I have received requests from people who want to know how we can engage the ICC on #EndSARS , #LekkiMassacre and other killings.

This is international criminal law and the process is a bit different from national criminal law. If you are interested, permit me to explain it here.

There are two ways the officers and politicians responsible for the deaths of citizens during the #EndSARS protests can be held accountable. The first is domestically, through our criminal laws. The second is internationally, through the International Criminal Court - ICC.

At the domestic level, the chance that the federal govt will initiate impartial, independent, and transparent investigations into the issue exists, but it is a slim chance.

The chance that it will prosecute culpable officers and politicians based on the outcome is even slimmer

At the international level, the ICC can also try officers and politicians that are responsible for four kinds of 'international crimes':

- genocide
- war crimes
- crimes against humanity
- acts of aggression by a country

#EndSARS will fall under crimes against humanity.

There are 3 ways the ICC can initiate a trial:

1 -The Nigerian govt asks it to do so (not going to happen)

2 -The UN security council asks it to do so (with Russia and China, not likely to happen)

3 -The ICC prosecutor independently decides to prosecute (likeliest way)

Note: The ICC Prosecutor is not the ICC. The ICC is a court while the Office or the Prosecutor is an independent organ of the ICC.

The current Prosecutor is Ms Fatou Bensouda.

The Prosecutor can independently decide to prosecute a case where certain conditions have been met.

To ensure that these conditions for an investigation and prosecution have been met, the Prosecutor first conducts what they call a ‘Preliminary Examination’ into the issues.

Well, so what are the conditions?

1. Jurisdiction: over the country, over the subject matter, over the persons, and over the time.

2.Admissibility: that there is reason to believe a crime has been committed; the govt is unwilling to prosecute; and it is in the interest of justice for the ICC to prosecute.

Regarding jurisdiction: Nigeria ratified the ICC Statute in 2001. So the ICC has jurisdiction over Nigeria and Nigerians.

Also, since the killings may fall under crimes against humanity and #EndSARS protest happened after 2001, there is jurisdiction over subject and over time.

Regarding admissibility: crimes have definitely been committed; Nigerian authorities have so far failed to hold soldiers and politicians accountable - and may have even ordered the crimes; it is definitely in the interest of justice for victims for ICC to prosecute the case.

If the Prosecutor agrees with these after a Preliminary Examination, then her office will open an official investigation. They can determine which incidents to focus on and which persons to prosecute, and even which persons to arrest through the national police or the Interpol.

Once this is done, the identified suspects (whether officers or politicians or both) will be brought before the court and a trial will be held. If the persons are found guilty, there will be a chance for an appeal after which sentence will be enforced against the convicted.

Now, that is the international criminal law process. Let us talk about what has been happening between the ICC and Nigeria so far.

This part of the story starts in 2010, in the heat of the Boko Haram war.

In 2010, after receiving 169 petitions, the Prosecutor opened a Preliminary Examination into the conduct of Nigerian security forces in the North-East.

In 2015, she identified two war crimes: (i) mass arrest, torture and extrajudicial killings and (ii) attack against civilians.

In 2016 and 2017, the Prosecutor met with the Nigerian govt to discuss their findings and assess how govt was handling it.

The Nigerian govt denied allegations of wrongdoing by the military but assured the Prosecutor that they had opened investigations to look into the issues.

In 2018, the Prosecutor met Ministry of Justice officials in Abuja and with AGF Malami in The Hague for a report on their progress.

Again, the officials and the AG insisted that they had setup panels to look into the allegations and that they will prosecute those found culpable.

As at today, the Prosecutor has not yet decided on whether or not to open an investigation into Nigeria.

She says she will open an investigation only "if the analysis concludes that there are no on-going genuine Nigerian national investigations of these crimes".

And so, a Preliminary Examination that started in 2010 has yet to result in prosecution in 2020.

This is why govt sets up panels: to prevent real investigation by pretending to investigate.

But as history shows, nothing ever comes out of these panels: https://twitter.com/ayosogunro/status/1320751497290854406?s=20

For now, we can still petition the Prosecutor to add the #EndSARS cases including #LekkiMassacre to the existing crimes so that a Preliminary Examination can start quickly.

If you have any information or data that can help the Prosecutor, send them an email or post.

Remember: the ICC will only prosecute if it is sure that the Nigerian govt is either unwilling to or incapable of ensuring accountability.

And so, we must continue to visibly demand accountability for #EndSARS until it is clear to the world that the govt is refusing to do this.

For those who want to read the details:

Status of Preliminary Examination into Nigeria: https://www.icc-cpi.int/nigeria 

Prosecutor's speech in 2014: https://www.icc-cpi.int/iccdocs/otp/SpeechProsecutor-AbujaNigeriaFra.pdf

How you can help: https://www.icc-cpi.int/get-involved/Pages/ngos.aspx

Some have commented that it is possible for our govt to invite ICC to try culpable people if we can get the current APC/PDP regime out of office and a new govt with new people comes in.

I agree. And that is now up to us and our political choices in the next couple of years.