Benson Chinedu Olugbuo PhD, Executive Director of the CLEEN Foundation considers the impact of delays by the Office of the Prosecutor in seeking authorization to open an investigation in Nigeria on victims, as well as the possibility that any such investigation might be deprioritized and hibernated.
Impunity in the Nigerian situation
Nigeria is currently faced with an insurgency that has resulted in the loss of lives and destruction of properties. Citizens in different parts of the country live in abject poverty and squalor due to the activities of the insurgents, while the conflict has yet to abate. The situation has been compounded by the inability of the Federal Government of Nigeria to defeat the Jama’atu Ahlus-Sunnah Lidda’Awati Wal Jihad Party, commonly known as Boko Haram, and affiliated groups like the Islamic States of West Africa Province (ISWAP). Since July 2009, Nigerian security forces have battled these insurgent groups with casualties on both sides. However, civilians have borne the brunt of the war and its attendant consequences on the socio-economic life of the country.
Crimes within the jurisdiction of the International Criminal Court (ICC) have been committed by both sides to the conflict; this includes war crimes and crimes against humanity involving murder; enslavement; torture; rape; sexual slavery; forced pregnancy; forced marriage; persecution on gender and religious grounds; intentionally directing attacks against buildings dedicated to religion and education which were not military objectives; and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities.
There have been little or no investigations or prosecutions of these crimes by the Nigerian government. According to the Report on Preliminary Examination Activities 2020 of the Office of the Prosecutor of the ICC, its cases would be admissible given the absence of relevant and genuine national proceedings. This is because the episodic trials of non-state actors held in some parts of the country do not cover crimes under the Rome Statute and target mostly low-level defendants. In addition, crimes alleged to have been committed by Nigeria security forces are yet to be investigated and those suspected of responsibility have not been held accountable.
Delays in initiating the ICC’s investigation
The ICC has the mandate to investigate and prosecute individuals charged with the crimes of genocide, war crimes, crimes against humanity and the crime of aggression. Nigeria has been a State Party to the Rome Statute since ratifying the treaty in September 2001. There is no composite legislation in Nigeria that gives jurisdiction to Nigerian courts to adjudicate international crimes which may affect the ability of the Nigerian government to investigate and prosecute Rome Statute crimes. However, the jurisdiction of the ICC over these international crimes committed in Nigeria is not in question.
The ICC’s preliminary examination of the situation in Nigeria was made public by the Office of the Prosecutor on 18 November 2010 and officially concluded by then-Prosecutor Fatou Bensouda on 11 December 2020 – over ten years later. In her conclusion, Bensouda announced that there was a reasonable basis to believe that war crimes and crimes against humanity were committed by Boko Haram insurgents and affiliated groups as well as members of the Nigerian security forces. Finding that no national proceedings were being conducted to investigate and prosecute the conduct or persons that would likely form the basis of ICC investigations, the Prosecutor concluded that the requirements for the ICC to open an investigation had been met.
However, although the then-Prosecutor acknowledged that the next step in the judicial process would be to request authorisation to open an investigation, she instead stated:
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.
In this context, the Prosecutor explained that “several strategic and operational decisions on the prioritisation of the Office’s workload” would need to be taken and that she would discuss these with the new Prosecutor who was due to be elected and take office in June 2021.
Since taking office two months ago, the new Prosecutor Karim Asad Ahmad Khan has yet to publicly address the Nigeria investigation.
Indefinite delays and the prospect of hibernation undermine victims’ right to justice
Whether Prosecutor Khan will seek to initiate an investigation in Nigeria soon is far from certain, especially following the recommendation of the Independent Expert Review Panel set up by the Assembly of State Parties that the OTP should hibernate de-prioritised investigations to address the Court’s lack of resources. For situations like Nigeria, where the Prosecutor is yet to seek authorization to open an investigation, its priority status is not clear. Hibernation would mean significant delays due to lack of resources and manpower at the ICC to carry out effective investigations and prosecution of international crimes.
The recommendation is problematic and not victim oriented. Victims want justice. When States Parties fail to fulfil their obligations to investigate and prosecute crimes against humanity and war crimes under the principle of complementarity, the ICC must have the capacity to step in. The ICC must not stand down genuine investigations because of the politics of the economy of justice.
Victims of international crimes in Nigeria have always had a raw deal. With little prospect of justice before national courts, victims waited for more than ten years to hear that the requirements have been met to open an ICC investigation. Now, victims are told that a request for authorization to investigate will not happen soon because of resource constraints and capacity issues, leaving them unable to access justice either at home or at the ICC.
Victims in Nigeria have a right to justice. They should come first – not the politics of the justice economy. Their views in matters that concern them cannot be discounted. They are directly affected by the actions and inactions of those responsible for prioritizing their interests. The elaborate provision of Article 68 of the Rome Statute on the protection of victims and witnesses and their participation in the proceedings of the ICC should ensure that their views are heard and considered even before an investigation is opened.
Hibernating investigations is not in the best interest of victims or even the ICC, as delays will undermine its effectiveness. The work of the ICC should not be hampered by resource restraints. Victims of international crimes in Nigeria deserve more than hibernation. They deserve justice.