Since 2012, nearly the entire northeast Nigeria, comprising one-sixth of Nigeria’s 170 million people, has been under severe decimation by Boko Haram terrorists and counter-terrorism by the Nigerian Military. The destructive impart of the armed conflict is huge and tragic:
The severity of violation of human rights and humanitarian laws are massive.
Boko Haram, a lethal group
Boko Haram is undoubtedly the deadliest terror group in the world. In April 2016, their leader announced its affiliation to ISIS, making it more political and IT driven. They are receiving ISIS assistance that has increased their capacity to roll out propaganda messages, and monitor movements of Nigerian military and civilian populations. They recruit children as young as 8 years and psycho-drill them into suicide bombers, with capacity to monitor their movements when being trained or sent on terror missions. The rate of child soldiers engaged in combat in the northeast for Boko Haram is higher than any other armed group in human history. The sophistication of Boko Haram’s armory, and the precision of their attacks on targets when they strike, suggest considerable military professionalism, which smack of mercenary support.
Cutting out funding to Boko Haram has been a strategy Nigeria has failed to mobilize world’s support.
Violations by the military
At the same time, the Nigerian military have responded with high-handed violence, leading to death of thousands of innocent civilians. The ordinary Nigerians who live outside the northeast could justify military excessive use of force as ‘necessary in the war’ but reports show that both sides of the conflict are committing atrocity crimes, especially war crimes and crimes against humanity.
A recent post on the blog of Coalition for the International Criminal Court (CICC), the parent coalition of Nigerian Coalition for the International Criminal Court (NCICC), clearly depicts the dire situation of massive violations of humanitarian laws and very high rate of impunity. It also shows the near-impossible expectation of ICC’s intervention to investigate and prosecute war crimes committed by both sides.
Despite compelling evidence, no-one has been held accountable for these war crimes [committed since 2013 by Boko Haram and Nigerian military]. This incident [a 2014 killing of 600+ suspected members or supporters of Boko Haram by the Nigerian military and government-backed Civilian Joint Task Force in broad day light in Bama Borno State] sheds light on an under-reported pattern in Nigeria’s fight against Boko Haram. Security forces have committed serious violations of humanitarian law throughout the conflict. These crimes have not been investigated and their perpetrators remain unpunished. War crimes and crimes against humanity committed by Nigeria – a party to the Rome Statute – fall within the International Criminal Court’s (ICC’s) jurisdiction. The ICC Prosecutor has opened a preliminary examination into atrocities committed by both sides, but is rightly waiting to see whether Nigeria will begin domestic investigations. In this context, could the ICC’s involvement galvanize Nigerian politicians to hold their own accountable?
The evidence is mixed. A Rome Statute domestication bill intended to punish perpetrators of war crimes and crimes against humanity continues to be debated. During his first week in office, Nigeria’s President Buhari pledged to investigate the military’s crimes. However, in the 18 months that have elapsed since that promise was made, the government has provided no information on how or when these investigations will be conducted. In the absence of genuine national proceedings, the ICC Prosecutor must decide whether to open her own investigations. [But she is in a dilemma]. At a time when the African Union has backed a “strategy for collective withdrawal” from the Rome Statute, the Prosecutor will be loath to open investigations into one of the ICC’s most reliable supporters. Yet anyone hoping that the Prosecutor will be spared this decision must contend with three obstacles to domestic proceedings: the extent of the crimes will stretch Nigeria’s criminal justice system; investigations that are likely to expose how the military could have, but failed to stop Boko Haram; and investigations that may lead prosecutors to some of the most powerful individuals in the country. These practical and political roadblocks should put the Prosecutor on notice: the interests of justice and the interests of the ICC are likely to diverge
The Extent of the Crimes
The ICC’s preliminary examinations are based on evidence of mass arrests, torture, and summary executions committed systematically and repeatedly by security forces, resulting in thousands of deaths and disappearances. A UN report found evidence that detainees in military custody were denied food and water and, as a result, died on a daily basis. Research by Amnesty International reported that more than 7,000 men and boys died in military detention between 2011 and 2015 due to this abhorrent treatment.
The ICC Prosecutor will only open investigations if Nigeria is unwilling or unable to do so domestically. The scale of the crimes alone will test the ability of Nigeria’s criminal justice system, which already struggles to ensure due process. According to the National Human Rights Commission, 35,889 people in prison are awaiting trial, or 70% of the prison population. These figures do not include thousands of suspected Boko Haram fighters, who are detained by the military. Nigeria’s international partners have pledged their assistance to help investigate and prosecute these suspects, but military violations do not appear to be on the agenda. Nigeria would need to devote significant resources to investigating military crimes committed over several years, across three states, when witnesses are likely to be among 2.3 million displaced people. The chances of the justice system being able to handle such investigations in the near- to medium-term are slim.
The Military’s Failures
The second problem is that investigations will force a re-assessment of the military’s crimes. The horror inspired by Boko Haram’s abuses has led some to rationalize military violations as the ‘excesses’ of over-zealous soldiers, doing ‘whatever it takes’ to defeat an existential threat. But the military’s violations are not an unfortunate and unintended consequence of its determination to win the war. Such euphemisms are deeply misleading. They call to mind soldiers, in the heat of battle, using disproportionate force in a firefight. In fact, the crimes being considered by the ICC occurred outside of battle, when there was no threat to person or property
Current framework for judicial action
The current judicial framework in Nigeria to address atrocity crimes and redress to victims can be discussed under the following headings: the current laws, institutional structure, investigation and prosecution capacity, courts and capacity to adjudicate, and political challenges
a. Current Laws
Outdated penal laws without atrocity crimes
Nigeria is yet to domesticate the Rome Statute on the International Criminal Court. Being a dualist state, international crimes are not part of its domestic penal laws. The current applicable laws are the Criminal Code (enacted in 1945 and applicable in southern states) and the Penal Code (enacted in 1924 and applicable in northern states including the northeastern states). These Codes provide for the offences of murder punishable by death as well as treason or waging war against Nigerian State, also punishable by death. No crime of war crimes, genocide or crime against humanity is provided. Many of the cases of killings by suspected Boko Haram members are charged under the Penal Code, or sometimes the Criminal Code depending on the location of the assault.
New anti-terrorism law did not go far with atrocity crimes
In 2011, Nigeria enacted the Prevention of Terrorism Act, (amended in 2013) which punishes the crime of terrorism as well as the offences of supporting, financing, encouraging and supplying materials to terrorists. The Act is strong in criminalizing support to Boko Haram, but it is weak as a tool to attack terrorism because it has very broad definitions of elements of the offences it created. Thus, apart from the conviction and sentence to life imprisonment of Kabiru Sokoto and his co-accused, who masterminded the 2013 Christmas day bombing near Abuja, no other notable terrorist has been successfully prosecuted and convicted under PTA. Activists have criticized the Act for containing provisions that contradict the provisions of the Nigerian Constitution. In particular, the Act suspends the rights of suspects to access to their lawyers, relations and independent medical treatment. In 2014, NCICC commenced a suit at the Federal High Court to strike down provisions of the Act that offend the Constitutional provisions. The case is pending at the Court of Appeal (NCICC v Attorney General of the Federation.).
New SGBV crimes created
Another legislation that regulates atrocity crimes and redress to victims is the Violence against Persons Prohibition Act, which punishes violence targeted at women and children, or group of vulnerable people. Assaults or mistreatment of IDPs fall within these provisions.
Challenging procedures of the courts
The procedures to enforce these laws had, before 2015, been the Criminal Procedure Code (enacted in 1924) and the Criminal Procedure Act (enacted in 1945 for enforcing the Criminal Code). These laws are too obsolete to meet the challenges of 21st century terrorism crimes.
Happily in 2015, the Administration of Criminal Justice Act was passed, aimed at improving the investigation and prosecution of crimes in the country. Laudable provisions are contained in the new Act to reduce delays and empower the investigators, prosecutors, defence and courts. One of such is section 232, which provides that the court must protect witnesses in terrorism and other violent or sex crimes, and where necessary, evidence of witnesses may be taken in chambers, shielded in screen, voice-disguised or by video link. Also identities of witnesses and victims should be protected in terrorism trials. So also the provision in the Act that victims can be compensated in the criminal proceedings and that criminal trial should not be paused or stayed because a party intends to appeal against any decision taken by the court within the proceedings, called interlocutory appeals. This has been the main cause of delay in criminal trials in the country.
Not yet impactful reforms
Despite these innovations, there has been little progress in investigating and prosecuting atrocity crimes. The situation of high violence, low prosecution and gross impunity remains. E.g.
There is no stronger basis for ICC’s intervention than the apparent inability or unwillingness of Nigeria’s national judicial system to deal with such massive atrocity crimes committed on both sides of the armed conflict.
b. Institutional structure
Police and the military
The institutions for investigating atrocity crimes are the Police set up under the Police Act 1945; the State Security Services and the Nigerian Intelligence Agency set up under the Nigerian Security Agencies Act 1992, (formerly Nigerian Security Organization Act 1978).
The military set up under the Armed Forces Act has responsibility only to investigate military offences committed by persons under service law. They are not authorized to deal with investigation and prosecution of crimes or engage in civil policing. They are not even authorized to keep custody of crime suspects, including suspected war criminals and terrorists. At the moment, the military’s involvement in policing has resulted in distorting its role, and negating its standard operational guide for engaging with non-combatants in armed conflict.
The Nigerian government has also set up special anti-terrorism forces, including the Joint Task Force, and anti-terrorism unit of the military and police, which are tasked with tracking terrorists and their supporters/financials.
Special counter-terrorism initiatives
In order to control funding of terrorism, the government has enacted the Money Laundering (Prohibition) Act 2011, as well as the Nigerian Financial Intelligence Unit, which are aimed at tracking movement of illicit funds in the formal sector, combating money laundering and financing terrorism. The Prevention of Terrorism Act punishes concealment of suspected terror-fund by banks and financial institutions. However, without international cooperation, policing terror funding within Nigeria’s weak bank tracking system remains futile.
Redress to victims – promises not kept
With respect to redress to victims, the government set up in 2014 the Presidential Task Force on the Northeast and the Foundation for the Support of Victims of Terrorism. The Trust Fund has attracted over 15 billion in pledges from the private sector as at December 2016, and nearly half of those pledges have been paid to the Fund. In reality, most victims, especially the IDPs are not resettled, even to return to communities already cleared of terrorists.
NCICC is currently in court in a class action on behalf of over three thousands IDPs for judicial orders forcing the Trust Fund to rehabilitate them and account for use of collected funds.
Safe School Initiative (SSI)
There is also the Safe School Initiative, aimed at returning children to schools and taking those in most endangered areas to other states schools. Again, accountability for this laudable programme has remained unreported. CSOs need to play active role to see that these initiatives achieve their purposes.
Other institutional structure that have supported victims of terrorism in Nigeria, and addressed the effect of terrorism include:
c. Investigation and prosecution capacity
The police, State Security Service, and the special anti terrorism agencies have responsibility to investigate crimes committed in the country including terrorism crimes. The military have responsibility to investigate its officers and soldiers who are alleged to have committed crimes in their work. The Attorney General of the Federation and Attorney-General of the State have the ultimate responsibility for prosecution of offences in the country (federal or state offences respectively). Before 2016, the prosecution of terrorism offences was carried out solely by legal officers in the office of the AG of the Federation, and few times, external lawyers were briefed. In 2016, the AG of the Federation set up the National Prosecutions Team, made up of senior lawyers from the private bar as well as lawyers in the ministry of justice. The goal is to increase the number of cases prosecuted in order to clear the backlog. There is no doubt that with the huge case backlog in the courts, it will take a medium and long terms to see the impact of the team.
Prosecution of terrorism offences have not been progressing. Worst still, the investigation and prosecution of crimes allegedly committed by military are not known or reported. The impunity rates are very high, underscoring the need for the ICC to re-evaluate its reluctance to open investigations in to atrocity crimes in the country.
d. Courts and capacity to adjudicate,
The Nigerian courts are overworked, and suffer from huge case docket. An average day in a high court will involve up to 20 cases for a judge, and the judge takes notes of proceedings in long hand. This slows down the proceedings. And with nearly an hour spent for part-hearing of each of the listed cases, it is not practicable to attend to half of the cases on the court’s list. The result is continuously increasing backlog of cases. Unless drastic measure is taken, there is simple no feasible way the courts can take on the several hundreds of persons awaiting trial for terrorism charges, as well as the over 35 thousand awaiting trial in the prisons for ordinary crimes. The capacity of the courts are overstretched, and though the government have introduced the Administration of Criminal Justice Act 2015 and a new National Judicial Policy, all geared towards reducing delays in criminal proceedings, it will take considerable investments in infrastructure of the courts and the recruitment of new personnel to see significant breakthrough in reducing the rate of impunity for atrocity crimes. There is also need for government to increase its political will to investigate and prosecute crimes committed by the military, police and other agencies as well as by the government-backed Civilian JTF.
e. Political challenges,
Poor political commitment to end impunity for the military
Many observers may seem to agree that there is slow political will for government to investigate crimes committed by its own forces in the northeast. It is argued that these violations are necessary fall out of the war, but Nigeria is state party to all relevant treaties regulating armed conflict, even in context of non-conventional armed conflict as is taking place in the country. There is responsibility to see that members of the armed forces who are alleged to commit crimes are investigated and prosecuted to the highest level of command.
Army Human Rights Office
The military set up in 2016 a Human Rights Complaint Office, aimed at improving civilian redress system. The progress on this laudable initiative has not yet been reported, but it shows the military’s internal willingness to engage with the civil society and the community to improve on its rules and practices of engagement. The CSOs should build on such initiative as window for larger engagement in respecting human rights and humanitarian laws.
Role of the ICC in Nigeria
The ICC prosecutor has the responsibility to step in where the Nigerian government is unwilling and unable to prosecute these crimes. Whether the ICC can risk opening another situation in Africa in face of the blackmail by AU that it is targeting African is left to be seen, but the civil society must continue to put pressure on Nigeria to strengthen its national judicial system for investigation and prosecution and for the ICC to undertake the necessary prosecution where the national system fails. The ultimate goal is the protection of, and justice for the victims. Without adequate redress, Nigeria’s numerous victims continue to suffer double-jeopardy, which Nigeria government and the ICC must address in coming months.
6th March 2018
Chair, Nigerian Coalition for the International Criminal Court (NCICC).
 The bill is pending at the National Assembly. The same bill has been passed by previous assembly and but then president, Olusegun Obasanjo, refused to sign it in 2007. There appear reluctance in the political society to tackle atrocity crimes with the efficiency and commitment it deserved. After all, only very poor people suffer most from the terror carnage.
 Nigeria has domesticated the Genocide Convention which prohibits genocide, but not being a penal statute, is not a common basis for criminal charges among prosecutors.
 See C.J. Dakas SAN & Chino Obiagwu in ‘A critique of the Prevention of Terrorism Act 2011 as amended’, 2013 NCICC publication.