Finally Willing? Commentary On The ICC Prosecutor’s Decision To Open Investigation Into Allegations Of War Crimes And Crimes Against Humanity By Members Of Boko Haram And Nigerian Security Forces

Under the Statute of the International Criminal Court (ICC) the office of

the prosecutor (OTP) must, before undertaking an investigation under ARTICLE 15 of the Rome Statute, consider among other factors, the issue of admissibility. This requires an examination of the will and capacity for domestic accountability mechanisms and the gravity of crimes alleged. Pursuant to the concept of positive complementarity the OTP in the course of preliminary examinations encourages domestic accountability measures.Although engagement with domestic institutions in the course of monitoring can be complex and time consuming it is solely within the purview of the OTP’s discretion and there are no set timelines to the preliminary examination process.

Nigeria has been the subject of preliminary examination since 2010 in connection with the armed conflict in the North East involving the Boko Haram terrorist group. The preliminary examination has focused on alleged war crimes and Crimes against Humanity committed in the regions of central and northern Nigeria by Boko Haram and the Nigerian Security Forces. During the assessment by the OTP in Nigeria, the domestic authorities conducted mass trial of Boko Haram suspects (See Vanguard, Army sets up panel to investigate alleged ex-judicial killings, rights violations by personnel, 8 March 2017, https://www.vanguardngr.com/2017/03/army-sets-panel-investigate-alleged-ex-judicial-killings-rights-violations-personnel ) and also initiated in 2017, evidence gathering measures through the constitution of a Special Board of Inquiry instituted by the Nigerian Army and a Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement.

It is instructive that some of these domestic measures have attracted scathing criticisms from several observers. Amnesty International for instance noted that most of the Boko Haram suspects tried were arraigned on secondary counts such as giving assistance to BH members or attending meetings of Boko Haram – an indication it said that the perpetrators who bear the greatest responsibility for the gravest crimes have not been brought to justice

Despite these measures two related questions have consistently featured in the admissibility assessments of the Nigerian situation. These are whether for the purpose of complementarity - a) the proceedings in the situation states must focus on the exact incident(s) or suspects identified by ICC; and b) the laws under which these proceedings are conducted must relate to ICC offences. Thus, where kidnapping, torture or rape occurs in the context of a crime against humanity, is it sufficient to charge persons with the domestic offences with the possibility of aggravated punishment on account of the nature?

While acknowledging that Nigeria has not domesticated the ICC statute, the OTP seems willing to regard prosecutions for domestic offences if they are sufficiently related (not necessarily identical) and if the defendants are of a sufficiently high rank or status to be in the category of persons most responsible for these offences. Even this permissive threshold could not be attained by Nigerian authorities. Frustration of the OTP and indication that it was nearing a decision to investigate was mirrored in its 2019 Report on preliminary examination activities where the OTP observed that - In particular, according to the information available, it does not appear that the authorities are investigating and/or prosecuting cases concerning substantially the same conduct or cases that are otherwise similar to those identified by the Office. To date, the repeated commitment of the Nigerian authorities to provide the Office with relevant information in this respect has not materialised.(Para 199, 2019 OTP- PE Report)

The OTP’s decision to kickstart investigation is subject to the approval of the Pre-Trial Chamber. Consistent with the most recent ruling of the ICC in the appeal against the decision on the authorisation of an investigation into the Afghanistan situation, the approval process will not be a review of the reasonableness of prosecutor’s assessment but whether there are grounds under article 53(1)(a) to (c) of the Statute to enable the prosecutor reach that decision. Nevertheless even at the investigation stage, Nigeria can by initiating meaningful investigation and prosecution of alleged perpetuators still challenge admissibility of these cases. Time seems of the essence. It is unlikely that the OTP will open investigation unless it possesses enough evidence to press for an indictment with or without cooperation of the Nigerian state to assist with the investigation.