Words like “unusual”, “dangerous”, “betrayal” are being used by NGOs monitoring the International Criminal Court (ICC), in a highly critical response to an announcement that there will be no ICC investigation into alleged atrocity crimes in Nigeria. The ICC “is not intended to replace national courts”, agrees Alice Banens from Amnesty International, but it is “intended to step up” when national courts are not holding accountable those responsible. “In Nigeria, over 15 years have passed without justice,” she says.
In 2020, the office of the prosecutor declared that there was sufficient evidence to open an investigation into the situation in Nigeria, following a ten-year preliminary examination. What was expected was that the prosecutor would have asked the judges for permission to open an investigation propriu motu – which enables him to act where the court has jurisdiction. This declaration was one of former prosecutor Fatou Bensouda’s last acts before handing over to Karim Khan in 2020. Both Nigeria and Ukraine were then in the same position – on the verge of a full investigation – expecting the new prosecutor to deliver.
In Nigeria’s case, this would be based on the prosecutor’s analysis that, despite a number of trials of Boko Haram members and other Islamic groups’ members as a result of the insurgency in the country’s north east, those tried were “low level perpetrators” and there was not sufficient commitment by the authorities into investigating and prosecuting alleged crimes by their own forces: “where proceedings are asserted to have been conducted, the information available did not demonstrate any tangible, concrete, and progressive steps by the authorities to address allegations against members of the NSF [Nigerian Security Forces],” says Chuka Arinze-Onyia, who has worked as a criminal defence lawyer in Nigeria, and is now teaching at Griffith University in Australia.
“Encourage domestic proceedings”
However, nearly six years on, the office of the prosecutor announced that rather than an investigation, they had signed a memorandum of understanding with the authorities in Abuja, under which Nigeria would conduct its own investigations and prosecutions.
Nevertheless, our “position and legal assessment of 2020 have not changed”, says Mame Ndiaye Niang, deputy prosecutor, in a written response to questions from Justice Info. Especially with regard to “allegations concerning members of the Nigerian Armed Forces, the Office expects further progress,” he says. “The Office is using the tools available under the Rome Statute to encourage domestic proceedings, while exercising vigilance and preserving the possibility of further action if necessary.”
How did the ICC come to this position? “Amongst the factors that guides [sic] its assessment, the Office looks at whether there are national proceedings, whether those proceedings are genuine, and whether continued engagement may advance accountability,” says Niang. For Nigeria, he outlines “sustained and constructive engagement (…) over several years”, including “information on domestic proceedings”. However, he says, “this does not mean that the Office has concluded that all concerns have been resolved”.
“A very unusual procedural step”
The signature of the memorandum of understanding follows a failed attempt by NGOs representing victims to engage judges of the ICC pre-trial chamber in requiring the prosecutor to make the call. The judges “unfortunately decided that they lacked ‘the power’ to examine the matter,” says Banens.
Valerie Gabard, co-director of the NGO UpRights, was one of the authors of the legal analysis on behalf of several victims’ associations in northern Nigeria, including the Jire Dole Mothers and the Knifar Movement networks, on which the NGOs based their claim. Gabard describes what has now happened with Nigeria as “a very unusual procedural step, currently outside of the framework of the statute of the ICC”. The potential results from ICC preliminary examinations are binary, she says: “either you have enough to meet the criteria to proceed with an investigation or not. If the criteria are met, the prosecutor ‘should’ proceed with an investigation - that’s the language of Article 15 of the Rome Statute". If, however, the criteria have not been met, the prosecutor “has to close the preliminary examination”.
In this case, “after 10 years of preliminary examination, the prosecutor concluded in an official statement that the criteria were met to proceed with the investigation”. Gabard notes as an “automatic step” that an investigation is usually opened within a few days. “To some degree,” she continues, “the prosecutors have created a third situation that is not envisaged by the rules” and which is side-stepping the usual procedures.
A “violation” of the Rome Statute
“One of the consequences of closing a preliminary examination officially is that it triggers some obligations of information from the prosecutor to the victims and communities that have provided information,” Gabard says. Here, you are in a situation where the victims are not informed about the situation. And at the same time, no step has been taken to pursue an investigation. So that creates a limbo.”
“Having reviewed the language of the prosecutor since 2020, I think they sometimes have trouble figuring out which procedural step they are in,” she adds. “Sometimes they are saying that they closed the preliminary examination. At the same time in administrative documents, Nigeria is still classified as a preliminary examination. In the memorandum, they do not deny that the criteria for opening an investigation were met. But at the same time, they state that they have taken the decision not to request the opening of an investigation to give a chance to Nigeria to address those crimes. So, they are confirming that they are in this kind of limbo”.
For Banens, it is more than a limbo : it is a “violation” of the Rome Statute. She points out that in a different case earlier this year, judges emphatically decided that ending the preliminary examination with the conclusion that an investigation is warranted actually obliges the prosecutor to present an application to the pre-trial chamber. “It could not be clearer, she says: the prosecutor having reached such positive conclusion in the situation of Nigeria in December 2020, it has the obligation to request the opening of an investigation, and it has been directly violating its obligation under the Rome Statute for over six years.”
What’s next?
As Gabard pointed out, closing a preliminary examination means that the prosecution must inform those who submitted information about the basis on which they made their decision. Niang says that “during his visits in Nigeria, [he] has had meetings with civil society organisations” to whom he conveyed the position of the Office. “The Office intends to continue informing the public through further engagements. The Office is also considering organising a specific meeting with the victims and the affected community in Nigeria,” he says.
Banens counters: “The office of the prosecutor is not making genuine efforts to reach out directly to affected communities or victims’ networks in northeast Nigeria”. “Every time they visit Nigeria, they remain in the capital Abuja and spend most of their time in meetings with Nigerian authorities,” she notes. “To Amnesty’s best knowledge, they have not set foot ever in Maiduguri [northeastern Nigeria]. Their public communications through press releases also remain very few over the years and have failed to provide any clarity on the prosecutor’s position and intentions. The latest news of this memorandum fits in that context and does not give any more clarity”.
“We don’t intend to open an office in Nigeria,” Niang confirms. “The current approach is focused on supporting national proceedings and monitoring progress.” Banens sees the memorendum as bringing “nothing new”: “High level Boko Haram members and the Nigerian military are not being investigated or prosecuted in Nigeria, and the situation of Nigeria before the ICC is still in the same unlawful limbo state that it has been for over five years.”
In Nigeria’s case, the principle of ‘complementarity’ has also been evoked as being “not secondary to the ICC’s mandate”, but as Niang puts it, “at the heart” of it”. For Banens, “the Office’s continued discourse on the importance of complementarity, in the case of Nigeria, is misplaced and it is a betrayal to those looking up to the ICC for justice”.
Monitoring mechanisms
Justice Info asked about the six-monthly assessments mentioned in the memorandum, and what criteria would be used to decide whether or not the authorities are independently investigating, including alleged crimes by the Nigeria armed forces.
Niang replied: “The memorandum establishes joint action planning, periodic reviews and follow-up visits. Through this framework, the Office will be able to assess progress over time. (…) The ultimate objective is accountability. What matters is that justice is delivered, whether at the national or international level. If the memorandum contributes to credible domestic proceedings, then it advances the purpose of the Rome Statute system. If it does not, the Office retains the prerogative to reassess its position.”
“My main concern,” says Gabard, is “whether this is enough pressure, and how will we know what would be the threshold? They say in the memorandum that they keep the prerogative to request the opening of investigation. But, what’s the trade-off? What kind of monitoring system? There were years of preliminary investigation, where the ICC already said it was monitoring what’s happening. I think it would be very important to have some transparency here in this monitoring process”.
A political and strategic decision?
“The criteria for their choice of situations now are unclear,” believes Arinze-Onyia, who met with some of those working within the office of the prosecutor, when he did advocacy on Nigeria for Amnesty International. He points to the office’s annual budget submission, earlier this decade, when they said could not move forward with the concluded preliminary examinations “because we don’t have the budget for it”.
Justice Info specifically asked the deputy prosecutor Niang if the decision to not go ahead with the investigations was cost-based. “No” was the reply.
But politics may matter more than cost: Arinze-Onyia notes that Nigeria, “is still considered a very big power in Africa”. “If the ICC pursues an investigation, I suspect Nigeria would drop out from the Rome Statute. And if Nigeria should threaten to withdraw, it could have an effect across most of West Africa. So, the decision not to open an investigation, could, in fact be strategic,” he says.
Gabard’s biggest concern “is that the prosecutor is creating a situation where there is no scrutiny. And no right for the victims and the parties, nor the pretrial chamber, to address the situation and ask whether it fits in the framework of the rules”. If an investigation were opened, judges would be involved, and there would be “some kind of obligation for the prosecutor of transparency and respect of the rights of the victim to be informed”, she says, while the current situation “is allowing the prosecutor to proceed without a framework”.
Her concerns are shared by Banens who believes “the Office of the Prosecutor has set a dangerous precedent in Nigeria”: “Under the excuse of complementarity, the Office is preventing the ICC from being the last resort avenue for justice for victims of crimes against humanity and war crimes committed in northeast Nigeria”.
