The ICC prosecutor announced the opening of a preliminary examination in November 2010 to assess whether alleged crimes committed in the Niger-Delta and the Middle Belt states in the context of armed conflict between extremist group Boko Haram and Nigerian security forces may amount to crimes against humanity and war crimes under the Rome Statute. The preliminary examination also considers whether national proceedings in relation to these crimes are genuine.
According to reports, the OTP is building eight cases to bring to trial. Of these, six cases are against Boko Haram members and two are against members of the Nigerian Security Forces.
The ICC prosecutor began receiving communications related to the situation in Nigeria in November 2005, and a preliminary examination by the ICC Office of the Prosecutor (OTP) was made public on 18 November 2010. The examination focuses on alleged crimes committed in the Middle Belt states as well as the Niger-Delta region, in the context of armed conflict between Boko Haram and Nigerian security forces.
The OTP found a reasonable basis to believe that both Boko Haram and Nigerian security forces committed crimes against humanity and war crimes. The OTP indicated in 2015 that it has identified eight potential cases that satisfy ICC jurisdiction requirements. Whether any of these cases will appear before the ICC depends on the ability of Nigeria to prosecute these crimes at the national level.
On 20 January 2015, the ICC prosecutor issued statement denouncing reports of escalating violence in north-eastern Nigeria and the use of women and children as suicide bombers. The ICC then conducted a mission to Abuja to reiterate and amplify the prosecutor’s statement ahead of elections in February 2015.
The ICC has engaged national authorities, the national press, and civil society actors in its efforts to examine the legitimacy of existing national proceedings to address alleged Rome Statute crimes in Nigeria, as well as to prevent the commission of and collect information on new allegations.
Cooperation by Nigerian authorities with the ICC and the OTP has suffered following presidential elections and a change of regime in May 2015.
Before 2015, the OTP was in regular contact with the office of the former Attorney General of Nigeria. Replies to more recent OTP requests for information, however, remain pending. The ICC prosecutor wrote to President Muhammadu Buhari following his swearing-in on 29 May 2015.
In February 2015, the Nigerian authorities informed the Office that about 150 cases relating to Boko Haram members at different levels had been submitted for approval by the Attorney General of Nigeria.
The cases, which considered the detention of persons arrested by the military in the context of military operations against Boko Haram, were identified for prosecution by a mixed commission that included members of the military, security services, and the offices of the Director of Public Prosecutions and the Attorney General, among others.
The OTP is assessing national proceedings by the competent national authorities for their relevance to the alleged conduct under examination by the OTP, as well as the genuineness of such criminal proceedings.
Given the lack of progress in conforming domestic laws on the prosecution of international crimes with the Rome Statute, the ability and willingness of the government to conduct proceedings against all sides of the conflict will remain a key area of focus of the Office’s admissibility assessment.
Local and international civil society has been working for many years for the passage of the national ICC legislation through parliament. The Nigerian coalition for the ICC has been particularly active in seeking impunity for grave crimes of international concern, both in Nigeria and across Africa.
A Crimes Against Humanity, War Crimes, Genocide and Related Offences Bill, approved by the Federal Executive Council in 2012, would have enabled prosecutions of those responsible for international crimes in Nigeria, as well as for cooperation between Nigeria and the ICC. No such bill has yet passed into law.
Nigeria had pledged at the UN General Assembly High-Level Meeting on the Rule of Law held in September 2012 that it would enact a Rome Statute implementation bill by 2013.
In addition to pushing efforts to implement Rome Statute provisions and principles domestically, the Nigerian coalition has joined local, regional, and international civil society in calling for ICC member states on the UN Security Council to rebuff attempts to defer situations already referred to the ICC by the Security Council.