SAN FRANCISCO, November 25, (THEWILL) – The International Criminal Court (ICC) has declared the ongoing armed confrontation between the Nigerian military and the Boko Haram as a civil war.
According to an ICC preliminary report conducted by the Office of the Prosecutor, which examined conflicts in various countries — Afghanistan, Honduras, Republic of Korea, Colombia, Georgia, Guinea, Mali, and Palestine in 2013, it said it assessed the intensity, sustainability, seriousness, geographical spread, number of personnel involved on the side of the Boko Haram and Nigerian military, movement of arms and frequency of the attacks by the Boko Haram in the North Eastern part of Nigeria, as well as the declaration of a state of emergency in some states in the area by the federal government and a surge in federal troops, saying, “In view of the above, the required level of intensity and the level of organization of parties to the conflict necessary for the violence to be qualified as an armed conflict of non-international character appear to have been met.”
The report obtained by THEWILL further said, “The Office has therefore determined that since at least May 2013 allegations of crimes occurring in the context of the armed violence between Boko Haram and Nigerian security forces should be considered within the scope of article 8(2)(c) and (e) of the Statute.”
Article 3 of the Geneva Convention of August 12, 1949, with regards to the treatment of Prisoners of War in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
“(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat ‘by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”
Read the full text of the ICC report on Nigeria below:
NIGERIA
Procedural History
The Office has received 67 communications pursuant to article15 in relation to the situation in Nigeria. The preliminary examination of the situation in Nigeria was made public on 18 November 2010.
Preliminary Jurisdictional Issues
Nigeria deposited its instrument of ratification to the Rome Statute on 27 September 2001. The ICC therefore has jurisdiction over Rome Statute crimes committed on the territory of Nigeria or by its nationals from 1 July 2002 onwards.
Contextual Background
During the course of its preliminary examination, the Office has analysed information relating to a wide and disparate series of allegations against different groups and forces at different times throughout the various regions of the country. This includes inter-communal, political and sectarian violence in central and northern parts of Nigeria; violence among ethnically-based gangs and militias and/or between such groups and the national armed forces in the Niger Delta; as well as alleged crimes arising from the activities of Boko Haram, a Salafi-jihadi Muslim group that operates mainly in north-eastern Nigeria, and the counter-insurgency operations by the Nigerian security forces against Boko Haram.
Central and northern Nigeria have been affected by large up swings of violence since at least the return to democratic rule in 1999, reportedly costing the lives of thousands of civilians. The main causes of the violence appear to include a struggle for political power and access to resources, particularly between perceived indigenous groups and “settlers”.
In the oil-rich Niger Delta, the struggle for control and impact of the oil production in the region, as well as access to resources, have been among the primary root causes of the violence. One of the most prominent armed groups in the region is the Movement for the Emancipation of the Niger Delta (MEND), whose activities reportedly include the kidnapping of both foreign and Nigerian oil workers and the attacking of oil infrastructure in the region.
Boko Haram is a Salafi-jihadi Muslim group that operates mainly in north- eastern Nigeria, but it has also launched attacks in other parts of the country including Abuja, Plateau and Adamawa States.
Since 2010, Boko Haram has shown signs of transitioning into a globalized Salafi-jihadi group and has attracted international attention in particular by carrying out suicide attacks. The group has allegedly attacked religious clerics, Christians, political leaders, Muslims opposing the group, members of the police and security forces, “westerners”, journalists, as well as UN personnel. The group has also been accused of committing several large-scale bombing attacks against civilian objects, including deliberate attacks against Christian churches and primary schools. More recent Nigerian security operations against the group and disputes within its leadership may have contributed to the reported creation of splinter groups.
In June 2011, President Jonathan sent a Joint Task Force (JTF) comprised of military, police, immigration and intelligence personnel to address the security threat posed by Boko Haram. In December 2011, the President declared a state of emergency in selected local government areas in Borno, Plateau, Yobe and Niger states. In May 2013, the President declared a second state of emergency, this time for the three States of Borno, Yobe and Adamawa. This last declaration led to a surge of security forces in these states and the deployment of special forces. Since their first deployment, security forces are alleged to have committed crimes, including extrajudicial killings, torture and other forms of ill treatment as well as pillage and destruction of property.
Subject-Matter Jurisdiction
In its article 5 report on the situation in Nigeria, published on 5 August 2013 and which was based on information gathered as of December 2012,15 the Office concluded that there does not appear to be a reasonable basis to believe that the alleged crimes committed in the central and northern States in connection with the inter-communal violence constituted crimes against humanity. The Office also concluded that there does not appear to be a reasonable basis to believe that alleged crimes committed in the Delta Region constituted war crimes. Both conclusions may be revisited in the light of new facts or evidence.
With respect to alleged crimes committed by Boko Haram the article 5 report concluded that there is a reasonable basis to believe that, since July 2009, Boko Haram has committed the crimes of (i) murder constituting a crime against humanity under article 7(1)(a) of the Statute, and (ii) persecution constituting a crime against humanity under article 7(1)(h) of the Statute.
In particular, the report noted that the information available provides a reasonable basis to believe that since July 2009 Boko Haram has launched a widespread and systematic attack that has resulted in the killing of more than 1,200 Christian and Muslim civilians in different locations throughout Nigeria. The targeting of an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or on any other grounds is a constitutive element of the crime of persecution under article 7(1).
The Office’s report observed that the consistent pattern of such incidents indicates that the group possesses the means to carry out a widespread and/or systematic attack, and displays internal coordination and organizational control required to that end. In particular, the information available indicates that the attacks have been committed pursuant to the policy defined at the leadership level of Boko Haram, which aims at imposing an exclusive Islamic system of government in Nigeria.
Accordingly, the Prosecutor decided to move the situation in Nigeria to phase 3 of the preliminary examination with a view to assessing whether the Nigerian authorities are conducting genuine proceedings in relation to the crimes allegedly committed by Boko Haram.
Since the publication of the article 5 report, the Office has continued to document information on alleged crimes committed by Boko Haram. This includes the 17 September 2013 attack on the town of Benisheik and surrounding areas in Borno State during which up to 161 persons, in the vast majority civilians, were reportedly killed and over 150 civilian residences destroyed. Alleged Boko Haram leader Abubakar Shekau claimed responsibility for the attack in a video message released on 25 September 2013. On 29 September 2013, Boko Haram reportedly attacked the College of Agriculture in Gujba, Yobe State, killing up to 50 students, in apparent execution of Boko Haram’s declared policy of specifically targeting students, teachers and education facilities that do not follow its interpretation of Islam.
Since the increase of security operations after the declaration of a state of emergency in Borno, Yobe and Adamawa States on 14 May 2013, reports of crimes allegedly committed by Nigerian security forces have also increased. Nonetheless, the information available at this stage does not provide a reasonable basis to believe that killings and other abuses attributed to the Nigerian security forces in their response to Boko Haram constitute crimes against humanity. In particular, the information available is insufficient to establish that the alleged acts were committed as part of an attack against the civilian population and pursuant to a State policy to launch such an attack. The Office may revisit this assessment in light of new facts or evidence.
During the reporting period, the preliminary examination has focused in particular on the question whether the contextual elements for war crimes have been met, including the existence of a non-international armed conflict. In this context, the Office has examined the level of organisation of Boko Haram as an armed group and the intensity of the armed confrontations between Boko Haram and the Nigerian security forces (JTF, police forces and military forces not deployed under the JTF).
In terms of organisation, the Office has considered the hierarchical structure of Boko Haram; its command rules and ability to impose discipline among its members; the weapons used by the group; its ability to plan and carry out coordinated attacks; and the number of Boko Haram forces under command. The Office has concluded that Boko Haram fulfils a sufficient number of relevant criteria to be considered an organised armed group capable of planning and carrying out military activities.
With respect to the level of intensity of the armed confrontations between Boko Haram and Nigerian security forces, the Office has analysed over 200 incidents occurring between July 2009 and May 2013. In particular, the Office has assessed the extent and sustained nature of such incidents, as well as their seriousness; the frequency and intensity of armed confrontations; their geographical and temporal spread; the number and composition of personnel involved on both sides; the mobilization and the distribution of weapons; and the extent to which the situation has attracted the attention of the UN Security Council.
The Office observes that there appears to be some correlation between the deployment of the Nigerian Government Joint Task Force in June 2011 and an increase in frequency and intensity of the incidents between Boko Haram and security forces. Two declarations of a state of emergency in the north-eastern parts of Nigeria in December 2011 and May 2013 were followed by a surge of troops, increased security operations and renewed armed confrontations. The Offices notes that the latter declaration defined Boko Haram’s activities as an “insurgency”.
In view of the above, the required level of intensity and the level of organization of parties to the conflict necessary for the violence to be qualified as an armed conflict of non-international character appear to have been met. The Office has therefore determined that since at least May 2013 allegations of crimes occurring in the context of the armed violence between Boko Haram and Nigerian security forces should be considered within the scope of article 8(2)(c) and (e) of the Statute.
For example, one incident requiring further examination is the military operation of 16 and 17 April 2013 in the town of Baga, Borno State. Based on local sources and satellite images, Human Rights Watch reported that up to 183 persons were killed in the incident, including a large number of civilians, and that 2,275 buildings destroyed. The Office has received information from the Nigerian Government on the incident providing a lower number of civilian casualties and destroyed buildings. Similarly, the 29 September 2013 attack reportedly launched by Boko Haram against the College of Agriculture in Gujba, Yobe State will also be analysed in the light of article 8(2)(c) and (e).
Admissibility Assessment
The information available indicates that the Nigerian authorities have been and currently are conducting proceedings against members of Boko Haram for conduct which could constitute crimes under the Rome Statute. In response to the Office’s requests for information, the Nigerian authorities have also provided a significant body of information on national proceedings which the Office is analysing as part of its admissibility assessment.
On 20 February 2013 new legislation was passed in the parliament, including the Terrorism (Prevention) (Amendment) 2013 and new directives issued by the judicial organs to facilitate the prosecution of Boko Haram suspects and to clarify competency issues between the state and federal levels, since proceedings against Boko Haram members may take place both before the Federal High Court and before the State High Courts and Magistrate Courts. The Office requested the Government in October 2013 to provide additional information in this regard, in view of the apparent discrepancy between the high number of Boko Haram suspects detained and the number of national proceedings.
On 24 April 2013, President Jonathan inaugurated the Committee on Dialogue and Peaceful Resolution of Security Challenges in the North which is mandated to develop a framework for the granting of amnesties for Boko Haram members; the setting up of a framework for disarmament; the development of a comprehensive victims’ support program; and the development of mechanisms to address the underlying causes of insurgencies that will help to prevent future occurrences. In this regard, the Government has assured the Office that the committee is fully aware of Nigeria’s international legal obligations, including under the Rome Statute.
OTP Activities
During the reporting period, the Office has been in close contact with Nigerian authorities, maintained and developed contacts with senders of article 15 communications, Nigerian NGOs as well as international NGOs.
Between 29 July and 1 August 2013, the Office conducted a mission to Abuja to undertake consultations with Nigerian officials concerning the investigations and prosecutions of alleged Boko Haram crimes. The Office also sought information on the security operations against Boko Haram as part of its analysis regarding the possible existence of a non-international armed conflict. The Office also sought to gain clarity, inter alia, on competency issues between State and Federal courts for crimes that might fall within the jurisdiction of the Court and discussed information gaps regarding its ongoing admissibility assessment.
In particular, the Office was able to meet with representatives of the Federal High Court of Nigeria, the Director of Public Prosecutions of the Federation, the Office of the National Security Adviser, the Nigerian Human Rights Commission, senior officers of the Police and the State Security Services, among other relevant officials.
The Government subsequently provided the Office with a range of additional documents, potentially relevant for its ongoing jurisdictional and admissibility assessment. The Office continues its dialogue with the Nigerian Government regarding the relevant information needed to perform its admissibility assessment.
On 5 August 2013, the Office published its article 5 Report on the situation in Nigeria based on information gathered by the Office as of December 2012.
Conclusion and next steps
The Office has received and analysed information submitted by the Nigerian authorities relevant to the admissibility assessment of alleged crimes committed by Boko Haram. It has identified gaps of information and requested additional information to substantiate its assessment whether the national authorities are conducting genuine proceedings in relation to those most responsible for such crimes, and the gravity of such crimes. A determination on admissibility remains pending.
At the same time, the Office will continue its jurisdictional assessment with respect to alleged crimes committed by Boko Haram and by the Nigerian security forces in the light of the Office’s determination as to the existence of a non-international armed conflict.
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