Some comments: the OTP’s finding that there is a ‘reasonable basis to believe’ that Boko Haram has committed crimes against humanity in Nigeria

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

On Tuesday, there were reports of a ‘leaked report’ from the Office of the Prosecutor of the International Criminal Court containing the OTP’s conclusions on the Nigeria situation. The report in question turned out to be the the OTP’s ‘Report on Preliminary Examination Activities 2012‘ – a public document which is annually published by the OTP.

The report provides an insight into the progress which the OTP is making in its legal assessment of whether a particular situation warrants formal investigation by the court. In the report, the OTP states that it has found that there is a ‘reasonable basis to believe’ that Boko Haram has committed crimes against humanity in Nigeria.

This post provides a few preliminary thoughts on the OTP’s conclusions relating to the Nigeria situation, considering in particular (i) the relevance of the fact that the OTP did not find the violence in Nigeria to have met the threshold of an armed conflict (ii) the reasons given by the OTP for finding no reasonable basis to find that the Nigerian security forces have committed crimes against humanity and (iii) the possibility of crimes against humanity being committed by an armed group in a non-conflict situation.

The OTP’s conclusions regarding Nigeria

In its preliminary examination of the situation of Nigeria, the OTP states that it has concluded that there is a reasonable basis to believe that crimes against humanity have been committed by Boko Haram. In doing so, the OTP finds that there is currently no reason for it to believe that the confrontations between the security forces and Boko Haram amount to an armed conflict.

The report also finds that several other aspects of the violence suffered by Nigeria are not crimes against humanity i.e. the inter-communal violence in central and northern Nigeria and the violence between the MEND armed group and the Joint Nigerian Task Force.

With relation to Boko Haram, the OTP concludes as follows:

There is a reasonable basis to believe that since July 2009, Boko Haram has committed the following acts constituting crimes against humanity (i) murder under article 7(1)(a) and (ii) persecution under article 7(1)(h) of the Statute. In particular, the information available provides a reasonable basis to believe that since July 2009 Boko Haram has launched a widespread and systematic attack that has resulted inbthe killing of more than 1,200 Christian and Muslim civilians in different locations throughout Nigeria, including Borno, Yobe, Katsina, Kaduna, Bauchi, Gombe and Kano States in the North as well as Abuja, Kaduna and Plateau States in Central Nigeria. The consistent pattern of such incidents indicates that the group possesses the means to carry out a widespread and/or systematic attack, and displays internal coordination and organizational control required to that end. The attacks have been committed pursuant to the policy defined at the leadership level of Boko Haram, which aims at imposing an exclusive Islamic system of government in northern Nigeria at the expense of Christians specifically. Opponents to this goal have been targeted as well. Boko Haram leaders of spokesmen have issued public statements evincing the intention to attack civilians in furtherance of this policy, including a January 2012 ultimatum urging Christians to leave Northern Nigeria. The targeting of an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other ground is a constitutive element of the crime of persecution under Article 7(1).

Importantly, the OTP also found that the allegations against Nigerian security forces in the context of their operations against Boko Haram did not constitute crimes against humanity (more on this later).

Preliminary comments on these conclusions

The OTP’s assessment that the situation in Nigeria does not amount to a non-international armed conflict is one which accords with the conclusion of other human rights monitoring organisations which have said that the acts of Boko Haram may amount to ‘crimes against humanity’ and analysed the situation soley with reference to human rights law (see here, here and here).

However, interestingly, the OTP’s conclusion in this regard seems to fly in the face of the way in which Nigeria itself – and indeed Boko Haram – sees the situation. In April 2012, the Chief of Army Staff Lieutenant General Azubuike Ihejirika told soldiers to consider themselves ‘at war’ with the Boko Haram (see report on the lawfare blog here). Earlier in November 2012, Boko Haram allegedly offered a ‘ceasefire’ to the federal government suggesting that Boko Haram also sees the armed confrontations between it and the government to amount to an ‘armed conflict’.

What is the significance of this? In legal terms, a country’s own opinion about the legal framework within which it is working will not decide which legal framework applies to the situation at hand. While the fact that a country deems itself to be in a ‘war situation’ may an influential factor in determining that there is an armed conflict, it will not be determinative of the legal framework which applies (Boskoski Trial Judgment, para 243-7). The assessment of whether or not a particular situation reaches the threshold of an armed conflict is an objective – not subjective – test.

But the anomaly between the designation of the situation by the ICC and the parties to the conflict prompts questions about their motivations in this instance. The fact that Boko Haram has designated its conflict with the government as an ‘armed conflict’ is not unusual. Often armed groups are quick to employ military language to designate their struggle because they feel that it gives their fight against the government an added legitimacy and makes them look like more powerful actors on the international stage. But it is much less usual for a government to designate a situation of internal unrest as a ‘non-international armed conflict’ before it has met the legal threshold of a non-international armed conflict.

In the last years, the ‘war on terror’ which has been waged by the US and its allies has shown that there may be tactical advantages to designating a factual situation as an ‘armed conflict’ before it has actually met the legal threshold of an armed conflict (see Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Tadic i.e. intensity of violence, protractedness and the existence of an organisation and see posts here and here for a fuller explanation of this threshold). In particular, it has been seen that the premature or inappropriate designation of violence as an ‘armed conflict’ may be used by States in an attempt to justify unleashing a greater degree of violence that would otherwise be unlawful.

But so far the tendency by States to do this has been generally limited to transnational violence which occurs far from State’s borders. In general, governments have remained reluctant to admit that a non-international armed conflict exists on their own territory (see for example recent article by Benjamin Zawacki on the situation on Thailand: ‘Politically Inconvenient, Legally Correct: a Non-International Armed Conflict in Southern Thailand‘). There is a perception that to do so will be seen by the wider international community to be a loss of ‘face’ and a fear that such an admission may be used or abused as an excuse for outside intervention.

So in designating its fight against Boko Haram as an ‘armed conflict’, Nigeria took an unusual step. It  became one of the few States to openly declare itself to be in an armed conflict in an instance where the rest of the world does not agree. Why would it do that?

A cynic would say that Nigeria probably designated its fight with Boko Haram as an armed conflict for exactly the reasons as the states currently waging a war on ‘terror’ call that fight an armed conflict too. Anyone who has been following the headlines posted on this blog, will know that this year has seen increasingly frequent reports of the Nigerian military taking strong action against ‘suspected militants’ belonging to Boko Haram. Just a few of the headlines are listed below:-

Nigerian troops kill 20 suspected militants (17th August 2012)

Nigerian military kills top militant (17th September 2012)

Nigerian troops target Boko Haram in Damaturu (7th October 2012)

These sort of headlines outside of an armed conflict situation make disquieting reading. Indeed, the actions by the Nigerian security forces have been deeply criticised by Amnesty International (see ‘Security forces out of control in fight against terror of Boko Haram‘ and accompanying report on the violence between Boko Haram and the government in general: ‘Nigeria: trapped in the cycle of violence‘) and Human Rights Watch (see report ‘Spiralling Violence: Boko Haram Attacks and Security Force Abuses in Nigeria’). Both organisations accuse the Nigerian government of serious human rights abuses.

Reading these reports, it seems that the situation in Nigeria is teetering on the edge of becoming an armed conflict. Boko Haram – for all its mystery – is clearly a highly organised group and has been accused of killing more than 1,200 Christian and Muslim civilians in hundreds of alleged attacks since 2009.

This is a reminder of the fact that an inappropriate and disproportionate military response by a government inappropriately or prematurely designating a situation as a ‘non-international armed conflict’ can fast be a self-fulfilling prophecy. So is the spiral of violence.

No crimes against humanity by Nigerian security services

In the light of the mounting allegations against the Nigerian security services, one wonders why the OTP has decided that the Nigerian security forces have not committed crimes against humanity. The reasons given for its conclusion in this regard are short:

‘although allegations against Nigerian security forces in the context of their operations against Boko Haram may reflect serious human rights violations, the information available at this stage does not permit a finding of a reasonable basis to believe that such acts were committed pursuant to or in furtherance of a State or organisational policy to attack the civilian population’.

There has been much literature on the Rome Statute’s requirement that crimes against humanity should be committed pursuant to a ‘State or organisational policy’. The Rome Statute’s requirement in this regard is a departure from the jurisprudence from the ad hoc tribunals which has explicitly found that in customary international law it is not necessary for crimes against humanity to be committed pursuant to a policy. According to the case law of the ICTY and ICTR, evidence that the acts in question have been committed pursuant to a policy, while not necessary, will constitute strong evidence that crimes have been committed as part of a course of conduct or in a widespread or systematic attack on the civilian population.

Here is not the place to rehearse the academic arguments which have blown up about the ‘ policy requirement’ in Article 7(2)(a) of the Rome Statute (for further reading on this topic see the end of this post). For now, it suffices only to note that there are strong arguments on both sides of the divide: those who say that the case law of the ad hoc tribunals was wrong to dispense with the ‘policy requirement and those who say that the ‘policy requirement’ is not – and never has been – a feature of the customary international law on crimes against humanity. But as a matter of law, it is noteworthy here that the OTP’s reliance on what has become known as the ‘policy requirement’ in the Nigerian situation is evidence of just what a ‘jurisdictional filter’ this requirement may prove to be.

And as a matter of factual analysis, the OTP’s reliance on the ‘policy requirement’ seems open to question. Certainly, one would imagine that evidence that the chief of the army has told its soldiers that its fight against Boko Haram is a ‘war’, would constitute strong evidence of a State policy to attack the civilian population. Because if the threshold of an armed conflict has not been met in Nigeria, then members of Boko Haram are civilians in every instance and the circumstances in which lethal force can be used against them are extremely restricted.

One wonders whether the OTP’s conclusions in respect to the Nigeria security forces might be partly strategic and subject to change in the future. The report makes much of the fullsome assistance and cooperation which has been granted to the ICC by Nigerian officials during the course of their preliminary investigations. It seems likely that this co-operation would drastically reduce if those officials found themselves suddenly the subject of investigation too.

Crimes against humanity

My final point in relation to this report is some thoughts on the significance of the violence in Nigeria and how it plays into discussions which are currently taking place on the definition of crimes against humanity.

In the Kenya situation before the ICC, there has been much discussion about crimes against humanity and when and by whom they can be committed. In particular, there has been a discussion of the sorts of armed groups which are capable of furthering a policy to commit crimes against humanity. In its decision dated 31st March 2010, the majority of Pre-Trial Chamber II found that the determination of which organizations may fit into the phrase ‘organisational’ in Article 7(2)(a) should be conducted not with reference to the group’s “formal nature” or the “level of its organization” but instead should be based on its “capability to perform acts which infringe on basic human values”. In doing so, the Pre-Trial Chamber, in its majority judgment, made clear that the only characteristic of the group with any importance was its capacity to do harm, on the scale and gravity necessary for the acts to be considered ‘crimes against humanity’. It is this majority decision which the OTP is clearly following in its finding that Boko Haram “possesses the means to carry out a widespread and/or systematic attack, and displays internal coordination and organizational control required to that end”.

But the dissenting opinion of Judge Kaul has received much praise in the Kenya case by academics (see Kress and Schabas below). Judge Kaul took a much narrower view of the term ‘organisation’ in Ariticle 7(2)(e) of the Rome Statute. He argued that crimes against humanity should only be able to be committed by groups which “partake of some characteristics of a State”. In doing so, Judge Kaul listed the characteristics which in his mind might turn a private organization into an entity which ‘may act like a State or has quasi-State abilities’. The characteristics he mentioned were as follows: (a) a collectivity of persons; (b) which was established and acts for a common purpose (c) over a prolonged period of time (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale”.

One comes away from reading the Judge Kaul dissent questioning how – in his mind – a group can ever commit crimes against humanity outside of a protracted non-international armed conflict. The characteristics Judge Kaul mentions are clearly linked to Additional Protocol II and seem to have been drafted with the notion of a protracted armed conflict in mind.

In my view, the situation in Nigeria is a good illustration of why Judge Kaul’s position risks being too narrow. If the term ‘organisational’ in Article 7(2)(a) of the Rome Statute is interpreted too narrowly, it will leave the law unable to address some of the other myriad situations in which armed groups – although far from being State-like and not necessarily even involved in an armed conflict – are nevertheless capable of committing widespread or systematic abuses against the civilian population. But are these crimes against humanity you might ask? I think there’s a good argument that they are. The very fact that the crimes have taken place – on the widespread or systematic level that is required for ‘crimes against humanity’ – represents a State failure which can justify international jurisdiction over the acts. It is worth remembering that this jurisdiction will only be employed by the ICC if the State then fails to take action to prosecute the acts themselves.

Conclusions

Before the OTP can decide that there is a reasonable basis to proceed with an investigation into the situation in Nigeria, it must not only be satisfied there is a reasonable basis to belief that a crime within the jurisdiction of the court has been committed, but must also consider (i) admissibility and (ii) the interests of justice. In short, the OTP’s conclusions relating to Nigeria are only a ‘first step’ and should not be interpreted as a sign that the OTP is going to proceed with a formal investigation in Nigeria. At this stage, they may largely be motivated by the office’s self-professed policy to consider the extent to which its preliminary examination activites can stimulate genuine national proceedings against those who appear to bear the greatest responsibility for the most serious crimes.

Further reading:

Kress, Claus, On the Outer Limits of Crimes against Humanity: The concept of ‘organisation’ within the policy requirement: Some Reflections on the March 2010 ICC Kenya Decision, Leiden Journal of International Law, Vol 23, Issue 4, December 2010, pp855-872

Schabas, William, ‘Crimes against Humanity: The State Plan of Policy Element”, Theory and Practice of Itnernatioanl Criminal Law, ed  Sadat, Leila and Scharf, Michael, The Theory and Practice of International Criminal Law, Essays in Honor of M. Cherif Bassiouni, Martinus Nijhoff Publishers, pp347-364

Schabas, William, ‘Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes’, Leiden Journal of International Law, Vol. 23, Issue 4, December 2010, pp847-853

Mettraux, Guénaël, The Definition of Crimes Against Humanity and the Question of a “Policy” Element, Forging a Convention for Crimes Against Humanity, ed Sadat, Leila, Cambridge University Press, 2011, pp. 142-176