A Cross Section of the delegates at the ICC

The Nigerian Bar Association recently embarked on its first ever Legal Services Mission in its history. Augustine Alegeh SAN led a delegation of lawyers to the Netherlands. The delegation visited the International Criminal Court, the Netherlands Ministries of Foreign Affairs and that of Security and Justice. The delegation also held high-level interactions with the Dutch Judiciary the legal profession and met with Dutch companies doing business in Nigeria. Jude Igbanoi who was a member of the Delegation reports on the mission.

The President of the Nigerian Bar Association, Augustine Alegeh SAN led a Legal Services Mission to The Netherlands, February 21 – 26, 2016. The purpose of the mission was to introduce Nigerian law firms to the Dutch market, to market Nigerian legal services to Dutch companies, to raise awareness about the Nigerian legal and business climate, and to further an on-going dialogue with the International Criminal Court on the human rights situation in the North East States of Nigeria. An important component of the visit was to identify best practices in the Dutch administration of justice that could be of benefit to Nigeria’s justice system.
The Highlight of the visit was the meeting with the Prosecutor of the International Criminal Court (ICC). The Court’s Prosecutor is Mrs. Fatou Bensouda from The Gambia. The delegation was pleased to know that Mrs. Bensouda graduated from the University of Ife and was called to the Nigerian Bar.

Mrs. Besouda informed the NBA delegation that the ICC is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. In response to a question from a member of the delegation on whether the jurisdiction of the court covers cases of corruption, the prosecutor informed us that the ICC only tries those accused of the gravest crimes. The jurisdiction and functioning of the ICC are governed by the Rome Statute and that matters of corruption was not within the purview of the mandate of the court.

The NBA had sought audience with the office of the prosecutor to have a practical appreciation of the role and functioning of her office as well as discuss modalities for a possible partnership between the NBA and the Office of the Prosecutor. The NBA was in particular interested in seeking additional information on the fifth annual Report on Preliminary Examination Activities published by the Office of the Prosecutor specifically as it relates to allegations of rights violations by the Nigerian Military.

Under the Rome Statute, the Office of the Prosecutor is required to conduct an examination of all communications and situations brought to its attention in order to determine whether there is a reasonable basis to proceed with an investigation. A number of human rights organisations had brought the human rights situation in the North -East of Nigeria to the attention of the ICC. The Office of the Prosecutor is presently conducting preliminary examinations of the crimes of genocide, crimes against humanity and war crimes relating to the situation in North East Nigeria.

The prosecutor informed the delegation that the government of Nigeria is yet to respond to the request from her office to visit Nigeria in continuation of her investigation. She urged the President of the NBA to intervene to enable her office conclude the matter.

In his response, Augustine Alegeh SAN informed the Prosecutor that the NBA was monitoring the human rights situation in Nigeria generally and specifically in the North East states. He informed the prosecutor of the NBA Human Rights Monitoring Programme in all the North East States of Nigeria. He said the programme was aimed at providing an interactive platform for people living in those states to report cases of rights violations involving security personnel to the NBA. He also said that the NBA is collaborating with the Nigerian Army on a number of fronts. He spoke about the Nigerian Military Forum of the NBA and also plans by NBA to support the continuous human rights education of military personnel. Alegeh also assured the office of the prosecutor that the NBA will meet with the Attorney- General of the Federation with a view to securing an appropriate date for the visit of the prosecutor to Nigeria. He assured the prosecutor that the NBA would be actively involved in the proposed visit. An important outcome of the visit was the proposal to support the application of Nigerian Lawyers and Legal academics interested in International justice systems on internship with the ICC.

Features of ICC
124 countries are States Parties to the Rome Statute of the International Criminal Court. Out of them 34 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States.

The court is absolutely independent of any country or organisation, including the United Nations and enjoys a permanent and autonomous status.

It is funded with voluntary contributions from state governments, international organisations, individuals and corporations.

The ICC is not meant to replace regular state courts and their national criminal justice systems, but rather complements them, under the principle of Complementarity and priority is given to national judicial systems of each country.

The jurisdiction of the ICC is time bound. It cannot exercise jurisdiction over events that occurred before July 1, 2002. No retrospective jurisdiction.

The court prosecutes only individuals and not groups or states.

The court cannot try any person under the age of 18.

The court does not recognise any form of immunity. So, heads of state enjoy no immunity before the court.

The Court’s current president is Silvia Fernandez de Gurmendi of Argentina. She is the first female president of the court.

Esteban Peralta Losilla, a professor of International Law from Spain heads the Court’s Registry.

A Nigerian, Chile Eboe-Osuji was elected as Judge at the ICC and would serve his tenure from 2012 – 2021.

600 lawyers, including 11 Nigerians have accreditation to appear before the court.

Victims of crimes are allowed to participate actively in trials before the court.

The NBA delegation visited The Netherlands Ministry of Security and Justice. The purpose of this visit was to enable the delegation obtain first hand knowledge of the administration of Justice System in The Netherlands. Officials of the Ministry informed the delegation that the Dutch Ministry of Security and Justice is responsible for maintaining the rule of law in the Netherlands. That the essential focus of the Ministry is to ensure that all persons living in The Netherlands live together in freedom, regardless of their life-style or views. The delegation was informed that the broad mandate of the Ministry includes child protection and where necessary, divesting parents of parental responsibility, ensuring that convicted criminals spend useful time in prison as well as help prisoners return to society, providing support for victims of crime. It was noteworthy that a key phase that was constantly mentioned by officials of the Ministry was that in The Netherlands ‘the law is about people’. There was a discussion about the accountability of the Dutch Public Prosecution Service. The delegation was informed that the Public Prosecution Service and the courts together make up the judiciary in The Netherlands. That the Public Prosecution Service decides who has to appear before a court and on what charge. It is the only body that can decide to prosecute someone. Its field of work is criminal law. The Public Prosecution Service’s main tasks are investigating criminal offences, prosecuting offenders, supervising the enforcement of sentences.

On the issue of accountability, the delegation was informed that the Dutch Public Prosecution service is accountable to two separate authorities. First, the courts, which review the conduct of the Public Prosecution service and the police services. Second, the Minister of Security and Justice, who has political responsibility for the service’s conduct and performance, may be called upon to render account to both houses of the Dutch Parliament. The delegation learnt that the Minister of Security and Justice is concerned with general policy on investigations and prosecutions and rarely intervenes in individual cases. That if the Minister decides that a person will not be prosecuted, he has to inform Parliament of his decision. The delegation was also informed that there is one national police force in The Netherlands, led by one Commissioner. The force consists of ten Regional Units and one Central Unit, each with its own Chief Constable. The delegation was also informed that this was a deliberate policy of the Dutch government to reduce police bureaucracy so that officers have more time for primary policing.

The Nigerian Desk in the Netherlands Ministry of Foreign Affairs facilitated meetings with Senior Officials of the Ministry, the International Chamber of Commerce and the leadership of the Netherlands Bar Association. The NBA delegation was informed that the Dutch Ministry of Foreign Affairs promotes the interests of The Kingdom of Netherlands abroad. That the Ministry coordinates and carries out Dutch foreign policy at its headquarters in The Hague and through its missions abroad. It is the channel through which the Dutch Government communicates with foreign governments and international organisations. The officials of the Ministry informed the delegation that The Netherlands is not simply concerned about its borders, but is committed to building a safe, stable and prosperous world. That the Dutch missions outside The Netherlands are actively involved in addressing issues such as poverty reduction, climate change, respect for human rights and the rule of law and eliminating conflict. On the issue of human rights and the role of the Dutch Government, there was a discussion on the need for the Dutch Government to do more in support of victims of business-related human rights and gross environmental abuses. The NBA delegation suggested that the Dutch government should give consideration to the enactment of legislation similar to the United States Alien Tort Claims Act, which in general allows corporate parents of transnational businesses to be held liable in the host countries for human rights violations by their subsidiary companies.

There was a meeting with investment experts of the Ministry of Foreign Affairs and representatives of the Dutch Enterprise Agency and the Netherlands Foreign Investment Agency. The main issue that dominated discussion was the ease of doing business in Nigeria. The NBA delegation and the Dutch investment experts agreed on the need for Nigeria to do more to ease investment in Nigeria. The absence of a single investment center in Nigeria where all issues relating to doing business in Nigeria can be dealt with speedily was identified as an important obstacle. Concern was also raised about the multiple Federal and State administrative protocols, the legal system and the perceptions of safety and security in Nigeria.

The Legal Services Mission concluded with a Netherlands – Nigeria Lawyers Exchange hosted by the International law Firm of Russell Advocaten based in Amsterdam. Russell Advocaten is one of the leading law firms in The Netherlands and had been awarded the “Best Full Service Corporate Law Firm” of the Netherlands 2015 by the corporate finance magazine Acquisition International. The prize is awarded to firms that “through the quality services they provide and their commitment to moving the legal sector forward, established themselves as thought leaders and assumed their position at the head of the legal pack” The Lawyers exchange was an opportunity to share information on the state of legal practice and administration of justice in both countries. It also provided an opportunity to exchange expertise on all aspects of law- criminal, civil and corporate law. The NBA Delegation learnt that The Netherlands operates under a civil law system whose development has been heavily influenced and shaped by Roman and French Law. What distinguishes the Dutch legal system from most of its common and even civil law peers is its approach towards the relationship between domestic and international law which is stronger than almost anywhere else in the world, coming close to what academics would call a monistic conception of international law. The Netherlands is host to the most influential courts of international law – the International Court of Justice, the Permanent Court of Arbitration and International Criminal Courts – as well as many specialist tribunals, which emphasises its importance in the context of international law. In the international community, the reputation of the Netherlands with regard to the quality and fairness of its legal system is as strong as the presence of international institutions in the country.

Quite unusually for a legal system founded in civil law and much more akin to their common law counterparts, the Dutch bar is highly centralised. The Nederlandse Orde van Advocaten, founded in 1952, is the institution, which governs the legal profession in The Netherlands.
As of the date of the mission, there were 17,000 admitted members of the Dutch Bar, which is relatively small when measured by lawyers per capita and when compared to European neighbors or the United States. In terms of gender diversity, the Dutch Bar is again at the forefront of progressive development with the laudable percentage of around 40% of its members being female. Unlike in jurisdictions such as England and Wales or Ireland, the Netherlands draws no distinction between solicitors and barristers – in that sense, the Dutch legal profession can be said to be fused.

The President of the Amsterdam District court presented an overview of the Dutch judicial system .The judicial system in the Netherlands is composed of the District Courts, Special Tribunals, the Court of Appeal and the Supreme Court. The Netherlands is divided into eleven judicial districts, each with its own court. Each court has a number of sub-district venues. The district court is made up of a maximum of five sectors. These always include the administrative sector, civil sector, and criminal sector and sub-district sector. Family and juvenile cases are often put into a separate sector, as is sometimes the case with the administration of the law concerning aliens. The NBA delegation noted that it is relatively simple for ordinary citizens to have their case heard in the sub-district sector. They have the right to argue their own case and do not need a lawyer to represent them in court. A single judge handles cases.

The delegation was also informed that there are three special tribunals in the Netherlands that are competent in specific areas of administrative law. The eleven districts are divided into four areas of Court of Appeal jurisdiction: The Hague and Amsterdam in the west, Arnhem-Leeuwarden in the east and in the north and ‘s-Hertogenbosch in the south. The Supreme Court of the Netherlands is the highest court in the fields of civil, criminal and tax law in the Netherlands.

An important outcome of the lawyers exchange was the commencement of discussions on how to deepen ties between the Nigerian Bar Association and the Netherlands Bar Association. As a first step the President of the NBA proposed an exchange of lawyers on an internship programme for young lawyers. The modalities of this proposal will be worked on by the NBA secretariat.

The lawyers’ exchange concluded with a visit to the Amsterdam District Court where the delegation witnessed court proceedings and was also informed about court management and administration.

Facts about The Netherlands Judicial System
There are 2,400 judges in the Netherlands

The judiciary hears about 1.8 million cases in a year.

The Dutch Judiciary operates a yearly budget of 985 million Euros (N3.94b).

Judicial appointments are advertised nationwide, followed by applications, selection, screening and final appointment.

A Master’s Degree in Law is required for every applicant for judicial appointment.

Two years working experience is required.

Age bracket for applicants is between 28 – 35.

A judge is expected to train at the district courts for a period of four years, while more senior and experienced lawyers train for two years before finally taking on full judicial duties.

Netherlands has a Supreme Court, four Courts of Appeal and 11 district courts.

The district courts (equivalence of Nigeria’s high courts) sit in a panel of 3, with one non-judicial member (non-lawyer).

A judge can resign or retire and go back into full time legal practice, unlike in Nigeria.

In the next few years, the Dutch court system will operate a paperless system.

In the Netherlands as well as other European Union countries, death penalty is forbidden. Life imprisonment is the maximum sentence. After 30 years, a convict can apply for release.

The Nigerian High Commission to The Netherlands facilitated the NBA Legal Services Mission. Her Excellency Grace Chia Sani, Chargé d’Affaires key staff of the High Commission were at hand to support the delegation as well as actively participate in several high level meetings.