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