Two years too long; Time for the ICC Prosecutor to open a formal investigation in Nigeria
Marking two years since the conclusion of the ICC’s preliminary examination in Nigeria, Sarah Mutseo Ngachi, Amnesty International’s International Justice in Africa Fellow, analyzes developments in the ICC’s situation in Nigeria, and critiques the regrettable and continuing delays by the ICC prosecutor in opening an investigation.
Two years ago, on 11 December 2020, the (then) International Criminal Court (ICC) Prosecutor Fatou Bensouda, announced that her Office had completed its preliminary examination into the situation in Nigeria and concluded that the statutory criteria had been met to open an investigation. After a decade of examining the situation, the announcement appeared to signify a long-overdue step towards justice for victims of war crimes and crimes against humanity of sexual violence, murder, abduction, forced displacement and other abuses perpetrated by the Nigerian Security Forces (NSF) and Boko Haram. However, two years later, a formal investigation is yet to be opened.
The OTP’s April 2022 visit and failure by the prosecutor to outline concrete next steps in relation to investigations can only be termed as contemptuous for victims and survivors who have a legitimate expectation of justice.
Even though the Office of the Prosecutor’s (OTP) Policy Paper on preliminary examinations acknowledges that the Office has a legal duty to open an investigation if the criteria are met, Prosecutor Bensouda delayed the next step of opening the investigation – which requires gaining authorisation of the Pre-Trial Chamber – citing operational challenges brought on by the Covid-19 pandemic and limitations of operational capacity due to overextended resources. Since taking office as her successor, the current Prosecutor, Karim Khan, has also failed to act. Prosecutor Khan’s only public engagement with Nigerian authorities in April this year fell short of its alleged intention to clarify the status of the situation and failed to meet expectations of victims and civil society groups who anticipated accountability through the ICC. In fact, during his visit to Nigeria, Prosecutor Khan notably, and deeply regrettably, only met with Nigerian authorities, but not with representatives of victims or CSOs.
The April 2022 visit and failure by the prosecutor to outline concrete next steps in relation to investigations can only be termed as contemptuous for victims and survivors who have a legitimate expectation of justice. Prosecutor Khan regressed on his predecessor’s firm conclusions on the Nigerian government’s inability and unwillingness to investigate or prosecute suspected crimes committed. Instead, he focused on uncertain and hypothetical accountability avenues such as ‘joint efforts by states affected by Boko Haram activities’. In the 2019 admissibility assessment, the OTP had referred to challenges the authorities faced in investigating and prosecuting alleged crimes, including absence of legislative provisions addressing certain categories of conduct, persistence of the armed conflict, inadequate investigation files, and lack of forensic evidence. These challenges satisfied the criteria under Article 17(3) of the Rome Statute, the basic threshold for the ICC to admit a case where a state is unable to obtain the accused or evidence necessary to conduct criminal proceedings.
Fast forward, in 2020, the OTP reiterated that the prosecutions undertaken against Boko Haram were limited in scope and depth as they did not cover substantially the same criminal conduct being considered by the OTP. Mass trials against members of Boko Haram for terrorism related charges were conducted in 2017 and 2018. These trials related to low level perpetrators who were not the focus of the OTP. The assessment also raised concerns of the government’s assertions of prosecutions against members of the NSF without providing information on any tangible or concrete steps taken by the authorities. During the OTP’s engagement with the authorities in 2020, the Office did not receive any additional information relating to domestic proceedings against members of the NSF, raising questions whether genuine efforts were made to address the criminal allegations.
The inaction in requesting authorisation to open an investigation in Nigeria is inconsistent with the OTP’s previous observations on complementarity. The OTP Policy Paper on preliminary examinations sets out determining factors regarding complementarity which include absence of national proceedings, inaction by national authorities to initiate investigations, lack of political will, and absence of legislative frameworks to initiate prosecutions. The OTP has repeatedly applied these factors on a case-by-case basis such as in recent decisions regarding Venezuela and Philippines. In its request to resume investigations in the Situation in Venezuela I, the OTP noted that a deferral request could not oust the court’s jurisdiction where there are no ongoing proceedings on criminal conduct which ‘sufficiently mirrored’ the scope of the prosecutor’s intended investigation or where authorities had made very limited investigations to establish criminal liability. A similar conclusion was arrived at with respect to suspected crimes against humanity committed in the Philippines prompting a request for authorization to open investigations by Prosecutor Bensouda. The OTP then noted inaction by the government of Philippines to investigate or prosecute state sanctioned killings committed in the context of the war on drugs and blanket immunities offered to perpetrators.
Two years later, and with no significant change in the circumstances which warranted the OTP’s 2020 conclusion, it is incomprehensible why the current prosecutor is (re-)prioritizing complementarity in Nigeria… especially given clear evidence that the Nigerian authorities have either been unwilling or unable to conduct genuine criminal prosecutions.
In December 2020, Prosecutor Bensouda was unequivocal in her determination that she had given ‘ample time’ (ten years) for national proceedings to progress in Nigeria, but despite the OTP’s patience, no domestic proceedings related, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of the ICC’s investigations. Two years later, and with no significant change in the circumstances which warranted the OTP’s 2020 conclusion, it is incomprehensible why the current prosecutor is (re-)prioritizing complementarity, that is, deferring investigation to national authorities over commencing international investigations – especially given clear evidence that the Nigerian authorities have either been unwilling or unable to conduct genuine criminal prosecutions. As Amnesty reported in 2018, in relation to Boko Haram, the Nigerian authorities had conducted sham prosecutions of some members of Boko Haram, characterized by arbitrary arrests, prolonged detentions, mass trials which violated fair trial rights, convictions without sufficient evidence and lack of legal representation. In relation to crimes committed by the NSF, the authorities conducted various inquiries on human rights violations by the armed forces which were never intended to result in criminal prosecution but served as fact finding missions for violations committed by the military, if any.
The OTP had claimed in 2020 that the failure to open an immediate investigation in Nigeria was due to ‘operational challenges brought on by the Covid-19 pandemic’ and limited operational capacity due to ‘overextended resources’. However, this assertion remains questionable, and has been contradicted by the observation that the OTP has been able to make progress in a number of other situations it has prioritized in the past two years, including by undertaking proactive investigation activities.
As of December 2020, preliminary examinations of the situations not only in Nigeria but also in Ukraine had been completed, with investigations beginning in Ukraine in February 2022, following the full-scale invasion by Russia with its serious violations of international humanitarian and human rights law. In 2021, two preliminary examinations, on Philippines and Venezuela, were concluded and investigations opened in September and November respectively. As with Nigeria, while concluding these three preliminary examinations, the prosecutor had also voiced concerns of operational challenges which would have impacted the opening of investigations. However, the prosecutor has – rightly – expressed commitment to these investigations by proposing budgetary allocations, including in the court’s 2023 budget.
The OTP’s inaction on the situation in Nigeria really stands out in comparison to other situations, and raises the question if the OTP is applying its principles equally to victims of crimes under international law in any situation or region.
In stark contrast, and as in the previous two years, 2021 and 2022, there is no 2023 budget allocation for Nigeria, nor any obvious or justifiable reasons offered as to why the prosecutor continues to adopt a different budgetary or (de-)prioritization approach to its investigation in Nigeria. Even in the just concluded 21st Assembly of State Parties session, the Prosecutor did not make any remarks regarding an investigation in Nigeria and avoided responding to concerns by CSO representatives such as Amnesty International on the urgency for an investigation. The OTP’s inaction on the situation in Nigeria really stands out in comparison to other situations, and raises the question if the OTP is applying its principles equally to victims of crimes under international law in any situation or region.
As the current prosecutor contemplates whether to open a formal investigation, civilians in Northeast Nigeria still suffer horrific human rights violations as a result of the ongoing conflict. Continued inaction will not only prolong suffering of victims but also result in loss of crucial evidence and negatively impact the ability of witnesses to recount events or testify in court.
As things stand, an ICC investigation into war crimes and crimes against humanity in Nigeria is – unquestionably – long overdue.
The prosecutor’s current positive complementarity approach should not negate the court’s principal obligation of pursuing accountability for the most serious crimes, which ultimately requires the opening of formal investigations. In this regard, the OTP can still consider issues of complementarity at the formal investigation stage. Nigeria can also raise issues of admissibility at the investigation stage if they meet their primary duty to exercise criminal jurisdiction – which requires the authorities to be willing and able to genuinely conduct investigations or prosecutions into all potential perpetrators identified by the OTP at the preliminary examination stage. However, as things stand, an ICC investigation into war crimes and crimes against humanity in Nigeria is – unquestionably – long overdue.