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Boko Haram war crimes, our justice system and the ICC

Early this month, the chief prosecutor of the International Criminal Court, Fatou Bensouda, announced that her office had concluded its preliminary investigation into the Boko…

Early this month, the chief prosecutor of the International Criminal Court, Fatou Bensouda, announced that her office had concluded its preliminary investigation into the Boko Haram conflict and had found reasonable grounds to believe both Boko Haram fighters and the Nigerian Security Forces to have committed war crimes and crimes against humanity including murder, rape, sexual slavery, torture and cruel treatment. She concluded that the statutory criteria for opening a formal investigation by the ICC into the Boko Haram crisis have been met and indicated that her office will do so.

This announcement was welcomed by many, including human rights groups, but in other quarters it was greeted with incredulity. For some, the idea that a terrorist leader like Shekau could ever be arrested and prosecuted is laughable. For others, it is about timing: an investigation while the campaign against Boko Haram is ongoing is an unnecessary distraction. Still, others detected a double-standard: the ICC has not investigated similar incidents by Western soldiers in recent conflicts. And yet others argued about jurisdiction: it should be Nigeria, not the ICC,  that punishes the alleged crimes.

As someone who has researched the Boko Haram crisis for over a decade, has studied international law, has practiced in Nigerian courts and is currently pursuing a Ph.D. on Boko Haram and the laws of war, I believe the ICC’s position is the right way forward. The objections may be well-intentioned, but that is all that can be said for them.

The intuition that Shekau will never be caught may be the product of our frustration with security forces’ failed assurances, but it has ignored the principle that ultimately the victory of good over evil is as certain as the sun will rise tomorrow. It may feel impossible, but it will surely come to pass. That’s why a Hausa proverb says, “1000 days belong to the thief, one day belongs to the owner”, meaning that a wrongdoer may get away a thousand times, but they will one day be caught. Even more resourced and more sophisticated terror leaders like Osama bin Laden and Abubakar al-Baghdadi were eventually found.

But a more recent inspiration is the arrest last May of Félicien Kabuga, accused of organising, directing and financing the 1994 Rwandan genocide. In the wake of those horrific 100 days in which 800,000 people were slaughtered, the wealthy businessman fled his country. Aided by his five children, he changed his identity and strove to escape justice. But a full 25 years on, he was finally arrested in a wealthy neighbourhood in France. After the genocide, the ICC indicted 93 people, all of whom had fled. At the time of his arrest, Kabuga was one of only two still at large. The same fate awaits Shekau and his thugs.

And like Kabuga, Shekau et al do not need to be caught before they can be indicted. The prime witnesses against Boko Haram leaders are the group’s survivors such as the freed Chibok girls, women who have suffered in the group’s captivity and members that have been arrested or have laid down their arms. These witnesses are very much available, and their memory may still be fresh. It is best to preserve their evidence now.

Another benefit of this process is that once an investigation is completed and suspects like Shekau are indicted, it becomes the duty of not just Nigeria, but also of all the 122 other State Parties to the ICC Statute to locate, arrest and transfer them to the ICC. The ICC too will deploy every resource to track and arrest them. On the other hand, if we were to listen to those who want us to wait until the end of the war, the Chief of Army Staff’s recent bleak prediction of how long that might be could have us waiting until 2040. Many witnesses would no longer be available, and memories would’ve grown dim.

The argument that the Nigerian legal system should be allowed to investigate and try these allegations looks prima facie reasonable: even the ICC Statute provides that the court should only intervene after domestic remedies are exhausted. However, Nigeria has demonstrated a clear inability or unwillingness to bring offending soldiers or even Boko Haram terrorists, to justice. Human rights organisations like the Human Rights Watch and Amnesty International have repeatedly detailed chilling evidence of alleged crimes by security forces, but authorities have on each occasion dismissed the findings before even reading, much less investigating the reports. Over the last decade, not a single soldier or Boko Haram leader has been brought to justice for any serious crime. The ICC itself has expressed frustration over Nigeria’s handling of these cases. Let’s not deceive ourselves; we are all Nigerians; we know how dysfunctional our systems have become.

As for the distraction argument, this is the weakest of all. How exactly will interviewing women that were serially raped by specific soldiers or persons maimed by vigilantes distract state forces? The suspects may not even know they are under investigation until indictments are issued.

Moreover, the argument that Western soldiers have not been brought before the ICC is simply insulting to the honour of Nigeria. Are we on a race to the bottom? It should be our ambition to lead the world in preventing war crimes, not to lead it in avoiding punishment. Our mantra should be ‘all criminals must be punished’, not ‘all criminals should go scot-free because one hasn’t been punished’. We should support the ICC in Nigeria and urge it also to be even-handed in its treatment of all member states.

In fact, I think the ICC needs to be more expeditious on this matter. The preliminary investigation, whose result was announced this month, started ten years ago. How long will a formal investigation then take? I hear the prosecutor’s complaints of workloads and paucity of resources, but the ICC must bear in mind the victims’ expectations of the international community. I know the court has other cases to deal with, but the heinous crimes committed in the Boko Haram war are still going on: they need action now.

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