None of Bensouda's business?
By K M
Is the ICC prosecutor acting ultra vires - beyond her legal authority - when she warns individuals and groups in Nigeria who might disrupt the elections?
The ICC prosecutor recently issued a stern warning to individuals or groups who might engage in violence around the upcoming election in Nigeria.
She reminded Nigerians that her office is still conducting a preliminary examination which has already concluded that, since July 2002, crimes have taken place in the country which could be tried at the ICC. She then states clearly that the ICC may also look into any crimes which may be committed around the elections.
“Any person who incites or engages in acts of violence including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC's jurisdiction is liable to prosecution either by Nigerian Courts or by ICC.”
The ICC is based on the principle of ‘complementarity’ as stated in the first article of the Rome Statute. This means the ICC only steps in when national courts are unable or unwilling to try individuals who allegedly commit genocide, war crimes or crimes against humanity.
Nigeria ratified the Rome Statute on the 27th of September 2001. Bensouda’s Preliminary Examination report from last year, with a section on Nigeria, focuses on criminal acts attributed to Boko Haram.
States are still and shall remain the main players on the international plane
So, from the ICC prosecutor’s point of view, it is clear not only that crimes have been committed, but that she and the ICC may also have jurisdiction.
But, in my opinion, states are still and shall remain the main players on the international plane. They are powerful sovereign players. Of course by ratifying the Rome Statute, Nigeria accepted that the ICC may exercise its own powers: the ICC would not have got this ‘power’ if Nigeria itself had not granted it to the ICC.
Nevertheless, the responsibility of maintaining peace and order within the Nigerian territorial jurisdiction is an exclusive matter of the Nigerian government and its sovereign institutions. The pact which has been signed by the Nigerian leaders promising to refrain from violence before, during and after the general election is an internal issue and binds the parties who signed it.
It is only if the Nigerian competent national courts fail to either investigate or try allegations concerning grave crimes such as crimes against humanity or genocide, that the ICC could step in and take the lead. The central function of the ICC prosecutor is to investigate crimes under the Rome Statute.
Deterrence can never be achieved through politicized statements
In my view, the deterrence and the preventive measures of the ICC can never be achieved through politicized statements issued by its prosecutor. The deterrent impact of the ICC is a long substantial and procedural process which can only be achieved through the rational jurisprudence of the ICC throughout the years. The ICC is still a young institution and has huge expectations riding on its shoulders: to support the rule of law, restore national and international justice and put an end to the legacy of the atrocities of the core crimes.
Therefore the ICC should remain independent and avoid political statements in order to be able to underpin one of its main principles of complementarity: allowing ‘national courts’ to bring perpetrators to justice and only stepping in when they fail to do so.
The opinions in this piece are those of the author and do not reflect the opinons of Justice Hub.
K M is an international law student.