Izuchukwu Temilade Nwagbara Esq

The concept of international criminal law, which became prominent after the second world war with the Nuremberg trials, purports to prosecute crimes against humanity of a large and systematic scale/nature in a furious attempt to end impunity in human relations.[1] As such, the Rome Statute of the International Criminal Court (ICC)[2]—the primary treaty in international criminal law—provides that the ICC shall have jurisdiction with respect to the crime of genocide, crimes against humanity, war crimes, and the crimes of aggression.[3] In relation to the Boko Haram[4] situation in Nigeria, crimes against humanity and war crimes are the most relevant as regards the jurisdiction of the ICC.[5] Therefore, this post examines the possibility and the propriety of a prosecution of Boko Haram members in the ICC for their actions which come under the jurisdiction of the court.

Regardless of the motive of the ICC to combat criminal impunity within domestic jurisdictions of state parties, it still respects the sovereignty of such state parties to prosecute crimes which are committed within their territories, hence the emergence of the principle of complementarity which strikes a balance between domestic sovereignty and international intervention.

The principle of complementarity agreed upon in the preamble of the Rome Statute[6] and expressly provided for in Article 17(1)(a)-(c) dictates that the ICC shall not assume jurisdiction over a case if the case is being investigated or prosecuted by the state having jurisdiction over it unless the state is unwilling or unable genuinely to carry out the investigation or prosecution. Any such case brought before the ICC would be deemed inadmissible by the pre-trial chamber of the court.  In other words, the principle of complementarity presumes jurisdiction in the domestic criminal justice system and only expects the ICC to intervene if the domestic state fails to act. To determine whether the ‘case’ is being ‘investigated’ by the state having jurisdiction over it, the court has developed the ‘same person/same conduct’ test which requires that ‘national proceedings […] encompass both the person and the conduct which is the subject of the case before the Court’.[7]

 In the case of the Prosecutor v. Thomas Lubanga Dyilo,[8] it was held that the national proceedings of the Democratic Republic Congo, the state having jurisdiction over the case, though bordered on some of the charges before the ICC did not cover the conduct of conscripting children below the age of fifteen to be soldiers. As such, the national proceedings satisfied the ‘same person’ segment but not the ‘same conduct’ segment required for the fulfillment of the ‘same conduct/ same person’ test. It is therefore possible that out of numerous charges brought before the ICC by the ICC Prosecutor,[9] the national proceedings might cover a substantial number of those charges and not all of them. This then grants the ICC Prosecutor the leeway to prosecute the charges not covered by national proceedings, thereby making the case against the accused person(s) admissible before the ICC.

It is in this regard that I submit that the prosecution of Boko Haram members before the ICC is possible and tenable. For instance, despite Section 10 of the Nigerian Terrorism (Prevention)(Amendment) Act of 2013purporting to criminalise the recruitment of another person to be a member of a terrorist group or participate in the commission of a terrorist act, no other section of the Act or the principal Terrorism (Prevention) Act of 2011provides for criminalising the recruitment of child soldiers below the age of fifteen. It is however important to note that according to a report of the United Nations Office of Secretary General on Children and Armed Conflict (A/73/907-S/2019/509) issued on 20 June 2019, there were verified cases of the recruitment of 1,947 children by the Boko Haram sect in 2018 alone. As such, even if the Nigeria’s Attorney General’s office prosecutes Boko Haram members generally for the recruitment of persons which carries a sentence of not less than twenty years, the ICC Prosecutor still has the impetus to charge culpable Boko Haram members before the ICC for the crime of conscripting children below the age of 15 to participate in active hostilities as provided for in Article 8(2)(b)(xxvi) of the Rome Statute.

Having highlighted a technical ground—bothering on a supposed discrepancy between the Nigerian terrorism law and the Rome statute—on which Boko Haram members may be tried before the ICC in the Hague, it may be argued that such ground is an undue extrapolation. While the drafters of Article 8(2)(b)(xxvi) might have had the interest of child’s rights at heart, the concern of the drafters of Section 10 of the Nigerian Terrorism (Prevention)(Amendment) Act of 2013 is ostensibly the recruitment of persons for the cause of terrorism. As such, the general prohibition of recruitment should cover both recruitment of adults and children—of any age. Besides, if the Nigerian terrorism law made a separate provision on the recruitment of children in addition to the general provision, it could amount to double jeopardy—contrary to Section 36(9) of the 1999 Constitution of Nigeria—since both provisions bother essentially on recruitment for the cause of terrorism.

In conclusion, Nigeria is a state party to the Rome Statute, and as reported by the Punch newspaper in 2018; the ICC in the Hague claimed to have received 131 petitions from Nigeria based on killings and general insecurity in the country. Therefore, whether or not a prosecution of Boko Haram members in the ICC ensues in the nearest future is a prospect to look forward to.

---

[1]The preamble to the Rome Statute of the International Criminal Court 2002 provides that the State parties agreed to statute having “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.

[2] Done at Rome on 17 July 1998, came in force on 1 July 2002, United Nations, Treaty Series, vol. 2187, No. 38544, Depositary: Secretary-General of the United Nations, http://treaties.un.org

[3] Article 5 of the Rome Statute

[4]The Boko Haram sect is a jihadist terrorist organisation predominantly based in northeastern Nigeria.

[5]Article 7 of the Rome Statute delineates murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, rape, sexual slavery, forced pregnancy, enforced disappearance of persons; as crimes against humanity, while Article 8 proscribes as a war crime the usage of children under the age of 15 to participate actively in hostilities as well as other war crimes. The above crimes are evident in the actions of the Boko haram sect.

[6]‘Emphasising that the ICC established under this Statute shall be complementary to national criminal jurisdictions’

[7]The Prosecutor v. Thomas Lubanga Dyilo Pre-Trial Chamber I, “Decision on the Prosecutor’s Application for a warrant of arrest. Article 58”, ICC-01/04-01/06-8-Corr, paras 31 and 37-39  

[8] Ibid.

[9]The arm of the International Criminal Court saddled with the responsibilities of investigating and prosecuting crimes within the jurisdiction of the court. It is independent of the court.