– By Russel Andrew Crowe –
A landmark civil damages and human rights lawsuit has been filed in the United States District Court for the District of Columbia against sixteen Nigerian officials for their direct or indirect complicity and in the extrajudicial killings or torture of Igbos who were protesting marginalization based on their ethnicity, political viewpoint or religion. The Igbos organized themselves as the Indigenous Peoples of Biafra (IPOB), which is as nonviolent as, if not as symbolic as – for instance – the agitation for Republic of Texas, or of California in USA; and even Scotland that its own Premier is the one leading the charge for a referendum on autonomy from Britain. In all these cases, the agitators are not being shot at, tortured or killed by the army and police.
I determined from my inquiries that service of the summons and complaint, as well as the initial orders has been accomplished by certified international courier on all defendants. They are currently in default for failure to file a response within 21 days of service as stipulated in pertinent United States federal rules of civil procedure. The lead defendant is Nigeria’s army chief, General Tukur Buratai.
The claims of the plaintiffs are grounded under two muscular United States’ statutes – the Alien Tort Claims Act (ATCA or ATS – the Alien Tort Statute); and the Torture Victims Protection Act (TVPA). Both laws have extraterritorial reach, meaning that they allow US federal courts to assert long-arm jurisdiction that extends beyond the borders of United States.
Alien Tort Claims Act (ATCA) provides that ‘the district courts shall have original jurisdiction of any civil action by an alien for a tort (or civil wrong) committed in violation of the law of nations or a treaty of the United States’. Since 1980, courts have interpreted this statute to allow foreign citizens to seek remedies in US courts for human rights violations for conduct committed outside the United States.
Torture Victim Protection Act of 1991 is a statute that permits civil suits in the United States against foreign individuals who – acting in an official capacity for any foreign nation – committed torture and/or extrajudicial killing.
Both laws, especially the TVPA endow individuals or their legal representatives to sue foreign individuals, including officials, to collect damages for extrajudicial killings or torture committed “under color of foreign law.”
In the instant case, the plaintiffs already won first round as the United States District Court has granted them leave to file anonymously as “John Does” after making a ruling that they have a well-founded fear of retribution/persecution by the government of Nigeria or its agents or officials if their identities were disclosed. Violence against Igbos by individuals in the military/police and directed and encouraged by their superiors is notorious and well-known to the international community.
The defendants would be foolhardy to believe this lawsuit will be difficult to win in the United States or stultify and drag on as might have been expected if filed in Nigeria. Judicial independence and the rule of law, as well as speedy trials are the hallmarks of United States jurisprudence. There are legions of US judicial precedents pointing to the high likelihood of a summary judgment for the plaintiffs.
Defendants will have no defense of official immunity because they are being sued in their individual capacities and as officials who purportedly ‘acted under color of law’. They are not sovereigns or diplomats. Further, extrajudicial killings or torture are crimes against humanity. Upon the prompting of the aggrieved, US courts will task any foreign government officials that perpetrate atrocities of the kind visited on the Igbos of Nigeria. It’s not a secret that Nigerian officials had, in the past, engaged in misconducts that resulted in monetary judgments against them – in the millions of dollars – in the United States. This case appears bound for the same predictable result, unless handled differently from the inexplicable bravado and laches that doomed Nigeria in the previous suits preferred against its officials in the United States.
The factual case against the defendants is convincing. All Nigerians know of the widespread beatings and slaughter of Igbos by elements of Nigerian security forces for merely and peacefully exercising their fundamental human right to protest marginalization and urge a new political dispensation. Indeed, beyond Nigeria, Amnesty International and other credible foreign sources have confirmed those killings and torture; and to be sure – their reports will be deemed probative and admissible under standards of evidence long established in US federal courts in cases of this nature. Plus, plaintiffs are all on standby in the United States to air their tearful testimonies in open court. It even makes it worse that the Nigerian army is reported to be denying and covering up an atrocity that was so open and notorious.
It doesn’t make it any better that the Nigerian government – so far – appears to have condoned the wanton killings by failing to publicly discipline the officers that pulled the trigger or the commanders that gave the order. It’s even worse that President Buhari, upon his return from vacation, reportedly ordered his troops to renew their crackdown on Igbo protesters. That VP Osibanjo gave no such orders when Buhari was away is noticeably demonstrative of the widespread notion that Buhari – a Fulani core Muslim – has profiled the Christian Igbos for persecution because of their ethnicity, their love of freedom, and the perception that they did not vote for him in the 2015 election that saw him to power.
At present, the savage mentality that is directed against Igbos in Nigeria of this era is widespread and underscored by the notorious threat to expel or destroy millions of Igbos and seize their properties in the Muslim northern states of Nigeria if they refused to surrender their right to reside and work peacefully in that part of the country. And the federal, state, and local governments appear as spectators to the looming genocide – a spectacle that is not lost on a wary international community; and which might as yet make Nigeria a ‘state actor’ in the ultimate fallouts. Such fallouts will surely raise the specter of an International Criminal Court intervention that may engulf the present crop of Nigerian leadership at the very top.
The Nigerian defendants are mistaken if they believe they can defend from the safe confines of Nigeria. If the case goes to trial, they will be required – under penalty of default or even contempt – to appear in a United States court to testify under oath and dangerously probing cross-examination that will dwell on the details of the Igbo killings and the complicity of other unnamed Nigerian officials, which shall include whether they received their orders from the presidential levels of security leadership to use lethal force on unarmed protesters. This evidence could be used in a sequel criminal prosecution before the International Criminal Court or a special court of the likes employed in the prosecution and conviction of Chad’s former dictator, Hissene Habre in Senegal. The State governors – of Abia and Anambra – where these killings largely occurred will also be ensnared by virtue of being the ‘chief security officers’ of their States. Those two governors are also listed as defendants.
If the defendants refuse to appear, default judgments will be entered against them, in addition to the prospects of undefended huge damage awards that will run in the millions of dollars. The ultimate loser – diplomatically and financially – will be the Nigerian and State governments that presumably control the officials who acted under color of state law when the Igbo killings occurred. In the end, it may snowball to the government of Nigeria being listed as a state sponsor of terrorism in the same manner as was done with Sudan, etc. In the interim and despite the continuing menace of Boko Haram, the United Nations Security Council (or the US – under the Leahy Act) could vote an arms embargo on Nigeria to prevent the diversion of military weapons that could be geared to perpetrating more official violence against the Igbo people.
Christian lobby groups in the United States were largely responsible for making Sudan a pariah state, which culminated in the creation of South Sudan through a referendum organized and supervised by the United Nations. Like Nigeria, Sudan also fancied itself indissoluble just because its Constitution said so. That same political dynamic will be at work against Nigeria if the TVPA/ATCA litigation is not resolved amicably before Nigeria’s dirty linen is exposed at trial in an open United States courtroom for the entire world to see
Better yet, there’s a third way – a time honored window of opportunity the defendants can exploit to end the case early and avoid the severe rigors of a foreign trial. US trial lawyers and the courts within which they operate are known to have a proclivity for encouraging any alternative dispute resolution path that brings closure through a pre-trial fair settlement of suits. Though this suit has progressed to a point of some disadvantage to the defendants, it’s not too late for them to begin now to seek out plaintiffs’ lawyers and start talking to them.