African powerhouse Nigeria has always shown support for the ICC even when some other African countries were calling for a mass withdrawal from the court. On June 17, after the attacks by US President Donald Trump, Abuja condemned in a press release “any action or threat of action, that undermines or seeks to undermine the ability of the court to freely exercise its mandate and carry out its core functions”. But Nigeria is itself accused of not respecting its obligations under the Rome Statute and not providing sufficient judicial redress for crimes committed in its northeast.
The Nigerian message of support is “welcome in a context where the ICC is the target of unacceptable attacks by the United States”, says Amnesty International West and Central Africa director Samira Daoud, but “that support should be more than words”. The first responsibility of ICC State parties like Nigeria is to try crimes falling within the mandate of the Court. But, says the human rights activist, Nigeria is not living up to its obligations. “The ICC opened a preliminary examination into the situation in Nigeria nearly ten years ago concerning crimes committed by both the Boko Haram armed group and the Nigerian army during the conflict in the northeast. Amnesty International has documented many of these crimes over the years and has published several reports on abuses and violations suffered notably by children. But no fair and credible judicial investigations or prosecutions have been launched by the authorities,” she told Justice Info.
The right to justice “ignored and denied by the Nigerian authorities”
And Daoud denounces a lack of cooperation. "The Court's requests for cooperation and information are piling up, but promises by the Nigerian authorities to implement them are often not followed up by action. Nigeria is not acting in accordance with its obligations under the Rome Statute or its public statements,” she says. "the need for justice and the hope that those responsible for atrocities will be prosecuted and brought to justice are extremely strong demands in conflict-affected communities. So far, the right of these people to obtain justice has been ignored and denied by the Nigerian authorities. Nigeria has clearly demonstrated its unwillingness to fight impunity. This is why we call on the ICC to formally open an investigation,” Daoud says.
In her 5 December 2019 Report on Preliminary Examination Activities, ICC Prosecutor Fatou Bensouda expresses strong suspicions that grave crimes have been committed by both the Nigerian army and Boko Haram. She cites attacks on displaced people’s camps targeting aid organizations and executions of humanitarian workers by the armed group. She recalls her previous conclusions: “The Office previously found a reasonable basis to believe that Boko Haram’s specific targeting of both females and males constitute acts of persecution on gender grounds. Men and boys were often forced to join the armed group and to participate in hostilities, with those who refused being killed; while women and girls were often abducted and became victims of forced marriage, rape, sexual slavery and other forms of sexual violence.”
With regard to the Nigerian security forces (NSF), Bensouda writes: “The information assessed during the reporting period provides a reasonable basis to believe that members of the Civilian Joint Task Force (“CJTF”) committed the war crime of conscripting and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities. The Office considers the CJTF to be a part of the NSF for at least part of the period under examination.”
Nigeria’s judicial activities “limited in scope and depth”
The Prosecutor has identified seven potential cases against Boko Haram and three against the security forces. But “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. 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 [of the Prosecutor],” Bensouda complains. “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.”
Mark Kersten, a consultant for the German NGO Wayamo Foundation promoting international criminal justice, believes that on the contrary “Nigeria has spoken in support of the Court and its work and has also taken strides to investigate and prosecute (some) perpetrators of atrocities in the Boko Haram conflict. These efforts are not perfect and real challenges remain. My impression is that Nigeria takes this more seriously than many other states under ICC investigation”.
1,600 Boko Haram members tried in secret
Nigerian civil society, however, notes serious irregularities in the conduct of national trials. For example, in a press release published on October 17, 2017, the Nigerian Coalition for the ICC denounced the "secret trial" of 1,600 alleged members or collaborators of Boko Haram who were detained at the time in Niger State. “Accelerated/secret hearing in criminal matters of this nature is not advisable as it may present a glitch in the administration of justice,” it says. “Suspects must be afforded the opportunity to be represented by a legal practitioner of their choice and lawyers must be given reasonable time to prepare their defence.”
Three years after this appeal, the flaws denounced still persist, according to sociology teacher Oludayo Tade from the University of Ibadan (southwest). According to this Nigerian researcher, defendants are tried twice for the same facts, sometimes appearing without adequate representation. “Trials are mostly shrouded in secrecy without the victims having an opportunity to testify or observe proceedings,” he told Justice Info. “This further breeds distrust between the victims of terrorism and the State. Construction of peace and justice cannot arise solely from the perspective of the State but also from the eyes of the sufferers of terrorist acts.”
A struggling judicial response
This sense of mistrust is clearly expressed by Hamsatu Allamin, founder of the Allamin Foundation for Peace and Development based in Maiduguri, Borno State, in the heart of the troubled area. “We, people in the North-East, want to know from the military how many people they have arrested since the beginning of the insurgency, since the state of emergency was declared. We have the right to know. We want to know how many have died in military detention. And those who are still alive, where are they?”
Vincent Foucher is closely following the Boko Haram case at the French National Centre for scientific research (CNRS). "The state's reaction has been first and foremost extra-judicial," he says. "Let’s remember that Mohamed Yusuf, the leader of Boko Haram, captured by the army in 2009 and delivered alive to the police, was found a few hours later with his body riddled with bullets in the street. More broadly, faced with Boko Haram, it is the army that is in charge, and justice for a long time has had only a limited place."
"But in recent years, partly because of increased criticism and pressure and the overcrowding of detention centres, Nigeria has tried to establish a judicial process,” adds Foucher. “This includes dealing with pending cases, all those people who have been in pre-trial detention for years. So there have been organized trials. Hundreds of people have been released, sometimes because there were no files, and probably often because they were actually innocent and were picked up a bit randomly."
“Non-judicial measures are vital”
But legal proceedings, even if conducted fairly, will never be enough to heal the wounds. In Maiduguri, the ordeal of the victims, both from the army and from Boko Haram, is immense, Allamin points out. Her foundation assists men, women and children who have escaped the clutches of Boko Haram or been freed from the army's secret prisons. “They are all traumatized, they are suffering from psychological stress,” she says. After an introduction to the creation and management of income-generating projects, she organizes these victims into groups and gives them a nest egg to help them resume an activity.
"Non-judicial measures to ensure that conflict-affected populations can obtain truth, justice and reparations, including for the purpose of enabling them to rebuild their lives, are absolutely vital,” says Daoud. And Professor Tade agrees. “Victim compensation and rehabilitation and reconstruction of destroyed infrastructure are critical,” he says.
"There's no magic solution, says Foucher. The problem is old, it’s huge and linked to structural problems, to the long history of the country. Even more than the poverty that afflicts much of the country, the people of Boko Haram denounce the illegitimacy and immorality of the ruling elites. The State must therefore regain credibility. This requires, among other things, an improvement in public services, but above all justice and a more serious fight against abuses by state agents, both military and civilian”, he adds.
