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ICC prosecutor Fatou Bensouda

ICC prelim investigation in Nigeria is about Boko Haram

A delegation from the office of the International Criminal Court Prosecutor, Fatou Bensouda, is currently in Nigeria in the process of investigating human rights abuses in the country. Many reports and commentary on the matter have suggested that the investigation is in relation to allegations of crimes against humanity committed by the Nigerian security agencies against civilians such as the massacre of Shi’ites in Zaria in December and the killings of Biafran agitators.

But the following statement on the ICC website shows this view is not quite accurate. The ICC has an ongoing “preliminary examination” in Nigeria.

Nigeria

Nigeria deposited its instrument of ratification to the Rome Statute on 27 September 2001. The ICC therefore has jurisdiction over Rome Statute crimes committed on the territory of Nigeria or by its nationals from 1 July 2002 onwards.

Up to and including 01 June 2013, the Office has received 65 Article 15 communications in relation to the situation in Nigeria, out of which 26 were manifestly outside the jurisdiction of the Court; five were found to warrant further analysis; and 28 communications were included in the preliminary examination. The preliminary examination of the situation in Nigeria was made public on 18 November 2010.

The Office has determined that there is a reasonable basis to believe that crimes against humanity have been committed in Nigeria, namely acts of murder and persecution attributed to Boko Haram. Therefore, the Prosecutor has decided that the preliminary examination of the situation in Nigeria should advance to phase 3 (admissibility) with a view to assessing whether the national authorities are conducting genuine proceedings in relation to those who appear to bear the greatest responsibility for such crimes, and the gravity of such crimes.

It appears this investigation is covering “up to and including 01 June 2013”. It is not clear whether allegations after this period fall under this investigation.

“Article 15 communications” are defined as follows:

Article 15

Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of
information on crimes within the jurisdiction of the Court.

2. The Prosecutor shall analyse the seriousness of the information received. For this
purpose, he or she may seek additional information from States, organs of the
United Nations, intergovernmental or non-governmental organizations, or other
reliable sources that he or she deems appropriate, and may receive written or oral
testimony at the seat of the Court.

3. If the Prosecutor concludes that there is a reasonable basis to proceed with an
investigation, he or she shall submit to the Pre-Trial Chamber a request for
authorization of an investigation, together with any supporting material collected.
Victims may make representations to the Pre-Trial Chamber, in accordance with
the Rules of Procedure and Evidence.

4. If the Pre-Trial Chamber, upon examination of the request and the supporting
material, considers that there is a reasonable basis to proceed with an
investigation, and that the case appears to fall within the jurisdiction of the Court,
it shall authorize the commencement of the investigation, without prejudice to
subsequent determinations by the Court with regard to the jurisdiction and
admissibility of a case.

5. The refusal of the Pre-Trial Chamber to authorize the investigation shall not
preclude the presentation of a subsequent request by the Prosecutor based on new
facts or evidence regarding the same situation.

6. If, after the preliminary examination referred to in paragraphs 1 and 2, the
Prosecutor concludes that the information provided does not constitute a
reasonable basis for an investigation, he or she shall inform those who provided
the information. This shall not preclude the Prosecutor from considering further
information submitted to him or her regarding the same situation in the light of
new facts or evidence.

The ICC “Situation in Nigeria Article 5 Report” in August 2013 indicates the basis for their current investigation:

13. Based on the information available at this stage, there does not appear to be a
reasonable basis to believe that the alleged crimes committed in Central and
Northern States in connection with the inter-communal violence could constitute
crimes against humanity. This initial assessment may be revisited by the Office in
the light of new facts or evidence that could enable the identification of specific
leaders or organizations allegedly responsible for instigating such violence or the
existence of an organizational policy.

14. Based on the information available at this stage, there also does not appear to be a
reasonable basis to believe that the alleged crimes committed in the Delta Region
could constitute war crimes. In particular, the violence in the Niger Delta,
including the armed confrontations between MEND militants and the Nigerian
Joint Task Force in 2009, does not appear to have involved protracted armed
violence between governmental authorities and organized armed groups or
between such groups, as stipulated in article 8(2)(f). This initial assessment may be
revisited in the light of new facts or evidence.

15. The Office considers that there is a reasonable basis to believe that, since July 2009,
Boko Haram has committed the following acts constituting crimes against
humanity: (i) murder under article 7(1)(a); and (ii) persecution under article 7(1)(h)
of the Statute. In particular, the information available provides a reasonable basis
to believe that, since July 2009, Boko Haram has launched a widespread and
systematic attack that has resulted in the killing of more than 1,200 Christian and
Muslims civilians in different locations throughout Nigeria. The scale and intensity of the attacks have increased over time. The consistent pattern of such incidents
indicates that the group possesses the means to carry out a widespread and/or
systematic attack, and displays the degree of internal coordination and
organizational control required to that end. The attacks have been committed
pursuant to the policy defined at the leadership level of Boko Haram, which aims
at imposing an exclusively Islamic system of government in northern Nigeria at
the expense of Christians specifically. Opponents of this goal have been targeted as
well.

16. Although allegations against Nigerian security forces in the context of their
operations against Boko Haram may constitute serious human rights violations,
the information available as of December 2012 does not provide a reasonable basis
to believe that the alleged crimes were committed pursuant to or in furtherance of
a State or organizational policy to attack the civilian population. At the time of
writing this report, there is also no reasonable basis to believe that the
confrontations between the security forces and Boko Haram amount to an armed
conflict. Both matters remain the subject of on-going analysis.

Conclusion and next steps

17. The Office has determined that there is a reasonable basis to believe that crimes
against humanity have been committed in Nigeria, namely acts of murder and
persecution attributed to Boko Haram. Therefore, the Prosecutor has decided that
the preliminary examination of the situation in Nigeria should advance to phase 3
(admissibility) with a view to assessing whether the national authorities are
conducting genuine proceedings in relation to those who appear to bear the
greatest responsibility for such crimes, and the gravity of such crimes.

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