Peace In Nigeria Requires Justice For Military Crimes, Advocacy Group Says

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    Crushing the atrocities of Boko Haram, an Islamist insurgent group, will not guarantee enduring peace in Northern Nigeria, an Abuja-based policy advocacy and research organization has said.

    The group, Centre for Democracy and Development (CDD), is pressing for a durable peace plan in the North-East axis of Nigeria where Boko Haram is battling for an Islamic Caliphate.

    Director of the organisation, Idayat Hassan who is leading the advocacy however, says peace in the troubled North-East region also requires justice for military crimes.

    According to the CDD, ‘’one day, the Boko Haram insurgency will come to an end. When it does, there will be a painful time of reckoning. But for lasting peace to come to North-Eastern Nigeria, one important fact must be acknowledged from the start: there are perpetrators and victims on many sides’’.

    Almost a decade of conflict, no one yet knows when the guns will fall silent. Government declarations of victory are still routinely followed by the jihadist group committing yet another violent outrage.

    It appears, Boko Haram is proving hard to defeat. It has survived a split between Abubaker Shekau (the ranting leader seen on the YouTube videos) and a rival faction led by Abu Musab al-Barnawi that is aligned with so-called Islamic State. It has weathered the food shortages that have affected rural communities across Borno State. And it has resisted a sustained offensive by the Nigerian military targeting its strongholds in the Lake Chad region and the Sambisa Forest, further south.

    The brutality of Boko Haram – its killings, torture, rapes, and abductions – are well known. But the Nigerian military and a pro-armed forces vigilante group called the Civilian Joint Task Force, or CJTF, are also accused of committing human rights violations – well documented by Amnesty International.

    The Office of the Prosecutor of the International Criminal Court has identified eight possible cases of crimes against humanity in relation to the conflict in the North-East. These include six possible cases against Boko Haram and two against the armed security forces.

    The Report on Nigeria:  Procedural History

     The Office has received 67 communications pursuant to article 15 in relation to the situation in Nigeria. The preliminary examination of the situation in Nigeria was made public on 18 November 2010.

    Preliminary Jurisdictional Issues

    Nigeria deposited its instrument of ratification to the Rome Statute on 27 September 2001. The ICC therefore has jurisdiction over Rome Statute crimes committed on the territory of Nigeria or by its nationals from July 1, 2002 onwards.

    Contextual Background

    During the course of its preliminary examination, the Office has analysed information relating to a wide and disparate series of allegations against different groups and forces at different times throughout the various regions of the country. This includes inter-communal, political and sectarian violence in central and northern parts of Nigeria; violence among ethnically-based gangs and militias and/or between such groups and the national armed forces in the Niger Delta; as well as alleged crimes arising from the activities of Boko Haram, a Salafi-jihadi Muslim group that operates mainly in north-eastern Nigeria, and the counter-insurgency operations by the Nigerian security forces against Boko Haram.

    Central and northern Nigeria have been affected by large upswings of violence since at least the return to democratic rule in 1999, reportedly costing the lives of thousands of civilians. The main causes of the violence appear to include a struggle for political power and access to resources, particularly between perceived indigenous groups and “settlers”.

    In the oil-rich Niger Delta, the struggle for control and impact of the oil production in the region, as well as access to resources, have been among the primary root causes of the violence. One of the most prominent armed groups in the region is the Movement for the Emancipation of the Niger Delta (MEND), whose activities reportedly include the kidnapping of both foreign and Nigerian oil workers and the attacking of oil infrastructure in the region.

    Boko Haram is a Salafi-jihadi Muslim group that operates mainly in north-eastern Nigeria, but it has also launched attacks in other parts of the country including Abuja, Plateau and Adamawa States. Since 2010, Boko Haram has shown signs of transitioning into a globalized Salafi-jihadi group and has attracted international attention in particular by carrying out suicide attacks. The group has allegedly attacked religious clerics, Christians, political leaders, Muslims opposing the group, members of the police and security forces, “westerners”, journalists, as well as UN personnel. The group has also been accused of committing several large-scale bombing attacks against civilian objects, including deliberate attacks against Christian churches and primary schools. More recent Nigerian security operations against the group and disputes within its leadership may have contributed to the reported creation of splinter groups.

    In June 2011, President Jonathan sent a Joint Task Force (JTF) comprised of military, police, immigration and intelligence personnel to address the security threat posed by Boko Haram. In December 2011, the President declared a state of emergency in selected local government areas in Borno, Plateau, Yobe and Niger states. In May 2013, the President declared a second state of emergency, this time for the three States of Borno, Yobe and Adamawa. This last declaration led to a surge of security forces in these states and the deployment of special forces. Since their first deployment, security forces are alleged to have committed crimes, including extrajudicial killings, torture and other forms of ill treatment as well as pillage and destruction of property.

    Subject-Matter Jurisdiction

    In its article 5 report on the situation in Nigeria, published on August 5, 2013 and which was based on information gathered as of December 2012, the Office concluded that there does not appear to be a reasonable basis to believe that the alleged crimes committed in the central and northern States in connection with the inter-communal violence constituted crimes against humanity. The Office also concluded that there does not appear to be a reasonable basis to believe that alleged crimes committed in the Delta Region constituted war crimes. Both conclusions may be revisited in the light of new facts or evidence.

    With respect to alleged crimes committed by Boko Haram the article 5 report concluded that there is a reasonable basis to believe that, since July 2009, Boko Haram has committed the crimes of (i) murder constituting a crime against humanity under article 7(1)(a) of the Statute, and (ii) persecution constituting a crime against humanity under article 7(1)(h) of the Statute.

    In particular, the report noted that 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 in the killing of more than 1,200 Christian and Muslim civilians in different locations throughout Nigeria.

    The targeting of an identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or on any other grounds is a constitutive element of the crime of persecution under article 7(1).

    The Office’s report observed that 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. In particular, the information available indicates that 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 Nigeria.

    Accordingly, the Prosecutor decided to move the situation in Nigeria to phase 3 of the preliminary examination with a view to assessing whether the Nigerian authorities are conducting genuine proceedings in relation to the crimes allegedly committed by Boko Haram.

    Since the publication of the article 5 report, the Office has continued to document information on alleged crimes committed by Boko Haram. This includes the September 17, 2013 attack on the town of Benisheik and surrounding areas in Borno State during which up to 161 persons, in the vast majority civilians, were reportedly killed and over 150 civilian residences destroyed.

    Alleged Boko Haram leader Abubakar Shekau claimed responsibility for the attack in a video message released on September 25, 2013. On September 29, 2013, Boko Haram reportedly attacked the College of Agriculture in Gujba, Yobe State, killing up to 50 students, in apparent execution of Boko Haram’s declared policy of specifically targeting students, teachers and education facilities that do not follow its interpretation of Islam.

    Since the increase of security operations after the declaration of a state of emergency in Borno, Yobe and Adamawa States on May 14, 2013, reports of crimes allegedly committed by Nigerian security forces have also increased. Nonetheless, 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 constitute 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 light of new facts or evidence.

    During the reporting period, the preliminary examination has focused in particular on the question whether the contextual elements for war crimes have been met, including the existence of a non-international armed conflict. 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 mobilization and the distribution of weapons; and the extent to which the situation has attracted the attention of the UN Security Council.

    The Office observes that there appears to be some correlation between the deployment of the Nigerian Government Joint Task Force in June 2011 and an increase in frequency and intensity of the incidents between Boko Haram and security forces. Two declarations of a state of emergency in the north-eastern parts of Nigeria in December 2011 and May 2013 were followed by a surge of troops, increased security operations and renewed armed confrontations. The Offices notes that the latter declaration defined Boko Haram’s activities as an “insurgency”.

    In view of the above, the required level of intensity and the level of organization 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.

    For example, one incident requiring further examination is the military operation of April 16 and 17, 2013 in the town of Baga, Borno State.

    Based on local sources and satellite images, Human Rights Watch reported that up to 183 persons were killed in the incident, including a large number of civilians, and that 2,275 buildings destroyed. The Office has received information from the Nigerian Government on the incident providing a lower number of civilian casualties and destroyed buildings. Similarly, the 29 September 2013 attack reportedly launched by Boko Haram against the College of Agriculture in Gujba, Yobe State will also be analysed in the light of article 8(2)(c) and (e).

     Admissibility Assessment

    The information available indicates that the Nigerian authorities have been and currently are conducting proceedings against members of Boko Haram for conduct which could constitute crimes under the Rome Statute. In response to the Office’s requests for information, the Nigerian authorities have also provided a significant body of information on national proceedings which the Office is analysing as part of its admissibility assessment.

    On February 20, 2013 new legislation was passed in the parliament, including the Terrorism (Prevention) (Amendment) 2013 and new directives issued by the judicial organs to facilitate the prosecution of Boko Haram suspects and to clarify competency issues between the state and federal levels, since proceedings against Boko Haram members may take place both before the Federal High Court and before the State High Courts and Magistrate Courts.

    The Office requested the Government in October 2013 to provide additional information in this regard, in view of the apparent discrepancy between the high number of Boko Haram suspects detained and the number of national proceedings.

    On April 24, 2013, President Jonathan inaugurated the Committee on Dialogue and Peaceful Resolution of Security Challenges in the North which is mandated to develop a framework for the granting of amnesties for Boko Haram members; the setting up of a framework for disarmament; the development of a comprehensive victims’ support program; and the development of mechanisms to address the underlying causes of insurgencies that will help to prevent future occurrences. In this regard, the Government has assured the Office that the committee is fully aware of Nigeria’s international legal obligations, including under the Rome Statute.

    OTP Activities

    During the reporting period, the Office has been in close contact with Nigerian authorities, maintained and developed contacts with senders of article 15 communications, Nigerian NGOs as well as international NGOs.

    Between July 29 and August 1, 2013, the Office conducted a mission to Abuja to undertake consultations with Nigerian officials concerning the investigations and prosecutions of alleged Boko Haram crimes. The Office also sought information on the security operations against Boko Haram as part of its analysis regarding the possible existence of a non-international armed conflict. The Office also sought to gain clarity, inter alia, on competency issues between State and Federal courts for crimes that might fall within the jurisdiction of the Court and discussed information gaps regarding its ongoing admissibility assessment.

    In particular, the Office was able to meet 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.

     The Government subsequently provided the Office with a range of additional documents, potentially relevant for its ongoing jurisdictional and admissibility assessment. The Office continues its dialogue with the Nigerian Government regarding the relevant information needed to perform its admissibility assessment.

    On August 5, 2013, the Office published its article 5 Report on the situation in Nigeria based on information gathered by the Office as of December 2012.

    Conclusion and Next Steps

    The Office has received and analysed information submitted by the Nigerian authorities relevant to the admissibility assessment of alleged crimes committed by Boko Haram. It has identified gaps of information and requested additional information to substantiate its assessment whether the national authorities are conducting genuine proceedings in relation to those most responsible for such crimes, and the gravity of such crimes. A determination on admissibility remains pending.

    At the same time, the Office will continue its jurisdictional assessment with respect to alleged crimes committed by Boko Haram and by the Nigerian security forces in the light of the Office’s determination as to the existence of a non-international armed conflict.

    There have been various negotiation efforts between the government and elements within Boko Haram. This has involved talking to both factions of the insurgency, and has resulted in the release of two batches of the Chibok school girls.

    If these negotiations were to go a step further and result in a ceasefire and peace agreement, or if somehow the Nigerian military finally found the skill and commitment to “win” the war – what would peace look like? There would certainly be a demand for accountability and justice, but justice for whom?

    The challenge of transitional justice in Nigeria is illustrated by a scoping paper by the CDD. It identifies the several categories of victims and perpetrators – and the issue is complicated. Appearing on both sides of the ledger – as both victims and perpetrators – are the Nigerian military, the CJTF, Boko Haram ex-combatants, government officials, and civilian collaborators.

    Within the military, for example, the rank and file see themselves as not only victims of Boko Haram, but also of corrupt government officials and senior officers who have lined their pockets with the resources that should have been spent on fighting the insurgency.

    Not Trusting Boko Haram

    There is a great deal of anger towards Boko Haram. That includes those the government is trying to reintegrate through its Operation Safe Corridor demobilisation programme.

    According to the CDD director, the overwhelming opinion was that all insurgents – even those who have surrendered – should be prosecuted. ”It’s a powerful emotion, especially among the displaced. The sentiment commonly heard amounts to this: ‘we are suffering in IDP camps, with little food and only basic services, while the perpetrators are in a rehabilitation camp, drinking bottled water and sleeping under mosquito nets.’

    Many believe the ex-combatants are not at all repentant: they surrendered merely out of hunger, or to save their lives – because they had run afoul of their Boko Haram commander or been out-gunned by the military”.

    Going by her research findings, the common denominator was: “Boko Haram can never change, they cannot be trusted.”

    The armed forces and the CJTF are also clearly seen as complicit in rights violations and should be held to account, although in this regard opinion is less unified.

    Their perceived crimes range from extra-judicial killings, sexual violence, cruel and unlawful detention, to simple theft. Take the Knifar Movement. This group of displaced women from Bama in northern Borno have organised themselves to fight for the release of their husbands, detained by the military on the alleged grounds they belong to Boko Haram – charges the women deny.

    In a petition to a judicial commission on human rights abuses by the military, they named 466 people they alleged were killed by the military in Bama, and another 1,229 currently held in Giwa Barracks in Maiduguri, the capital of Borno State. They also accused the military and CJTF of raping women and girls in government-run IDP camps, even releasing videos to press their case.

    Vice President Yemi Osinbajo while holding on as acting president, appointed a seven-man Judicial Commission, headed by Justice Biobele A. Georgewill, of the Court of Appeal, to review compliance of the Nigerian Armed Forces with human rights obligations and rules of engagement, especially in local conflict and insurgency situations. Osinbajo’s spokesperson Laolu Akande, made this known then in a statement.

    Some of the allegations that have been levelled against the military by groups such as Amnesty International, Human Rights Watch,  include extra-judicial killing of over 300 Shiite protesters in Kaduna in 2015, the extra-judicial killing of dozens of pro-Biafra protesters in the South-East, and that of suspected Boko Haram members in the North-East.

    The military has always maintained it did nothing wrong and did set up its own panel which cleared it of any wrongdoing. But in his statement Akande said the presidential committee was empowered to review extant rules of engagement applicable in the Nigerian Armed Forces, and the extent of compliance thereto.

    “It is also empowered to investigate alleged acts of violation, (by Nigerian security agencies) of international humanitarian and human rights law under the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Geneva Conventions Act, African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and other relevant laws,” he said, adding that the commission equally has a mandate to investigate factors that might be militating against a speedy resolution of local conflicts and insurgencies and also advise on means of preventing violations of international humanitarian and human rights law in conflict situations.

    He listed members of the judicial commission to include Mr. Georgewill as Chairman; and Patrick Akem, a major general, as member. Other members are Wale Fapohunda, Hauwa Ibrahim, Jibrin Ibrahim, Ifeoma Nwakama, and a representative of the Office of the National Security Adviser.

    However, another victims’ group is Jida Dole [Justice by Force]. It comprises Giwa Barracks detainees but also includes Maiduguri residents protesting the military’s conduct at the height of the insurgency, before Boko Haram was expelled from the city. Most people see justice as holding members of the military and Boko Haram to account, but others are more focused on financial compensation for their material loss. Others still want the “truth” in a conflict where conspiracy theories are rife. Common questions: Who funds Boko Haram? Are the politicians and the military complicit in the continuation of the war?

    Problem With Amnesty

    A good deal of controversy surrounds the programme. Very little work has been done to prepare communities for the returns, and it is unclear under what legal framework it operates. For CDD, granting a blanket amnesty in this insurgency – without taking note of the victims – will make peace and justice more difficult to achieve. Arguably, it does not actually prevent the perpetrators from being tried for war crimes under international law. This implies that amnesty is insufficient as the sole transitional justice mechanism.

    Instead, groups like the CDD want a system that can deal with both perpetrators and survivors responsibly. This would be a welcome development in Nigeria, where historically such issues have been handled in an ad hoc political way – never holistically – with accountability swept under the carpet.

    Since the country’s return to democracy in 1999, there have been various attempts to address grievances. The Human Rights Violations Investigation Commission – popularly known as the Oputa Panel – was set up by former President Olusegun Obasanjo to look into crimes committed between 1966 and 1999. The commission sat for five years, received over 10,000 submissions, but heard just 200 cases publicly. The glaring omission was that the final report of the panel was never officially released to the public – names were not named; there was no truth, no justice, no real reconciliation.

    In addressing the Niger Delta militancy, where youths took up arms to protest exploitation and environmental degradation in the oil-rich region, a blanket amnesty was also adopted as a means of post-conflict peacebuilding. But experience has shown this is only an interim solution and there is no accountability to the victims. The resurgence of militancy in the Niger Delta is proof that impunity stores up trouble.

    These lessons must be learnt in the case of the North-East.

    The Yar’Adua Niger Delta Amnesty Proclamation

    Pursuant to Section 175 of the Constitution of the Federal Republic of Nigeria. Whereas the Government of the Federal Republic of Nigeria acknowledges that the challenges of the Niger Delta arose mainly from the inadequacies of previous attempts at meeting the yearnings and aspiration of the people, and have set in motion machinery for the sustainable development of the Niger Delta States;

    Whereas certain elements of the Niger Delta populace have resorted to unlawful means of agitation for the development of the region including militancy thereby threatening peace, security, order and good governance and jeopardising the economy of the nation;

    Whereas the Government realises that many of the militants are able-bodied youths whose energies could be harnessed for the development of the Niger Delta and the nation at large;

    Whereas the Government desires that all persons who have directly or indirectly participated in militancy in the Niger Delta should return to respect constituted authority; and

    Whereas many persons who had so engaged in militancy now desire to apply for and obtain amnesty and pardon.

    NOW THEREFORE, I, Umaru Musa Yar’Adua, President of the Federal Republic of Nigeria, after due consultation with the council of States and in exercise of the powers conferred upon me by the provisions of Section 175 of the Constitution of the Federal Republic of Nigeria, make the following proclamation:

    I hereby grant amnesty and unconditional pardon to all persons who have directly or indirectly participated in the commission of offences associated with militant activities in the Niger Delta;

    The pardon shall take effect upon the surrender and handing over of all equipment, weapons, arms and ammunition and execution of the renunciation of Militancy Forms specified in the schedule hereto, by the affected persons at the nearest collection centre established for the purpose of Government in each of the Niger Delta States;

    The unconditional pardon granted pursuant to this proclamation shall extend to all persons presently being prosecuted for offences associated with militant activities; and

    This proclamation shall cease to have effect from Sunday, 4th October 2009.

    MADE UNDER MY HAND THIS ________DAY OF__________________ 2009.

    UMARU MUSA YAR’ADUA

      Umaru Musa Yar‘Adua, GCFR

    At the Proclamation of Amnesty for Niger Delta Militants

    25th June 2009

     Today, the 25th day of June 2009, the Federal government takes another decisive step in our avowed commitment to bringing enduring peace, security, stability, and development to our nation’s Niger Delta.

     From inception, our Administration has demonstrated unwavering commitment to evolving a holistic solution to the problems of the Niger Delta: securing the region for growth and development, while also effectively tackling the criminal dimension to the problem.

    We do recognize that the provision of the necessary infrastructure for the sorely needed socio-economic development of the area is dependent on an enduring atmosphere of peace and security.

     Constructive and frank engagements with all the stakeholders have defined our approach in the past two years.  In line with the requisite priority which our Seven-point Agenda accords to the issue, and in furtherance of our determination to decisively deal with all the ramifications of the crisis, a Presidential Panel on Amnesty and Disarmament of Militants in the Niger Delta was set up on the 5th of May, 2009.

    With the Federal Government’s acceptance of the recommendations of the Presidential Panel setting out the terms, procedures, and processes of the grant of an amnesty to Niger Delta militants, the National Council of State was today duly consulted.

    The offer of amnesty is predicated on the willingness and readiness of the militants to give up all illegal arms in their possession, completely renounce militancy in all its ramifications unconditionally, and depose to an undertaking to this effect.  It is my fervent hope that all militants in the Niger Delta will take advantage of this amnesty and come out to join in the quest for the transformation of our dear nation.  The offer of amnesty is open to all militants for a period of 60 days.

    Fellow Nigerians, our twin-challenge of democratic consolidation and economic regeneration calls for unbridled patriotism and single-minded, people-focused, results-oriented, resolute and courageous leadership at all levels.  We cannot afford to fail.  Let us use today’s proclamation of amnesty to herald a new beginning for our Fatherland.

    As I append my signature to the Proclamation, I pray that Almighty God continues to bless our dear country, Nigeria.

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