Side Event – “Creative responses to International Criminal Justice - Complementarity and Capacity Building

(co-hosted by Finland, Germany, the Netherlands, Nigeria, Switzerland, and Wayamo Foundation/Africa Group for Justice and Accountability (AGJA))  

Overview by Emma Bakkum, Senior Research Associate and Jill Bähring, Affiliated Expert PILPG NL


  • Amnesty International (AI), in its report “Willingly Unable” released on the day of the event, concludes that Nigeria is not conducting genuine investigations and prosecutions into crimes committed in Nigeria.

  • Olawale Fapohunda, Attorney General of Ekiti State & chair of the Nigerian Military Human Rights Dialogue, criticized AI’s report and requested AI to stop using “nasty words” and indicated a need for more diplomacy and dialogue.

Moderated by Angela Mudukti (International Criminal Justice Lawyer - Wayamo Foundation), this side event consisted of participants which provided perspectives from civil society, the ICC-OTP, and Nigerian authorities to the topic of complementarity and capacity building. Justice Richard J. Goldstone opened the event by referring to the capacity building efforts by the Africa Group, especially in Nigeria, and mentioning certain challenges the ICC is currently facing.

Dapo Akande, Professor for Public International Law at the University of Oxford and AGJA member, elaborated on the Boko Haram situation in Nigeria. He referred to workshops held in Nigeria to assist domestic and local prosecutors and investigators Nigeria and the Nigerian army with the aim to develop their expertise in international criminal law, including sessions on e.g. superior orders and command responsibility. He concluded that while there was still room for improvement, participants in these workshops acquired an idea of the issues in international criminal law, which he finds encouraging.

Netsanet Belay, Africa program director at Amnesty International, introduced the main conclusion of AI’s report on Nigeria, titled “Willingly Unable. ICC Preliminary Examination and Nigeria’s failure to address impunity for international crimes”. The report critically assesses the ICC’s preliminary examination in Nigeria as well as the ability and willingness of the Nigerian government to investigate and prosecute crimes committed by Boko Haram and Nigerian security forces. The report concludes that there are several grounds indicating that Nigeria is not complying with its obligation to genuinely investigate and prosecute crimes under international law. According to the report, there is a lack of relevant proceedings - and most importantly, a lack of genuine efforts to bring those responsible to justice in Nigeria. 

ICC-OTP representative, Claus Molitor (Situation Analyst), shed light on the ICC’s perspective on the Nigerian case. He stated that the preliminary examination has been ongoing for eight years, while the OTP remained engaged with Nigerian authorities that cooperate with the Court. Additional reports have also been received, and the OTP was looking into a wide array of crimes committed in relation to the armed conflict in several areas in Nigeria, by both Boko Haram and the Nigerian security forces. The OTP was engaged with Nigerian authorities to find out whether proceedings have started. Mr. Molitor pointed out that several proceedings against crimes committed by Boko Haram have indeed already been started and that files have been received by the OTP. However, Mr. Molitor noted that most of these charges did not necessary relate to the cases the OTP has identified.

Following the OTP’s perspective, representatives of Nigerian authorities added their views to the discussion. Muhammad Umar, Director of Public Prosecutions for the Federation at the Federal Ministry of Justice, pointed out the complexity of the cases that result from crimes committed by Boko Haram. He noted several challenges such as the lack of knowledge within the Nigerian police forces and the difficulty of gathering admissible evidence.

Major General Yusuf Shalangwa, Director Legal Services of the Nigerian Army, continued on another note and stated that Nigeria has a professional army, established by law to protect the territorial integrity of the Nigeria and to aid civil authorities. He acknowledged the issues with terrorism in Nigeria, but underlined that the Nigerian armed forces did not engage in unlawful acts, oppression, violence, or acts contrary to international humanitarian law as a matter of policy.

Olawale Fapohunda, Attorney General of Ekiti State & Chair of the Nigerian Military Human Rights Dialogue, harshly criticized AI’s report, referring to reports by NGOs used as evidence in the Lubanga judgement which he found inadmissible. He stressed the need to verify the accuracy of the report and highlighted the need not to use “nasty” words against Nigerian officials, saying that “ranks of Nigerians are protected in its national interest”, and stressing the need for more diplomacy and communication. 

During the questions from the audience, Ms. Marchi-Uhel from the IIIM commented on complementarity and the difficulty for national prosecutions to apprehend atrocity conduct in the context of international criminal law, while there was also the possibility for prosecuting terrorism instead. She asked whether the ICC was considering supporting national prosecutions by sharing evidence in the context of crimes against humanity and war crimes.

Mr. Molitor from the OTP answered that there was no need to “domesticate” the Rome Statute, although national prosecution was made easier by doing so. He mentioned that the OTP also looked at case files from national authorities. However, it was too early to share information with national authorities in the Nigerian case, which might happen after the preliminary examination. Mr. Molitor clarified that there was communication between the ICC and states regarding situations under preliminary examination in these states. He added that the OTP also participated in a limited fashion in capacity building.

An audience member from the Federal Ministry of Justice of Nigeria commented that Nigeria was a sovereign and very responsible state. He continued saying that Nigeria spent millions of dollars in fighting terrorism, closing his remarks by asking: “How can we support terrorism?” Finally, he stated that the AI reports were one sided.

Following this, a Nigerian lawyer in the audience suggested that those representing States Parties could be a little more measured in their statements. He continued by stating that no one could really speak on behalf of the whole of Nigeria.

While Netsanet Belay from AI underlined finally that all information of the report was public and that the report clearly showed a lack of political will from Nigeria, Mr. Molitor from the OTP stressed that the OTP used a variety of sources in its investigations and that it was for the OTP to decide whether cases are admissible.