ICC, Nigeria’s hidden wars and the quest for justice

by on May 17, 2016

Moreover, the interests of justice should not be confused with interests of peace. – Fatou Bensouda, Chief Prosecutor of the International Criminal Court.

By Charles Ibekwe

Since publishing its “Situation in Nigeria Report: Article 5” in 2013, the International Criminal Court has received more complaints and petitions to act in Nigeria. Citizens and interested parties have reported cases, mostly those that have drawn national and international outrage, to the court in the hope of getting justice.

If the demands of these petitioners are met, Nigeria could join the league of Georgia, Central African Republic, Mali, Cote d’Ivoire, Libya, Kenya, Darfur – Southern Sudan, DR Congo, Uganda where 23 cases in 10 situations have been brought before the International Criminal Court. Currently Nigeria’s status before the court is currently at the stage of the Office of the Prosecutor (OTP) is “conducting preliminary examinations in a number of situations.”

These preliminary examinations are around the various crises that are Nigeria’s hidden war. There have been several ethno-religious crises in states in the north and north central, the Movement for the Emancipation of the Niger Delta (MEND) carried out an insurrection that required the military to put down. Currently, terrorist group, Boko Haram is waging an insurgency that has claimed thousands of lives. The activities of Shiite extremists, separatist group, Indigenous People of Biafra and pillaging herdsmen have joined the list of conflicts that Nigeria has to deal with.

In all these cases, the government through its security agencies stepped in and have cases against those arrested in connection with the crimes in court. Although, some citizens have at times expressed displeasure over delay in response, delay in arriving at decision to arrest the situation, differential or disproportionate response from security agencies, or just not satisfied with the way the situation was handled. These are part of the factors that made aggrieved persons or groups from Nigeria to approach the ICC for its intervention.

OTP already concluded that alleged crimes committed during inter-ethnic and ethno-religious crises in northern and north central states of Nigeria did not constitute crimes against humanity with proviso that the crimes could be revisited in the light of new information. It concluded that there also does not appear to be reasonable basis to believe that the alleged crimes committed in the Delta Region, where the military took on MEND militants, could constitute war crimes.
It is Boko Haram, the terrorist group that outdid the murderous so called Islamic State fanatics in perpetrating depravity that has earned itself indictment from the OTP. It said there is reasonable basis to believe that Boko Haram has continued to commit crimes against humanity since 2009.

Some of the new petitions emanating from Nigeria could be aimed at scaling up the OTP’s finding on how the military fought the terrorists. It had concluded in the 2013 report that “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.”

But even as the military continually make adjustments to conduct its operations within the confines of the Rome Statute from which ICC derives its powers, another group, the Indigenous People of Biafra (IPOB), a separatist group in the southeast of the country, risks joining Boko Haram on the list of the indicted. A civil rights activist, Albert Ella, dragged IPOB and its leader, Nnamdi Kanu, before the ICC over some mass graves, which security operatives allegedly found in Abia state. As reported, Ella’s complaint dated April 13, and filed at the ICC on April 19 was acknowledged by Leigh Swigart, a senior trial attorney in the Office of the Prosecutor.

The case against IPOB could be strengthened by the fact that five of the bodies found in the mass graves were those of persons from a different ethnicity from the group while it was also claimed that the other 50 bodies were also not of the same ethnicity as IPOB members. This could suggest genocide or a pogrom aimed at wiping out persons of other ethnicities that IPOB has repeatedly referred to as “animals” while labelling their country a “zoo”.

According to security reports emanating from investigations by the Department of State Services (DSS), the 55 persons found in those mass graves were murdered by elements of IPOB that answer to its leadership. The argument that its leader, Nnamdi Kanu, is in custody and couldn’t have committed such a heinous crime has been defeated by his ability to communicate with his followers from the prison and was even able to issue statements.

What could compound things for IPOB is the very loophole its members have tried to exploit. The group has made it almost impossible for its leaders and members to be tried in Nigeria. The discovery of the mass graves, for instance, became the casualty of massive propaganda that could jeopardise trial in Nigerian courts. This could activate the provision that gives ICC jurisdiction only when the authorities of the concerned country are unable or unwilling to act on crimes against humanity. By committing those despicable acts and frustrating efforts at trial while making a show of dragging the federal government before the ICC, IPOB has internationalised its activities and is thus deserving of investigation by OTP.

Even with its contradictions, the IPOB issue is a test case for other groups with suspected terrorist link that may try to cripple the abilities of the Nigerian state to check their extremism by using the ICC as an instrument for hamstringing security agencies. To make a case against the Nigerian Authorities succeed would be on the same scale as the proverbial camel going through the eye of the needle. The ICC does not act on whims but on thoroughly and dispassionately analysed facts and reality on ground. “Under international law, every State has the right to defend itself against terrorist threats. There are many examples of internal security operations against terrorists in states all over the world… However, not all of these operations may legally qualify as an internal armed conflict. So the main question is: when does an internal security operation to quell an armed attack meets the threshold of an internal armed conflict under international law?” Fatou Bensouda, Chief Prosecutor of the International Criminal Court has asserted as far back as 2014 when she spoke at a seminar in Nigeria.

As Nigerians continue to demand better human rights consideration from security agencies and the military when responding to crises, the fact remains that terrorism is not something anyone should be proud of defending even when using rights violations as cover. Those who have been paid to raise such cases against Nigerian security agencies will do themselves some good to enjoy their loot in the knowledge that those financing them will never get the services paid for.

Right from the way they quelled the Maitatsine violent uprising, MEND militancy, Boko Haram insurgency, MASSOB and IPOB separatist declaration and confrontation from the Islamic Movement of Nigeria (IMN) the facts after the events have tended to prove that the military responded threats that could jeopardise the future of Nigeria as a state. For example, while the harsh way IMN members were dealt with was the subject of public outcry, revelation as a public inquiry into the incident has surfaced details that left people rethinking their earlier stand. If the Army acted to put off a conflagration that was almost certain to consume the country in a not too distant future, then it was a choice between the safety of us all or be shackled by blackmail and do nothing.

Bensouda made it clear at the forum earlier mentioned that such crimes would not be tolerated. She had declared that “The Rome Statute endows my Office with the responsibility for independently determining whether or not to open an investigation in any given situation irrespective of how that situation is referred to the Office. By law, this determination has to be preceded by a preliminary examination, which is carried out following clear and sound legal criteria established by the Rome Statute. The final determination whether or not to open an investigation can thus only be based on sound legal criteria.”

With Albert Ella petition against it at the ICC, the options before IPOB, IMN and others that hide under the cover of rights to commit crimes against humanity are thus very clear, to submit themselves to the jurisdiction of Nigerian courts or to have their day at the ICC.

By Charles Ibekwe, Public Affairs Analyst writing from Enugu, Enugu State.





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