In a report released at the weekend from the Office of the Prosecutor (OTP) of the ICC titled: “Report on Preliminary Examination Activities 2013”, which focused on conflicts, genocide and crimes against humanity in 10 countries, including Nigeria, ICC said after a careful review of the situation, the violence in Nigeria qualified as an armed conflict of non-international character.
Under the Geneva Conventions, a “non-international armed conflict” (NIAC) is the technical name for a civil war. This brings the ICC into line with a similar determination made by the International Committee for the Red Cross (ICRC) earlier this year.
The determination that the situation is a NIAC also means that the norms of international humanitarian law, including in particular, Article 3 Under the Geneva Conventions, are formally deemed to be applicable to the theatre of conflict.
The prosecutor’s report stated: “The required level of intensity and the level of organisation of parties to the conflict necessary for the violence to be qualified as an armed conflict of non-international character appear to have been met.
“The Office has therefore determined that since at least May 2013 allegations of crimes occurring in the context of the armed violence between Boko Haram and Nigerian security forces should be considered within the scope of article 8(2)(c) and (e) of the Statute.”
ICC noted that since the increase of security operations after the declaration of a state of emergency in Borno, Yobe and Adamawa States on 14 May 2013, reports of crimes allegedly committed by Nigerian security forces had also increased.
ICC, however, acknowledged that the information available at this stage does not provide a reasonable basis to believe that killings and other abuses attributed to the Nigerian security forces in their response to Boko Haram constituted crimes against humanity.
“In particular, the information available is insufficient to establish that the alleged acts were committed as part of an attack against the civilian population and pursuant to a state policy to launch such an attack. The Office may revisit this assessment in the light of new facts or evidence,” the report added.
ICC said it considered whether the contextual elements for war crimes had been met, including the existence of a non-international armed conflict and came to a conclusion that the latter existed.
“In this context, the Office has examined the level of organisation of Boko Haram as an armed group and the intensity of the armed confrontations between Boko Haram and the Nigerian security forces (JTF, police forces and military forces not deployed under the JTF).
“In terms of organisation, the Office has considered the hierarchical structure of Boko Haram; its command rules and ability to impose discipline among its members; the weapons used by the group; its ability to plan and carry out coordinated attacks; and the number of Boko Haram forces under command.
“The Office has concluded that Boko Haram fulfils a sufficient number of relevant criteria to be considered an organised armed group capable of planning and carrying out military activities.
“With respect to the level of intensity of the armed confrontations between Boko Haram and Nigerian security forces, the Office has analysed over 200 incidents occurring between July 2009 and May 2013.
“In particular, the Office has assessed the extent and sustained nature of such incidents, as well as their seriousness; the frequency and intensity of armed confrontations; their geographical and temporal spread; the number and composition of personnel involved on both sides; the mobilisation and the distribution of weapons; and the extent to which the situation has attracted the attention of the UN Security Council,” said the report.
ICC said it had requested the federal government to explain the reason for the wide gap between the numbers of Boko Haram suspects arrested and those charged to court.
The court said its OTP had met with representatives of the Federal High Court of Nigeria, the Director of Public Prosecutions of the Federation, the Office of the National Security Adviser, the Nigerian Human Rights Commission, senior officers of the Police and the State Security Services, among other relevant officials.
It also said that the federal government provided the OTP with a range of additional documents, potentially relevant for its ongoing jurisdictional and admissibility assessment and that it would continue its dialogue with the Nigerian government regarding the relevant information needed to perform its admissibility assessment.
ICC added that investigation was continuing to determine the allegation that security forces committed crimes against humanity in the course of responding to attacks by Boko Haram.