The International Criminal Court (ICC) has
determined that the conflict between Boko
Haram insurgents and the security forces in
northern-eastern Nigerian is a civil war.
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.
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