SHAFAQNA EXCLUSIVE – This December, Mohammad H. Zakerhossein, the Director of Iranian Center for International Criminal Law postulated that recent events in Nigeria – the killing en masse of Shiite Muslims in Zaria on December 12, 2015 constitute in fact crimes against humanity.
By Mohammad H. Zakerhossein
On December 12, 2015, the Nigerian Army raided the Shia-majority city of Zaria in the Kaduna State – Northern Nigeria. The final death toll of this atrocious attack remains unclear, due to limited access to the affected areas. However according to the director of International Amnesty in Nigeria “there is no doubt that there has been a substantial loss of life”. Human rights activists assert that hundreds upon hundreds, perhaps as many as 1,000, have been killed.
Such a violent, and it has been argued, systematic targeting of civilians on account of their faith falls within the parameters of what constitute crimes against humanity as per expressed by international law.
As prescribed by the commission of international crimes, it is ‘the duty of every State to exercise its criminal jurisdiction over those responsible for core crimes’. If a state is not able or is not willing to genuinely carry out prosecutions or investigation at the domestic level, it is the responsibility of the International Criminal Court (the Court/ the ICC) to step in and to exercise its complementary jurisdiction.
The arguments below will look to establish that December 12 attack constitute not only a grave violation of international law, but meets those requirements that are necessary, under the Rome Statute, to activate the dormant jurisdiction of the Court by opening a preliminary examination into the situation at hand.
- The procedural architecture of the Court is sui generis. The pre-trial phase of the International Criminal Court begins with the preliminary examination. The Preliminary examination is a process within which the Prosecutor determines if there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been or are being committed. In addition, there should be a belief that the potential cases arising from the situation at hand are admissible. The admissibility requires that the cases are sufficiently grave and they are not being prosecuted or investigated by the states in a genuine manner. If these statutory requirements are met, the Prosecutor initiates an investigation into the situation in question. The object of the preliminary examination is a situation instead of a case. The former has more generality than the latter. A situation is a crisis that occurs in a specific place and time and embraces one or more crimes falling within the jurisdiction of the Court.
- A situation is brought to the Prosecutor through the trigger mechanism. This mechanism draws the attention of the Prosecutor to the existence of a situation and demands the Prosecutor to take the initiative. The trigger mechanism consists of three actors. The United Nations Security Council that refers a situation to the Prosecutor of the Court, The States Parties of the Court that are eligible to refer a situation, and other legal persons or individuals who can provide the Prosecutor with information by sending a communication.
- Upon receipt of a referral or a communication, the Prosecutor opens the preliminary examination. To open the preliminary examination, there is not a high threshold. The Prosecutor just removes those situations that are manifestly outside of the Court’s jurisdiction. Before the preliminary examination, the Prosecutor does not assess the jurisdictional parameters or the admissibility requirement in detail. When a situation prima facie falls within the jurisdiction of the Court, the Prosecutor shall to proceed with the situation by opening the preliminary examination.
- 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 1 July 2002 onwards. Therefore, as to the situation of December 12 massacre, the ICC has both temporal and territorial jurisdiction. It must be recalled that in November 2010, the Prosecutor of the Court opened a preliminary examination about the situation in Nigeria; the examination still continues. This examination focuses on the situation of Boko Haram in North Nigeria.
- Here, the most important jurisdictional parameter is subject matter jurisdiction. The Court has jurisdiction over crimes against humanity, war crimes and genocide. To activate the Court’s jurisdiction, it is not necessary for all ICC crimes to have been committed. It suffices if only one crime has been committed. The Prosecutor can open the preliminary examination based on one alleged crimes and later by conducting more investigation add more crimes.
- As to the situation of December 12 massacre, the most suitable crime that fit this event is crime against humanity. It should be noted that, contrary to war crimes, crimes against humanity do not need to occur in the context of an armed conflict. In other words, these crimes may be committed in time of peace. Crimes against humanity consist of two elements, namely the underlying acts and the contextual element. The underlying acts are exclusively enounced in Article 7 of the Rome Statute: murder, rape, and slavery. It is evident that December 12 massacre saw the killing of civilian populations. Such killing can be considered an act of extermination or persecution. It is evident that in the situation at hand, such murder was committed. While no exact tally has been established it appears evident that civilians were targeted en masse – thus pointing towards extermination. Persecution is to deprive one or more persons of their fundamental rights. This crime has two elements; firstly, the perpetrator should target such person or persons by reason of the identity of a religious, ethnic, cultural group or collectivity, and secondly, the conduct was committed in connection with other acts referred to in Article 7. Therefore, murder or extermination fall within the definition of persecution as well. If it were proved that the military targeted Shiites on account of their faith or political affiliation, such a massacre would qualify as an act of persecution. However, if proof could be established of the contrary, then it would be extermination or murder, not persecution.
- It should be recalled that at this stage, it is not important to precisely determine the characterization of the crimes committed. It suffices that there is a reasonable probability of commission of the alleged crimes.
- Based on the available information provided by the open sources, besides, murder, extermination or persecution others criminal conducts enounced in Article 7 of the Rome Statute were committed in on December 12, such as “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” and “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”.
- The difficult part of proving crimes against humanity lies their ‘contextual elements’. The contextual element is a threshold that transforms an ordinary crime to an international crime. The contextual element of the crimes against humanity is ‘a widespread or systematic attack against a civilian population if the attack is part of a state or organizational policy’. The ‘attack’ does not necessarily mean a military attack. Attack refers to a course of conduct involving the multiple commissions of acts referred to in article 7. “The attack is the event in which the enumerated crimes must form part. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape and deportation”. Such requirement as to the situation in question is met. It was mentioned that the 12 December Massacre includes a course of acts referred to in Article 7.
- The Attack should be widespread of systematic. The widespread or systematic test is disjunctive. It means that the satisfaction of only one of other threshold is sufficient. The term ‘widespread’ has been defined in various ways, and generally connotes the ‘large-scale nature of the attack and the number of victims. Indeed, “The assessment if not exclusively quantitative or geographical, but must be carried out on the basis of the individual facts. Accordingly, a widespread attack may be the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude”. The massiveness of victims of December 12 massacre satisfies the widespread test, though this event happened in a narrow geographical area. It should be noted that the case law of the Court has dealt with a similar situation to the 12 December Massacre, namely the situation in Guinea. The Prosecutor has opened the preliminary examination into the situation of Guinee. The underlying event of this situation is a singular attack against civilian population in a stadium. An event that is well known as September 18 massacre. The event happened in one place and time, however, due to the number of killed people, i.e. 156 persons, the Prosecutor occluded that the situation falls within the jurisdiction of the Court. The necessity of keep consistency between the practice warrant the same conclusion with respect to the situation of 12 December Massacre in Nigeria.
- The attack underlying the crimes against humanity should be done against a civilian population. “The term “civilian population” refers to those who are civilians, as opposed to members of armed forces and other legitimate combatants”. The supporters of Sheikh Zakzaky who were targeted on 12 December definitely fall within the scope of civilian population. The last parameter of the contextual element of the crimes against humanity is the ‘policy requirement’. To prove a state policy of commission of crimes against humanity is not straightforward, because the states do not uncover their criminal plans and intentions. However, the jurisprudence of the international criminal justice system has provided some guidelines. Firstly, the policy should be seen as a modest threshold that excludes random action. Secondly, a policy is often hidden; indeed a ‘policy’ need not be formally adopted, nor expressly declared, nor even stated clearly and precisely. It has been stated that a policy must be given an ordinary meaning such as ‘a course of action adopted as advantageous or expedient’, rather than any connotation of a formal and official strategy. Thirdly, the policy may be satisfied by inference from the manner in which the acts occur. Indeed, the concrete actions may mirror the policy. Therefore, the case law indicates that the requirement is satisfied, for instance, by ‘explicit or implicit approval or endorsement’ or that the conduct is ‘clearly encouraged’ or ‘clearly fits within’ a general policy. Thus, inaction designed to encourage the crimes would also suffice. Regarding December 28 massacre, it sounds that the existence of such a policy is a reasonable probability. The circumstances surrounding the attack in itself, the record of tensions between the Shias and the central government in the past and the reaction of the authorities of the Army following the attack are indicators showing that the attack was expedient for the Army and was defended by the authorities involved in the attack. In particular, the evidence of creation of mass graves in order to cover the atrocity can be an important evidence to prove the existence of a policy for commission of crimes.
- It must be noted that the Army has claimed that the attack was a response to an attack from the targeted population. Irrespective of the credibility of this claim, it should be borne in mind that international criminal law makes a distinction between jus ad bellum and jus in bello. The former deals with the legitimacy of a war and attack and the latter deals with the prohibited acts in that war or attack. Even if the assentation of the army were true, it would not justify the commission of crimes.
- Given the above-mentioned arguments, it sounds that the situation of 12 December Massacre falls within the jurisdiction of the Court. However, to bring those responsible for the committed crimes to justice needs more investigation. Because the Nigeria authorities are involved in the alleged crimes, the prospect of the domestic proceedings is not bright. These circumstances warrant the intervention of the Court. Now, it’s the responsibility of the NGOs and Humanitarian and lawfare activities, in particular those have access to the relevant information and evidence, to take the initiative by sending communication and reports of crimes to the Prosecutor of the Court and thereby demands her to open the preliminary examination of the Court. The Court’s intervention can break the silence and indifference of the international communality about this massacre.