Nigeria - A Twelve-Year Preliminary Examination
Is the Time Ripe for the ICC Prosecutor to Tackle Boko Haram's Criminals?
According to Intersociety, in a report shared by Genocide Watch, the 15-month period from January 2021 to March 2022 saw the killing of 6006 Christians in Nigeria. Furthermore, in the 13 years since the July 2009 Boko Haram uprising, 45,644 Christians have died; with an additional '30,000 moderate and defenceless Muslim lives lost'. In this blog, Giovanni Chiarini (LLB, LLM, Ph.D. c.) and Izuchukwu Temilade Nwagbara (LLB) will consider the case of Nigeria before the International Criminal Court (ICC).
Giovanni Chiarini is currently a visiting researcher at the Laboratoire de Droit International et Européen, Université Côte d'Azur, France, as well as an International Fellow of the National Institute of Military Justice, Washington DC. Giovanni is an Italian Barrister-At-Law (Bar Council of Piacenza, Italy) and a last-year PhD candidate at the Insubria University of Como, moving to Texas Tech University (USA) as a Scholar-in-Residence. He has been a Visiting Researcher at the Centre for International and Global Law at the University of Edinburgh; at the Institute for International Peace and Security Law at Universität zu Köln, Germany; at the Centre for Critical Legal Studies at the University of Warwick; and at the UCC Centre for Criminal Justice and Human Rights. Opinions expressed are solely his own and do not express the views or opinions of the above-mentioned institutions.
Izuchukwu Temilade Nwagbara is a Barrister and Solicitor of the Supreme Court of Nigeria. He received his LLB from the University of Ibadan. He is a renowned and award-winning public speaker, and was awarded the Most Outstanding Student Counsel 2018 by the Law Students Society, Faculty of Law, University of Ibadan. He led the only team from Nigeria that qualified for the oral rounds of the Nuremberg Moot Court 2019. He was part of the special cohort, January-April 2022, for the online course 'Introduction to International Criminal Law' organised by the International Bar Association in conjunction with Florida State University.
The so-called 'situation' in Nigeria has long been under the ICC scrutiny. From as early as 2010, the ICC Office of the Prosecutor (OTP) has received communications pursuant to Article 15 of the Rome Statute (RS), regarding both crimes against humanity and war crimes allegedly committed in Nigerian territories by 'Boko Haram', as well as by members of the Nigerian Security Forces. Ten years later, in December 2020, the former ICC Prosecutor, Fatou Bensouda, stated that the criteria to open an investigation had been met, therefore announcing the closure of the preliminary examination. However, after almost 2 years, the authorisation for opening an investigation has not yet been requested. Hence, where does the situation in Nigeria stand before the ICC?
Due to word limit, this essay will focus only on Boko Haram, therefore considering two main aspects: 1) what is 'Boko Haram' and which crimes have been allegedly committed; and 2) a brief analysis of this preliminary examination, with special attention given to complementarity. Lastly, we will specify why, in our opinion, the case is, in fact, still pending in this apparently never-ending preliminary phase.
The Origin and Evolution of Boko Haram and the Plethora of International Crimes
The popular terror group, operating primarily in North-East Nigeria, known by its widespread moniker, Boko-Haram, started out as an Islamist group known as Jama’atu Ahlus-Sunnah Lidda’Awati Wal Jihad. It was founded in 1995 as a Sunni Salafist organisation preaching Islam and providing services to the poor, to widows and to vagrant children (almajiris). From Borno state in North-East Nigeria, they carried out preaching outreaches, making calls to the Muslim youth to join their quest to practice true Islam and ultimately, following their fanatic narrative, to expunge corruption festered by the western-styled government.
The metamorphosis of Boko Haram into a deadly group was precipitated by the fanatical indoctrination of its spiritual leader, Sheikh Yusuf Mohammed, in Taliban puritanical doctrine of Islamic fundamentalism — a doctrine which viewed western education as corrupt and un-Islamic. This indoctrination was facilitated by Mohammed Alli, a fanatic cleric and subscriber of the Taliban doctrine of violent Jihad being a necessary tool for the propagation of 'true Islam'.
The belligerence of Boko Haram began gradually from 2003 with splinter groups within the general movement migrating to remote areas to form separatist communes and continue the recruitment drive for their Jihad cause. The separatist groups had disagreements with local authorities, which they denounced as being complicit in the westernisation corruption of Islam; threatening and committing violence against them. This led to the start of incessant clashes with security agents of the state which would culminate in the climax of a full-blown insurgency in 2009.
The unprecedented level of devastation led the federal government of Nigeria to enact the Terrorism (Prevention) Act 2011 and subsequently the Terrorism (Prevention) (Amendment) Act 2013. Recently, the Nigerian President signed into law the Terrorism (Prevention and Prohibition) Act 2022, repealing the 2011 and 2013 Acts. Another facet of Boko Haram’s crimes involves the recruitment of child soldiers, particularly as suicide bombers. As officially stated by the OTP, 'Boko Haram has evolved into a militant movement of transnational proportions with factions allegedly affiliated with ISIS and al-Qaeda', and, reportedly, 'at least three factions of what is jointly referred to as Boko Haram currently operate in Nigeria and the Lake Chad region bordering Niger, Chad, and Cameroon'.
The Boko Haram group, in the course of its insurgency, has committed several alleged international crimes which potentially fall under the jurisdiction of the ICC. Indeed, Nigeria deposited its instrument of ratification to the Statute on 27 September 2001, giving the ICC jurisdiction over crimes committed on this territory or by its nationals from 1 July 2002 onwards.
According to the 2020 OTP Report on Preliminary Examinations, Boko Haram have committed the following crimes against humanity: murder pursuant to article 7(1)(a); enslavement pursuant to article 7(1)(c); imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law pursuant to article 7(1)(e); torture pursuant to article 7(1)(f); rape, sexual slavery, and forced pregnancy pursuant to article 7(1)(g); other inhumane acts, including forced marriage pursuant to article 7(1)(k) and persecution on gender and religious grounds pursuant to article 7(1)(h). It has been underlined that 'these crimes were committed pursuant to or in furtherance of an organisational policy by Boko Haram and as part of a widespread and systematic attack against the civilian population composed of those considered ‘unbelievers’ or perceived supporters of the Nigerian Government'. Boko Haram has systemically targeted and killed civilians in attacks across different states in Nigeria, pointing to the widespread nature of attacks.
Moreover, several war crimes have led from the conflict involving both Boko Haram and the Nigerian Security Forces. As described above, according to Genocide Watch, the 15-month period from January 2022 to March 2022 saw the death of 6006 Christians in Nigeria. Furthermore, in the 13 years since the July 2009 Boko Haram uprising, 45,644 Christians have died; with an additional '30,000 moderate and defenceless Muslim lives lost'. Indeed, it has been stated that 'Nigeria is worst in the world for persecution of Christians in 2021'.
In our opinion, the crime of genocide should also fall within the preliminary examination.
As both Article 6 of the Rome Statute and Article II of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide state, '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'.
Following the words of Gregory Stanton, the founding president and chair of Genocide Watch, as cited by American Magazine, the nature of the attacks clearly fit the U.N. definition of acts of genocide: 'They now arrive with truckloads of fighters and simply massacre a Christian village and leave the Muslim village alone', he mentioned, and the 'central government is acting like a bystander'. Furthermore, the US State Department report quotes Nigerian Minister of Culture Lai Mohammed, who suggested that Boko Haram and ISIS fighters, 'have started targeting Christians and Christian villages […] to trigger a religious war and throw the nation into chaos'.
Last, but sadly not least, a special report by the United Nations Development Programme (UNDP) in 2021 found that the twelve-year conflict had caused, directly or indirectly, the deaths of 350,000 people — much more than the population of certain independent countries.
The Twelve-Year Preliminary Examination in Nigeria: no procedural issues in theory, except complementarity
In short, it is important to note from the outset that a preliminary examination is not an investigation, but it 'serves as a bridge between the documentation of human rights violations and criminal investigation'. At the preliminary examination (PE) stage, as highlighted in the OTP’s Policy Paper on Preliminary Examination, the OTP 'does not enjoy investigative powers, other than for the purpose of receiving testimony at the seat of the Court and cannot invoke the forms of cooperation specified in Part 9 of the Statute from States.' Hence, a preliminary examination is essentially a phase of evaluation of the information available in order to understand if there is a 'reasonable basis' to proceed with an investigation, as well as an evaluation of both jurisdictional and admissibility issues.
Unlike other ICC preliminary examinations, Nigeria's case is characterised by an absence of procedural issues, at least in theory. Throughout the years, the underlying procedural matters have been deeply analysed by the former ICC Prosecutor, Fatou Bensouda. As she expressly highlighted in the annual PE reports, the OTP completed its admissibility assessment in terms of complementarity and gravity; and did not identify substantial reasons to believe that an investigation would not serve the so-called interests of justice. Consequently, based on the information available, 'the potential cases likely to arise from an investigation into the situation would be admissible'.
However, the complementarity principle could present a problem. As is well-known, this principle is contained in paragraph 10 of the Rome Statute Preamble, as well as in articles 1 and 17(1)(a)-(c). This principle is a cornerstone in the Rome Statute, and essentially means that ICC jurisdiction is never primary, but always only complementary to national criminal jurisdiction. Consequently, pursuant to article 17, a case before the ICC is inadmissible whenever: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; or (c) the person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20(3).
In the case of Nigeria, the former Prosecutor, in her latest report, said that the OTP 'looks 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'. Therefore, even though procedural issues do not arise in terms of jurisdiction, gravity, and the interests of justice, complementarity could represent an obstacle for the ICC intervention.
After this twelve-year preliminary examination, we should ask ourselves: is the time ripe for the ICC prosecutor to tackle Boko Haram's criminals? The answer is positive. Therefore, why is the case still pending in the preliminary examination phase? This preliminary examination is, of course, far from straightforward; and the OTP is likely overwhelmed by other ongoing cases, including Ukraine, in the light of the recent war. Furthermore, the pandemic has had a negative impact on the length of proceedings. However, despite the complications brought about by such factors, the prosecutorial discretion that characterises the proprio motu Powers leaves the future of Nigeria's case highly unpredictable.
 Intersociety, ‘Nigeria is Worst in the World for Persecution of Christians in 2021’ (Genocide Watch, 5 April 2021) <https://www.genocidewatch.com/single-post/nigeria-is-worst-in-the-world-for-persecution-of-christians-in-2021> accessed 17 June 2022.
 In the ICC, the word “situation” is commonly used to refer to a Country, either under preliminary examination or investigation.
 Routledge, ‘History of Boko Haram’ <https://www.routledge.com/rsc/downloads/History_of_Boko_Haram_Chapter_1_-_Boko_Haram.pdf> accessed 17 June 2022.
 For instance, see Atta Barkindo, ‘Boko Haram: Ideology, Ethnicity, and Identity’ Tony Blair Institute for Global Change <https://institute.global/policy/boko-haram-ideology-ethnicity-and-identity> accessed 17 June 2022.
 Federal Republic of Nigeria Official Gazette No. 59 Vol. 98 Lagos-10 June 2022 <https://gazettes.africa/archive/ng/2011/ng-government-gazette-dated-2011-06-10-no-59.pdf> accessed 1 May 2022.  Federal Republic of Nigeria Official Gazette No. 25 Vol. 100 Lagos-22 April 2013 <https://ctc.gov.ng/wp-content/uploads/2020/03/TERRORISM-PREVENTION-AMENDMENT-ACT-2013.pdf> accessed 17 June 2022.  Bolaji Ogundele, ‘Buhari signs laws to fight money laundering, terrorism’ The Nation (Lagos, 13 May 2022) <https://thenationonlineng.net/buhari-signs-laws-to-fight-money-laundering-terrorism/> accessed 17 June 2022.  Idowu Abdullahi, ‘Boko Haram, others recruited over 8,000 child soldiers in 13 years- UNICEF’ Punch (Lagos, 14 February 2022) <https://punchng.com/boko-haram-others-recruited-over-8000-child-soldiers-in-13-years-unicef/> accessed 1 May 2022.  Agunloye Bashiru, ‘Terror attacks: The inhumane use of children as suicide bombers’ Vanguard (Lagos, 29 July 2019) <https://www.vanguardngr.com/2019/07/terror-attacks-the-inhumane-use-of-children-as-suicide-bombers/> accessed 17 June 2022.  ICC-OTP, ‘Report on Preliminary Examination Activities 2019’ (5 December 2019) <https://www.icc-cpi.int/sites/default/files/itemsDocuments/191205-rep-otp-PE.pdf> accessed 13 May 2022 para 180.
 See Article 5 of the Rome Statute of the International Criminal Court (Rome Statute).
 ICC-OTP, ‘Report on Preliminary Examination Activities 2020’ (14 December 2020) <https://www.icc-cpi.int/sites/default/files/itemsDocuments/2020-PE/2020-pe-report-eng.pdf> accessed 17 June 2022 para 253-254.  ‘Boko Haram attacks—timeline’ The Guardian (London, 25 September 2012) <https://www.theguardian.com/world/2012/sep/25/boko-haram-timeline-nigeria> accessed 17 June 2022; Kamal Tayo Oropo, ‘Chronology of Boko Haram attacks’ TheGuardian (Lagos, 13 December 2015) <https://guardian.ng/news/chronology-of-boko-haram-attacks/> accessed 17 June 2022; Timileyin Omilana, ‘1,606 killed from 125 fatal Boko Haram attacks in 11 months’ TheGuardian (Lagos, 7 December 2020) <https://guardian.ng/news/1606-killed-from-125-fatal-boko-haram-attacks-in-11-months/> accessed 17 June 2022.
 Intersociety, ‘Nigeria is Worst In the World for Persecution of Christians In 2021’ (Genocide Watch, 5 April 2021) <https://www.genocidewatch.com/single-post/nigeria-is-worst-in-the-world-for-persecution-of-christians-in-2021> accessed 17 June 2022. See also Heather Murdock, ‘Boko Haram appears to take a new tactic: Kill Muslims as they pray’ The Christian Science Monitor (Abuja, 13 August 2013) <https://www.csmonitor.com/World/Africa/2013/0813/Boko-Haram-appears-to-take-new-tactic-Kill-Muslims-as-they-pray> accessed 17 June 2022. Also, Alex Thurston, ‘The disease is unbelief: Boko Haram’s religious and political worldview’ The Brookings Project on US Relations with the Islamic World Analysis Paper No 22 (January 2016) <https://www.brookings.edu/wp-content/uploads/2016/07/brookings-analysis-paper_alex-thurston_final_web.pdf> last accessed 7 June 2022.  Convention on the Prevention and Punishment of the Crime of Genocide. Approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (III) of 9 December 1948 Entry into force: 12 January 1951, in accordance with article XIII, available at: <https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf> last accessed 17 June 2022.
 Kevin Clarke, ‘Are Nigeria’s Christians the target of Genocide?’ (America Magazine, 2 July 2020) <https://www.americamagazine.org/politics-society/2020/07/02/are-nigerias-christians-target-genocide> accessed 17 June 2022.  Sebastian Milbank, ‘Death tool escalates among Nigerian Christians’ The Tablet (London, 26 May 2021) <https://www.thetablet.co.uk/news/14160/death-toll-escalates-among-nigerian-christians-> accessed 17 June 2022.
 ‘Northeast Nigeria conflict killed more than 300,000 children: UN’ Aljazeera (Doha, 24 June 2021) <https://www.aljazeera.com/news/2021/6/24/northeast-nigeria-conflict-killed-more-than-300000-children-un> accessed 17 June 2022. Also; Reuters, ‘Northeast Nigeria insurgency has killed almost 350,000-UN’ Reuters (London, 24 June 2021) <https://www.reuters.com/world/africa/northeast-nigeria-insurgency-has-killed-almost-350000-un-2021-06-24/> accessed 17 June 2022. Civilian population entails that the victims are not part of the armed forces. For the jurisprudence, see, as mere examples, Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, para. 78; ICTY, kunarac et al. Trial Judgment, para 425.; Art. 50(1) Additional Protocol I to the Geneva Conventions (AP I) of 12th August, 1949.
 Carsten Stahn, ‘Damned If You Do, Damned If You Don’t. Challenges and Critiques of Preliminary Examinations at the ICC’ (2017) 15 Journal of International Criminal Justice 416.  ICC OTP, ‘Policy Paper on Preliminary Examination 2013’ (November 2013), para 85 <www.icc-cpi.int/iccdocs/otp/OTP-Policy_Paper_Preliminary_Examinations_2013-ENG.pdf> accessed 17 June 2022.  David Bosco, ‘Symposium On The Rome Statute At Twenty. Putting The Prosecutor On A Clock? Responding To Variance In The Length Of Preliminary Examinations’ (2018) 112 American Journal of International Law 158, observed: “One of the unique challenges that the International Criminal Court’s (ICC’s) Office of the Prosecutor (OTP) faces is deciding when and where to launch investigations'.
 ICC-OTP, ‘Report on Preliminary Examination Activities 2020’ (14 December 2020) <https://www.icc-cpi.int/sites/default/files/itemsDocuments/2020-PE/2020-pe-report-eng.pdf> accessed 17 May 2022 para 264.
 Jann K Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (OUP 2008) 3. See also, Carsten Stahn, ‘Complementarity: a Tale of Two Notions’ (2007) 19 Criminal Law Forum 89.  Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144, 158.
ICC-OTP, ‘Report on Preliminary Examination Activities 2020’ (14 December 2020) para 288 <https://www.icc-cpi.int/sites/default/files/itemsDocuments/2020-PE/2020-pe-report-eng.pdf> accessed 17 June 2022.