International Criminal Court: An Early Warning For Nigerian Officials

 By Aloy Ejimakor

The Rome Statute is the international treaty that founded the International Criminal Court. Comprising of 13 parts, it establishes the governing framework for the Court. Adopted at the Rome Conference on July 17, 1998, it came into force on July 1, 2002, thereby creating the International Criminal Court. The Statute sets out the Court’s jurisdiction over genocide, crimes against humanity, war crimes and – as of an amendment in 2010 – the crime of aggression.

Nigeria has ratified the Statute, thus making the Nigerian State and non-state actors subject to the jurisdiction of ICC. The Nigerian State means its President and his appointees, especially the heads of the security agencies, their commanders, officers and the other ranks under them. It also includes governors and all personnel working under their authority, directly or indirectly.Among other things, the International Criminal Court was created to end impunity for perpetrators of genocide or crimes against humanity and it is easily implicated wherever the perpetrators are the same as the persons officially saddled with the responsibility of protecting their victims. An example will include where state actors are known to have issued orders that directly or indirectly led to extrajudicial killings or other inhumane treatment.

The Statute defines genocide, in pertinent part, as including the killings or causing serious bodily or mental harm to an ethnic or national group with the intent to destroy them in whole or in part. If other elements are met, genocide becomes easier to prove when the perpetrator is of a different ethnicity from his victims. Nigeria is a tinderbox because of its many ethnicities and the genocidal tendencies that have been driving some of its officials in the implementation of security operations when it comes to a particular ethnicity.

Crimes against humanity include the widespread or systematic attack directed against any civilian population through murder, extermination, torture, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. Included also is persecution against any identifiable group or collectivity on political, ethnic or religious grounds universally recognised as impermissible under international law.

This is where Nigerian State actors need to be very circumspect when dealing with proponents of self-determination because self-determination is a political opinion clearly recognised under international law. No government official enjoys immunity from ICC prosecution for genocide or crimes against humanity and there is no statute of limitation. In plain terms, neither the Nigerian Constitution or its sovereignty, nor the passage of time will protect you. Just imagine how long it took to nab Charles Taylor. Under the Statute, commanders and superiors are saddled with special criminal responsibilities.

In particular, a military or police commander, de jure or de facto, is criminally responsible for crimes within the ICC’s jurisdiction if committed by forces under his effective control or authority. Within purview also are crimes caused by neglecting to exercise proper control over forces under him where the commander either knew or should have known that the forces were committing or soon to commit such crimes and the commander neglected to take all necessary and reasonable measures within his power to prevent them or to submit the matter to the competent authorities for investigation and prosecution.

If the commander or superior officer is the one directly suborning the crime, such as in the case of Slobodan Miloševi or Charles Taylor, the elements of the offense are met without more. Suborning the crime includes issuing direct orders to “shoot to kill or shoot at sight”. And for junior officers or other ranks, superior orders are not defenses to genocide or crimes against humanity.

This means that when your superior officer orders you to “kill them all”, think twice before pulling that trigger. The ICC Prosecutor shall initiate an investigation of alleged genocide or crimes against humanity upon receipt and evidentiary evaluation of information that provides a reasonable basis for the allegation.

On December 11, 2020, the Chief Prosecutor of the ICC, which has been investigating Nigeria for crimes that implicate the Rome Statute, made the following findings, amongst others: “Following a thorough process, I can announce today that the statutory criteria for opening an investigation into the situation in Nigeria have been met. Specifically, we have found a reasonable basis to believe that members of the Nigerian Security Forces have committed the following acts constituting crimes against humanity and war crimes: murder, rape, torture and cruel treatment; enforced disappearance; outrages upon personal dignity; intentionally directing attacks against civilian population and against individual civilians; unlawful imprisonment; persecution on political grounds; and other inhumane acts’.

Anybody who has been observing Nigeria since late 2015 would easily discern that some of the evidence examined by the ICC Chief Prosecutor included the killings at Nkpor in Anambra State, the night vigil killings in Aba, Abia State, the Onitsha Head bridge killings, the killings issuing from Python Dance at Afaraukwu, Abia State and in which IPOB leader, Mazi Nnamdi Kanu, nearly lost his life and lately the August 2020 Enugu massacre and the killing of EndSARS protesters in October 2020 in Lagos.

It’s instructive that these killings occurred from the inception of the present administration and state actors were implicated from the lowest rungs to the very top. The evidence, including visuals, is legion and unassailable. So, your guess as to who might ultimately be charged before the ICC is as good as mine. For now, the jury is still out on their identity because the developing indictment is as yet sealed.

Meanwhile, after December 2020, there have been more killings, woundings, torture and rape, including particularly at Obigbo and other locations in Rivers State and the South-East, and lately the killings that have occurred and still occurring in the wake of the current security operations in Eastern Nigeria, code-named Operation Restore Peace which – in its implementation – is beginning to look like a misnomer.

In the midst of all these, it will be naive and foolhardy for Nigerian state actors (Federal, state and local) to believe that the ICC is not keeping tabs and building a stronger case from the quantum of credible evidence mined from the many petitions streaming in from various sources. So, for what it is worth, this humble piece is an early warning to all Nigerian officials who are – directly or indirectly – involved in any extrajudicial killings or other inhumane treatments that appear to be the order of the day in this era.

*Ejimakor, a lawyer, wrote from Alaigbo, Imo State