Prosecution Report
ICC MEMORANDUM
It is the opinion of the Junior Prosecutor on the Boko Haram preliminary investigation of
the International Criminal Court that the factors set forth in Article 53(1)(a-c) have been
satisfied and thus a formal investigation shall be initiated in addition to the bringing of formal
charges of war crimes, crimes against humanity, crimes of aggression and terrorism against
members of the Boko Haram insurgent group, subject to judicial review as appropriate.
JURISDICTION
Temporal jurisdiction is satisfied for all activities beginning after July 1, 2002 due to
Nigeria’s ratification of the Rome Statute on September 27, 2001. Though Boko Haram is a nonstate actor and thus is not permitted to ratify the Rome Statute, according to Article 12 because
one party of the conflict has accepted jurisdiction (the state of Nigeria) and the crimes within
the Court’s territorial jurisdiction were committed on the territory of the state party and by
citizens of said party. No person may be held criminally responsible for conduct prior to July 1,
2002 pursuant to the non-retroactivity ratione of Article 24. Territorial jurisdiction is present as
well, as all alleged crimes and criminal activity heretofore discussed occur within the territory of
Nigeria (though it should be noted personal jurisdiction is also met, as the perpetrators of the
alleged crimes are citizens of Nigeria to the extent shown by the ICC investigation). Finally,
material (subject matter) jurisdiction is satisfied insofar as the crimes alleged herein are of a
grave and serious nature so as to concern the whole of the international community. These
crimes, as set forth in Article 5 of the Rome Statute, include crimes against humanity, war
crimes and the crime of aggression. Therefore, it is evident the International Criminal Court has
jurisdiction over the crimes committed by the members of Boko Haram.
ADMISSIBILITY
According to the court, the issue of admissibility is outlined in Article 17 of the Rome
Statute, excluding cases in which the State is using its jurisdiction to investigate or prosecute, or
has done so and determined there is no legal basis to prosecute, or if the individual has already
been tried for the conduct which is also the basis for the complaint brought before this Court.
All of these admissibility considerations fall under the complementarity prong, and in this case
we see that though Nigeria is bringing prosecutions against members of Boko Haram, they have
been shown by Amnesty International reports to be genuinely unable to carry out the
investigation or prosecution, a cited exception under Article 17(a)1. In pursuance of facilitating
the capture and prosecution of Boko Haram members, a terrorism proscription order was
adopted under the 2011 Nigerian Terrorism Prevention Act declaring Boko Haram to be a
terrorist group, and a joint-task force was assembled between the Nigerian military and local
“Amnesty International.” Nigeria: Justice Impossible Unless Boko Haram Terror Suspects Get Fair Trials, 11 Oct.
2017, www.amnesty.org/en/press-releases/2017/10/nigeria-justice-impossible-unless-boko-haram-terror-suspectsget-fair-trials/.
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police units to combat terrorism.2 The National Security Advisor to President Goodluck
Jonathan, Gen. Owoye Azazi, confirmed skepticism regarding the government’s ability to deal
with Boko Haram’s activities after the 2011 attack on the United Nations building in Abuja:
“This morning, I was asked to brief the council on security issues across the country. We
reviewed what we believe was the true situation. There are security issues all over;
problems in the Niger Delta, crisis in Jos, kidnapping in parts of the country, but the focus
was on what was considered topical at this point. Explosives everywhere, especially Police
Headquarters, UN building and although there are claims as to who was responsible, the
important thing is that we as a nation should realise that we are facing challenges that
are relatively new to us.”3
Additionally, Amnesty International has found considerable evidence of extrajudicial
executions by Nigerian soldiers while detained insurgents are in custody, including the killing of
more than 640 detainees in Maiduguri on March 14, 2014 and 64 detainees held in Damaturu
Presidential Lodge cells on April 18, 2013.4 The report also details torture, overcrowded cells,
unlawful detentions and cruel and inhumane treatment, all of which do not inspire confidence
in the government’s ability to prosecute Boko Haram members with fair and timely trials. The
lack of admissibility of cases against members of Boko Haram who have already been
prosecuted by the Nigerian government and convicted or acquitted is clear and must be
confirmed. However, these cases are few as the slow-moving Nigerian prosecution is
overwhelmed by the number of cases and severity of the allegations. The final admissibility
consideration concerns the gravity of the cases, particularly whether the gravity of the case is
sufficient to warrant intervention by the Court. The long-term, systematic perpetration of
alleged war crimes and egregious crimes against humanity that have included bombings, rape,
and abductions and have resulted in the displacement of almost 2 million Nigerians who have
fled to escape the conflict.5 These allegations show sufficient gravity to necessitate the
involvement of the Office of the Prosecutor of the ICC.
INTERESTS OF JUSTICE
According to Article of 53(1)(c) of the Rome Statute, the Office of the Prosecutor must
consider the countervailing consideration of justice, determining whether the gravity of the
crime and the interests of the victim warrant the intervention of an international tribunal.
Rather than a prong to be satisfied, the Court is permitted to proceed unless the prosecution
2
Terrorism (Prevention) (Proscription Order) Notice, 2013. Government Notice No. 91, pp. B53-55.
https://www.cbn.gov.ng/out/2013/fprd/terrorism%20(prevention)%20(proscription%20order)%20notice,%202013.p
df
3
Vincent Ikuomola, “We Weren’t Prepared for Bombings – says NSA”, The Nation, 9 September 2011, accessed at
https://issuu.com/thenation/docs/september_07__2011
4
“Amnesty International written statement to the 29th session of the UN Human Rights Council (15 June – 3 July
2015),” Amnesty International, AFR 44/1756/2015 (3 June 2015), available at
https://www.amnesty.org/en/documents/afr44/1756/2015/en/
5
“Boko Haram on Trial | CAR Violence | ICC and Ocampo Respond.” Boko Haram on Trial | CAR Violence | ICC
and Ocampo Respond | Coalition for the International Criminal Court, 12 Oct. 2017,
www.coalitionfortheicc.org/news/20171009/boko-haram-trial-car-violence-ICC-ocampo-respond.
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finds existing specific circumstances giving substantial reason it is not within the interest of
justice to do so presently.6 In the exceptional circumstances at issue, there is no such
substantial reason that pursuing investigation and prosecution of Boko Haram members would
not be within the confines of the interests of justice. This is based in part on the reported slow
prosecution process of Boko Haram members by the Nigerian Minister of Justice and the
resulting long-term detention of the defendants, as well as the lack of transparency during the
jurisprudence process, which have led to criticisms.
WAR CRIMES
The conflict between Boko Haram insurgents and the Nigerian government has been
deemed an armed conflict of a non-international nature (NIAC) by the International Criminal
Court in the past, and this continues to be the case.7 The Nigeria-Boko Haram conflict is
correctly categorized as an armed conflict in that it meets the following test articulated by the
Trial Chamber and upheld by the ICTY Appeals Chamber— “an armed conflict exists whenever
there is a resort to armed force between states or protracted armed violence between
governmental authorities and organized armed groups.”8 According to Article 8(c) of the Rome
Statute, in cases of armed conflict not of an international character, serious violations of Article
3 common to the four Geneva Conventions that are directly committed against individuals not
talking an active part in the hostilities are recognized as constituting war crimes. Also included
are other serious violations of customary international law in armed conflicts not of an
international character in accordance with Article 2 and the finding of the Appeals Chamber of
the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case that the
notion of war crimes may be extended to serious violations of International Humanitarian Law
governing armed conflicts of a non-international character.9 An outline of each portion of
Article 8 that has been violated by Boko Haram insurgents is provided below:
Boko Haram members have violated Article 8(c)(i) by using violence against Nigerian
citizens not participating in the conflict, including murder and cruel treatment. The Trial
Chamber of Bagosora, Kabiligi, Ntabakuze and Nsengiyumva defined the violation of murder as
“the unlawful, intentional killing of another person.”10 Human rights reports have shown
various examples of this, including bombings of civilians in markets, schools and Christian
churches, rounding up town inhabitants to preach their Salafi-jihadi Islamic beliefs before
stealing their valuables, burning down buildings and lining up dissenters and frantic escapees
into lines for firing squads. Courts have also sparingly defined cruel treatment as “an intentional
act or omission causing serious mental or physical suffering or injury or constituting a serious
Massida, Paolina. “Policy Paper on the Interests of Justice.” ICC Officer of the Prosecutor, 1 Sept. 2007,
https://www.icc-cpi.int/Pages/item.aspx?name=otp-policy-int-just
7
Hassan, Idayat. “What Is Justice? Exploring the Need for Accountability in the Boko Haram Insurgency.” Harvard
Law School Human Rights Journal, Dec. 2017, harvardhrj.com/what-is-justice-exploring-the-need-foraccountability-in-the-boko-haram-insurgency/.
8
Prosecutor v. Dusko Tadic aka "Dule" (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, § 7.
9
Id. at 70.
10
Bagosora et al., ICTR-98-41, International Criminal Tribunal for Rwanda (ICTR), 18 December 2008, § 2242.
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attack on human dignity.”11 Serious attacks on human dignity includes sexual violence as set
forth in Article 4(e) of the Statute according to the Akayesu Chamber, and the abduction attacks
and the repeated capturing of men and women perpetrated by members of Boko Haram falls
within this definition.12 There were over 38 documented cases of abductions by Boko Haram as
of April 2015, and the number has only grown since then.13 Amnesty International reports that
the majority of abductees have been unmarried women and girls whom are forced to marry
Boko Haram fighters, and the continuously-growing number of hostages is well over 2,000. 14
These reports also include evidence that these women and girls are sold for profit, beaten and
raped.
Boko Haram members have also violated Article 8(e)(i) by intentionally directing attacks
against the civilian population, particularly those not participating in the conflict, and Article
8(e)(iii-vii) by: intentionally directed attacks against personnel involved in humanitarian
assistance in Nigeria who are protected by international laws governing armed conflicts (suicide
bombing of United Nations headquarters in Abuja, killing more than 18 and wounding others)15;
intentionally directing attacks against buildings dedicated to the Christian religion as well as
education due to a desire “to clean the Nigerian system which is populated by Western
education and uphold [Shari’a] law all over the country”16; pillaging towns; committing rape,
sexual slavery and other sexual violence17; recruiting nearly 2,000 children into armed combat
in 2016 alone.18 As accepted by the Tadić Appeals Chamber, “serious infringements” of
international humanitarian law may be regarded as war crimes when committed in the context
of an armed conflict not of an international nature, as long as the crime itself is criminalized by
international law.19 War crimes have been regarded as triable by international courts as far
back as the Nuremberg Tribunal in 1946.20 The Trial Chamber in Rutaganda held that in order to
pursue a war crimes indictment, there must be a showing of “a nexus between the offence and
an armed conflict in order to satisfy the material requirements of common Article 3 of the
Geneva Conventions and of Article 1 of Additional Protocol II to the Geneva Conventions.” 21
11
The Prosecutor v. Andre Ntagerura, Emmanuel Bagambiki, Samuel Imanishimwe (Judgement and
Sentence), ICTR-99-46-T, International Criminal Tribunal for Rwanda (ICTR), 25 February 2004, § 765.
12
The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for
Rwanda (ICTR), 2 September 1998, § 688.
13
“Our Job is to Shoot, Slaughter and Kill: Boko Haram’s Reign of Terror” Report Index AFR 44/1360/2015,
Amnesty International 2015, https://www.amnesty.org/download/Documents/AFR4413602015ENGLISH.PDF.
14
Id. at 64.
15
Murray, Sennan, and Adam Nossiter. “Suicide Bomber Attacks U.N. Building in Nigeria.” New York Times, 22
Aug. 20111, www.nytimes.com/2011/08/27/world/africa/27nigeria.html.
16
FC Onuoha, ‘The Islamist Challenge: Nigeria’s Boko Haram Crisis Explained’ (2010) 19 African Security
Review 54-67, at 15, 57.
17
“Our Job is to Shoot, Slaughter and Kill: Boko Haram’s Reign of Terror” at 64.
18
“At Least 65,000 Children Released from Armed Forces and Groups over the Last 10 Years, UNICEF.” UNICEF,
20 Feb. 2017, www.unicef.org/media/media_94892.html.
19
Prosecutor v. Dusko Tadic aka "Dule" (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction), IT-94-1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, 7.
20
“Nuremberg Military Tribunals: Indictments” p. 6
https://www.loc.gov/rr/frd/Military_Law/pdf/NT_Indictments.pdf
21
Georges Anderson Nderubumwe Rutaganda v. The Prosecutor (Appeal Judgement), ICTR-96-3-A, International
Criminal Tribunal for Rwanda (ICTR), 26 May 2003, § 557
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The investigation has shown that the attacks and treatment used by members of Boko Haram
against innocent civilians are directly and inextricably linked to their positions as insurgent
militants in the Boko Haram organization, so this nexus should be easily proven in court.
According to the Rome Statute, “a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.”22 To prove intent, it must be shown that the person
meant to engage in the alleged conduct and either meant to incite the resulting consequence
or was aware it would occur. Knowledge, comparatively, means awareness that a circumstance
exists or the resulting consequence will occur in the natural sequence of events. Article 85(3) of
the First Additional Protocol establishes a mental state if the acts are committed willfully, in
violation of the Protocol, and causing death or serious injury.23 Additionally, both the ICTR and
ICTY Courts have held that the death of a victim must be coupled with “the intent either to kill
or to cause serious bodily harm in the reasonable knowledge that it would likely result in
death.”24 Gross or culpable negligence may also be convincing to the Court as a mental state for
a war crime charge, but its seems unnecessary considering there is sufficient evidence that
statements made by members of Boko Haram discuss outright the desire to kill and sell human
beings.25
(Additional international crimes were not included within this five page writing sample)
22
Article 30: Mental Element, Rome Statute of the International Criminal Court (1998). A/CONF.183/9, pp. 19.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 85(3).
24
Prosecutor v. Radislav Krstic (Trial Judgement), International Criminal Tribunal for the former Yugoslavia
(ICTY), 2 August 2001, § 483.
25
“Boko Haram Leader Shekau Releases Video On Abduction Of Chibok Girls,” Sahara TV, 5 July 2014;
https://www.youtube.com/watch?v=wrfWS_vL0D4 (“I am the one who took your girls... I will sell them in the
market. I have my own market of selling human beings.”)
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