The International Criminal Court’s prosecutor said Friday she had enough evidence to open a full probe into ongoing violence in Nigeria by both Islamist insurgents and security forces.
Fatou Bensouda’s announcement comes as violence continues to wreak havoc in the northeast, where at least 76 people were slaughtered by Boko Haram jihadists two weeks ago.
“Following a thorough process, I can announce today that the statutory criteria for opening an investigation into the situation in Nigeria have been met,” Bensouda said in a statement, issued at the ICC’s headquarters in The Hague.
ICC prosecutors opened a preliminary investigation into the situation in Nigeria in 2010 but Bensouda now wants permission from judges to proceed to a full-blown formal probe.
Gambian-born Bensouda specifically referred to acts committed by Boko Haram, whose 11-year insurgency in the country have claimed the lives of at least 36,000 people.
Around two million others have been displaced, according to UN figures.
Boko Haram and its splinter groups have committed “acts that constitute crimes against humanity and war crimes” including murder, rape, sexual slavery, enslavement, torture and cruel treatment, Bensouda said.
But while the “vast majority” of crimes were committed by non-state perpetrators “we also found a reasonable basis to believe that members of the Nigerian Security Forces committed acts constituting crimes against humanity and war crimes”, Bensouda said.
This included murder, rape, torture, and cruel treatment as well as enforced disappearance and forcible transfer of the population and attacks directed at civilians.
A full investigation by the ICC, set up in 2002 to try the world’s worst crimes, could eventually lead to charges over the violence in the oil-rich African nation, which has been fuelled by the Boko Haram insurgency.
Bensouda said Nigeria has made some effort to prosecute “mainly low-level captured” Boko Haram fighters, while military authorities told her they have “examined, and dismissed, allegations against their own troops”.
“I have given ample time for these proceedings to progress,” keeping in mind the ICC’s complementarity principle, which means it would only get involved in investigations and prosecutions if a member state was unable or unwilling to do so, she added.
“Our assessment is that none of these proceedings relate, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of my investigations,” Bensouda said.
Boko Haram’s main group claimed responsibility earlier this month for the massacre of some 76 farm workers in an area outside Borno state’s capital Maiduguri, in which dozens of labourers were mowed down by gunmen on motorbikes.
Farm workers were also tied up and had their throats slit in the attack believed to be seeking revenge on villagers for seizing the group’s fighters and handing them over to the authorities.
The massacre provoked widespread international condemnation including by the head of the Catholic Church.
“I want to assure my prayers for Nigeria, where blood has unfortunately been spilled once more in a terrorist attack,” Pope Francis said at the Vatican during a weekly general audience earlier this month.
Meanwhile, state security sources said 10 Nigerian troops were killed on Monday in clashes with IS-linked jihadists in Borno state.
Fighting erupted when a team of soldiers stormed a camp of Islamic State West Africa Province (ISWAP) in Alagarno village in Damboa district.
Alagarno, which lies 150 kilometres (90 miles) from regional capital Maiduguri, is a stronghold of ISWAP, which split from the Boko Haram jihadist group in 2016 and rose to become a dominant force.
ISWAP has increasingly been attacking civilians, killing and abducting people on highways as well as raiding villages for food supplies.
Violence in Nigeria has spread to neighbouring Chad, Niger and Cameroon, prompting a regional military coalition to fight the militant groups.
READ THE ICC PROSECUTOR’S FULL STATEMENT:
Today, I announce the conclusion of the preliminary examination of the situation in Nigeria.
As I stated last year at the annual Assembly of States Parties, before I end my term as Prosecutor of the International Criminal Court (“ICC” or the “Court”), I intend to reach determinations on all files that have been under preliminary examination under my tenure, as far as I am able. In that statement, I also indicated the high likelihood that several preliminary examinations would progress to the investigative stage. Following a thorough process, I can announce today that the statutory criteria for opening an investigation into the situation in Nigeria have been met.
Specifically, my Office has concluded that there is a reasonable basis to believe that members of Boko Haram and its splinter groups have committed the following acts constituting crimes against humanity and war crimes: murder; rape, sexual slavery, including forced pregnancy and forced marriage; enslavement; torture; cruel treatment; outrages upon personal dignity; taking of hostages; intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities; intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance; intentionally directing attacks against buildings dedicated to education and to places of worship and similar institutions; conscripting and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities; persecution on gender and religious grounds; and other inhumane acts.
While my Office recognises that the vast majority of criminality within the situation is attributable to non-state actors, we have also found a reasonable basis to believe that members of the Nigerian Security Forces (“NSF”) have committed the following acts constituting crimes against humanity and war crimes: murder, rape, torture, and cruel treatment; enforced disappearance; forcible transfer of population; outrages upon personal dignity; intentionally directing attacks against the civilian population as such and against individual civilians not taking direct part in hostilities; unlawful imprisonment; conscripting and enlisting children under the age of fifteen years into armed forces and using them to participate actively in hostilities; persecution on gender and political grounds; and other inhumane acts.
These allegations are also sufficiently grave to warrant investigation by my Office, both in quantitative and qualitative terms. My Office will provide further details in our forthcoming annual Report on Preliminary Examination Activities.
The preliminary examination has been lengthy not because of the findings on crimes – indeed, as early as 2013, the Office announced its findings on crimes in Nigeria, which have been updated regularly since. The duration of the preliminary examination, open since 2010, was due to the priority given by my Office in supporting the Nigerian authorities in investigating and prosecuting these crimes domestically.
It has always been my conviction that the goals of the Rome Statute are best served by States executing their own primary responsibility to ensure accountability at the national level. I have repeatedly stressed my aspiration for the ability of the Nigerian judicial system to address these alleged crimes. We have engaged in multiple missions to Nigeria to support national efforts, shared our own assessments, and invited the authorities to act. We have seen some efforts made by the prosecuting authorities in Nigeria to hold members of Boko Haram to account in recent years, primarily against low-level captured fighters for membership in a terrorist organisation. The military authorities have also informed me that they have examined, and dismissed, allegations against their own troops.
I have given ample time for these proceedings to progress, bearing in mind the overarching requirements of partnership and vigilance that must guide our approach to complementarity. However, our assessment is that none of these proceedings relate, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of my investigations. And while this does not foreclose the possibility for the authorities to conduct relevant and genuine proceedings, it does mean that, as things stand, the requirements under the Statute are met for my Office to proceed.
Moving forward, the next step will be to request authorisation from the Judges of the Pre-Trial Chamber of the Court to open investigations. The Office faces a situation where several preliminary examinations have reached or are approaching the same stage, at a time when we remain gripped by operational challenges brought on by the COVID-19 pandemic, on the one hand, and by the limitations of our operational capacity due to overextended resources, on the other. This is also occurring in the context of the pressures the pandemic is placing on the global economy. Against this backdrop, in the immediate period ahead, we will need to take several strategic and operational decisions on the prioritisation of the Office’s workload, which also duly take into account the legitimate expectations of victims and affected communities as well as other stakeholders. This is a matter that I will also discuss with the incoming Prosecutor, once elected, as part of the transition discussions I intend to have. In the interim, my Office will continue to take the necessary measures to ensure the integrity of future investigations in relation to the situation in Nigeria.
The predicament we are confronted with due to capacity constraints underscores the clear mismatch between the resources afforded to my Office and the ever growing demands placed upon it. It is a situation that requires not only prioritization on behalf of the Office, to which we remain firmly committed, but also open and frank discussions with the Assembly of States Parties, and other stakeholders of the Rome Statute system, on the real resource needs of my Office in order to effectively execute its statutory mandate.
As we move towards the next steps concerning the situation in Nigeria, I count on the full support of the Nigerian authorities, as well as of the Assembly of States Parties more generally, on whose support the Court ultimately depends. And as we look ahead to future investigations in the independent and impartial exercise of our mandate, I also look forward to a constructive and collaborative exchange with the Government of Nigeria to determine how justice may best be served under the shared framework of complementary domestic and international action.
The Office of the Prosecutor of the ICC conducts independent and impartial preliminary examinations, investigations and prosecutions of the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Since 2003, the Office has been conducting investigations in multiple situations within the ICC’s jurisdiction, namely in Uganda; the Democratic Republic of the Congo; Darfur, Sudan; the Central African Republic (two distinct situations); Kenya; Libya; Côte d’Ivoire; Mali; Georgia, Burundi Bangladesh/Myanmar and Afghanistan (subject to a pending article 18 deferral request). The Office is also currently conducting preliminary examinations relating to the situations in Bolivia; Colombia; Guinea; the Philippines; Ukraine; and Venezuela (I and II), while the situation in Palestine is pending a judicial ruling.
