International Justice

CJ354 Endicott College

Can the ICC Prosecute Boko Haram?

August of last year Boko Haram, a terrorist organization based in northeastern Nigeria, made headlines when the International Criminal Court (ICC) reported that there was reason to believe that the group had committed crimes against humanity. According to a UN News Centre article at the time, the report detailed that the group had launched systematic attacks that resulted in the death of over 1,200 Christian and Muslim civilians since July 2009. More recently, on March 2nd, Boko Haram killed at least 90 people in two separate bomb attacks in northern Nigeria. Last month, according International Christian Concern and Associated Press, Boko Haram attacked a secondary school that left approximately 100 people dead.

Boko Haram’s indiscriminate attacks towards civilians leave little room for debate; the group should be tried for crimes against humanity. As a part to the Rome Statue, the ICC has the right to investigate the group, as well as the allegations that the government has not done enough to prevent the attacks.

AP Photo/Jossy Ola

AP Photo/Jossy Ola

The challenge lies, however, in Boko Haram’s decentralized command structure which makes identifying perpetrators extremely challenging. The leadership of group lies with a 30-person Shura council, with each member overseeing the activity of a cell of militants focused on a particular geographic areas. Members outside of the Shura council are generally unaware of the operations of other cells. As such, cells can operate independently from the concerns and vulnerabilities of other cells. Details on its leadership structure are scarce and a continued source of frustration for investigators.

The secretive and cell-like structure of the organization are clearly designed to avoid compromising the organization if a member or cell is captured. The group’s focus on local grievances, its decentralized structure, and secretive nature make the possibility of prosecution, let alone peace negotiations, seem unlikely. In such a situation, the ICC will need to create new and innovative ways to gather evidence in order to indicted Boko Haram’s worst perpetrators. What may be even more concerning, however, is how dependent the ICC’s success at indicting such perpetrators may be linked to the government’s ability to end the group’s activity.

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2 responses to “Can the ICC Prosecute Boko Haram?

  1. aoforiappiah March 9, 2014 at 11:59 pm

    During a security seminar in Abuja on February 24th, Fatou Bensouda emphasized the role of the complementarity principle as a key determinant of whether the ICC would ultimately step in. She noted that the ICC is currently investigating not only whether the crimes fall under the ICC’s jurisdiction, but also whether the Nigerian government is genuinely conducting investigations.
    Ultimately, the ICC’s involvement is contingent on the Nigerian government’s effectiveness in investigating Boko Haram and prosecuting them. As you point out, the command structure makes this extremely difficult. It does seem that confidence in President Jonathan’s ability to fight Boko Haram is waning. The violence has surged since Jonathan assumed office. One prominent Nigerian politician has called on the president to resign. That being said, considering the less than optimal command structure for investigation, perhaps the Nigerian government might actually be able to do a better job conducting investigations than the ICC. Looking at it from mainly a logistical standpoint, the Nigerian government has been dealing with Boko Haram for far longer- the government may have a higher likelihood of penetrating the decentralized command structure.
    Moreover, I question whether the Nigerian government would be willing to outsource the case of Boko Haram to the ICC. The continual killings are quite embarrassing to the Nigerian government. For example, headlines in the Nigerian press suggest that the outgunned soldiers had to flee the attackers during the recent massacre at the boarding school in which 45 children died. The government’s credibility is continually diminished after each attack, mainly because such recurrences negate the government’s vows to further its efforts, and prevent attacks from happening again. Would the government want to risk further embarrassment by effectively becoming censured by the ICC for failing to conduct investigations? Of course, the ICC’s involvement could also be a matter of the government’s inability to conduct investigations. However, I am quite unsure it will come to this, mainly because of what such incapability would signal. Also, France has offered its support. Hollande’s words could ultimately be empty, but it does appear that France is pursuing a rather proactive foreign policy not only in its former colonies, but also in some of the former British colonies such as Nigeria.
    But then the extent to which the Nigerian government is dedicated toward pursuing Boko Haram is suspect. It seems that the government has empty words, and pays lip service to the victims in a sense. For example, during its centennial celebration the government called for a minute of silence for the boarding school boys, but it lasted for considerably less.

  2. gracen0te5 March 10, 2014 at 3:47 pm

    In villages and parts of the world where religion almost serves as an alternative to legalism, the meaning of justice is debatable and often compromised.

    When the nature of justice is different in the views of religious sects then from what the court offers, can that be fully accepted as violation of law? When there are particular penalties that accompany the violation of law, does it counteract the adherence of certain religious practices? How can the ICC justify the standard laws set amongst the courts to religious leaders?

    In the case of Boko Haram there are typically existing ethno-religious animosities and vendettas against security forces. The Shura council provides a degree of central direction to Boko Haram operations, but decentralized religious structures make it hard to prosecute specific members that may be leading the secretive structure of the Boko Haram terrorist group. It is difficult to prove that an individual or the worst perpetrators are making decisions that are binding everyone else in the group towards crimes against humanity.

    Religions and the concept of justice are so intertwined that they cannot be easily distinguished in certain cases. There are more than 370 religions in Africa (majority Muslim or Christian) and over 2,000 languages spoken in Africa. This gives some perspective to the number of diverse communities and interpretations that could go into law. This also sheds light to the reason why Africa may be given “disproportionate” attention by the ICC when there are more possibilities of cases with varying religious contexts to lack of intolerance.

    Boko Haram’s origins lie in a group of radical Islamist youth who worshipped at the Alhaji Muhammadu Ndimi Mosque. To get a whole picture of the justice system, it is important to consider what kinds of religion may be reflected in people’s acts. Religious systems could be subjective and inconsistent with established criminal justice standards and human rights norms. Perhaps there are informal dispute resolution mechanisms by local elites and religious leaders that would give the same “equal access” or “fair treatment” as would the ICC.

    This debate involves not enough guidance on religious practices. If ICC were to prosecute certain religion-influenced crimes, there needs to be more intention in managing how to strengthen customary practices within the legal systems while consolidating religious respect.

    In human rights violations involving dangerous religion-related actions, I think that there should be greater emphasis placed on local ownership as an effective means of development rather than depending on ICC for resolution mechanisms. This reminds me of the Gacaca court system, which has evolved from traditional cultural communal law enforcement procedures. The Gacaca Courts specifically categorized genocide defendants, one of them the “1st category” including “leaders at the national, provincial, or district level, within political parties, army, religious denominations or militia. In traditional and local judicial structures, religious leaders possess social and cultural legitimacy in the village milieu. By considering religious mechanisms that play in the role of peacemaking and peace building,

    Customary norms and justice processes with the ICC can often lead to discriminatory outcomes and reinforce the power structure that controls and administers them. The ICC has already been widely accused of unfairly targeting Africans. So when a case is not self=referred, this gives more holistic approach to what may not be considered in formal ICC accountability.

    Often coup leaders insulate themselves with decrees, which make it illegal to prosecute them for their atrocities even when they are no more in power. Similarly, religious leaders seem to be in the position of retaining informal exceptions to law within their communities.

    So if the question is whether ICC can prosecute Boko Haram, I think ICC’s considerations should lie in the religions links of the crimes to end the harmful aspects of the group’s activity. Even when the work for justice and peace is the agenda for everyone, there should be more discussion of the role of religion, religious leaders and communities in the context of religious traditions and common efforts toward justice and peace.

    How much of a role can ICC actually play to encourage groups to use their religious values and traditions accountably? Where would the resources come from to tackle more ethnoreligios violence-related cases that have a negative impact in smaller communities facing crimes against humanities?

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