As Nigeria attempts a ceasefire with militant Islamist group Boko Haram (BH), analysts warn against a blanket amnesty and urge that an expanded International Criminal Court (ICC) probe include alleged abuses by the military.
The ceasefire is being negotiated by a government panel set up to develop an amnesty for BH, but details as to when the truce will be signed, whether all the BH factions have agreed to it, or if the amnesty has played a role in the planned ceasefire, remain sketchy.
Human rights groups insist that peace without justice is unsustainable and are urging Nigeria not to implement a blanket amnesty.
“War crimes, crimes against humanity, torture should not be subject to an amnesty. That is part of international law and part of ensuring a durable peace,” Elise Keppler, senior counsel in the international justice programme at Human Rights Watch (HRW), told IRIN. “There could be an amnesty for taking up arms or committing lesser abuses, but the key is that it doesn’t extend to the gravest crimes.”
Nigeria has forgiven rebels in the past - most notably in the Niger Delta where militants who surrendered arms were pardoned.
Last year the ICC, which opened preliminary investigations into the BH unrest in 2010, found that there was a “reasonable basis” to believe that the militia had committed crimes against humanity, citing widespread and systematic attacks that killed more than 1,200 Christian and Muslim civilians in Borno, Yobe, Katsina, Kaduna, Bauchi, Gombe and Kano states in the north as well as Abuja and Plateau states in central Nigeria.
BH is accused of killing thousands across northern Nigeria since 2009. Militants have attacked churches, murdered civilians and carried out suicide bombings against security forces, newspapers, a UN office, markets and schools.
ICC urged to widen its scope
Analysts have urged the ICC to widen its scope to include the Nigerian security forces, which HRW and others accuse of killings, burning homes and ransacking towns including Baga, a remote community in the northeastern state of Borno.
“At the moment the ICC investigation is great for the Nigerian government as it’s just about BH,” said Kevin Jon Heller, associate professor and reader at Melbourne Law School.
“But the court is going to be essentially useless if it becomes the ICC for rebels. The biggest challenge for the court is how to investigate government officials and military officials that are associated with government when that government is still in power. I don’t think they have a very easy solution for that.”
Claus Molitor, a situation analyst with the Office of the Prosecutor, pointed out that the court has previously targeted top government officials including Sudan’s President Omar al Bashir, Kenya’s Uhuru Kenyatta and his deputy William Ruto.
“We follow the facts and we follow the law,” he said. “We base our decision on the legal requirements of the Rome Statute. It has nothing to do with policy. It has nothing to do with preferring rebels over government forces.”
“There is a reasonable basis to believe that BH did launch a systematic and widespread attack on civilians, but we can’t say the same for the state forces,” he added. “We’re not closing the door on anything at this stage. Should there be new information we will assess that.”
Atta Barkindo, an expert on BH and researcher in political Islam, conflict and transitional justice in post-conflict societies at the School of Oriental and African Studies (SOAS) in London, however, believes that an amnesty could end the “continuous bloodletting and killing” and is important for reconciliation.
But he thinks the government of President Goodluck Jonathan has sent the rebels mixed messages. In April it offered an amnesty, then a month later declared emergency rule in the northern states and launched an air and ground campaign against BH.
“It's like a war zone,” said Barkindo, who recently travelled to the region. “Soldiers are all over the place. There are checkpoints every 45 minutes and a curfew.”
Recent violence suggests that the military crackdown may not be working.
An attack in early July on a school in northeastern state of Yobe, one of the three under emergency rule, killed dozens of students. Some were reportedly burned alive and others shot. It is not yet clear who is responsible for the attack, but BH has previously targeted schools in the region.
SOAS researcher in conflict and identity in northern Nigeria Bala Mohammed Liman says determining exactly which crimes BH may have committed is difficult as its members are hard to identify.
“They are a shadowy group and apart from (leader) Abubakar Shekau no one is sure who the other members are,” he said. “Every act of criminality in the north is attached to BH, and the security forces are so inept that they haven’t been able to figure out who committed some of these crimes. So in the end everything that happens is said to be BH.”
ICC assessing judiciary
The ICC is now assessing whether the Nigerian government is investigating and prosecuting those who committed the most serious crimes. Under ICC rules, it can only intervene when the domestic authorities are unable or unwilling to prosecute.
Four members of BH were recently sentenced to life imprisonment for the bombings of an electoral commission office and a church.
ICC’s Molitor said that as part of its preliminary examination the court is monitoring the national proceedings. This includes speaking to people who monitor BH trials to determine fairness and whether the rights of the defendants are being respected.
“We haven’t come to any conclusions as yet,” he said, adding that Nigeria is cooperating with the ICC and that a team from the prosecutor’s office may visit this year to follow up on previous missions to Abuja.
Nigeria capable of prosecuting BH crimes, say some
Melbourne Law School’s Heller, however, said Nigeria was capable of prosecuting alleged BH crimes.
“Nothing is preventing Nigeria from prosecuting members of BH other than their inability to get their hands on them,” he said. “Nigeria has a functioning judicial system and has every interest in capturing and prosecuting high-level members of BH so why should the ICC waste its precious resources on prosecutions that the government is perfectly willing to do?”
SOAS’s Barkindo believes that Nigeria should take the lead on BH prosecutions to end the culture of impunity. “Nigeria needs to prove to its citizens that you cannot do these things and go free,” he said.
He also argued that neither amnesties nor prosecutions will work if the government does not address the fundamental problems in the north that give rise to militancy.
“If you don’t deal with these structural problems you will leave it open to another group coming up,” said Barkindo. “The government must address the issues of poverty, unemployment and particularly the issue of education. A lot of young people remain illiterate in northern Nigeria compared to the south.”