The Prosecutor of the International Criminal Court, Karim Khan, has made his first visit to Nigeria to discuss the next steps to investigate crimes against humanity and war crimes there, for which there is enough evidence for them to come under the ICC’s jurisdiction.
Ten years of ‘preliminary examinations’ (2010-20) satisfied the previous Prosecutor that there were sufficient grounds to believe that international crimes within the court’s jurisdiction had been carried out, not only by the extremist Islamist group Boko Haram and other groups, but also by the Nigerian Security Forces (NSF) in their fight back against them in northern Nigeria.
However, this visit – while welcomed by some – was not without controversy. Fatou Bensouda, the previous Prosecutor, had given Nigeria – a signatory to the Rome Statute which created the ICC – over eight years to prosecute Boko Haram and its own armed forces, the NSF, itself.
Yet current and previous governments have failed to do this.
(‘The Court’s core mandate is to act as a court of last resort with the ‘capacity to prosecute individuals for genocide, crimes against humanity and war crimes when national jurisdictions for any reason are unable or unwilling to do so’).
It was in 2009 that Boko Haram started to carry out attacks, at first against police stations and other security bases such as Army camps around Maiduguri, in Borno State. However, the group really made global headline news when it kidnapped 276 girls from Chibok Secondary School in April 2014. The hashtag #BringBackOurGirls spread around the world, and even Michelle Obama Tweeted it.
But despite endless promises, including President Buhari’s numerous pledges to ‘bring back all our girls’ dating back to his election manifesto in 2015, he’s failed to destroy Boko Haram, nor was he able to bring its long-serving leader Abubakar Shekau to justice. It’s widely believed that, on May 19, 2021, Shekau blew himself up with his own suicide vest to avoid capture by rival Islamist group Islamic State, West Africa Province (ISWAP), led by Abu Musab Al-Barnawi. (He too now is a ‘person of interest’ for the ICC).
Far from easing Nigeria’s insecurity crisis, Shekau’s death seems to have worsened it, with Islamist ‘splinter’ radical groups breaking off and forming alliances with such groups as Ansaru (some linked with Al Qaeda in the Maghreb). Another named in ICC documents is Jama’atu Ahlis-Sunnah Lidda’awati Wal Jihad (Salafi Muslim Group for Preaching and Jihad).
Why is the ICC not considering violence by bandits in Nigeria?
The ICC’s remit does not run to ordinary criminality. The Prosecutor has seen the activities of the so-called gangs of ‘bandits’ which, since 2010, have run riot across swathes of NW Nigeria as such, and not international crimes within its jurisdiction. According to US-based ACLED, ‘bandits’ were responsible for more than 2,600 civilian deaths in 2021, an increase of over 250% on 2020 (and more than the number killed by Boko Haram and ISWAP combined during 2021; also about three times the number killed by both armed groups during 2020).
In April this year, asked by the Associated Press’s Chinedu Asadu at a State House briefing, Nigerian officials could not give the number of Nigerians killed by ‘bandits’. Asadu attributed this to next year’s election, saying ‘insiders believe the government considers its public image first and above transparency/accountability’.
The Christian Association of Nigeria (‘CAN’) has complained that the Prosecutor had ignored the “religious mayhem” unleashed by “Islamist bandits”.
On 29 April 2022, CAN issued a press release, signed by its President Revd. Dr Samson Ayokunle and two senior lawyers in the organisation about the visit of the ICC Prosecutor, the British barrister Karim Khan QC, who succeeded Bensouda almost a year ago.
CAN said that despite two attempts to contact Khan directly on behalf of Christian victims, it had not heard from him at all and that the first it learned of his visit was through Nigeria mainstream media coverage.
CAN quoted research for the international charity Open Doors’ Annual World Watch List which totals the number of Christians killed during the time in which the two Prosecutors have been ‘examining’ Nigeria as more than 25,000, at what the research says is a conservative estimate.
CAN, which expressed itself as having a mandate to speak for Nigerian Christians from all denominations, clearly sees the role of the Prosecutor of the ICC as championing the cause of victims of atrocity by holding those responsible to account. Of relevance to CAN’s position is also the fact that the Court offers an innovative system of justice that grants victims significant legal rights such as to information, to participate in the proceedings and to apply for reparations. These features are not found in all national justice systems. They empower victims, putting them at the heart of the Court’s work by bringing elements of retributive and restorative justice together.
It seems that appreciation of these distinctive features of the ICC system, and the particulars of the Nigerian situation, contributed to CAN’s complaint of what it called Karim Khan’s ‘disrespect’ for victims on his recent visit.
CAN complained that, as far as it knows, the Prosecutor met only members of the Nigerian government; as one Nigerian media report put it, he had a ‘one sided’ visit. CAN points out that this is the latest government among those that have not protected the 25,000 or more Christians who’ve lost their lives as a result of religious violence. Khan, the press release pointed out, did not meet any victims or their representatives. CAN went so far as to accuse Khan as “unwilling to engage with victims of atrocity”, saying it was “dismayed that the word ‘victim’ only appeared twice in his statement, and both times they were in bland stock phrases”.
CAN, however, noted that “at least one of the individuals that he met has been identified to the Prosecutor’s office as a potential candidate for prosecution. The President is the Commander-in-Chief of the government’s Armed Services, which also stand accused by the Court of murder, rape, torture, persecution on gender and political grounds, forcible transfer of population and conscription of child soldiers.
CAN‘s stance implies that, rather than holding the government to account, the Prosecutor appeared to be wooing it. There is a long history of Nigerian influence in the ICC, and it is not just because the previous President of the Court was a Nigerian (Judge Chile Eboe Osuji) and the previous Prosecutor Bensouda studied there.
Khan was left off the original short-list of candidates for Chief Prosecutor, but he was re-introduced with the support of many African countries, including Liberia and Kenya, who’d seen him as an ICC defence lawyer for figures such as Charles Taylor and William Ruto respectively.
How has the ICC process worked in the case of Nigeria?
Having started her examination in November 2010, Fatou Bensouda had by 2012 already moved through the first three stages of the filter process to the final assessment of whether the Nigerian authorities were conducting genuine proceedings in relation to the crimes allegedly committed by Boko Haram, and in relation to the actions of the Nigerian Security Forces (NSF). The official reason for spending eight years at this stage is that the Prosecutor wanted to give the Nigerian authorities time:
‘The duration of the preliminary examination, open since 2010, was due to the priority given by my Office in supporting the Nigerian authorities in investigating and prosecuting these crimes domestically’, (Prosecutor’s public statement, 11 December 2020).
Fatou Bensouda noted that there were limited efforts by the Nigerian authorities to hold Boko Haram members to account, but none of them related, even indirectly, to the forms of conduct or categories of persons that would likely form the focus of ICC investigations.
Bensouda also considered that the Nigerian authorities were ‘inactive’ in relation to the NSF ‘because of the absence of relevant proceedings or, 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’.
The Office of the Prosecutor began with 38 communications about serious criminality across the country, and the information continued to come in over the years. In line with the ICC Office’s Strategic Plan, Bensouda prioritised sexual and gender-based violence and crimes affecting children.
The Office quickly focused its energies on Boko Haram, then later included the NSF. On 22 November 2012, the Prosecutor announced ‘there is a reasonable basis to believe that Crimes against Humanity had been committed in Nigeria, namely acts of murder and persecution attributed to Boko Haram’.
Three years later, the Prosecutor’s Office had identified eight potential cases involving the commission of Crimes against Humanity and War Crimes involving Boko Haram and also the NSF.
On 5 December 2019, the Office announced it had identified two additional potential cases involving the commission of War Crimes and Crimes against Humanity, one by Boko Haram and its splinter groups and the other by the NSF.
Prosecutor Bensouda announced the close of her Preliminary Examination on 11 December 2020, with ten possible charges in total, seven involving Boko Haram and its splinter groups, three against the NSF.
(One complaint CAN made is that this “minimises the nature and scale of the religious persecution of Christians committed by Boko Haram”).
The next formal step was for Bensouda to request authorisation from the ICC’s Pre-Trial Chamber to formally open an investigation but she left this for her successor at the Hague-based Court. It has still yet to be requested. Resource constraints have become a pressing problem at the Court, and a global pandemic has, presumably, been a delaying factor. However, CAN also protested that other situations that came later, such as the Philippines, Venezuela and most recently Ukraine, were fast-tracked by Mr Khan into the investigation stage while CAN claims ‘absolutely nothing’ appeared to have been done in relation to Nigeria.
Likely charges against the Islamist groups include murder, enslavement, torture, rape, sexual slavery, forced pregnancy and forced marriage…”in furtherance of an organizational policy by Boko Haram and as part of a widespread and systematic attack against the civilian population composed of those considered ‘unbelievers’ or perceived supporters of the Nigerian Government”.
Ten charges: but only one reference to ‘persecution on gender and religious grounds’
However, despite the reference to ‘unbelievers’, CAN complains that there is only one reference amongst all ten charges to ‘persecution on gender and religious grounds’. This relates to the kidnap and sexual slavery meted out to Christian women such as Leah Sharibu, the Chibok girls and others.
In its press statement, CAN argues that the Christian population of northern and central Nigeria has been disproportionately targeted by Islamist terrorist groups, in addition to this specific maltreatment of women and girls for their religion as well as gender.
However, evidence considered by the Office of the Prosecution has not led to a stand-alone charge of ‘persecution on the grounds of religion’. The argument of the Nigerian Christian community is that there is more than a ‘reasonable case’ that its members have been persecuted by Boko Haram because of their religion and that what has been done to them meets the elements of Crimes against Humanity. CAN’s press release says their experience has been so devastating and harmful that it needs to be taken up in a separate stand-alone charge of religious persecution, not as an alternative but as an additional charge:
“For years now, our Christian community has borne the brunt of the religious violence in this country. We have, in a communication that was ignored by the Prosecutor, pointed out the flaws in the approach taken by his predecessor in relation to Nigeria. These flaws are the result of profound misunderstandings of the role of religion in the violence that has engulfed this country. Mr Khan’s statement indicates that like his predecessor he will not take with any seriousness the matter of the persecution of Nigerian Christians.”
As for the Prosecutor, his statement about his Nigeria trip declared that “My message was clear: accountability for atrocity crimes is essential. Impunity cannot be an option….International cooperation, collective action are therefore essential in ensuring those responsible for atrocities are held to account in accordance with the rule of law. During my visit I have…shared with the Nigerian authorities my vision on the role regional organisations such as ECOWAS and the African Union could play in the global fight against impunity for serious international crimes in partnership with my Office…I have proposed clear timelines in this respect and welcome Nigeria’s commitment to conclude a formal agreement with my Office on these issues in the near future”.
World Watch Monitor tried to reach the ICC’s Office in The Hague by phone, but no-one answered.
WWM also emailed, but at time of publication, no reply has been received.
 This is known as Complementarity. States that are part of the ICC arrangement are expected to suppress international crimes and punish perpetrators at the national level. The ICC was not designed to be a court of first or last opportunity, and it was not created to replace judicial systems that function properly. It can only step in in limited circumstances, such as where the state is doing nothing at all, or is putting on sham trials.