Lawyers petition ICC for his complicity in crimes against humanity
By Jeph Ajobaju, Chief Copy Editor
Lawyers on three continents have petitioned the International Criminal Court (ICC) at The Hague to commence pretrial chamber action on terrorism sponsorship and human rights abuses by Muhammadu Buhari before and after he became President.
“Boko Haram and the Fulani militia, both of whom were once simultaneously listed as the 2nd and 4th deadliest terror groups in the world by the Global Terrorism Index, are jihadists from the Kanuri and Fulani ethnic group.
“Buhari’s parents are from both tribes contributing to his perceived complacency in handling terrorists he referred to as his ‘brothers,”’ the lawyers argued.
“The current administration of … Buhari is an entity/person of interest for at least two serious crimes against humanity on hundreds of its citizens as at 2017 for which it has a lot of explaining to do.”
The lawyers pressed ICC Chief Prosecutor Karim Khan in the petition dated 22 April to file charges against both Buhari and the Nigerian government before Khan’s one-year anniversary in office on 16 June.
Buhari can’t refer himself for prosecution
The petitioners said: “Media reports indicate that prior to coming to power, … Buhari was also a subject of several complaints submitted to the ICC alleging crimes against humanity, to wit:
‘“Professor Goran Sluiter filed supplementary evidence against the presidential candidate over his alleged role in 2011 post-election violence ….
‘“Sluiter disclosed that the full version of the case of over 66 pages with supplementary evidence, including video clips, were submitted to the prosecutor at about 3:00 pm on Thursday ….
‘“Secretary-General, Documentation and Research of NCDJ, Dr Ibrahim Baba … noted that the supplementary evidence, which had been submitted for forensic investigation, would complement a previous ICC filing submitted by the NCDJ in May 2011.
‘“Baba averred that the group had enough evidence with which to prosecute Buhari at the ICC for allegedly instigating the 2011 post-election violence which claimed the lives of about 800 people’
“Given the foregoing complaints against … Buhari in his personal capacity, it is particularly inopportune, inordinate and ill-advised that he should be asked in his official capacity to initiate a referral process which could potentially implicate him.”
Buhari’s crimes beyond EndSars killings he ordered
Khan took over from Fatou Bensouda as ICC Chief Prosecutor on 16 June 2021 after she had served nine years in the post. Khan, too, has a tenure of nine years.
Khan is a senior British lawyer with the title of Queen’s Counsel (QC). He is a specialist in international criminal law and human rights law.
During a career spanning decades, he has argued in all the major international courts and conducted high-profile probes, including a special United Nations investigation into crimes by Islamic State militants in Iraq, according to dw.com
In October 2020 – in the heat of the EndSars protest in Lagos – Bensouda tweeted that “My office has been closely following the events around the current protests in Nigeria and the reaction of Nigeria’s law enforcement and security agencies.
“Any loss of life and injury is concerning. We have received information alleging crimes and are keeping a close eye on developments, in case violence escalates and any indications arise that Rome Statute crimes may have been committed.”
However, Buhari’s crimes go far beyond the EndSars killings he ordered and then removed the bodies of the victims in order to deny the murders.
Four non-governmental organisations (NGOs), three based in the United Kingdom and one in the United States, petitioned Khan on 25 April 2022 to “expedite action on Nigeria”, reminding him of his commitment to do so in October 2021.
They said his “letter on Nigeria … confirmed to the Socio-Economic Rights and Accountability Project [SERAP] that the criteria for opening an investigation into a string of abductions and closure of schools in some parts of Nigeria have been met:
‘“…The preliminary examination of the petition is considered complete. Under Article 53 of the Rome Statute, the next step in the judicial process is for the Prosecutor’s Office to prepare and submit a request to the Pre-Trial Chamber for authorisation to open an investigation on Nigeria.’ (Ref. OTP-CR-363/21, 22 October 2021)
“Your first publicised letter after assumption of office in 2021 on the status of ICC’s Nigeria inquiry stated that the next step is for your office to prepare and submit a request to the Pre-Trial chamber for authorisation to open an investigation into Nigeria.”
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Petition by continental lawyers
This other petition to Khan by lawyers on three continents, a copy of which was sent to TheNiche on 27 April 2022, was written after he visited Nigeria on 20 April, hosted by Buhari in Abuja.
One of the signatories to the letter is Emmanuel Ogebe, Special Counsel Justice for Jos Project, who is based in Washington. In the copy sent to TheNiche, the names of the “other signatories [were] redacted for confidentiality reasons.”
The letter is reproduced below:
Dear Prosecutor Khan, QC
Welcome from your visit to Nigeria.
However, we were startled to read media reports about disconcerting remarks on your recent visit to Nigeria’s president Buhari.
According to the News Agency of Nigeria, “On his part, the ICC prosecutor said that extremism was like cancer ‘which spreads and can also recede.’
“According to him, what Boko Haram does in collaboration with Islamic State of West African Province (ISWAP) ‘is perversion of religion.’
“He said that ICC believed in ‘complementarity which promotes collaboration as against confrontation.”’
Firstly it is concerning that you view extremism as a cancer which can recede. As you know, cancer has no cure and is a highly lethal disease so this metaphor was at best very poor if the point is that nothing can be done to save Nigerians from terrorism.
However beyond misguided phraseology, your next statement on strategy was equally disturbing – that you prefer “collaboration over confrontation.”
Prosecutor Khan, collaboration with Nigeria for the past dozen years failed signally. Successive reports of your predecessor voiced frustration with the Nigerian government.
Buhari as a suspect in numerous petitions
Furthermore and worse still, … Buhari has been the object and suspect in numerous petitions to the ICC from before he was president, for systematic post-election massacres in 2011, to continuing atrocities during his seven years in power.
In fact while you were in Nigeria, video emerged of Nigerian Airforce killing six children in the latest of yearly slaughters of innocent civilian citizens.
Mr Prosecutor should be reminded that you’re primarily a prosecutor and not a collaborator more especially with suspects and rights abusers whom you’re supposed to be investigating and prosecuting.
“Mr Khan urged Nigeria, in concert with other Sahel/Lake Chad basin countries, to get the United Nations Security Council to refer the atrocities committed by the terrorist groups operating in the region to ICC for investigation and trial.”
More stunning of all is the claim that you urged Nigeria to get a UN Security Council Referral to the ICC “for investigation and trial.”
This is dumbfounding on many levels not the least of which are:
1. Your statement contradicts your previous letter on Nigeria.
Per press reports “prosecutor, Mr Karim A. A. Khan, QC… in a letter with reference number OTP-CR-363/21, and dated 22 October 2021 confirmed to SERAP that “the criteria for opening an investigation into a string of abductions and closure of schools in some parts of Nigeria have been met.
“The letter…reads in part: ‘On behalf of the Prosecutor, I thank you for your communication received on 13/09/2021 … The preliminary examination of the petition is considered complete.
‘“Under Article 53 of the Rome Statute, the next step in the judicial process is for the Prosecutor’s Office to prepare and submit a request to the Pre-Trial Chamber for authorisation to open an investigation on Nigeria.”
Your very first publicized letter after assumption of office in 2021 on the status of ICC’s Nigeria inquiry stated that the next step is for your office “to prepare and submit a request to the pretrial chamber for authorization to open an investigation into Nigeria.”
At no point did you say that the process was to approach Nigeria (a suspect for Rome Statute crimes) to approach the UN for a referral to you!
What is apparent here is that six months after your letter gave false hope that you were actually doing something about Nigeria, you abdicated your duties by outsourcing to … Buhari the responsibility for initiating ICC’s investigation into himself – a proposition which Nigeria has clearly resisted.
This convoluted process can serve no other purpose than to further delay, stultify and even completely end the Nigeria investigation ab initio.
To be fair, some of us had in the past urged the UN Secretary General on the 7th anniversary of the UN office bombing in Abuja in 2018, “That the UN Security Council formally refer Boko Haram to the ICC pursuant to the Rome Statute …
“Despite this deadliest attack on the UN in recent times, the UN Security Council did not refer Boko Haram to the International Criminal Court for investigation pursuant to the Rome Statute. The ICC did so only after our advocacy in this regard.”
It is therefore quite puzzling that the Prosecutor who has the mandate and the key to open the investigation process right there in The Hague is going to Abuja to ask them to engage with New York to do something which had already been advocated for six years ago and is no longer necessary.
Rome Statute
2. Your statement shows a shocking lack of understanding of Rome Statute provisions and procedures and the responsibilities and duties of your office
The Rome Statute states:
“Article 13 (Exercise of jurisdiction)
“The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
(a) “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14.”
From the above, it is clear that Nigeria being a state party to the Rome Statute can refer a matter to you DIRECTLY without going through the UN Security Council as you suggested. (See Article 13(a)).
(b) “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or”
Article 13(b) allows the UN Security Council to refer a matter to you by itself.
(c) “The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”
Article 13(c) empowers YOU to initiate an investigation APART from referrals mentioned in (a) and (b)
“Article 14 (Referral of a situation by a State Party)
1. “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.
2. “As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.”
Article 14 details further how a member state referral should be done DIRECTLY to the ICC and NOT the UN
Rome Statute of the International Criminal Court specifies further:
“Article 15 Prosecutor
1. “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”
Article 15(1) expressly CONFERS you with authority to initiate investigations based on other information as OPPOSED to referral, many of such information which we have provided over time.
2. “The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.”
Article 15(2) says you may seek additional information from other sources including governments and NGOs.
However unlike your predecessor, your statement did not request for information as contemplated by the Statute but rather requested a state party to do an act not provided for in the law.
In fact, not only was it ultra vires to ask Nigeria to request a UN referral when the statute says they should approach you directly, it is also outside your clearly defined roles and responsibilities which the drafters of the statute obviously wanted to avoid.
3. “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”
Article 15(3) has been fulfilled in part by your predecessor who in December 2020 determined that there was a reasonable basis to proceed on Nigeria which determination you reaffirmed in December 2021.
However neither you nor your predecessor fulfilled the second part and logical act of filing with the pretrial chamber.
6. “If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information.
“This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence.”
We wish to point out that your office has not to our knowledge communicated that Article 15 petitions against … Buhari, both in his pre-presidency and presidency capacities, have been found lacking in merit. In particular #OTP-CR-41/15.
Lastly on this point, we note that it is quite ironic that … Buhari’s candidate for your position of ICC prosecutor, crashed out dismally in the election process on the grounds that he lacked a basic understanding of the Court’s procedures, paving the way ultimately for your emergence.
Lack of political will
3. Your statement indicates lack of political will to perform
In your first annual report to the Assembly of State Parties as Prosecutor, you stated as follows in December 2021:
“In relation to Nigeria, on 11 December 2020, the OTP announced the completion of its preliminary examination, having concluded that there was a reasonable basis to believe that war crimes and crimes against humanity were committed (emphasis added) and that the statutory criteria for opening an investigation were met.
“Given the limitations of the Office’s operational capacity, prior to adopting a decision on seeking judicial authorisation to proceed, the Prosecutor continued to conduct a prioritisation review across all situations and cases in order to manage the Office’s workload within existing resources and to explore all avenues for complementary action at the national and/or regional level.” https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/ICC-ASP-20-9-ENG.pdf
From the above the UN Security Council was never mentioned as an issue. Rather you expressly admitted that the ball was in your court with your “capacity” being the “limitation”.
You said further that prior to “adopting a decision on seeking judicial authorization to proceed”, you would “prioritize” situations to manage your workload.
Firstly, the Rome Statute provisions cited above do not give you the latitude or discretion to “adopt a decision on seeking judicial authorization to proceed.”
Article 15(3) expressly states, “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation.”
From the above, the Prosecutor does not have the discretion not to submit a request to the pretrial chamber as the duty is mandatory (“shall”) and not optional (“may”) from the language of the statute.
In other words, there is no basis in law for the untoward delay in proceeding to the pretrial chamber for 16 months and the so-called wait for “adoption of a decision on seeking judicial authorization” is a fictional creation unknown to the law.
Boko Haram’s crimes against humanity
Finally we will look at … Buhari’s own remarks”
“President Muhammadu Buhari says Boko Haram insurgency has neither religious nor ethnic underpinning, and that with adequate education, majority of Nigerians now know the truth.
“The president stated this when he received the Chief Prosecutor of International Criminal Court (ICC), Karin Khan, at the State House, Abuja, on Wednesday.
“He said that with concerted public enlightenment, it had become clear to Nigerians that Boko Haram was a perversion of religion rather than an Islamic ideology.
“He said: ‘God is justice. You can’t kill innocent people and shout ‘Allah Akbar’ (God is great). It’s either you don’t know that God at all or you are simply being stupid.
‘“To say that Western education is unacceptable (Haram) is very fraudulent. That is why we are fighting them and educating the people, and we are succeeding a lot.
‘“We came to office when things were very bad but we are educating the people. Education is fundamental. Religion and ethnicity are out of it.
‘“Some people have just made it a lifestyle to cause confusion, destruction and death.”’
Firstly, it should be noted that the previous IC Prosecutor in her Article 5 Situation Report of August 5, 2013, stated thus:
“The Office considers that there is a reasonable basis to believe that, since July 2009, Boko Haram has committed the following acts constituting crimes against humanity:
“(i) murder under article 7(1)(a); and (ii) persecution under article 7(1)(h) of the Statute. In particular, 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 Muslims civilians in different locations throughout Nigeria ….
“The attacks have been committed pursuant to the policy defined at the leadership level of Boko Haram, which aims at imposing an exclusively Islamic system of government in northern Nigeria at the expense of Christians specifically. Opponents of this goal have been targeted as well.”
Buhari’s remarks do not address any of the findings of the ICC and seemed only to speak to “educating” people that the terrorism is not religious. It is unclear if he meant the education of the terrorists or the citizenry.
Whatever the case, while Chad, which is a residual impact nation of Boko Haram terrorism, has executed dozens of terrorists, Nigeria has not executed a single one.
In fact hundreds of terrorists have been freed, thousands of victims left languishing in IDP and refugee camps and a young man sentenced to death for an allegedly blasphemous Facebook song.
Similarly it must be noted that … Buhari’s claim that this is not ethnic is as bogus as his claim that it is not religious.
Buhari is person of interest for crimes against humanity
Boko Haram and the Fulani militia, both of whom were once simultaneously listed as the 2nd and 4th deadliest terror groups in the world by the Global Terrorism Index, are jihadists from the Kanuri and Fulani ethnic group.
Buhari’s parents are from both tribes contributing to his perceived complacency in handling terrorists he referred to as his “brothers.”
However the more worrying concern is the following:
1. CURRENT STATUS OF OTP DETERMINATIONS ON NIGERIA
The Office of the Prosecutor’s report to the Assembly of State Parties for 2017 states that your “Office carefully examined the events of December 2015 in Zaria, Kaduna State, involving clashes between members of the Islamic Movement of Nigeria (“IMN”) and Nigerian security forces.
“It is alleged that … the Nigerian military killed at least 349 persons (men, women, and children) while at least 66 others were injured … the Office has reached preliminary findings and will seek further clarifications from the Nigerian authorities.”
Likewise, “The Office has furthermore received information alleging crimes committed by the Nigerian Security Forces against pro-Biafra protesters in the course of 2017. The examination of this information is ongoing.”
From the foregoing, the current administration of … Buhari is an entity/person of interest for at least two serious crimes against humanity on hundreds of its citizens as at 2017 for which it has a lot of explaining to do.
2. PRIOR COMPLAINTS ON … BUHARI
Media reports indicate that prior to coming to power, … Buhari was also a subject of several complaints submitted to the ICC alleging crimes against humanity, to wit:
“Professor Goran Sluiter filed supplementary evidence against the presidential candidate over his alleged role in 2011 post-election violence ….
“Sluiter disclosed that the full version of the case of over 66 pages with supplementary evidence, including video clips, were submitted to the prosecutor at about 3:00 pm on Thursday ….
“Secretary-General, Documentation and Research of NCDJ, Dr Ibrahim Baba … noted that the supplementary evidence, which had been submitted for forensic investigation, would complement a previous ICC filing submitted by the NCDJ in May 2011.
“Baba averred that the group had enough evidence with which to prosecute Buhari at the ICC for allegedly instigating the 2011 post-election violence which claimed the lives of about 800 people.”
Given the foregoing complaints against … Buhari in his personal capacity, it is particularly inopportune, inordinate and ill-advised that he should be asked in his official capacity to initiate a referral process which could potentially implicate him.
Your promise of greater efficiency and greater impact
Prosecutor Khan, you promised to “repair what is broken, to rejuvenate, to revive in the quest for greater efficiency and greater impact ….
“We have to perform in trial. We cannot invest so much, we cannot raise expectations so high, and achieve so little so often in the courtroom,” in a speech after being sworn in.
“It is an awful testament to the horrors of mankind that in this 21st century, as we send rovers to Mars … medieval crimes are being committed by modern people.”
We urge you to live up to the raised expectations for justice and efficiency promised and ask that you file the necessary papers with the pretrial chambers before the 1st anniversary of your swearing in as Prosecutor.
You said in February, “I wish to announce that I have decided to proceed with opening an investigation into the Situation in Ukraine, as rapidly as possible.
“Ukraine is not a State Party to the Rome Statute of the International Criminal Court (“ICC” or the “Court”), so cannot itself refer the situation to my Office .…
“I have reviewed the Office’s conclusions arising from the preliminary examination of the Situation in Ukraine, and have confirmed that there is a reasonable basis to proceed with opening an investigation.
“In particular, I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office ….
“The next step is to proceed with the process of seeking and obtaining authorisation from the Pre-Trial Chamber of the Court to open an investigation.
“An alternative route set out in the Statute that could further expedite matters would be for an ICC State Party to refer the situation to my Office, which would allow us to actively and immediately proceed with the Office’s independent and objective investigations.
“The importance and urgency of our mission is too serious to be held hostage to lack of means.”
Your dictum above shows that:
1. You acted on Ukraine which is not an ICC member state while Nigeria is
2. You acted on your own without a referral from any state party while countless Article 15 submissions on Nigeria have been made to your office over the last dozen years at minimum
3. Even though you mentioned the member state referral to your office option, you did not suggest the UN referral like you did in Nigeria
4. Like Ukraine, you reaffirmed the previous conclusions that there was a reasonable basis to proceed with Nigeria
5. You admitted that the next step with Ukraine was you filing at the pretrial chamber unlike Nigeria
6. You declared the urgency of mission should not be “hostage” to lack.
We believe your statement on Ukraine provides a perfect blueprint for action on Nigeria.
We urge that you expedite action on Nigeria as well.
Daily massacres in Nigeria
In the past four weeks of sustained attacks across multiple states, daily atrocities occurred against civilian targets except the Zuma Barracks meaning most potentially qualify as war crimes and crimes against humanity.
Atrocities by Boko Haram ISWA are not even listed in this month-long genocidal mayhem.
Over 120 people were slaughtered in Plateau state and 24 in Benue state in the Holy Week.
Meanwhile for the first time in Nigerian history – and possibly contemporary world history – a train was bombed and over 100 passengers abducted barely two weeks before Easter.
The week you were in Nigeria a local NGO that has also visited The Hague and provided Article 15 submissions a decade ago, reported:
“A WEEK OF SPORADIC TERROR ATTACK
“Last night, 22nd April, 2022, Stefanos Foundation received report of an attack ongoing in Bauchi.
“According to reports, at about 11pm, Militant Fulani youths from Gudun Fulani area of Bauchi town attacked Gudun Hausawa Community. Armed with guns and machetes, the militant Fulani youths hack down people and set houses ablaze. After their rampage, 3 people were killed, others injured and houses set on fire.
“Meanwhile, on the same day, reports from Taraba reached Stefanos Foundation that a bomb exploded at Nukkai market, along the Jalingo Wukari expressway in Taraba State.
“Thankfully, no life was lost although a few people sustained injuries. The Information available to Stefanos suggested that the blast came from luggages on a motorcycle parked opposite Nukkai Primary School.
“It will be recalled that a few days prior to this, there had been a major bomb blast at Ardo Cola, in Jalingo, Taraba state. However, the victims of this attack were not as fortunate; over 20 people died and more than 30 others injured. ISWAP claimed responsibility for the attack.
“While there are other attacks that are not recorded here, it has become quite evident that with every successfully executed attack, the impunity of the perpetrators grows and these attacks continue to spread.
“Stefanos Foundation once more calls on the Government to give heed to the plight of the people and ensure their safety.”
Finally, victims of terror reported an attack while you were in the country with graphic photos below:
“Christian teachers killed at gaidam on Wednesday at yobe State
“This is the details of what happened to them, the bh come with motorcycle and the kept it far away from the school about two km from the school and the trek to the school and the found them sleeping and the got some of them are majority were Christian almost Christian and from there the caught them and slaughter some and shot some with gun and burned all their house and iterm and it took place around 7=45pm and the school is far from the military base and the police station so they do their operation without intervention from the military and the police and the movie to one of the joint and also kill some people there too and when away and off now no report from the government of yobe State and Nigeria as nation this how Christian are going through in Nigeria God will comfort the family and church at large.
“The date was 20/4/2022 and Time of the incident was 7:48pm of that date and the number of the person killed were Eleven people , gender, two girls and nine male I’m yet to get their names now and the name of the school is government technical college school gaidam, under gaidam local government yobe State Nigeria”.
Below are the photos from this attack, northeast of your location in the nation’s capital:
Before this massacre of the school a few days ago, UNICEF had documented 1,436 Nigerian School Kids, 17 Teachers Kidnapped, 11,536 Schools Closed In a 16-Month period Under the Buhari Government.
There may be no flash of missiles and crush of armored tanks but the machetes, small arms and bombs are unleashing a comparable not-so-silent slaughter as well and humanity beseeches your urgent intentional intervention to end the Boko Haram violence which will be 20 years this year.