• Last Updated
  • February 15, 2022
  • 5:00 pm

Nigeria

On the night of 14–15 April 2014, over 200 girls were abducted from a primary school in Chibok, Borno State, in north-eastern Nigeria.1 The incident drew immense international attention to the Boko Haram insurgency and placed a global spotlight on the pressing and multi-faceted challenge facing the government of Nigeria. Long before the abduction of the Chibok girls, Boko Haram was well known for its widespread attacks and the climate of terror it unleashed in the north-eastern states of Nigeria, surrounding federal states and neighbouring countries. In the years following their emergence, they have been implicated in the commission of domestic and international crimes. 

In December 2020, former International Criminal Court (ICC) Prosecutor Fatou Bensouda announced that the statutory criteria for opening an investigation into the situation in Nigeria had been met. She stated that there was a reasonable basis to believe that both Boko Haram and the Nigerian military had committed war crimes and crimes against humanity.2 The Prosecutor also levelled allegations of international crimes against the Nigerian Armed Forces in their response to the Boko Haram insurgency. The next step will be to request authorisation from the ICC judges to open an investigation. The new ICC Prosecutor, Karim Khan, has recently taken up office, and Nigeria is among the situations on his agenda. In the coming months, he must decide whether or not to proceed with an official investigation. 

This site covers the allegations against both Boko Haram and the Nigerian Armed Forces, as well as the pressing need and available options to address them.

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Origins of Boko Haram

The origins of Boko Haram can be traced back to 2002-2003, when the movement was founded as a Nigeria-centric grassroots Islamist extremist organisation.3 Following the death of its founder, Mohammed Yusuf, in 2009, his deputy, Abubakar Shekau, took over, marking the point from which Boko Haram evolved into a militant movement of transnational proportions with some of its factions affiliated to ISIS and al-Qaeda.

By 2016, at least three branches of what is collectively referred to as Boko Haram –meaning “Western education is forbidden”– were operating in Nigeria and the Lake Chad region that borders Niger, Chad, and Cameroon. These include the faction led by Abubakar Shekau, the Vanguard for the Protection of Muslims in Black Africa, also known as the “Ansaru splinter group”, and the ISIS-supported Islamic State West Africa Province (ISWAP), which has been most active in the Lake Chad region, where it has been responsible for mass atrocities.4

A complex mix of economic, social and political factors have provided fertile ground for the growth of the Boko Haram movement and sustained its insurgency. While it has at times appeared weakened and on the verge of further splintering, the group has proved resilient. The scale of devastation wrought by Boko Haram has been significant.

According to the Global Terrorism Index, the group has been responsible for over 37,500 combat-related deaths in Nigeria and the Lake Chad region since 2009 and over 19,000 deaths from terrorism since 2011, mainly, but not exclusively, in Nigeria.5 Boko Haram ranked as the second deadliest terrorist group in 2019, and remains responsible for the greatest number of civilian deaths in sub-Saharan Africa.6 Boko Haram activities were at their deadliest in 2014, when casualties resulting from its terrorist acts hit a peak, ranking it as the deadliest terror group globally, responsible for over 6,000 deaths in that year alone. Violence has continued, and 2019 saw an increase in terrorism-related deaths attributed to Boko Haram over the previous year.7

Commentary & Reports

Andrew Walker “What is Boko Haram?” (United States Institute of Peace: 2012)  

A range of conflicting narratives has grown up around Boko Haram, and the group’s origins, motivations, and future plans remain a matter of debate. This report addresses the questions stemming from these narratives and suggests how the group can be contained.

Institute for Economics & Peace “Global Terrorism Index 2020: Measuring the Impact of Terrorism” (Institute for Economics & Peace: 2020)

In this eighth edition of the Global Terrorism Index (GTI), the key global trends and patterns in terrorism over the last 50 years are summarised, with a special emphasis on trends over the past decade. The report analyses the situation in Nigeria. and notes that conflict remains the primary driver of terrorism. The report notes that Nigeria recorded the second largest reduction in deaths from terrorism in 2019. This reduction occurred despite a small increase in deaths attributed to Boko Haram, which has the been the most active terrorist group in the country over the past decade. Deaths from terrorism in Nigeria are now 83 per cent lower than at their peak in 2014.  

Citations & References

1: CNN (April 2014) “As many as 200 girls abducted by Boko Haram, Nigerian officials say” 

2: International Criminal Court  (11 December 2020) “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Nigeria” (FR)

3: A.Walker (2012) “What is Boko Haram?” United States Institute of Peace 

4: ICC Office of the Prosecutor (2019) “Report on Preliminary Examination Activities” para 180 (FR)

5: Global Terrorism Index (2020) “Measuring the Impact of Terrorism” Institute for Economics and Peace

6: Ibid

7: A. Ngari and A. Olojo (May 2020) “Besieged but not Relenting, Ensuring Fair Trials for Nigeria’s Terrorism Suspects” ISS West Africa Report  

Accountability in Nigeria

Priorities and challenges for strengthening accountability for international crimes in Nigeria

FOLLOW THE TIMELINE BY CLICKING ON THE ARROWS​
2002
Boko Haram founded

Boko Haram founded as a Nigeria-centric grassroots Islamist extremist organisation. It's Official Arabic name, Jama'atu Ahlis Sunna Lidda'awati wal-Jihad, means "People Committed to the Propagation of the Prophet's Teachings and Jihad".

2009
Abubakar Shekau takes over leadership of Boko Haram

Following the death of its founder Mohammed Yusuf in 2009, his deputy Abubakar Shekau takes over and Boko Haram evolves into a militant movement of transnational proportions with factions allegedly affiliated with ISIS and al-Qaeda. Boko Haram launches military operations targeting military, police and civilian targets.

 
 
 
18 November 2010
ICC preliminary examination

The ICC Office of the Prosecutor (OTP) opens a preliminary examination into the situation in Nigeria after receiving communications of alleged atrocity crimes.

 
May/June 2011
Domestic legal framework for terrorism offences established

The Nigerian National Assembly passes the Terrorism (Prevention and Prohibition) Bill in May 2011 establishing a framework to try terrorism offences in Nigeria. President Jonathan signs the bill into law the following month.

 
June 2011
Military Task Force sent to the north-east

President Jonathan sends a Special Military Joint Task Force (SMJTF) comprising military, police, immigration and intelligence personnel to the north-east of Nigeria to address the security threat posed by Boko Haram.

 
December 2011
State of emergency declared in selected federal states

President Jonathan declares a state of emergency in selected local government areas in Borno, Plateau, Yobe and Niger states. 

 
21 February 2013
Terrorism law amended

Terrorism (Prevention and Prohibition) (Amendment) Act 2013 becomes law to deal with loopholes identified in the 2011 law.

24 April 2013
Amnesty committee established

President Jonathan inaugurates the Committee on Dialogue and Peaceful Resolution of Security Challenges in the North, mandated to develop a framework for the granting of amnesties for Boko Haram members.

May 2013
Second State of Emergency

A second state of emergency is declared, this time for the three States of Borno, Yobe and Adamawa. This declaration leads to a surge of security forces in these states and the deployment of special forces.

14-15 April 2014
Chibok girls abducted by Boko Haram

The abduction, one of many by Boko Haram militants, brought the conflict to international prominence and sparked one of the biggest global social media campaigns, with tweeters using the hashtag #BringBackOurGirls. According to Amnesty International more than 100 girls remain missing as of April 2021.

 
 
May 2015
President Muhammadu Buhari elected as President of Nigeria replacing Goodluck Jonathan
8 March 2017
Special Board of Inquiry established to investigate alleged violations of human rights by the Nigerian Armed Forces

The Chief of Army Staff of the Nigerian Armed Forces convenes the Special Board of Inquiry (SBI) with the mandate to investigate alleged violations of human rights by the Nigerian Armed Forces. The inquiry finds no evidence of arbitrary arrests or extra judicial executions of detainees in any of the documents reviewed.

 
April 2017
PIP established to examine alleged acts of human rights and humanitarian law violations by military personnel

Acting President Yemi Osinbajo sets up the Presidential Investigation Panel (PIP), a judicial commission to look into alleged acts of human rights and humanitarian law violations by military personnel. The PIP's seven members submit the final report in February 2018, which has not been made public.

 
October 2017
First round of trials against Boko Haram suspects held

The Nigerian government holds the first criminal trials against Boko Haram suspects. The trials are criticised for failure to observe fair trial and due process rules.

 
February 2018
Second round of trials against Boko Haram suspects held at Wawa Cantonment Kainji, Niger State

 

 
February 2018
Military violations report

The Presidential Investigation Panel (PIP) of seven members submits its final report in February 2018. However, the report has not been made public.

 
9-10 July 2018
Third round of trials held held at Wawa Cantonment Kainji, Niger State

 

 
11 December 2020
ICC Prosecutor concludes preliminary examination process

The ICC prosecutor, Fatou Bensouda, concludes the preliminary examination of the situation in Nigeria and announces that the statutory criteria for opening an investigation by the ICC have been met.

June 2021
Audio tape from ISWAP leader confirms Shekau's death at the hands of Islamic State

ISWAP leader Abu Musab Al-Barnawi alleges Shekau's death in Sambisa forest came in response to orders from the new leader of Islamic State, Abu Ibrahim al-Hashimi al-Qurashi.

October 2021
Nigerian military confirms Shekau's death

Nigeria's Chief of Defence Staff General Lucky Irabor confirms Shekau's death. 

 

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The Nigerian Government’s response to the Boko Haram threat

The The initial response of the Nigerian authorities to Boko Haram was to ignore it. This followed the government’s belief that the insurgent group did not appear to be highly radicalised in its early days. Over time, however, the group became more radicalised and began carrying out attacks with increased frequency, leading the authorities to employ a law enforcement approach which involved the mass arrest of suspected Boko Haram members.

Following the death of Boko Haram’s founder, Yusuf, in 2009, it initially appeared that the group had been successfully neutralised but this was not the case. To the contrary, Shekau’s subsequent takeover of the group’s leadership saw a ramping up of the size and sophistication of attacks. More frequent and deadly incidents were recorded, including suicide bombings and indiscriminate attacks against civilians. The escalation of the conflict by Shekau brought about two important changes in Nigeria’s strategy: firstly, it pushed the State to fully mobilise its armed forces (totalling 100,000 soldiers) to confront the security challenge posed by Boko Haram; and secondly, it forced the government to adapt its counter-terrorism and counter-insurgency strategies.8

In June 2011, the President of Nigeria, Goodluck Jonathan, sent a Special Military Joint Task Force (SMJTF) composed of military, police, immigration and intelligence personnel to the north-east to address the security threat posed by Boko Haram.9 In December of the same year, Jonathan declared a state of emergency in selected areas of Borno, Plateau, Yobe, and Niger states. In May 2013, the erstwhile 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 in the numbers of security forces in these states and the deployment of special forces. During this period, Nigeria also established a Civilian Joint Task Force (CJTF) to complement the efforts of the military. The CJTF is mainly composed of vigilante groups of hunters, farmers and youths in the areas most affected by the activities of Boko Haram.10

In addition, Nigeria created a new military formation – the 7th Division in Maiduguri – which was mandated to contain and rout Boko Haram. The election of President Muhammadu Buhari in May 2015 created a new wave of hope that the Boko Haram insurgency would finally be quelled and the conflict resolved. Yet the group has proven to be robust, persisting despite both the Nigerian military’s efforts and those of the Multinational Joint Task Force (MJNTF), which includes troops from the neighbouring States of Benin, Cameroon, Niger and Chad.

In May 2021, it was reported that Abubaker Shekau had committed suicide.11 News of his death was initially received with scepticism, as Shekau has been reported dead several times in the past. Several news outlets confirmed his death in June 2021, following the release of a recording with a voice thought to belong to ISWAP leader Abu Musa al-Barnawi.12 The undated recording of Al-Barnawi announces Shekau’s death and says that he chose to kill himself rather than join ISWAP following his capture by the splinter group.13 Thousands of fighters associated with Shekau’s faction have since surrendered to the Nigerian authorities.14

Play Video

Justice and accountability for Boko Haram crimes in Nigeria 

Binta Nyako, a Nigerian Federal High Court Judge, talks about justice and accountability for crimes committed by Boko Haram in Nigeria and discusses the challenges and difficulties faced when adjudicating these terrorism cases and the lessons learnt for future trials. Justice Nyako also talks about the adjudication of sexual violence crimes allegedly committed by Boko Haram members.

Play Video

Nigeria’s justice sector challenged by Boko Haram insurgency

Anietie Ewang, a researcher at the Africa Division of Human Rights Watch, describes the challenging security situation in Nigeria and shares her thoughts on how the prosecution of terrorism-related crimes in the country can be improved. While stressing the important role that the International Criminal Court plays, she also sees a role for international agencies in judicial capacity building in Nigeria. Ewang decries the lack of political will on the side of some players in Nigeria to address serious human rights violations, while the population continues to demand justice for crimes allegedly committed by Boko Haram and the Nigerian Security Forces.

Citations & References

8: J.A. Falode (February 2016) “The Nature of Nigeria’s Boko Haram War, 2010-2015: A Strategic Analysis” Perspectives on Terrorism Vol 10. 1 

9: ICC Office of the Prosecutor (2012) “Report on Preliminary Examination Activities” para 79 (FR)

10: Voice of America (September 2013) “Civilians Join Fight Against Nigeria’s Boko Haram” 

Commentary & Reports

James Adewunmi Falode “The Nature of Nigeria’s Boko Haram War, 2010-2015: A Strategic Analysis” (Perspectives on Terrorism Vol 10. 1: February 2016)

The author notes that the activities of Boko Haram in the North-Eastern part of Nigeria have highlighted the need for more effective counter-strategies. Nigeria’s difficulties in defeating Boko Haram have security ramifications that go beyond its borders, especially for West Africa. This article applies the concepts of hybrid war, compound war, fourth generation warfare and unrestricted warfare to the confrontation between the state and its Islamist challenger. 

Cold-Ravnkilde Signe Marie, Plambech Sine “Boko Haram: From local grievances to violent insurgency” (Danish Institute for International Studies: Copenhagen 2015)

In this report, the authors respond to the question of how to approach and understand the Boko Haram insurgency. In providing an answer, the report addresses three main controversies within the field of Boko Haram studies. First, whether local grievances or religious radicalisation is the main driver of the insurgency. Second, to what extent Boko Haram is mainly a local/national or regional/international group. Finally, to what extent Boko Haram and their leaders act according to a well-planned military strategy or on a more ad hoc basis. The report explores how these diverging perspectives co-exist and examines the various approaches that have been adopted to contain Boko Haram.

Domestic accountability

Establishing a framework for prosecuting Boko Haram crimes 

Between 2009 and 2018, over 20 forms of inquiries, including commissions, committees, panels and other types of proceedings were set up by different authorities and organs of the Nigerian government to investigate allegations of serious crimes and violations committed by Boko Haram, the Nigerian security forces, and the CJTF.15

With mass arrests of suspected Boko Haram members occurring throughout the conflict, the Nigerian prison and criminal justice system has struggled to cope with the numbers of detainees. Following widespread reports of military offences, the government has also sought to examine the counter-terrorism responses of the Nigerian security forces and the CJTF.16 These have, however, been plagued by delays, and any investigations carried out have not been transparent, with reports and findings not being made public.

Play Video

International Criminal Justice in West Africa

Roland Adjovi, International Law Advisor for the Global Maritime Crime Programme in West Africa at UNODC, analyses the interplay between national, regional and international judicial mechanisms and their application in West Africa. He also discusses various legal instruments, tools and mechanisms, such as the Malabo Protocol, the African Court on Human and Peoples’ Rights, the International Criminal Court and hybrid courts.

Citations & References

15: Amnesty International (2018) “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes”

16: United Nations High Commissioner for Human Rights (9 December 2015) “Violations and abuses committed by Boko Haram and the impact on human rights in the countries affected”  (FR)  & Amnesty International (2018)  

Amnesties

By 2013, the government began to consider engaging in a strategic dialogue with Boko Haram. It set up a committee to look into the possibility of offering amnesty to the militants.17 On 24 April 2013, President Jonathan inaugurated the Committee on Dialogue and Peaceful Resolution of Security Challenges in the North, which was mandated to: develop a framework for the granting of amnesty for Boko Haram members; set up a framework for disarmament; develop a comprehensive victims’ support programme; and develop mechanisms to address the underlying causes of insurgencies, in an effort to prevent future occurrences.18 Despite the Committee’s efforts, Boko Haram was not willing to engage: instead, it actually increased its level of hostilities during this period. 

Legal framework for the trial of terrorism-related offences

In May 2011, the Nigerian National Assembly passed the Terrorism (Prevention and Prohibition) Bill 2011, which was signed into law by President Jonathan on 3 June 2011.19 The law was amended in 2013 by the Terrorism (Prevention and Prohibition) (Amendment) Act 2013 to make provision for the extra-territorial application of the Act and to strengthen terrorist financing offences.20 The stated purpose of the law is to address the prevention, prohibition, financing and combating of terrorism. It provides stiff sentences, ranging from 20 years in jail to the death sentence for committing acts of terrorism and terrorism financing. It is the principal law under which Boko Haram suspects are investigated and prosecuted for crimes in Nigeria. 

Other applicable laws include the Administration of Criminal Justice Act 2015,21 which was enacted in order to fast-track the prosecution of terrorism and other complex cases, and to act as a complement to the Federal High Court Criminal Practice Direction 2013,22 Court of Appeals Criminal Practice Direction 2013,23 and Supreme Court Criminal Practice Direction 2013.24 25  

Citations & References

17:  J.A. Falode (February 2016)

18:  Council on Foreign Relations (2013) “Nigeria’s President Launches Amnesty Committee for Boko Haram”

19: National Assembly of the Federal Republic of Nigeria (2011) “Terrorism (Prevention and Prohibition) Act”

20: National Assembly of the Federal Republic of Nigeria (2013) “Terrorism (Prevention and Prohibition) Act”

21: National Assembly of the Federal Republic of Nigeria (2015) “Administration of criminal justice acts”

22: Chief Judge of the FCT (January 2013) “Practice direction”

23: Court of Appeal (2013) “Practice direction”

24: Supreme Court “Supreme Court Rules” 

25: Speech by the DPP of Nigeria (10 December 2018) “Investigation and Prosecution of Complex Cases in Nigeria” Mohammed U.E., Wayamo side event during the ICC Assembly of State Parties

 

Allegations of serious crimes and violations committed by Boko Haram

Since the insurgency began, thousands of people have been arrested and detained for terrorism and related offences or on suspicion of being members of Boko Haram. Between 2017 and 2018, three batches of trials were conducted by the Nigerian authorities against Boko Haram suspects, with each batch lasting no more than five days and thousands of suspects being processed.26

In 2018, Human Rights Watch published a highly critical report of the trials held by the Nigerian authorities.27 According to the report, the first round of trials in October 2017 involving 575 defendants, some of whom had been in detention since the conflict began in 2009, were shrouded in secrecy, raising concerns about the observation of fair trial and due process standards by the authorities. As a result, subsequent rounds of trials held at Wawa Cantonment in Kainji, Niger State, in February 2018 and 9-10 July 2018 were open to a few monitors from NGOs and the media.28 Human Rights Watch, which observed the third round of trials held on 9 and 10 July, described the proceedings as follows:

Over 200 defendants, including three women, were tried for offences under the Terrorism Prevention Amendment Act of 2013. Three judges of the Federal High Court presided over the trials in small makeshift courtrooms on the military base where the suspects had been detained. The courts convicted 113 defendants, acquitted 5, and discharged 97 without trial, based on the court’s determination that they had no case. Nine cases were struck out due to errors, some of which caused defendants who had been tried and convicted or discharged in previous rounds to be inadvertently brought to trial again, and nine more were adjourned for further trial in Abuja. In 7 of about 60 cases Human Rights Watch monitored, Federal Justice Ministry prosecutors brought charges for murder, kidnapping, and other crimes, including during gruesome attacks in Damaturu, Bama, and Baga in 2015, and the abduction of 276 schoolgirls in Chibok in April 2014. But most defendants were prosecuted solely for providing “material and non-violent support” to Boko Haram, including by repairing their vehicles, laundering their clothes, or supplying them with food and other items.29

How the Nigerian authorities deliver on their promise to process more cases and conduct genuine trials of Boko Haram suspects is a crucial opportunity to prove that the authorities are investigating and prosecuting alleged perpetrators effectively and genuinely and delivering meaningful justice to affected communities. 

Citations & References

26: A. Ngari, A. Olojo (2020) 

27: Human Rights Watch (2018) “Nigeria: Flawed Trials of Boko Haram Suspects”

28: Reuters (19 February 2018) “Nigeria Convicts 205 Suspects in Mass Trials”

29: Human Rights Watch (2018) 

Commentary & Reports

Human Rights Watch “Nigeria: Flawed Trials of Boko Haram Suspects, Ensure Due Process, Victim Participation” (HRW: 17 September 2018)

Human Rights Watch analyses the prosecution of suspected Boko Haram members and the legal shortcomings in the cases.

Extremist Group: Boko Haram (Counter Extremism Project: 2021)

In this report, the counter extremism project provides a historical background to the extremist group, its factions and ideologies, organisational structure, top leaders, place of origin and countries of operation. It further provides details on its sources of financing, training and recruitment practices. It contains a long list of media reports detailing Boko Haram’s activities over the years.

Obstacles to delivering fair trials in terrorism-related cases

Mass detention of suspects
Since the beginning of the conflict, thousands of persons suspected of being members of Boko Haram have been arrested. Many of them have been under pre-trial detention for several years. While a number have been processed through court proceedings, many more await trial. An unknown number of persons are reportedly being held in so-called rehabilitation camps for repentant and surrendered Boko Haram members under the control of the National Security Advisor.30 The pace of Nigeria’s investigative and prosecutorial activities has been criticised by civil society organisations and the ICC alike for being either wanting or too slow, compared to the number of allegations and the persons in detention.31 The recent surrender of thousands of Boko Haram fighters compounds this challenge still further.

Conduct of trials
Observers of the 2017–2018 Boko Haram trials remarked that, in general, they were confronted by numerous challenges including, but not limited to: a lack of interpreters; a lack of adequate legal defence given to suspects; a dearth of prosecutable evidence; the violation of the double jeopardy principle; and an over-reliance on confessional statements and the making of orders for rehabilitation.32 The Nigerian authorities have admitted to the enormous challenge facing them in trying Boko Haram suspects. In 2019, during an Assembly of States Parties of the ICC side-event at The Hague, the Director of Public Prosecutions of Nigeria cited the procedural difficulties which have beset his office, and listed the following challenges:

  • Insufficient facilities, equipment and modern scientific tools to carry out investigations, thereby leading to poor investigations;
  • Most investigations are grossly non-compliant with the relevant provisions of the Administration of Criminal Justice Act 2015 and other enabling laws governing criminal justice administration;
  • Insufficiently experienced interpreters, given that most of the suspects cannot understand the language of the court;
  • Inadequate time for defendants to meet and interact with their lawyers to prepare for their defence;
  • The unavailability of witnesses, resulting in the adjournment of many cases and time wastage;
  • An inadequate witness-protection programme, resulting in witnesses often not being forthcoming; 
  • Inadequate logistical arrangements for the prosecutors, considering the danger and hazards involved in their assignments; and,
  • The unavailability of exhibits, due to the nature of some of the cases and the mode of arrest of the defendants.33

In its 2018 Preliminary Examination Report, the ICC further observed that a majority of the suspects convicted by Nigerian authorities were charged with providing material and non-violent support to Boko Haram, and not for criminal offences similar in gravity to Rome Statute crimes.34 This therefore calls into question whether Nigeria has satisfied the principle of complementarity through this series of trials. Complementarity is a cornerstone principle for the ICC and posits that the Court only has jurisdiction if the country concerned is not investigating or prosecuting relevant international crimes or is unwilling or unable to do so within its own domestic justice system.

Triaging suspects

A major challenge dogging the investigation and prosecution process has been the securing of evidence and the identification of suitable cases to be brought to trial. In the last set of trials in 2018, the massive number of detainees, unavailability of proper data-collection methods, as well as incomplete case files hampered the process of properly triaging suspects.35 In 2016, a specialised unit, the Complex Casework Group (CCG)*36 was created within the Office of the Director of Public Prosecutions, with purpose-trained prosecutors to handle the terrorism cases assigned to them. The CCG has, however, faced numerous challenges in triaging cases and securing suitable evidence. As the Institute for Security Studies in its report, “Besieged but not Relenting, Ensuring Fair Trials for Nigeria’s Terrorism Suspects”, described: 

In 2013, mass arrests of individuals suspected of belonging to Boko Haram were conducted by the military in the Northern States, particularly Adamawa, Borno and Yobe. Thousands of people were detained in Giwa barracks in Maiduguri, Borno. A joint investigation team comprising immigration officials, intelligence agents and representatives of the Office of the Attorney General of the Federation were mandated by the Department of State Services (DSS), Chief of Defence Staff, to move to the northern states, review files and categorise the suspects in detention. On the ground there was no possibility of investigations as the circumstances of the arrests were unknown. It is reported that the Nigerian military was involved in the mass arrests and the identity of individual officers who conducted the arrests were not noted.

The joint investigation team then conducted enquiries with the suspects between August and December 2013 to ascertain the circumstances of their arrests. The CCG spent the better part of 2014 conducting evaluations of detainees. In the same year over 600 of these suspects broke away from detention at Maiduguri’s Giwa barracks. A decision was taken to move all suspects of terrorist offences to Wawa Cantonment, Kainji Detention Facilities. The Complex Case Working Group had the difficult task of identifying in the thousands of case files who of the 600 suspects had fled and how many were killed. An unprecedented set of circumstances and unavailability of proper data collection methods hampered efforts to triage the suspects as intended.37

Anticipated trials of Boko Haram suspects

A further round of trials against Boko Haram suspects has long been anticipated but has been delayed by internal challenges, security concerns and the onset of the COVID-19 pandemic. Given that the previous set of trials took place as far back as 2018 and that numerous individuals remain in detention awaiting trial, the pace of prosecutions needs to be addressed urgently. There are also high expectations that the authorities will have learnt from their experiences with the first series of trials, and that there will be a more concerted effort, not only to observe fair trial procedures, but also to charge more suspects in the next round of trials for offences which relate to conduct substantially similar to Rome statute crimes.38

Citations & References

30: A. Ngari, A. Olojo (2020) 

31: Human Rights Watch (2018) “Nigeria: Flawed Trials of Boko Haram Suspects”

32: Reuters (19 February 2018) “Nigeria Convicts 205 Suspects in Mass Trials”

33: Speech by the DPP of Nigeria (2018) 

34: ICC OTP (2018) para 237

35: A. Ngari and A. Olojo (2020)

36: The Complex Casework Group was officially established in 2016. However, prosecutors within the office of the Director of Public Prosecutions had already begun to investigate terrorist related offences prior to this date.

37: A. Ngari and A. Olojo (2020)

38: ICC OTP (2019) para 199

Allegations of serious crimes and violations committed by Nigerian Security Forces

There have been allegations that the response of Nigerian security forces against suspected Boko Haram members has involved an excessive use of force and summary executions of civilians.39 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.40 

The CJTF, which has been providing support to the military, has also been accused of recruiting and using children in armed conflict and has appeared in the United Nations Annual Report of the Secretary General on Children and Armed Conflict.41 Children across Borno State were reportedly used for intelligence-related purposes, search operations, night patrols, crowd control, and the manning of guard posts. During the initial emergence of the CJTF, some children also allegedly participated in combat activities. 

In 2017, an action plan was signed by the Nigerian authorities and the United Nations instituting prevention and protection measures on behalf of children. For several years following the signing of the action plan, there had been no verified reports of the recruitment and use of children in armed conflict by the CJTF.42 According to UNICEF, as of October 2018, a total of 1,469 children (1,175 boys and 294 girls) associated with the CJTF had been identified, and this was only within the city of Maiduguri, Borno State.43 

In 2019, it was reported that several children had attended ceremonies marking their separation from the CJTF.44 The CJTF was delisted from the UN Annual Report in 2021, following a significant decrease in its recruitment and use of children in armed conflict and continued implementation of the 2017 action plan.45 

Citations & References

39: Amnesty International (2018) “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes”  

40: ICC Office of the Prosecutor (2013) “Preliminary Examination Report” Para. 207 (FR) & ICC Office of the Prosecutor (2015) “Preliminary Examination Report” Para. 212 (FR)

41: United Nations (2015-2018 & 2020) “Annual Reports of the Secretary General on Children and Armed Conflict”

42: Ibid

43: UNICEF (2018) “833 Children Released from Armed Group in North East Nigeria”

44: United Nations (2020) “Annual Report of the Secretary General on Children and Armed Conflict” (FR)

45: United Nations (2021) “Annual Report of the Secretary General on Children and Armed Conflict” (FR)

Special Board of Inquiry

The Chief of Army Staff of the Nigerian Armed Forces convened the Special Board of Inquiry (SBI) on 8 March 2017, with the mandate to investigate alleged violations of human rights by the Nigerian Armed Forces within the context of their operations against Boko Haram in north-eastern Nigeria. According to the SBI’s terms of reference, this included allegations of deaths in military detention, summary executions in the Giwa barracks on 14 March 2014, torture, enforced disappearances, unlawful killings, and the illegal detention of Boko Haram suspects. The SBI was also tasked with determining the veracity of specific allegations made by Amnesty International against individual senior military officers.46

After two months of investigations, the SBI submitted its report on 18 May 2017, finding that the delayed trials of Boko Haram detainees had resulted in some cases of death in custody and constituted a denial of the detainees’ rights to a fair trial. In contrast, it found no evidence of arbitrary arrests or extrajudicial executions of detainees in any of the documents reviewed.47 The SBI was also unable to substantiate any of the allegations by Amnesty International against individual senior military officers.48 A summary of the SBI report was published in June 2017.49 

Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement

In April 2017, acting President Yemi Osinbajo set up a judicial commission to investigate alleged violations of human rights and humanitarian law by military personnel at a systemic level. Known as the Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement (PIP), the panel of seven was headed by Court of Appeal Judge, Justice Biobele A. Georgewill.

The Commission was empowered to review the rules of engagement applicable in the Armed Forces of Nigeria and examine the extent of the military’s compliance with these rules. It was further empowered to investigate alleged acts of violation of international humanitarian and human rights law by the Armed Forces under various laws, including the Constitution of the Federal Republic of Nigeria (1999),50 Geneva Conventions Act (1960),51 African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (1983)52 and other relevant laws.

The Panel also had the mandate to look into factors that might hinder the quick resolution of local conflicts, and proffer solutions on how to prevent human rights violations in times of conflict in the future. Stakeholders, affected persons, institutions and interested members of the public were invited to submit information to the PIP, in order to assist it in the discharge of its mandate.53 Public hearings were held across the country, with the last hearing on 8 November 2017 concluding the investigation.

A final report was submitted to the Government in February 2018. Unfortunately, the report and its findings have not been made public.54 Aside from criticism relating to the lack of transparency, the PIP has been faulted for shortcomings in its treatment of petitioners, victims and witnesses.55 Moreover, disillusionment within the victim community continues to fester. Reporting on her visit to Nigeria, the Special Rapporteur on extrajudicial, summary or arbitrary executions stated that several victims who gave testimony before the PIP were not informed of the outcome of the investigations, thus contributing to a feeling of frustration, given the risks involved in participating.56 

Citations & References

46: ICC Office of the Prosecutor (2017) “Report on Preliminary Examination Activities” para 219 (FR)

47: ICC OTP (2017) para 220

48: Ibid

49: Nigerian Army (14 June 2017) “Media Briefing on Report of Special Board of Inquiry” 

50: Constitution of the Federal Republic of Nigeria (1999)

51: Geneva Conventions Act – Ratification and enforcement act (1990) 

52: African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act 

53: ICC OTP (2017) para 221

54: Amnesty International (2018) “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes”  

55: United Nations (2021) “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions” (FR)  & A. Ngari and A. Olojo (2020) & Amnesty International (2018)

56: United Nations (2021) para 58

Commentary & Reports

Amnesty International “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes” (Amnesty International: 2018)

The report critically assesses the ICC-OTP’s preliminary examination in Nigeria, and the ability and willingness of the government of Nigeria to ensure accountability for crimes committed by Boko Haram and Nigerian security forces. 

International justice 

The International Criminal Court

Nigeria ratified the Rome Statute of the International Criminal Court on 27 September 2001. Under Nigerian national law, international treaties do not have automatic applicability upon their ratification and require implementing legislation for the provisions of the treaty to be enforceable. Despite years of campaigning by civil society and other campaigners for the bill’s domestication, the Parliament of Nigeria has yet to pass the Rome Statute Bill, which has been pending in various forms since 2012.57  

The ICC’s forays into Nigeria date back to late 2005, when the Office of the Prosecutor  (OTP) began receiving communications relating to possible crimes committed in Nigeria. The information being analysed concerned a wide range of allegations against different groups and forces within Nigeria, involving inter-communal, political and sectarian violence in various states in the central and northern parts of the country. The allegations included crimes arising from the activities of Boko Haram and the counter-insurgency operations of the Nigerian security forces (NSF).58 

On 18 November 2010, the OTP opened a preliminary examination into the situation in Nigeria, a process whereby a variety of factors, including jurisdiction, admissibility (complementarity and gravity) and the interests of justice, are examined in order to decide whether or not an investigation into the situation at hand is warranted. Eventually, the OTP dropped the examination of crimes in relation to inter-communal violence committed in Nigeria’s central and northern states, finding that these did not amount to crimes against humanity, and additionally that there was no reasonable basis to believe that crimes committed in the Delta region amounted to war crimes.59 

By 2012, however, the OTP narrowed its focus on the activities of Boko Haram and the response of Nigerian security forces to the instability and violence waged by the insurgency. In 2015, the OTP identified eight potential cases involving the commission of crimes against humanity and war crimes under Articles 7 and 8 of the Rome Statute: six involving conduct by Boko Haram; and two involving conduct by the Nigerian security forces.60

Over time, two new potential cases were identified by the OTP, one with respect to Boko Haram and one with respect to the NSF. The total number of potential cases identified was thus increased from eight to ten, seven for Boko Haram and three for the NSF.61

Potential cases concerning members of Boko Haram

  1. Targeted attacks against the civilian population;
  2. abductions and imprisonment of civilians;
  3. attacks against education (including schools, teachers, and schoolchildren);
  4. recruitment and use of children to participate in hostilities;
  5. attacks against girls and women;
  6. attacks against buildings dedicated to religion; and
  7. attacks against personnel or objects involved in humanitarian assistance.

Potential cases concerning members of the Nigerian security forces

  1. Killings, torture or ill-treatment of military-aged males suspected to be Boko Haram members or supporters in north-east Nigeria;
  2. attacks against the civilian population; and,
  3. recruitment and use of children under 15 to participate in hostilities (CJTF).

Sexual and gender-based crimes

There have been widespread reports of sexual and gender-based crimes committed by both sides to the conflict. The OTP believes that Boko Haram specifically targeted victims based on gender and perceived traditional social roles. In its assessment, men and boys were often forced to join the armed group and to participate in hostilities, with those who refused being killed.  Women and girls were often abducted and became victims of forced marriage, rape, sexual slavery and other forms of sexual violence.62 Girls were also specifically targeted by Boko Haram for attending public schools. 

Such gender-related violence rendered both females and males, and children in particular, vulnerable to both physical and psychological harm.63 The OTP further observed that there was a reasonable basis to believe that on gender grounds, members of the NSF had persecuted military-aged males suspected of being Boko Haram members or supporters.64

Citations & References

57: Parliamentarians for Global Action “Nigeria and the Rome Statute” 

58: ICC Office of the Prosecutor (2011, 2012) “Report on Preliminary Examination Activities”

59: ICC Office of the Prosecutor (2012) “Report on Preliminary Examination Activities” para 88 (FR)

60: ICC Office of the Prosecutor (2015) “Report on Preliminary Examination Activities” para 195 (FR)

61: ICC Office of the Prosecutor (2019) “Report on Preliminary Examination Activities” para 199 (FR)

62: Ibid para 186

63: Ibid para 186

64: Ibid para 187

Complementarity 

What are the implications of the ICC’s preliminary examination in Nigeria?

Complementarity is a key principle of the Rome Statute, under which States Parties have the primary obligation to investigate and prosecute international crimes through domestic proceedings. The ICC is complementary to the national courts and may open an investigation only if the relevant state is not pursuing genuine proceedings or is deemed unable or unwilling to investigate and prosecute alleged perpetrators responsible for these crimes. An assessment is made during the preliminary examination phase to determine if genuine domestic proceedings, which cover substantially the same persons and conduct which the ICC proceedings would address, exist.

On 11 December 2020, the then ICC Prosecutor, Fatou Bensouda, concluded the preliminary examination of the situation in Nigeria and announced that the statutory criteria for opening an investigation had been met. She stated that the lengthy preliminary examination process had been pursued with a view to giving the Nigerian authorities ample time to conduct their investigations and trials. In her estimation, however, these efforts had been insufficient and none of the proceedings conducted thus far related, even indirectly, to forms of conduct or categories of persons that would form the focus of her investigations.65 She further stated that her office lacked relevant information that had been pledged by the Nigerian authorities, despite the fact that cooperation between her office and the Nigerian authorities was continuing.

The Nigerian case provides an important case-study for analysing the principle of complementarity. As early as 2013, the OTP had identified possible crimes committed by both sides to the conflict in Nigeria. It did not, however, proceed to open an investigation, as it continued to give the Nigerian authorities time to institute their own proceedings. Over time, important questions as to the practice of complementarity have persisted, such as:

  • What amounts to a State being unwilling or unable to prosecute?
  • What amounts to genuine proceedings?
  • If a State appears to be proceeding with trials or taking steps towards seeking accountability for international crimes, is this sufficient for the OTP to hold off on its own investigations and (potential) trials?
  • How long should the OTP wait before it becomes clear that although there is activity, it may not be genuine, and there may not be any progress?

In the case of Nigeria, the ICC continued to give local authorities the primary role of investigating and prosecuting alleged crimes committed within the context of the insurgency. Despite numerous challenges, the Nigerian State had shown a willingness to proceed with investigations and trials, by implementing a legal framework and establishing a special prosecutorial office for this purpose. As noted above, during 2017 and 2018, trials against Boko Haram suspects were held. Since then, the process has stalled, with various postponements of the next round of trials, despite thousands of suspects awaiting trial. In addition, the investigation and trial of crimes allegedly committed by the military have been opaque, and the various commissions and investigations conducted to date appear to have been limited in scope and depth.

The ICC acknowledged that Nigeria faces a number of challenges in investigating and prosecuting mass atrocities, including an inadequate legal framework, making it difficult to try the crimes committed by Boko Haram.66 The ICC’s admissibility assessment had also been complicated; despite being a State Party to the Rome Statute, Nigeria has not domesticated the treaty. As a result, equivalent ICC crimes have to be identified in the domestic laws, in order to charge Boko Haram suspects. Furthermore, there have been a limited number of trials against high- or medium-level Boko Haram commanders, as the top commanders have yet to be apprehended or were killed during military operations.

By the end of 2019, the OTP had made clear to the Nigerian authorities that it would need to see a tangible demonstration of the fulfilment of their primary responsibility to investigate and prosecute ICC crimes, in the absence of which the ICC would make a determination on whether to proceed.67

Eventually, the Prosecutor announced in December 2020 that the statutory criteria for opening an investigation into the situation in Nigeria had been met. That said, however, the OTP has not yet approached the Pre-Trial Chamber with its request to authorise an investigation. This has left a window of opportunity for Nigeria to pick up the pace and proceed with investigating and prosecuting alleged crimes committed on its territory by both sides to the conflict.67

Citations & References

65: ICC (11 December 2020) “Statement of the Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the situation in Nigeria” (FR)

66: ICC OTP (2019) para 193

67:  ICC OTP (2019) para 199

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