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Fatou Bensouda with Nigeria vice president Yemi Osinbajo during a visit to Nigeria in October

International Criminal Court opens the door for the prosecution of Nigeria

8 December 2019

The Prosecutor of the International Criminal Court (ICC), Fatou Bensouda, on Thursday published her annual Report on Preliminary Examination Activities.

The report looked at situations in several countries “under consideration for possible investigation”. In Nigeria, these mainly cover the conflict with Boko Haram in the northeast and possible war crimes committed by Nigerian security forces (NSF).

The report also stated: “The Office [of the Prosecutor] has also examined article 15 [ Article 15 of the Rome Statute deals with one of the three ways of initiating an investigation] communications with respect to allegations of crimes not related to the armed conflict between the NSF and Boko Haram. In particular, during the reporting period, the Office worked on finalising its assessment on subject-matter jurisdiction with respect to the events which took place in December 2015 in Zaria, Kaduna State, when members of the Islamic Movement of Nigeria (“IMN”) reportedly clashed with the NSF. In this context, the Office notes with deep concern allegations of ongoing evidence tampering and of the alleged destruction of evidence. Other allegations that the Office has been reviewing include allegations with respect to the conduct of the NSF against members of the Indigenous People of Biafra and communal violence in Nigeria’s North Central and North East geographical zones”.

On next steps, the report said: “While the Nigerian authorities appear to have taken a number of steps towards ascertaining the criminal responsibility of alleged perpetrators, the investigative/prosecutorial activities undertaken to date in relation to both members of Boko Haram and of the NSF appear to have been limited both in their scope and depth. 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. During 2020, the Office will continue to urge the Nigerian authorities to tangibly demonstrate that they are indeed fulfilling their primary responsibility to investigate and prosecute ICC crimes, in the absence of which the Office will need to come to its own determination with respect to the admissibility of the potential cases it has identified and on whether the requirements of article 15 have been met.”

This means that if, as expected, the Nigerian authorities continue to fail to take serious action in investigating and prosecuting the war crimes committed by the NSF, the ICC would be forced to act in the coming year.

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