers like Plato and Cicero, the war must be conducted in a manner that is justifiable (jus ad bellum), and that the conducts be ethical (jus in bello).[212]

However, self-defence is as old as man.[213] It involves the use of physical force to defend one’s self or property or loved ones from harm.[214] In criminal law, a person is not criminally liable for a crime committed in self-defence, even if the crime is murder, committed proportionately.[215] This is expressed in legal maxim as, necessitas inducit privilegium quoad jura privata, which means: “necessity creates a privilege with regard to private rights.”[216] Hobbes puts it more succinctly, though based on the natural law theory, that “if a man by the terror of present death be compelled to do a fact against the law, he is totally excused; because no law can oblige a man to abandon his own preservation...nature compels him to the fact”.[217]

The Black’s Law Dictionary defines self-defence as, “the use of force to protect oneself, one’s family, or one’s property from a real or threatened attack.”[218] This definition highlights four important things. First, that self-defence involves the use of force. Second, that if it were not exercised as a means of self-defence, the force would have constituted a crime. Third, that the force is legitimate in cases of imminent danger, not only when the attack is real. Fourth that the force is exercised in order to save life or property. The Webster Dictionary defines the term simply as, “defence of oneself, one’s property or one’s reputation”.[219] The legal meaning, however, goes beyond that as it includes one’s family, and limits to the use of force.

The basic principles of self-defence were set out in the landmark case of Palmer V. R , (1971- AC 814 “ it is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary. ” See also the common law principle in Beckford v. R,[220] where the judge said, “a defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable.” These principles have been developed by statutes, and some States have incorporated them into their domestic law. In Cameroon, for example, a person may use proportionate force as a means of self-defence (Penal Code , S. 84).

5.1.1. Self-defence under the UN Charter

Since the upshots of war have brought untold pain to mankind, the main goal of the United Nations, channelled through the United Nations Charter, is to ensure that succeeding generations are saved from the scourge of war, and to preserve international peace and security, and the fundamental human rights and dignity of all human persons.[221] To this effect,

Article 2(4) of the UN Charter declares, that:

All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purpose of the United Nations.[222]

Interestingly, Article 2(4) above prohibits the use of force. However, it is silent as to whether or not force is permissible in cases involving individuals or persons. The phrase, “use of force against ...any state, or in any other manner inconsistent with the purpose of the United Nations”, seems simple, but pregnant with meanings. In my opinion, I think since one of the purposes of the United Nations is to preserve the fundamental human rights of all persons, it suffices, therefore, to hold that Article 2(4) applies to self-defence. This, however, is my opinion, although others say self-defence is banned in Article 2(4), and is embedded in Art. 51.

More so, I think, honestly, that Article 2(4) contradicts the old 'just war' theory. So, since war entails the illegitimate use of force, it is my opinion that it is inconsistent with Art. 2(4) above.

As the law gives protection with the right hand, it takes it back with the left. Article 51 of the United Nations Charter provides a remarkable volte-face of Article 2(4). While Article 2(4) seeks to restrain member States from the use of force, Article 51 defines the circumstances where force could be used, and the extent to which it should be exercised. Article 51 says:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.[223]

The meaning of 'armed attack' as contained in Article 51 above has attracted heated debates. However, a few of the least contested interpretations are that, it suffices an armed attack when a "state physically crosses the border of another"; or when the use of force constitutes invasion or bombardment.[224] Article 51 makes it very clear that the right to self-defence is an inherent right. Meaning, that, it is endowed in States by God, and cannot be taken away. Also, it has been argued, strongly, that Article 51 welcomes the right to self-defence only when there is an 'armed attack', and this explodes the customary international law rule which legitimises self-defene in situations of imminent threat, otherwise known as 'anticipatory self-defense'.[225]

Despite the above, my understanding is that the intention of the drafters of the UN Charter was not to depart from the spirit of existing customary international norms, but to codify them. Therefore, I agree with the opinion that Article 51 has not ruled out 'anticipatory self-defence', and that the traditional rule under customary international law continues to apply. An authority in support of this stance is: The Republic of Nicaragua V. The United States of America its obligations under customary international law not to use force against another State".[226]

5.1.2. Self-defence under customary international law and the Caroline principle

Customary international law consists of unwritten practices,[227] accepted by states as binding on them. It is recognised by the United Nations, the International Court of Justice, and most legal systems as a primary source of international law. Thus, the foundation of the international legal system.[228] The Statute of the International Court of Justice,[229] otherwise known as the Constitution of the ICJ, defines customary international law in its Article 38(1)(b) as "a general practice accepted as law". Note be taken, that the UN Chater provides international rules on the use of force (Article 51) and the prohibition of force (Art. 2(4)).[230] However, customary international law also makes great contributions to both, especially on the right to use force as a means of self-defence, established by the oft-cited Caroline’s case.

The Caroline principle

The Caroline’s principle or Caroline’s doctrine, developed from the Caroline’s case, is an international diplomatic incident that occurred in 1837.[231] It was a diplomatic case between the Great Britain, United States, and the Canadian Independence Movement. At the time, Canada was still a British colony.[232] William Lyon Mackenzie, a Canadian-American journalist, also the first Mayor of Totonto,[233] led the 1837 Upper Canada Rebellion against the British colonial government.[234] Although the United States was officially neutral about it, its citizens, mainly those along the Canadian borders, however, aided the rebels with munitions and personnel others – transported by Caroline, a ship owned by the United States.[235] Feeling outraged, Britain decided to retaliate. On December 29, 1837, British-Canadian forces crossed the United States’ borders, seized the Caroline in their territorial waters, and set it ablaze, leaving at least one American citizen dead.[236] After the attack, they hurled the ship over Niagra Falls. [237] The United States also reacted by attacking a British ship. Several other attacks between the United States and the Great Britain were later recorded. However, after several diplomatic correspondences, the tension was defused by the Webster-Ashburton Treaty of 1842.[238] Of all the correspondences, the most prominent was that from Secretary of State Daniel Webster to Lord Ashburton, dated July 27, 1842, in which Daniel Webster quoted his correspondence to Henry Stephen Fox, dated April 24, 1841. The letter says, that:

It will be for Her Majesty’s Government to show, upon what state of facts, and what rules of national law, the destruction of the Caroline is to be defended. It will be for the Government to show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that local authorities of Canada …did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it….[239]

Webster’s formulation of the Caroline’s principle, a principle of customary international law, has established the rules of 'anticipatory self-defence', the result of which a State claiming self-defence must show, beyond reasonable doubt, that the . Therefore, to be permissible, the act of self-defence must be necessary and proportionate to the threat. In 1950, the Nuremberg Tribunal applied the rule.[240] See German invasion of Denmark (Operation Weserübung) on the 09 – 04 - 1940. See also a 2003 judgement of the International Court of Justice, between The Islamic Republic of Iran V. The United States (Case No. (2003) ICJ Rep 161.), where the Court said, “even if the Court were to find that its actions do not fall within the scope of Article 20, paragraph 1(d), those actions were not wrongful since they were necessary and appropriate actions in self-defence.”[241]

5.1.3. Self-defence under Cameroon law

Despite several debates, literatures and international laws on the right to interstate self-defence, the right to personal self-defence, which is almost unheard of, is also an essential part of international law.[242] At the national level, however, the concept of 'personal self-defence' is a common phenomenon, and most States, even African states, like Cameroon, have domesticated them in their laws, especially criminal law. While interstate self-defence refers to the natural right of a State to defend its territory, property, citizens or another’s against threat or attack from another State, personal self-defence is, simply put, when the act is exercised by an individual.[243] Hessbruegge, an expert on personal self-defence, believes that personal self-defence interacts with human rights in three levels: (1), the 'state-to-individual level'. Meaning, a situation where a State authority or agent justifies the killing of a private person. For example, where a police officer kills a burglar parting away with another’s property. Also, in the course of his official duty, a police has the right to use force to arrest a suspect. (2), the 'individual-to-individual level'. Meaning, a situation where an individual or a private person justifies the killing of another. For example, where an individual kills another for trying to kill his loved one, or for defending himself. (3), the 'individual-to-state level'. Meaning, a situation where an individual resists human rights violations committed by State authorities.

From the above, it is clear, however, that since the crisis in Cameroon is an internal armed conflict,[244] involving State agents and civilians, some of whom have organized themselves into various armed rebel groups, the applicable law would be Cameroon’s domestic laws; and, because of human rights violations, other Conventions duly ratified by Cameroon,[245] but not the UN Charter (Article 51), which regulates interstate self-defence—individual or collective.

Cameroon recognises the right to self-defence as a constitutional right. In its preamble, the Constitution declares that "the human person ... possesses inalienable and sacred rights." Although the expression 'inalienable and sacred rights' may be vague, it is, however, settled law that the expression is used to describe all fundamental rights, as well as self-defence right.

Besides, the Cameroon Penal Code permits self-defence in its Section 84(1). It states, that:

No criminal responsibility shall arise from an act dictated by the immediate necessity of defence of the person acting or of any other person, or of any right of himself or of any other, against an unlawful infringement – provided that the means of defence be proportionate to the seriousness of the infringement threatened.

An interpretation of the above quotation means, as 'necessity' and ' proportionality' are the two most important elements of self-defence derived from the Caroline’s principle, so too are these two elements vital for a self-defence claimant in Cameroon. Therefore, the use of force as a means of self-defence in the Cameroon crisis can take any form, even killing, in as much as the means is necessary and proportionate to the threat or attack. To this effect, Section 84(2) of the Cameroon Penal Code says, “intentional killing shall be proportionate to an attack causing a reasonable apprehension of death, of grievous harm ..., of rape or of sodomy.”

Finally, the Criminal Procedure Code permits the use of reasonable force in specific cases. Just like Hessbruegge’s theory of 'state-to-individual level', the judicial police officer may, in the course of exercising his lawful functions, use reasonable force to execute an arrest. Section 30(2) states that, “a judicial police officer, agent of judicial police or any officer of the forces of law and order effecting an arrest, shall order the person to be arrested to follow him and, in the event of refusal, he shall use reasonable force, necessary to arrest the person.”

From the above, I am of the opinion that Articles 2(4) and 51 of the UN Charter are strictly connected to the use of force involving States, and therefore cannot apply to the situation in Cameroon, because the situation constitutes an internal conflict of rebels and the military. Surely, this is why Nilsson writes that Article 2(4) “is not applicable in situations of civil war, but only in ´their international relations`, that is to say, in relation between states.”[246] This is also the point in Article 2(7) of the UN Charter, which says the United Nations shall not intervene in matters within the domestic jurisdiction of a State, except there is a threat to peace.

However, it must be understood that since rights have been violated, and in agreement with Hessbruegge’s theory on how personal self-defence connects with human rights in three levels, international human rights instruments too, would be applicable in Cameroon’s situation.

Therefore, crimes like kidnapping, incitement to violence, killings, torture, destruction and others will only constitute force, capable of sustaining a defence of self-defence only if it could be proven by the self-defence claimant that the force was 'proportionate' and 'necessary'.

5.1.4. Other justifications for the use of force by separatists

But, so far, what other rights are being exercised as justification for the use of force in Cameroon’s crisis? From the facts above, and the totality of evidence gathered, this research found that the right to self-help and the right to self-determination are also being used to justify the use of force in the Cameroon’s violent armed conflict, which has killed thousands.

5.1.4.1. The right of self-help

Self-help, according to the Black’s Law Dictionary,[247] is “an attempt to redress a perceived wrong by one’s own action rather than through the normal legal process.” In most cases, this right is permissible when a protected legal goods is in danger. In Cameroon’s crisis, for example, the separatists attacked workers of CDC Tiko. According to the separatists, their action is intended to cause the government vacate their property, so that they can repossess same.

It should be recalled, however, that the separatist rebels are using force such as kidnapping to, according to them, compel the government of Cameroon to heed to their demands. This means of force also constitutes self-help. For, in the famous case of the United Statesv. Alvarez-Machain,[248] Enrique Camarena Salazar, a United States’ drug enforcement agent was murdered in Mexico. As a result, the United States’ government hired agents to kidnap Humberto Álvarez Machaín, a doctor suspected to have participated in the murder, for him to be prosecuted in the United States without seeking extradition formalities from the Mexican government. In the end, the United States Supreme Court held that it was legal, on account that it constituted self-help.[249] However, self-help is legal only when authorised, although some legislations put limits to it. In my opinion, the defence of the right of self-help can be invoked as justification for the use of force in Cameroon, provided it is necessary. For example, the Cameroon Penal Code in its Section 86 provides, that: “No criminal responsibility shall arise from an infringement of a right of property, not justified as a lawful defence under Section 84, but inflicted in order to protect the person acting or any other person, or his or another’s property, from a grave and imminent danger not otherwise avoidable. Provided that the means of protection be proportionate to the harm.”

5.1.4.2. The right to self-determination

The right to self-determination is also another justification of the use of force being used by the so called 'Ambazonian separatists'. As earlier mentioned, the separatists believe that their country, Southern Cameroons or Ambazonia, was falsely amalgamated with La Republique du Cameroun. That’s why during their protests in both the South-West and North-West regions, they were chanting songs like are Ambazonians”.[250] However, self-determination is a right in international law.

The Declaration on the Granting of Independence to Colonial Countries and Peoples,adopted by the GA in 1960,[251] recognises this right. It articulates, that: “all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Years later, this right was re-echoed in Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The said Article provides that: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” However, it should be noted, that the people of Southern Cameroons have long been fighting for their recognition as an independent State, which is an exercise of the right to self-determination. In the landmark case of Kevin Mgwanga Gunme et al v. Republic of Cameroon (Communication 266/03),[252] Mr. Kevin Mgwanga Gunme and others filed a complaint at the African Commission on Human and Peoples’ Rights on their behalf, and on behalf of the people of Southern Cameroons, against the Republic of Cameroon for grave injustices and human rights violations – which are all contrary to the African Charter. Amongst others, the Commission advised the complainants to transform into a political party.[253] It is against this backdrop, however, that separatists are using the right to self-determination to justify their use of force in the conflict-stricken South-West and North-West regions of Cameroon.

5.2. Who is a victim of the crisis?

Before I strive for an answer to the above, it is, first and foremost, necessary to know who is a victim. As such, I have explored three contexts—Cameroon, the African Chater and the ICC.

5.2.1. Victims in the context of the Cameroon Criminal Procedure Code

Although the ICC has jurisdiction over war crimes, crimes against humanity, and genocide, its jurisdiction, however, is complementary to national criminal jurisdictions.[254] That is to say, the national criminal courts do, in the first place, have jurisdiction to investigate or try any such crimes, and should they be unwilling or unable to so do, then like a standby generator, the ICC steps in by way of complementarity to investigate or prosecute offenders of the alleged crimes. If the crimes, for example, were to be prosecuted by a national criminal court, who, then, are the victims? It is against this backdrop, that this study identifies victims in the context of the Code, and how they may seek redress – compensation – restitutio in integrum.

Section 385(1) defines a victim as, “anyone who alleges that he suffered injury as a result of the commission of an offence...”.[255] The word 'anyone', to me, seems problematic. It is problematic by its very nature because it refers to persons, to the exclusion of institutions. What if, as a result of the crisis, the properties of an institution like the Church are set ablaze? Will this Church not be entitled to reparation as a victim? However, the answer to this is available in Section 74(1) of the Criminal Procedure Code. The Section provides that, “associations, trade unions and professional organisations may make civil claims in criminal actions only if they invoke specific damages and a collective or professional interest”. In addition, Section 71(1) states that, “a civil claim based on an offence may be made by any natural or legal person who has suffered injury, loss or damage”. At law, while natural person refers to humans,[256] legal persons refers to institutions like the church, NGOs, and companies.[257] These claims, as the Code provides, shall be based on direct, certain and actual damage.[258] Here, the victim claimant is put to a strict probability test – proof beyond doubt. Also, the Code stipulates that if the victim dies, his right of action shall pass on to his heirs,[259] and if the victim is an infant or a person who lacks capacity, his legal representative may make a claim for compensation as a committee or next friend.[260] From the above, it is my opinion, therefore, that both SS. 385(1) and 74(1) must be read alongside to qualify a victim.

In Cameroon, criminal proceedings are prosecuted by the legal department. The legal department, according to the law,[261] is a component of a criminal court. Section 128(1) of the Criminal Procedure Code provides that, “the Legal Department shall be a principal party in a criminal trial before the court and shall always be represented at such trials under pain of rendering the entire proceeding and the decision null and void.” Like the prosecutor of the ICC, the legal department prosecutes all criminal trials in court.[262] While the criminal proceedings unfold, the victim may make a claim alongside the criminal case. SS. 61and 385.

5.2.2. Victims in the context of the African Charter

Cameroon ratified the African Charter on Human and Peoples’ Rights on[263] Consequently, the State of Cameroon has an obligation to protect, respect and guarantee the rights contained in the Charter. Legally speaking, this would mean that in case of human rights violations, victims of any such breach may file a communication against the State of Cameroon. The African Charter, which organises the functioning of the Commission, does not directly define who a victim is. However, it provides that anyone (Art. 55), including NGOs (Art. 55) and States (Articles 48-49), may lodge a complaint (Communication) at the African Commission on Human and Peoples’ Rights against a State-Party, alleging violations of the rights contained in the Charter. In more specific terms, Article 16 of the General Comment No. 4 on the African Charter on Human and Peoples’ Rights, provides that “victims are persons who individually or collectively suffer harm, including physical or psychological harm, through acts or omissions that constitute violations of the African Charter.”[264] By extension, Article 17 provides that victims also include affected family members or the victim’s dependents as well as the victim’s victim. Consequently, any victim of Cameroon’s crisis - be it an organisation like the Church or individuals, may seek redress from the African Commission on Human and Peoples’ Rights, provided the victims can establish that the State of Cameroon has violated their rights as in the Charter, especially those expressed in Article 5.

To seize the Commission, the victims must direct their communications to the Secretariat of the Commission which is based in Banjul, The Gambia.[265] Once received, a simple majority of the commission’s members decide whether or not to admit the communication (Art. 55(2)).

To be admissible, the communication must contain the author’s name (if he chooses to be anonymous, must state so - with the name); must not be written in a disparaging or insolent language; must bear facts and evidence, must not bear social media rumours; all domestic remedies must have been fully exhausted - except proven that the matter is being prolonged in court; must be filed within a reasonable time; contain facts not settled anywhere (Art. 56).[266]

In the end, the Commission takes a quasi-judicial decision - called 'recommendations'. These recommendations are not binding on the concerned State, except adopted in line with Art. 54.

General Comment No. 4 on the African Charter on Human and Peoples’ Rights,[267] adopted at the 21st Extra-Ordinary Session of the African Commission on Human and Peoples’ Rights, held from 23 February to 4 March 2017 in Banjul, provides an exhaustive approach on -"the Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment" as expressed in Article 5 of the African Charter on Human and Peoples’ Rights. This instrument, therefore, can be a major tool for victims alleging any such violations in Art. 5.

In conclusion, it is important to mention that there is the African Court on Human and Peoples’ Rights, created by virtue of Article 1 of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights, to complement and reinforce the functions of the African Commission on Human and Peoples' Rights.[268] Although Cameroon has not ratified the Protocol, the Commission continues to exercise its functions over human rights violations committed by Cameroon.[269]

5.2.3. Victims in the context of the ICC

Since the Rome Statute is silent as to the definition of a victim, recourse is made to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Although this Declaration is considered as soft law in international law, meaning it is not binding on States, it is, however, considered as a great compass on the subject by States.[270] According to the Declaration, victims “means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.”[271] By extension, Article 2 of the Declaration adds, as victims, persons who have suffered harm trying to assist victims in distress or to prevent them from victimization. It further provides, that, a person is a victim irrespective of whether the perpetrator is identified or prosecuted or convicted or is a familiar person. It should be noted, however, that like Section 385(1) of the Criminal Procedure Code, the definition of a victim under Article 1 of the Declaration does not include organisations (e.g. Churches) as victims.

However, this was later modified in the Rules of Procedure and Evidence, in its Rule 85, thus:

(a) ‘Victims’ means natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court; (b) Victims may include organizations or institutions that have sustained direct harm to any of their property which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

Comparatively, the definition of a victim as in the Declaration and Rules of Procedure and Evidence are broader than in the Criminal Procedure Code. While the Code limits itself to persons or institutions who have suffered damage, the Declaration (Article 2) extends to persons who have suffered damage trying to assist a victim. Put differently, the victim’s victim.

In order to be compensated, assisted or restituted, the victim should participate in the proceedings, although his participation is voluntary. At the registry of the ICC, there’s a unit called the Victims Participation and Reparations Section (VPRS), which informs the victims of their right to reparation, and also enables them to submit their applications to the court.[272] The victims, according to Rule 90 of the Rules of Procedure and Evidence, may be represented by counsel, and the registry may as well assist them with the list of lawyers.[273]

In line with the above proffered definitions, victims of the crisis are therefore institutions and individuals who have suffered loss as a result of the crisis; be it physical, mental or otherwise.

Also, Article 1 of the above cited Declaration makes it clear, that harm may be suffered by an individual, or in a collective sense. Although Rule 85 above is quite unclear with this sense of collectivity, it could, however, be construed, arguably, to include same. This is so because, often, crimes of international concern like genocide, war crimes, and crime against humanity do have victims, who suffer collectively. In his book, International Criminal Procedure , Safferling[274] explains in a unique way, that such crimes “never have just one victim, but pertain to a whole group of persons, maybe even a specific part of the society”. To canvass his view, Safferling adumbrates some salient points upon which the idea of collective victimization is based. Amongst others, he posits, that, victims may suffer collectively: when there is an attack on the victim’s village or any other group that s/he belongs; when the victim experience the breakdown of all social security”; especially from State-sponsored agents; the shame from such crimes is higher and it affects even the environment of the victim(s).

5.2.3.1. Reparations and the Trust Fund for Victims

Akin to other criminal judicial systems, the purpose of the ICC is not limited at prosecution. That is, it does not only[275] The convict(s) may pay compensation directly to the victim or through the Trust Fund for Victims, established in 2002 by the Assembly of States Parties, as an independent entity from the ICC.[276] Its mission is to support and address damage or harms resulting from ICC’s crimes.

Note, that, victims have the right to reparation even if they did not participate in the proceedings. Both applications are independent, and may be made separately at the registry.

5.2.3.2. Victims’ rights as participants

According to Article 68 of the Rome Statute, the ICC shall protect the rights of the victims, conduct the proceedings in camera, permit various means of presentation of evidence, permit the expression of their views and concerns, withhold evidence or information that may endanger their safety and security, permit States to make observations in the interest of their citizens, take advice in the interest of victims from the Victims and Witnesses Unit, and others.

In conclusion, the right to self-defence is recognised by national, regional and international law. Although these laws, inspired by customary international law, have set limits to the right, it remains an acceptable counter option for any Cameroonian, who is using force to defend himself or his family members from imminent danger or who feels like protecting his property, provided the self-defence claimant respects the limits expressed in self-defence norms.

Similarly, any victim of the crisis in Cameroon has the right to reparation. The right to reparation is supported by the maxim ubi jus ibi remedium, any such violation suffices for the complainant-victim to lodge a complaint once there is proof that the breach is against the Charter.

6. Findings of the research, Conclusions and Recommendations

Findings of the Research

Based on the above study, the following was found:

- Mindful of Article 13(a) – which deals with referral by a State-Party, Article 13(b) – which deals with the UN Security Council referral, and Article 12(3) – which deals with Consent by non-State Party; Conscious of the situations in Sudan (2005) and Libya (2011), where the UN Security Council referred the crimes that resulted in the deaths of at least 300.000 people in Darfur, and 2.500 deaths in Libyan Arab Jamahiriya—whereas both States are not signatories to the Rome Statute of the ICC; aware of the fact that the United States’ objection to the jurisdiction of the ICC is motivated by its strong political influence in the ICC’s day-to-day affairs, an influnce which Cameroon lacks in all sense of it; considering that the ICC has jurisdiction over heinous crimes like genocide, war crimes, crimes against humanity, and the crime of aggression; considering too that there’s overwhelming evidence that these crimes, except the crime of aggression, have been committed in Cameroon; satisfied with Cakmak’s assertion that, “since a Security Council resolution is binding over both the UN members and non-members, once the Council adopts a resolution authorising the Court to investigate the situation concerned, the Court is granted a universal jurisdiction over the crimes”; this research, therefore, found that the ICC has jurisdiction to investigate and / or prosecute crimes committed in the former Southern Cameroons.
- In legal maxim, it is said, ubi jus ibi remedium – meaning, where there is a wrong, there is a remedy. This expression finds favour here, because of the question whether or not victims of the crisis have the right to reparation. However, since, according to this research, there is overwhelming evidence that crimes have been committed, to go by the above expression will mean that the victims deserves reparation or compensation. It should be noted, however, that the damage can only be accessed by experts, and on a case-by-case basis. After accessing the damage, the convict may be ordered to make: reparation or restitution or compensation or rehabilitation, to the victim(s) of the crisis.
- Aware that the crisis has gone violent; recognising that various means of force - including extra-judicial killing, torturing, incitement to violence - are being used as a means of self-defence; conscious that the rules of self-defence permit the use of force; conscious too that the crisis in Cameroon is an internal armed conflict; recognising that the right to self-defence under Article 51 of the UN Charter applies to States - not individuals; acknowledging that the rules of self-defence under customary international law are applicable in Cameroon; understanding that rights have been violated as a result of the crisis; acknowledging Hessbruegge’s opinion that “the right of personal self-defence interacts with human rights”; aware that Cameroon is signatory to most core human rights Conventions; given that duly ratified Conventions override Cameroon’s domestic laws (Article 45 of the Constitution); siding with Hessbruegge’s idea that “the right to personal self-defence also forms part of international law”; this research found that any use of force, that has been exercised as a means of self-defence, is justified under international law, provided the said force is necessary and proportionate to the threat that the self-defence claimant was faced with.

Conclusions

Although Global Centre for the Responsibility to Protect (GCRP) puts it that, “there is an imminent risk of mass atrocity crimes due to violence between government security forces and armed separatists in Cameroon’s Anglophone regions”.[277] According to their analysis, this would mean that, Cameroon’s situation is not yet fully grown to be referred to as mass atrocity crimes. Whatever that means to them, I strongly disassociate myself with their analysis as Cameroon is already at war, declared by the Head of State, Paul Biya.[278] As such, the violent conflict between the military and armed rebels leaves – at least – tens – dead - daily.

The above notwithstanding, I do agree with the GCRP, for saying that:

-"The government of Cameroon is failing to uphold its Responsibility to Protect the Anglophone minority and requires international assistance to mediate and end the developing armed conflict in the North-West and South-West regions" [279]

Since the Responsibility to Protect (R2P) doctrine involves three main things: (a) that the State has the responsibility to protect its population from mass atrocity crimes like genocide, crimes against humanity, war crimes, and ethnic cleansing; and their incitement; (b) that if the State is unable or unwilling to so do, the international community should assist, and; (c) that in protecting the population from mass atrocity crimes, the international community is exposed to diplomatic, humanitarian, and peaceful means, and if necessary, collective actions as in the UN Charter,[280] and given that – in my opinion – Cameroon has already failed in their responsibility to protect, without bias, I think it is time for the international community to step in.

Recommendations

After researching on the above topic, the writer recommends, strongly, that:

- In order for international peace and security to be jealously preserved, the UN Security Council should refer the situation in Cameroon to the ICC Prosecutor for investigation;
- The government of Cameroon should stakeholders and the church, so to bring the long-simmering crisis to a final end;
- The government should military courts, etc.;
- Any researcher working on this should seek to know whether, so far, any State-agent (e.g. Military) has been tried or is being tried for any of the alleged crimes. If this is not the case, especially as it is in the records that the military are also perpetrators of the crimes of arson, extra-judicial killing, then it means they’re State-sponsored agents.
- The separatists should refrain from unlawful use of force against civilians and others;
- And that the perpetrators of crimes be visited with the long arm of the law.

List of references

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Cakmak, Cenap (2006), The International Criminal Court in World Politics. 23 (1) IJWP 3.

Fox, Nick (1998), Trent Focus for Research and Development in Primary Health Care: How to Use Observations in a Research Project. Trent Focus Group.

Hessbruegge, Jan Arno (2017), Human Rights and Personal Self-defense in International Law. New York, NY : Oxford University Press.

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Hochschild, A. (1999), King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa. P. 96. Houghton Mifflin.

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- International

African (Banjul) Charter on Human and Peoples’ Rights, 1981

Charter of the United Nations, 1945

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International Covenant on Civil and Political Rights, 1966

London Charter of the International Military Tribunal (The Nuremberg Charter), 1945

Rome Statute of the International Criminal Court, 1998

Statute of Limitations

Statute of the ICTR, 1994

Statute of the ICTY, 1993

Statute of the International Court of Justice, 1945

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The Genocide Convention, 1948

The Tokyo Charter, 1946

The Universal Declaration of Human Rights, 1948

- National

Cameroon Criminal Procedure Code, 2005

Cameroon Penal Code, 2016

Constitution of Cameroon, 1996 (as amended)

U.S. War Crimes Act, 1996

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Resolution 1593 (2005),

Resolution 1970 (2011)

Resolution ICC-ASP/14/Res.2

UN Security Council Resolution 827 (199)

United Nations General Assembly Resolution 96(1) of 11 December 1946

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[...]


[1] World Population Review. 2018 Population for Cameroon. Available online at: http://worldpopulationreview.com/countries/. Accessed on the 14/12/2018.

[2] Ngoh, Victor Julius, The Political Evolution of Cameroon, 1884-1961 (1979). Dissertations and Theses. Paper 2929. Available online at: file:///C:/Users/CLIENT/Desktop/Thesis/The%20Political%20Evolution%20of%20Cameroon%201884-1961.pdf. Accessed on the 14/12/2018.

[3] Ibid.

[4] “The Southern Cameroons problem ... is the expression of a poorly managed decolonisation process, that saw two distinct (British Southern Cameroons and French Cameroon) people come together to form a country void of any real foundations that could guarantee coexistence.” By Barrister Agbor Balla. Available online at: https://docs.house.gov/meetings/FA/FA16/20180627/108492/HHRG-115-FA16-20180627-SD001.pdf. Accessed on the 14/12/2018.

[5] Tembon, Efi W. (2018), Crisis in the Republic of the Cameroon An Overview of the Anglophone Crisis 2016-2018. Available online at: https://docs.house.gov/meetings/FA/FA16/20180627/108492/HHRG-115-FA16-Wstate-TembonE-20180627.pdf. Accessed on the 14/03/2019.

[6] Contra Nocendi International, Anglophone Cameroon Common Law Lawyers Protest. Available online at: http://contranocendi.org/index.php/en/news/88-anglophone-cameroon-common-law-lawyers-protest. Accessed on the 02/02/2019.

[7] Ibid.

[8] Africa Times (Nov. 2016), Cameroon Citizens join Lawyers’Protest in Streets of Bamenda. Available at: https://africatimes.com/2016/11/08/cameroon-citizens-join-lawyers-protest-in-streets-of-bamenda/. 11/03/2019.

[9] Amabo, Solomon (Nov. 2016), Cameroon Lawyers Protest: Police Injure Dozens, Raid Law Offices…American Diplomat Steps In…. Cameroon Concord. Available at: http://cameroon-concord.com/headlines/cameroon-lawyers-protest-police-injure-dozens-raid-law-offices-american-diplomat-steps-in. Accessed on the 11/03/2019.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Kindzeka, Moki E. (Oct. 2017), Teachers’Strike in Anglophone Cameroon Nears 11 – Month Mark. VoaNews. Available at: https://www.voanews.com/a/cameroon-anglophone-teachers-strike/4057961.html: 11/03/2019.

[14] Contra Nocendi, Abuse Against Protesting University of Buea Students. Available online at: http://contranocendi.org/index.php/en/news-press/89-abuse-against-protesting-university-of-buea-students.

[15] Ibid.

[16] Sholars at Risk Network. Available at: https://www.scholarsatrisk.org/report/2016-11-28-university-buea/.

[17] Ibid.

[18] Said by Emmanuel Che ... https://www.bbc.co.uk/news/live/world-africa-40829873.

[19] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[20] Abeng, Zuzeeko (2018), Cameroon Anglophone Crisis: Real Threat of Genocide—but not Necessarily by the Military. Available: http://www.zuzeeko.com/2018/12/cameroon-anglophone-crisis-real-threat.html. Accessed: 10/03/2019.

[21] Esono, B. (Jan. 2019), Cameroon: CDC Workers Again Assualted, Fingers Chopped Off. Pan African Vision. Available at: https://www.panafricanvisions.com/2019/camerooncdc-workers-again-assaulted-fingers-chopped-off/. Accessed on the 14/03/2019 .

[22] Video Interview with Chief Barrister Charles Taku. Chief Barister Charles Taku of the ICC Confirms on going Genocided in Southern Cameroons. Available at: https://www.youtube.com/watch?v=UHJI5gpdZg0. 10/03/2019.

[23] Bridget Y. and Darko H., Introduction to Qualitative Research Methods. Available online at: http://miror-ejd.eu/wp-content/uploads/sites/34/2017/03/Introduction-to-qualitative-research-methods.compressed.pdf. Accessed on 21/11/2018.

[24] Cameroon Concord (March 2017), Cameroon Arrest Man for Possessing a Newspaper with Headline on Anglophone Crisis. Available online at: http://cameroon-concord.com/boko-haram/cameroon-arrest-man-for-possessing-a-newspaper-with-headlines-on-anglophone-crisis. Accessed on the 11/03/2019.

[25] Articles 12(3), 13(a)(b), and 14 of the Rome Statute of the ICC.

[26] Jahun, Usman S. (Nov. 2017), Critical Analysis of the Relationship between Sovereignty and the International Criminal Court in Fostering International Peace and Security. International Journal of Humanities and Social Science Vol. 7 – No. 11 – 2017. Available at: file:///C:/Users/CLIENT/Downloads/16.pdf. Accessed: 07/03/2019.

[27] John, D. (2012). International Law: A South African Perspective. (4th ed.). JUTA.

[28] The Practical Guide to Humanitarian Law: Security Council of the UN. Available online at: https://guide-humanitarian-law.org/content/article/3/security-council-of-the-un/. Accessed on the 25/01/2019.

[29] Abeng, Zuzeeku (Dec. 2018), Cameroon Anglophone Crisis: Real threat of Genocide—but not Necessarily by the Military. See: http://www.zuzeeko.com/2018/12/cameroon-anglophone-crisis-real-threat.html. 07/03/2019.

[30] Ibid.

[31] Yongabi, Ngalim Y. (June 2012), Is Cameroon’s Ratification of International Criminal Court Relevant?, Available at: http://www.cameroonvoice.com/news/article-news-7039.html. Accessed on the 07/03/2019.

[32] Ibid.

[33] Hessbruegge, Jan Arno (2017), Human Rights and Personal Self-defense in International Law. New York, NY : Oxford University Press.

[34] ICRC – Training for Media Professionals, Characteristics of Armed Conflicts & Other Situations of Violence. Available online at: file:///C:/Users/CLIENT/Downloads/handout_3_-_characteristics_of_armed_conflicts_other_situations_of_violence.pdf. Accessed on the 17/02/2019.

[35] Constitution of Cameroon, Article 45. It states, that: “duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement.”

[36] Eboe-Osuji, C., Remarks at Solemn Hearing in Commemoration of the 20th Anniversary of the Adoption of the Rome Statute of the International Criminal Court. 17 July 2018, The Hague, The Netherlands. Available online at: https://www.icc-cpi.int/itemsDocuments/20180717-pres-speech.pdf. Accessed on the 24/11/2018.

[37] Seils, Paul, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes. Available at: https://www.ictj.org/sites/default/files/ICTJ_Handbook_ICC_Complementarity_2016.pdf. 01/12/2018.

[38] Michael P. Scharf (1998), Results of the Rome Conference for an International Criminal Court. The American Society of International Law. Available online at: https://www.asil.org/insights/volume/3/issue/10/results-rome-conference-international-criminal-court. Accessed on the 25/11/2018.

[39] Official website of the International Criminal Court. The States Parties to the Rome Statute. Available online at: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx. Accessed on the 25/11/2018.

[40] Cardona, Y. B., A Critical Analysis of the Rome Statute of the International Criminal Court, A Doctorate Thesis Submitted at the Faculty of Law of the University of Malta. Available online at: https://www.um.edu.mt/library/oar/bitstream/handle/123456789/8218/13LLD019.pdf?sequence=1&isAllowed=y. Accessed on the 24/11/2018.

[41] Article 1 of the Rome Statute of the International Criminal Court, 1998.

[42] Ibid.

[43] Article 5 of the Rome Statute of the International Criminal Court, 1998.

[44] Article 29 of the Rome Statute of the International Criminal Court provides, that: "the crimes within the jurisdiction of the Court shall not be subject to any statute of limitations."

[45] United States, Thigpen v. Smith, 792 F.2d 1507, 1514 (11th Cir. 1986).

[46] Kok, R. A. (2007), Statutory Limitations in International Criminal Law. Available online at: https://pure.uva.nl/ws/files/3607430/46883_kok.pdf. Accesed on the 25/11/218.

[47] Article 1 provides that: “An International Criminal Court ("the Court") is hereby established”.

[48] International Criminal Court, Understanding the International Criminal Court. Available online at: https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf. Accessed on the 27/11/2018.

[49] See the preamble of the Rome Statute... “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”

[50] Article 34(1) of the Statute of the International Court of Justice says: “Only States may be parties in cases before the Court.”The Statute is available online at: https://www.icj-cij.org/en/statute. Acessed on the 30/11/2018.

[51] Article 1 of the Rome Statute of the ICC provides that, the ICC: “... shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern ...”

[52] Rome Statute of the International Crimina Court, 1998.

[53] Official website of the International Criminal Court, Judicial Divisions. Available online at: https://www.icc-cpi.int/about/judicial-divisions. Accessed on the 01/12/2018.

[54] Official website of the International Criminal Court (updated: 19 November 2018), The Court Today. Available online at: https://www.icc-cpi.int/iccdocs/PIDS/publications/TheCourtTodayEng.pdf. Accessed on the 01/12/2018.

[55] Ibid.

[56] Ibid.

[57] Official website of the International Bar Association, ICC Structure. Available online at: https://www.ibanet.org/ICC_ICL_Programme/About_the_ICC/ICC_Structure.aspx. Accessed on 01/12/2018.

[58] Official website of the International Criminal Court, Registry. Available online at: https://www.icc-cpi.int/about/registry. Accessed on 01/12/2018.

[59] Official website of the United Nations Seurity Council (31 March 2005), Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court. Resolution 1593(2005). Available online at: https://www.un.org/press/en/2005/sc8351.doc.htm. Accessed on the 30/11/2018.

[60] ICC, Understanding the International Criminal Court. Available at: https://www.icc-cpi.int/iccdocs/pids/publications/uicceng.pdf. Accessed on the 17/03/2019.

[61] Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui (hereinafter Prosecutor v. Katanga and Chui), ICC-01/04-01/07-1497, 25 September 2009, § 85.

[62] Coban-Ozturk, Ebru, The International Criminal Court, Jurisdiction and the Concept of Sovereignty. European Scientific Journal. April 2014 edition, vol.10, No.10 ISSN: 1857 – 7881 (Print) e - ISSN 1857- 7431. Available online at: http://eujournal.org/index.php/esj/article/viewFile/3128/2926. Accessed on the 20/12/2018.

[63] EBOIBI, Felix E ., Jurisdiction of the International Criminal Court: Analysis, Loopholes and Challenges. Available online at: file:///C:/Users/CLIENT/Downloads/136309-364973-1-SM%20(1).pdf. Accessed on the 20/12/2018.

[64] Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington: Carnegie Endowment for World Peace, 1944.

[65] United Nations Office on Genocide Prevention and the Responsibility to Proect, When to Refer to a Situation as “Genocide”. Guidance Note 1. Available online at: http://www.un.org/en/genocideprevention/documents/publications-and-resources/GuidanceNote-When%20to%20refer%20to%20a%20situation%20as%20genocide.pdf. Accessed on the 29/12/2018.

[66] Lemkin, Raphael, Axis Rule in Occupied Europe. Washington D.C.: Carnegie Endowment for International Peace, 1944, p. 79.

[67] UNGA Resolution 96 (I), 11 December 1946. Available online at: https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/NR003347.pdf?OpenElement. Accessed on 26/12/2018.

[68] Ibid.

[69] The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

[70] [70] Mennecke, Martin, The Crime of Genocide and International Law. Available online at: https://www.niod.nl/sites/niod.nl/files/International%20Law.pdf. Accessed on the 23/12/2018. He said, "genocide is not a new phenomenon. Even classical writings recount instances of mass killings, and the colonial era witnessed numerous cases of genocidal violence both in North and Latin America as well as in Africa".

[71] Leo Kuper, Genocide, Its Political Use in the Twentieth Century, New Haven: Yale University Press, 1981, p.12.

[72] Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, p.79 . Washington: Carnegie Endowment for World Peace, 1944.

[73] Mennecke, Martin, The Crime of Genocide and International Law, p.149. Available online at: https://www.niod.nl/sites/niod.nl/files/International%20Law.pdf. Accessed on the 26/12/2018.

[74] Art. 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948.

[75] Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, Washington: Carnegie Endowment for World Peace, 1944.

[76] Art. 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948 and Art. 6 of the Rome Statute of the International Criminal Court (ICC), 1998.

[77] Mennecke, Martin, The Crime of Genocide and International Law. Available online at: https://www.niod.nl/sites/niod.nl/files/International%20Law.pdf. Accessed on the 29/12/2018.

[78] Ibid.

[79] Ibid.

[80] Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, p.79 . Washington: Carnegie Endowment for World Peace, 1944.

[81] Case No. ICTR-96-4-T, The Prosecutor v. Jean-Paul Akayesu, Judgement on 2 September 1998. Available online at: http://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-96-4/trial-judgements/en/980902.pdf. Accessed on the 29/12/2018. See also: http://unictr.irmct.org/sites/unictr.org/files/case-documents/ictr-96-4/appeals-chamber-judgements/en/010601.pdf. Accessed on the 29/12/2018.

[82] Art. 1 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948 – states that, “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”

[83] [83] Brian A. Garner, editor in chief. (1999). Black's Law Dictionary. St. Paul, MN :Thomson Reuters, defines 'mens rea' in page 999 as “the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness….”

[84] Art. 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948. See also Artcle 6 of the Rome Statute of the International Criminal Court (ICC), 1998.

[85] Brian A. Garner, editor in chief. (1999). Black's Law Dictionary. St. Paul, MN :Thomson Reuters, defines 'actus reus' in page 37 as “the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability….”

[86] Brian A. Garner, editor in chief. (1999). Black's Law Dictionary, p. 1617 . St. Paul, MN :Thomson Reuters.

[87] The United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948

[88] Ibid.

[89] United Nations Office on Genocide Prevention and the Responsibility to Proect, When to Refer to a Situation as “Genocide”. Guidance Note 1. Available online at: http://www.un.org/en/genocideprevention/documents/publications-and-resources/GuidanceNote-When%20to%20refer%20to%20a%20situation%20as%20genocide.pdf. Accessed on the 29/12/2018.

[90] United Nations Security Counsel Resolution 955 (1994) of 8 November 1994 (Article 1). Available online at: http://www.irmct.org/specials/ictr-remembers/docs/res955-1994_en.pdf?q=ictr-remembers/docs/res955-1994_en.pdf. Accessed on the 29/12/208.

[91] Art. 8 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, 1948. It provides that, “any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.”

[92] Dube, Brian (May 2015), Understanding the content of crimes against humanity: Tracing its historical evolution from the Nuremberg Charter to the Rome Statute, Vol. 9(5), pp. 181-189, May 2015, African Journal of Political Science and International Relations. Available online at: https://academicjournals.org/article/article1431361861_Dube.pdf. Accessed on the 01/01/2019.

[93] Ibid.

[94] Fournet, I. Caroline (Oct. 2002), Crimes Against Humanity - “The accumulated evil of the whole”. Thesis submitted for the degree of Doctor of Philosophy at the University of Leicester. Available online at: file:///C:/Users/CLIENT/Downloads/U169491.pdf. Accessed on the 01/01/2019.

[95] Alemayhu, Fekade (Dec. 2010), Prosecution of Crimes against Humanity and Genocide in Africa: A Comparative Analysis. Available online at: https://chilot.me/wp-content/uploads/2013/05/prosecution-of-crimes-against-humanity-and-genocide-in-africa.pdf. Accessed on the 02/01/2019.

[96] Hochschild, A., King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa. Houghton Mifflin, 1999. p. 96.

[97] Roberts, Adams (2012), The Long Peace Getting Longer, Survival. Available online at: https://weblearn.ox.ac.uk/access/content/user/1044/Survival_Feb-Mar_2012_-_AR_review_of_Pinker_-_non-printable.pdf. Accessed on the 02/01/2019.

[98] Bry, Andrzej, Crimes Against Humanity – in Pursuit of an International Convention. Available online at: http://www.bibliotekacyfrowa.pl/Content/54577/04_Andrzej_Bryl.pdf. For the 1.5 million Armenian population, see also Derderian, Katharine (1 March 2005), Common Fate, Different Experience: Gender-Specific Aspects of the Armenian Genocide, 1915–1917. Available online at: https://academic.oup.com/hgs/article-abstract/19/1/1/656422. Accessed on the 02/01/2019.

[99] Article 6 of the Nuremberg Charter (Charter of the International Military Tribunal), 1945. Available online at: https://ghum.kuleuven.be/ggs/events/2013/springlectures2013/documents-1/lecture-5-nuremberg-charter.pdf. Accessed on the 02/01/2019.

[100] Luban, David (2004), A Theory of Crimes Against Humanity, 29 Yale J. Int'l L. Available online at: https://pdfs.semanticscholar.org/fd34/a34faaa6ef6bf2b0e47219c4612e1eb3be44.pdf. Accessed on 05/01/2019.

[101] Article 6(c) provides in full, that “Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

[102] Article 2 of the United Nations Security Council Resolution 827 (1993). Available online at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf. Accessed on the 05/01/2019.

[103] Available online at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf. Acessed on the 05/01/2019.

[104] Article 7 of the Rome Statute of the ICC, 1998. Available online at: https://www.icc-cpi.int/nr/rdonlyres/add16852-aee9-4757-abe7-9cdc7cf02886/283503/romestatuteng1.pdf. Accessed on the 05/01/2019.

[105] Chesterman, S., An Altogether Different Order: Defining the Elements of Crimes Against Humanity. Available at: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1219&context=djcil. Accessed on the 22/03/2019.

[106] Robert Dubler SC and Matthew Kalyk (May 2018), Crimes against Humanity under Customary International Law and the ICC: The Chapeau Elements. Available: https://brill.com/view/book/9789004347687/BP000009.xml. Accessed on the 22/03/2019.

[107] Duhaime, Lord (April 2013), 1474: The Peter Von Hagenbach Trial, The First International Criminal Tribunal. Duhaime’s Timetable of World Legal History. Available online at: http://www.duhaime.org/LawMuseum/LawArticle-1563/1474-The-Peter-Von-Hagenbach-Trial-The-First-International-Criminal-Tribunal.aspx. Accessed on the 14/01/2019.

[108] Grant, Linda (April 2006), Exhibit Highlights the First International War Crimes Tribunal. Havard Law Bulletin – Spring 2006. Available online at: https://today.law.harvard.edu/exhibit-highlights-the-first-international-war-crimes-tribunal/. Accessed on the 14/01/2019.

[109] Ibid.

[110] Heller J., Kevin and Simpson, Jerry (editors), The Hidden Histories of War Crimes Trials. Available online at: file:///C:/Users/CLIENT/Downloads/460250%20(2).pdf. Accessed on the 15/01/2019.

[111] Case Matrix Network (Jan. 2016), International Criminal Law Guidelines: Command Responsibility. Availaible online at: https://www.legal-tools.org/doc/7441a2/pdf/. Accessed on the 15/01/2019.

[112] Grant, Linda (April 2006), Exhibit Highlights the First International War Crimes Tribunal. Havard Law Bulletin – Spring 2006. Available online at: https://today.law.harvard.edu/exhibit-highlights-the-first-international-war-crimes-tribunal/. Accessed on the 14/01/2019.

[113] Rome Statute of the ICC, Article 8.

[114] Rome Statute of the ICC, Article 8(2).

[115] Official website of the UN Office on Genocide Prevention and the Responsibility to Protect, War Crimes. Available online at: http://www.un.org/en/genocideprevention/war-crimes.html. Accessed on the 16/01/2019.

[116] Official website of the UN Office on Genocide Prevention and the Responsibility to Protect, War Crimes. Available online at: http://www.un.org/en/genocideprevention/war-crimes.html. Accessed on the 16/01/2019.

[117] Article 124 of the Rome Statute provides, that: “Notwithstanding article 12, paragraphs 1 and 2, a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with article 123, paragraph 1”. See also Article 8, which defines war crimes.

[118] Kravik A. Motzfeldt (April 2016), The Assembly of State Parties to the International Criminal Court Decides to Delete Article 124 of the Rome Statute. Available at: https://www.ejiltalk.org/the-assembly-of-state-parties-to-the-international-criminal-court-decides-to-delete-article-124-of-the-rome-statute-2/. Accessed: 20/01/2019.

[119] See Resolution ICC-ASP/14/Res.2, adopted at the 11th plenary meeting, on 26 November 2015, by consensus. Available: https://treaties.un.org/doc/source/docs/ICC-ASP-14-Res2-ENG.pdf. Accssed: 20/01/2019.

[120] Margaret, M. DeGuzman (2011), Crimes against Humanity. Research Handbook on International Criminal Law. Bartram S. Brown, ed., Edgar Publishing, 2011.

[121] Article 12(2)(3) of the Rome Statute states, that: “2) In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3: (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3) If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.” Also, Article 13(a)(b) provides, that: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14; (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.”

[122] Article 12(3) of the Rome Statute says, that: “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9”.

[123] Article 11(1) of the Rome Statute stat, that: “the Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.”

[124] Article 11(2) of the Rome Statute states, that: “If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.”Also, Article 12(3) states, that: “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.”

[125] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 143. St. Paul, MINN :Thomson Reuters.

[126] Miller, Colin (2012), Evidence: Best Evidence Rule. Available online at: https://www.cali.org/sites/default/files/BestEvidenceRule_Miller_Dec2014.pdf. Accessed on the 23/01/2019.

[127] Ibid.

[128] Rome Statute of the ICC, Article 53(1)(a).

[129] Ibid, Article 53(1)(b).

[130] Rome Statute of the ICC, Article 17(1)(a)(b)(c)(d).

[131] The Prosecutor v. Saif Al-Islam Gaddafi: ICC-01/11-01/11. Available online at: https://www.icc-cpi.int/CaseInformationSheets/GaddafiEng.pdf. Accessed on the 23/01/2019. See also, Decision on the admissibility of the case against Abdullah Al-Senussi. Available online at: https://www.icc-cpi.int/CourtRecords/CR2013_07445.PDF. Accessed on the 23/01/2019.

[132] The Prosecutor V. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali. No. ICC-01/09-02/11 OA. Date: 20 September 2011. Available online at: https://www.icc-cpi.int/CourtRecords/CR2011_16047.PDF. Accessed on the 23/01/2019.

[133] Un.org. (Jan. 2019), United Nations Treaty Collection. Available at: https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-10&chapter=18&lang=en. Accessed: 24/01/2019.

[134] Ibid.

[135] Unicef.org. (May 2014), Convention on the Rights of the Child. Available online at: https://www.unicef.org/crc/index_30207.html. Accessed on the 24/01/2019.

[136] Elsea K. Jennifer (2006), U.S. Policy Regarding the International Criminal Court. Available online at: https://fas.org/sgp/crs/misc/RL31495.pdf. Accessed on the 25/01/2019.

[137] Ibid.

[138] Ibid.

[139] Brown S. Bartram, U.S. Objection to the Statute of the International Criminal Court: A Brief Response. Available online at: http://www.pict-pcti.org/publications/PICT_articles/JILP/Brown.pdf. Accessed: 28/01/2019.

[140] Section 2401 of the War Crimes Act of 1996, provides: a) “Whoever, whether inside or outside the United States, commits a grave breach of the Geneva Conventions, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. ”b) “the circumstances referred to in subsection (a) are that the person committing such breach or the victim of such breach is a member of the armed forces of the United States or a national of the United States (as defined in S. 101 of the Immigration and Nationality Act).”

[141] Synovitz, Ron (Sept. 2018), Explainer: Why Does The U.S. Have It Out For The International Criminal Court?. Available online at: https://www.rferl.org/a/explainer-why-does-u-s-have-it-out-for-international-criminal-court-/29484529.html. Accessed on the 25/01/2019.

[142] Ibid.

[143] Article 39 of the UN Charter states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

[144] Rome Statute of the ICC, Article 13.

[145] The Practical Guide to Humanitarian Law: Security Council of the UN. Available online at: https://guide-humanitarian-law.org/content/article/3/security-council-of-the-un/. Accessed on the 25/01/2019.

[146] The Sentinel Project (May 2013), Uncovering the Components and Elements of Genocidal Acts. Available at: https://thesentinelproject.org/2013/05/08/uncovering-the-components-and-elements-of-genocidal-acts/. Accessed on the 26/02/2019.

[147] Dugo, Habtamu (2017), Proving Genocide in Ethopia: The Dolus Specialis of Intent to Destroy a Group. Available at: file:///C:/Users/CLIENT/Downloads/DugoandEisenProvingGenocideinEthiopiaJPASSept17.pdf . Accessed: 26/02/2019.

[148] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[149] Other sources, such as the Centre for Human Rights and Democracy in Africa, says the number of people killed as a result of the crisis is about 4.000. See A Cameroonian’s Journey for Justice by Melissa Tessler. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Accessed on: 04/03/2019.

[150] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[151] Sixtus, Mbom (Dec. 2017), Cameroon Government 'Declares War' on Seccessionist Rebels. IRIN News. Available online at: https://www.irinnews.org/analysis/2017/12/04/cameroon-government-declares-war-secessionist-rebels. Accessed on the 21/02/2019.

[152] Republic of Cameroon – Presidency of the Republic, Head of State’s New Year Message to the Nation – 31 December 2018. Available online at: https://www.prc.cm/en/news/speeches-of-the-president/3280-head-of-state-s-new-year-message-to-the-nation-31-december-2018. Accessed on the 21/02/2018.

[153] Available at: https://www.nytimes.com/2019/02/07/world/africa/cameroon-military-abuses-united-states-aid.html?rref=collection%2Ftimestopic%2FCameroon&action=click&contentCollection=world&region=stream&module=stream_unit&version=latest&contentPlacement=1&pgtype=collection. Accessed on the 21/02/2019.

[154] Available at: https://www.aljazeera.com/indepth/opinion/crisis-cameroon-resolved-peacefully-181007072249247.html. Accessed on the 17/03/2019.

[155] CHRDA, as reported by Tessler, Melissa (Dec. 2018), A Cameroonian’s Journey for Justice. OpenCanada.org. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Acccessed: 21/02/2019.

[156] The UN, as reported by Tessler, Melissa (Dec. 2018), A Cameroonian’s Journey for Justice. OpenCanada.org. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Acccessed: 21/02/2019.

[157] CHRDA, as reported by Tessler, Melissa (Dec. 2018), A Cameroonian’s Journey for Justice. OpenCanada.org. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Acccessed: 21/02/2019.

[158] Sixtus, Mbom (Dec. 2017), Cameroon Government 'Declares War' on Seccessionist Rebels. IRIN News. Available online at: https://www.irinnews.org/analysis/2017/12/04/cameroon-government-declares-war-secessionist-rebels. Accessed on the 21/02/2019.

[159] Republic of Cameroon – Presidency of the Republic, Head of State’s New Year Message to the Nation – 31 December 2018. Available online at: https://www.prc.cm/en/news/speeches-of-the-president/3280-head-of-state-s-new-year-message-to-the-nation-31-december-2018. Accessed on the 21/02/2018.

[160] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[161] Other sources, such as the Centre for Human Rights and Democracy in Africa, says the number of people killed as a result of the crisis is about 4.000. See A Cameroonian’s Journey for Justice by Melissa Tessler. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Accessed on: 04/03/2019.

[162] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[163] See mass burial uncovered. Reported by Abah, Isidore (Oct. 2017), Buea Midnight 'Mass' Burial Uncovered. Cameroon Postline. Available at: https://cameroonpostline.com/buea-midnight-mass-burial-uncovered/. Accessed on the 26/02/2019.

[164] http://www.betatinz.com/2017/12/sdo-of-manyu-division-orders-citizens-relocate-village-anglophone-problem-cameroon.html.

[165] Azohnwi A. T. and Mbongale E. G. (Dec. 2017), Siege On Manyu Division Imminent! – Multiple Reports Of Heavy Deployment Of Troops Towards The Division -Who Is Fooling Who Over Controversial Evacuation Order -’Ambazonia IG’ Tells Population To Defend Themselves If Neccessary. The Sun. Available at: http://thesuncameroon.cm/index.php/2017/12/05/siege-manyu-division-imminent-multiple-reports-heavy-deployment-troops-towards-division-fooling-controversial-evacuation-order-ambazonia-ig-tells-p/. Accessed: 26/02/2019. See also the Myanmar’s case, where the ICC said it can investigate crimes of deportation/forcible transfer of the Rohingya people, which constitute crimes against humanity, although Myanmar isn’t a party.

[166] Shaban Abdur R. A. (Jan. 2018), Cameroon Receives Seperatist Leader, 46 others Deported from Nigeria. Available online at: http://www.africanews.com/2018/01/29/cameroon-receives-ambazonia-leader-46-others-deported-from-nigeria//. Accessed on the 26/02/2019.

[167] Centre for Human Rights- University of Pretoria, Centre for Human Rights Calls for Independent Investigation of Sustained Allegations of Crimes Against Humanity in Cameroon. Available online at: https://www.chr.up.ac.za/campaigns/stopcameroonviolations-campaign. Accessed on the 21/02/2019.

[168] Other sources, such as the Centre for Human Rights and Democracy in Africa, says the number of people killed as a result of the crisis is about 4.000. See A Cameroonian’s Journey for Justice by Melissa Tessler. Available at: https://www.opencanada.org/features/cameroonians-journey-justice/. Accessed on: 04/03/2019

[169] These persons are protected by Common Article 3 of the Geneva Conventions of 1949, and its Additional Protocol Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977.

[170] As an effort to describe the situation in Cameroon, which involves the killing of innocent civilians, Samira Daoud of Amnesty International says, “the situation in the Anglophone regions of Cameroon is becoming increasingly desperate with no one spared from the violence which is spiralling out of control”. She adds, that: “as a result of the violence in the Anglophone regions, up to 400 ordinary people have been killed since a year by both the security forces and the armed separatists.” - Source: Amnesty International. Available online at: https://www.amnesty.org/en/latest/news/2018/09/cameroon-horrific-violence-escalates-further-in-anglophone-regions/. Accessed on the 27/02/2019. Also, Bukola Adebayo (Sept. 2018), quoted Amnesty International, for reporting that, over 400 civilians were killed in attacks between armed separatists and security forces in Cameroon's English-speaking regions - Source: CNN. Available at: https://edition.cnn.com/2018/09/18/africa/amnesty-cameroon-violence-report/index.html. Accessed: 27/02/2019 .

[171] See Kindzeka, Moki Edwin (2017), Cameroon School Set on Fire as Anglophone Strike Deepens. VOA – Africa. Available at: https://www.voanews.com/a/cameroon-school-set-fire-anglophone-strike-deepens/3997440.html. Accessed: 02/03/2019. Where he says, “at least half a dozen schools in Cameroon's two English-speaking regions have been burned in the past week”. In yet another publiucation, he says, “armed men burned down a hospital in the Cameroonian town of Kumba this week, forcing patients and medical staff to flee for their lives”. Available online at: https://www.voanews.com/a/medical-staff-patients-flee-hospital-after-attack/4783843.html. Accessed on the 02/02/2019. Accessed on the 02/03/2019.

[172] That’s why the government continues to exonerate or disassociate the military from the above crimes so committed. In contrast, civilian perpetrators aren’t soldiers. As such, they can’t be any defence of military necessity on their part, or so. See “ Cameroon blasts Amnesty for 'crude lies' on anglophone crisis”. Reported by News24. Available at: https://www.news24.com/Africa/News/cameroon-blasts-amnesty-for-crude-lies-on-anglophone-crisis-20180615, where Cameroon’s former minister of communication, Tchiroma Bakary , says: “The report "is stuffed with crude lies, hasty deductions (and) slanderous, unacceptable manoeuvering, which are part of a strategy of harassment and destabilisation of our country in its fight against the terrorist threat”. Accessed on the 02/03/2019.

[173] That’s why they attacked students in their hostels, shoot and kill individual civilians in their houses,

followed; and killed internally displaced persons in their hideouts, kidnap many innocent civilians, including school children, military officers, government officials and chiefs, teachers, and lawyers from these regions..

[174] Charter of the United Nations, Article 23.

[175] Ibid., Article 7.

[176] Ibid., Article 24(1)(2).

[177] Charter of the United Nations, Article 39.

[178] Rome Statute of the ICC, Article 13(b). It provides, that: “The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: (b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” On its part, Article 5 provides, that: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”

[179] Ibid.

[180] Thomas Darnstaedt & Helene Zuber, The Hague Takes On the Sudanese Blood Bath. Available online at: http://www.globalpolicy.org/intljustice/icc/2005/0822darfur.htm. Accessed on the 29/01/2019.

[181] Staff (March 2011). RT News Line, March 2. RT. Aceesed on the 29/01/2019.

[182] According to the Centre for Human Rights and Democracy in Africa (CHRDA). Cited by Balla Agbor N. F., Can Canada serve as an example to Cameroon of how to uphold the rights of minority groups? Available online at: https://www.opencanada.org/features/cameroonians-journey-justice/. Accessed on the 29/01/2019.

[183] Yongabi N. Bernard (June 2012). Is Cameroon's Ratification of International Criminal Court Relevant? Available online at: http://www.cameroonvoice.com/news/article-news-7039.html. Accessed: 29/01/2019.

[184] The World Bank (Jan. 2018), Heavily Indebted Poor Country (HIPC) Initiative. Available online at: http://www.worldbank.org/en/topic/debt/brief/hipc. Accessed on the 29/01/2019.

[185] BBC News (Sept. 2018), John Bolton Threatens ICC with US Sanctions. Available online at: https://www.bbc.co.uk/news/world-us-canada-45474864. Accessed on the 29/01/2019.

[186] Ibid.

[187] Reuters (Nov. 2018), Cameroonian Seperatists Risk Death Sentence following Terrorism Charges. Available online at: https://www.reuters.com/article/us-cameroon-separatists/cameroonian-separatists-risk-death-sentence-following-terrorism-charges-idUSKCN1NW1SX. Accessed on the 29/01/2019.

[188] Tessler Melissa (Dec. 2018), Can Canada serve as an example to Cameroon of how to uphold the rights of minority groups? Available online at: https://www.opencanada.org/features/cameroonians-journey-justice/. Accessed on the 29/01/2019.

[189] UN Security Council Resolution 1593 (2005) on the Situation in Darfur. Available online at: https://www.icc-cpi.int/nr/rdonlyres/85febd1a-29f8-4ec4-9566-48edf55cc587/283244/n0529273.pdf. Accessed: 29/01/2019.

[190] UN Security Council Resolution 1970 (2011) on the situation in the Libyan Arab Jamahiriya. Available online at: https://www.nato.int/nato_static_fl2014/assets/pdf/pdf_2011_02/20110927_110226-UNSCR-1970.pdf. Accessed on the 29/01/2019.

[191] Yongabi N. Bernard (June 2012). Is Cameroon's Ratification of International Criminal Court Relevant? Available online at: http://www.cameroonvoice.com/news/article-news-7039.html. Accessed: 29/01/2019.

[192] Ibid.

[193] Cakmak, Cenap (2006), The International Criminal Court in World Politics. 23 (1) IJWP 3.

[194] ABA-ICC Project, How the ICC Works. https://how-the-icc-works.aba-icc.org/. Accessed on the 29/01/2019.

[195] Statute of the ICC, Article 5. It states: “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.”

[196] ABA-ICC Project, How the ICC Works. https://how-the-icc-works.aba-icc.org/. Accessed on the 29/01/2019.

[197] Ibid.

[198] ABA-ICC Project. Uganda: Situation & Cases. Available at: https://www.aba-icc.org/country/uganda/. Accessed on the 30/01/2019.

[199] Ibid.

[200] Ibid.

[201] Available at: https://www.aba-icc.org/cases/case/the-prosecutor-v-kony-et-al/. Accesed: 30/01/2019.

[202] Available at: https://www.aba-icc.org/cases/case/the-prosecutor-v-ongwen/. Acessed on 30/01/2019.

[203] Rome Statute of the ICC, Article 12(3). It stipulates, that: “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.”

[204] ICC (Sept. 2015), Ukriane Accepts ICC Jurisdiction Over Alleged Crimes Committed Since 20 February 2014. Available at: https://www.icc-cpi.int/Pages/item.aspx?name=pr1146&ln=en. Accessed: 30/01/2019.

[205] Presidency of the Republic, Creation of DDR Committee: French Ambassador Congratulates President Paul Biya. Available online at: https://www.prc.cm/en/news/audiences/3197-creation-of-ddr-committee-french-ambassador-congratulates-president-paul-biya. Accessed on the 23/03/2019.

[206] Meso, Ogada. The Doctrine of Self-defense in Criminal Law: An Analysis by Ogada Meso. Available at: https://www.academia.edu/19410792/The_Doctrine_Of_Self_Defense_In_Criminal_Law_An_Analysis.: 23/03/2019.

[207] Merriam, John (April 2010), Natural Law and Self-Defense. Military Law Review, Vol. 206, pp. 43-87, 2010. Also available at SSRN: https://ssrn.com/abstract=2022404. Accessed on the 09/02/2019.

[208] Ibid.

[209] Kretzmer, David (2013), The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum. The European Journal of International Law Vol. 24 no. 1 . Available online at: http://www.ejil.org/pdfs/24/1/2380.pdf. Accessed on the 10/02/2019.

[210] Jerrold, W. Douglas, as quoted in Williams, G. (1978), Textbook of Criminal Law, 2nd edition. Pg. 501. (London: Stevens & Sons).

[211] Shah (n 65) 95; D. Webster, Letters from US Secretary of State Daniel Webster to British Minister Mr. Fox. (1841) 29 British and Foreign Affairs Papers, 1137-1138.

[212] BBC – Ethics Guide. Just War – Introduction. Available online at: http://www.bbc.co.uk/ethics/war/just/introduction.shtml. Accessed on the 10/02/2019.

[213] Elite Training Centre. History of Self Defence. Available at: https://www.elitetrainingcenter.net/history/history-of-self-defense/. Accessed on the 09/02/2019.

[214] Ibid.

[215] Law No. 2016/007 of 12 July 2016 – relating to the Cameroon Penal Code, Section 84(2). It states, that: “international killing shall be proportionate to an attack causing a reasonable apprehension of death, or grievous harm as defined by this Code or rape or sodomy.”

[216] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 1659. St. Paul, MINN :Thomson Reuters.

[217] Hobbes, Thomas (1985), Leviathan, p.345. Penguin Classics.

[218] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 1364. St. Paul, MINN :Thomson Reuters.

[219] Smith S. Stephenson et al, editors, (2004 Edition), The New International Webster’s Comprehensive Dictionary of the English Language – Encyclopedic Edition, p.g. 1141. Trident Press International.

[220] Beckford v R (1988) 1 AD 130.

[221] 1945 Charter of the United Nations, Preamble.

[222] 1945, Charter of the United Nations, Article 2(4).

[223] 1945, Charter of the United Nations, Article 51.

[224] Ibid.

[225] Miliauskas, Vaidas (2011), Whether International Law Allows Preemptive Use of Military Force?. Available online at: https://www.cfr.org/content/publications/attachments/highlight/03spring_arend.pdf. Accessed on the 11/02/2019.

[226] The Republic of Nicaragua V. United States of America - Military and Paramilitary Activities in and against Nicaragua - Judgment of 27 June 1986 - Merits - Judgments [1986] ICJ 1; ICJ Reports 1986, p 14; [1986] ICJ Rep 14 (27 June 1986). Available online: http://www.worldlii.org/int/cases/ICJ/1986/1.html. Accessed: 11/02/2019.

[227] The University of Akron. International Law: A Guide to Help Law Students with Research for International Law. Available online at: https://law.uakron.libguides.com/c.php?g=703932&p=5110075. Accessedon the 13/02/2019.

[228] Brian A. Garner, editor in chief. (2004). Black's Law Dictionary, 8th edition . St. Paul, MN :Thomson Reuters.

[229] Statute of the International Court of Justice, 1945.

[230] Lewis Corinne, Don’t Stop Now: The Development of the International Law – Right to Use Force in Self-defence. Journal of Int’l Law & Policy, Vol. IV. A student-run publication at the Uni. of Pennsylvania. Available at: https://www.law.upenn.edu/journals/jil/jilp/articles/4-1_Lewis_Corinne.pdf. Accessed on the 13/02/2019.

[231] Arend, Anthony Clark, International Law and the Preemptive Use of Military Force. Available online at: file:///C:/Users/CLIENT/Downloads/03spring_arend%20(1).pdf. Accessed on the 15/02/2019.

[232] Ibid.

[233] Adam Augustyn et al, editors, Encyclopaedia Britannica. Available online at: https://www.britannica.com/biography/William-Lyon-Mackenzie. Accessed on the 15/02/2019.

[234] Miliauskas, Vaidas (2011), Whether International Law Allows Preemptive Use of Military Force. Available online at: https://www.cfr.org/content/publications/attachments/highlight/03spring_arend.pdf. Accesed: 15/02/2019.

[235] Yale Law School-Lillian Goldman Law Library, British-American Diplomacy-The Caroline Case. Available at: http://avalon.law.yale.edu/19th_century/br-1842d.asp#web1. Accessed on the 15/02/2019.

[236] Ibid.

[237] Ibid.

[238] Ibid.

[239] Ibid.

[240] Miliauskas, Vaidas (2011), Whether International Law Allows Preemptive Use of Military Force. Available online at: https://www.cfr.org/content/publications/attachments/highlight/03spring_arend.pdf. Accesed: 15/02/2019.

[241] Public International Law, ICJ Cases Relating to Self-defense and Other Matters Related to the Use of Force (1984 -2017). Available at: https://ruwanthikagunaratne.wordpress.com/2017/08/17/list-of-icj-cases-relating-to-self-defense-and-other-matters-related-to-the-use-of-force/. Accessed on the 16/02/2019.

[242] Hessbruegge, Jan Arno (2017), Human Rights and Personal Self-defense in International Law. New York, NY : Oxford University Press.

[243] Ibid.

[244] ICRC – Training for Media Professionals, Characteristics of Armed Conflicts & Other Situations of Violence. Available online at: file:///C:/Users/CLIENT/Downloads/handout_3_-_characteristics_of_armed_conflicts_other_situations_of_violence.pdf. Accessed on the 17/02/2019.

[245] Constitution of Cameroon, Article 45. It states, that: “duly approved or ratified treaties and international agreements shall, following their publication, override national laws, provided the other party implements the said treaty or agreement.”

[246] Nilsson, Charlotta (2008), The Legality of Anticipatory Self-Defense in International Law. Available online at: http://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1560475&fileOId=1565324. Accessed: 10/02/2019.

[247] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 3619. St. Paul, MINN :Thomson Reuters.

[248] United States v. Alvarez-Machain, 504 U.S. 655, 657 (1992). Available online at: https://supreme.justia.com/cases/federal/us/504/655/case.pdf. Accessed on the 26/03/2019.

[249] Ibid.

[250] Said by Emmanuel Che ... https://www.bbc.co.uk/news/live/world-africa-40829873.

[251] UN General Assembly (GA) Resolution 1514.

[252] Official Website of the African Commission on Human and Peoples’ Rights. http://www.achpr.org/communications/decision/266.03/. Accessed on the 28/03/2019.

[253] Ibid, recommendations.

[254] Rome Statute of the ICC, Article 1. It states that: “An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.”

[255] Criminal Procedure Code of Cameroon, 2005.

[256] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 3618. St. Paul, MINN :Thomson Reuters.

[257] Garner A. Brian , editor in chief , (2014). Black's Law Dictionary, pg. 3619. St. Paul, MINN :Thomson Reuters.

[258] Cameroon Criminal Procedure Code, Section 75(1).

[259] Cameroon Criminal Procedure Code, Section 73.

[260] Cameroon Criminal Procedure Code, Section 71(1).

[261] Law No. 2006/15 of 29 December 2006 on Judicial Organisation. Sections 15 and 18.

[262] Cameroon Criminal Procedure Code, 2005. Article 60 provides that, “criminal proceedings shall be institutes and prosecuted by the Legal Department.”

[263] African Commission on Human and Peoples’ Rights, Cameroon. Available at: http://www.achpr.org/states/cameroon/ratifications/?s=ratification. Accessed on the 29/03/2019.

[264] General Comment No. 4 on the African Charter on Human and Peoples’ Rights: The Right to Redress for Victims of Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment (Article 5).

[265] The African Commission on Human and Peoples' Rights - Information Sheet No.3 - Communication Procedure Organisation of African Unity. Available online at: http://www.achpr.org/files/pages/communications/procedure/achpr_communication_procedure_eng.pdf. 29/03/19.

[266] Ibid.

[267] Available online at: http://www.achpr.org/files/instruments/general-comment-right-to-redress/achpr_general_comment_no._4_english.pdf. Accessed on the 29/03/2019.

[268] Official Website of the African Court. Available: http://www.african-court.org/en/. Accessed: 29/03/2019.

[269] See Communication 266/03 Kevin Mgwanga Gunme et al / Cameroon

[270] ICC, Representing Victims Before the Internatioanl Criminal Court – A Manual for Legal Representative. Available online at: https://www.icc-cpi.int/iccdocs/pids/tmp/representing%20victims%20before%20icc.pdf. Accessed on the 17/02/2019.

[271] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power-1985, Article 1.

[272] Rome Statute of the ICC, Article 68 (3). It provides that, “ where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence”.”

[273] Rules of Procedure and Evidence, Rule 90. It states: “1. A victim shall be free to choose a legal representative. 2. Where there are a number of victims, the Chamber may, for the purposes of ensuring the effectiveness of the proceedings, request the victims or particular groups of victims, if necessary with the assistance of the Registry, to choose a common legal representative or representatives. In facilitating the coordination of victim representation, the Registry may provide assistance, inter alia, by referring the victims to a list of counsel, maintained by the Registry, or suggesting one or more common legal representatives. 3. If the victims are unable to choose a common legal representative or representatives within a time limit that the Chamber may decide, the Chamber may request the Registrar to choose one or more common legal representatives.”

[274] Safferling, Christoph (2012), International Criminal Procedure. Oxford University Press.

[275] Rome Statute of the ICC, Article 75. It provides that, “1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting. 2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79. 3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1. 5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article. 6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law”.

[276] ICC, Trust Fund for Victims. Available at: https://www.icc-cpi.int/tfv. Accessed on the 18/02/2019.

[277] Global Centre for the Responsibility to Protect, Cameroon: There is an Imminent Risk of Mass Atrocity Crimes due to Violence Between Government Security Forces and Armed Separatists in Cameroon’s Anglophone Regions. Available online at: http://www.globalr2p.org/regions/cameroon. Accessed on the 05/02/2019.

[278] Ebai Agbaw, E. (Nov. 2017), Biya Declares War on Anglophones Upon Return from Ivory Coast. Cameroon Concord. Available online at: http://cameroon-concord.com/headlines/just-in-biya-declares-war-on-anglophones-upon-return-from-ivory-coast. Accessed on the 05/02/2019.

[279] Global Centre for the Responsibility to Protect, Cameroon: There is an Imminent Risk of Mass Atrocity Crimes due to Violence Between Government Security Forces and Armed Separatists in Cameroon’s Anglophone Regions. Available online at: http://www.globalr2p.org/regions/cameroon. Accessed on the 05/02/2019.

[280] Un.org, The Responsibility to Protect: Who is Responsible for Protecting People for Gross Violations of Human Rights? Available online at: http://www.un.org/en/preventgenocide/rwanda/pdf/bgresponsibility.pdf. Accessed: 05/02/2019.

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Details

Title
The Gruesome Death Toll Characterised by War Crimes, Crimes against Humanity and Genocide
Subtitle
A Legal Appraisal of the Crisis in the former Southern Cameroons
College
Friedrich-Alexander University Erlangen-Nuremberg
Course
Master of Arts in Human Rights
Grade
2.3
Author
Year
2019
Pages
80
Catalog Number
V494504
ISBN (Book)
9783668984752
Language
English
Tags
gruesome, southern, crisis, appraisal, legal, genocide, humanity, crimes, characterised, toll, death, cameroons
Quote paper
Jean Atabong Fomeni (Author), 2019, The Gruesome Death Toll Characterised by War Crimes, Crimes against Humanity and Genocide, Munich, GRIN Verlag, https://www.grin.com/document/494504

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