International Criminal Court And Election Violence In The North

Sulaiman Abdussamad

Elections in Nigeria are formidable and protests and contestations in the aftermath form part of it. More so in sharply polarized elections like the ones we just had. What began as political riots unfortunately turned violent with rioters targeting members of the opposition and some vulnerable Christians. Reprisal attacks were also launched against Muslims in areas dominated by Christians. Scores of homes, churches and mosques were torched, people hacked to death and lots more forced to flee their homes. This is certainly intolerable and condemnable.

The Nigerian Bar Association (NBA), in a press release, rightly condemned the election violence and called upon the federal government to swiftly take action to stop the violence and bring the perpetrators to justice. That was laudable, in view of the fact that accountability for crimes serves as deterrence and facilitates the restoration and maintenance of peace and security. The NBA however emphasized its readiness to resort to the International Criminal Court (ICC) in case Nigerian government fails to prosecute the perpetrators. This is where I disagree with the Bar Association.

In fact numerous suspects have since been arrested with many charged to court. But most importantly, we all know that this unrest is not an isolated incident. It is rooted in historical and political forces far beyond any recent elections. The solution is from within. It only takes sustained and concerted effort from all to break away from long held suspicion and mistrust. More over prosecution of local miscreants is outside the scope international justice. I will explain why.

The ICC prosecution office on its part issued a statement that it is carrying out “preliminary examination of activities” to “establish whether the recent violence may have been planned and organized and whether crimes falling within the Court’s jurisdiction may have been committed … In accordance with the complementarity principle”, the statement concluded.

Although the ICC has jurisdiction to investigate and prosecute war crimes, genocide and crimes against humanity pursuant to the provision of Article 1 of the Rome Statute. This power is not in carte blanche. As a fundamental check on this power, Article 5(1) requires that such jurisdiction “shall be limited” by the “most serious crimes of concern” threshold. This threshold means that the ICC does not have substantive jurisdiction over a minor conduct, even if the activity could possibly meet the criteria of crimes under its jurisdiction. The ICC is actually designed to focus on a smaller number of more severe cases or individuals who use the instruments of state power to commit crimes. Hence, in order to fall within the jurisdiction of the ICC, the offense must be on the high end of a scale of relative severity, and must have some quality that warrants the assessment that the crime is of “concern to the international community as a whole.” Which signifies that there will be criminal offenses that could theoretically meet the complementarity test, yet remain beyond the scope of ICC jurisdiction because of their scale, nature and scope.

If the events that followed the election announcement fulfills the criteria of “most serious crimes of concern”. We shall see where the evidence leads the international prosecutor. But what is clear is. Unlike the Kenyan case, the scale of this violence is not as widespread. There is no evidence that it was organized and certainly there is no government involvement. The prosecutor however should be wary not to be embroiled into murky political waters and most importantly be attentive to some interested parties who would spare no effort to use the pretext of international justice for psychological manipulation.

These criminal activities though equally agonizing and abominable are no way comparable to the recurrent slaughter in Jos. Yet both are rooted in outworn prejudices and loath of one another. A symbol of diversity gone wrong that has led to suspicion and mistrust for too long. Of course nowhere does this tension come up more powerfully than on the relationship between Muslims and Christians. The all-pervading decimal in almost all the unrest recorded. A relationship defined more by our differences and contempt of one another than a shared citizenship and mutual recognition. This tension is frequently fed by lack of opportunities and exploited by radicalized pulpits on both sides. We measure our faith by the rejection of others people’s faith. We exalt our faith and denigrate that of others. Preachers so embroiled in self-righteousness that have often forgotten the golden rule that binds all people of faith - the call to treat one another as we wish to be treated.

These are important facts that we must all confront. But what is debatable is whether in Nigeria government understands its primary responsibility: the protection of lives properties. As one Jurist pointed out “the best security is street lights”. The international prosecutor must be seized of the fact that in Nigeria there is no light.

Good luck to Sheikh Ahmed Lemu’s panel.

Sulaiman Abdussamad, LL.B, LL.M, Barrister, writes from Pablo de Olavide University, Spain.