Is it Time for ICC to Open Nigeria Investigation?

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Jan 12, 2015  – Nigeria’s President Goodluck Jonathan is again under scrutiny for his handling of the Boko Haram insurgency after the group’s attack in Baga last week which Amnesty International says killed up to 2,000 people but which the Nigerian government estimates killed some 150.

The Baga assault was followed by an attack in Kano this weekend that killed 23 and reportedly involved strapping a bomb to a 10-year-old girl.

The latest atrocities will lead to more calls for the ICC to open an investigation into the situation in Nigeria, citing the Nigerian government’s apparent unwillingness or inability to carry out genuine investigations or prosecutions into Boko Haram. The Islamist group has killed an estimated 9,000 civilians in the past five years, with attacks becoming more frequent and deadly, in addition to attacks on schools and the kidnapping of hundreds of schoolgirls.

ICC Prosecutor Fatou Bensouda reported in December that her office’s preliminary examination of the situation in Nigeria is currently at Phase 3, the stage where the prosecutor is determining whether the Nigerian government’s proceedings “are substantially the same as those that would likely arise from an investigation” by her office and whether “those most responsible for the most serious crimes are being brought to justice.”

“Information gaps remain with respect to national proceedings, in particular regarding the high discrepancy between the reported number of arrests of persons associated with Boko Haram and information on relevant legal proceedings,” Bensouda’s December report said. “The Office will request further information on and continue to analyze the relevance and genuineness of national proceedings by the competent national authorities.”

Critics of Jonathan say he is deliberately turning a blind-eye to Boko Haram’s assaults in the northern part of the country ahead of the February 1 presidential election. The claim is that by disenfranchising millions of voters in the pre-dominantly Muslim northern part of the country, he is assuring himself of victory over his presidential rival General Muhammadu Buhari.

Nigeria ratified the Rome Statute in Sept. 2001. The Court has determined that the situation in the north constitutes a non-international armed conflict and that there is a reasonable basis to believe that Boko Haram has committed crimes against humanity including murder and persecution and that the attacks on educational institutions and the kidnapping of schoolgirls could constitute crimes under the Court’s jurisdiction.

There are credible fears that next month’s election could lead to further violence. In addition, the activities of Boko Haram are now spilling over into neighboring countries, including Chad, where some 7,300 Nigerians have fled in recent days. Chad has troops serving with a Multinational Task Force (MNJTF), consisting of soldiers from Nigeria, Niger and Cameroon, in addition to Chad. The MJNTF is supposed to provide a bulwark against Boko Haram but that has not materialised and soldiers abandoned their base in Baja during last week’s deadly assault.

ICC Prosecutor Bensouda is not likely to rush her decision but much will depend on the outcome of the Feb. 14 election in Africa’s most populous nation. Jonathan is expected to win handily but it is his commitment to investigating and prosecuting Boko Haram leaders following his expected re-election that will be closely monitored by the ICC prosecutor ahead of her next report.

– Denis Fitzgerald
On Twitter @denisfitz