Q&A;: Terrorist acts – war crimes, crimes against humanity, or genocide? The case of Nigeria

I will provide an answer on two levels:

1. First as to whether terrorist acts, in general, can be considered war crimes, crimes against humanity or genocide;
2. then I will provide an answer specifically for Nigeria and in particular with respect to the acts of the Boko Haram.

I. Terrorist Acts as War Crimes, Crimes against Humanity, or Genocide

The fact that certain acts are committed by members of a terrorist organization, does not mean that by that fact alone they cannot be classified as war crimes, crimes against humanity, or genocide. What is important is whether these acts meet the criteria of those crimes.

For reasons of brevity, and also because I assume based on the nature of the question that the underlying thought is whether these individuals can be prosecuted for those crimes in an international court, I will provide an answer based on the Statute of the International Criminal Court (ICC Statute), to which Nigeria is a party and which entered into force on 1 July 2002.

First of all, the ICC does not have jurisdiction over terrorist acts, or terrorism in general, as such. It may only deal with cases, where the terrorist acts in question can be categorized as war crimes, crimes against humanity, or genocide. In order to do so, one needs to see whether the acts in question meet the requirements of the definitions of those crimes as provided in the ICC Statute. Specifically:

Genocide – Article 6

“Genocide” means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group:

• killing members of the group;
• causing serious bodily or mental harm to members of the group;
• deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
• imposing measures intended to prevent births within the group;
• forcibly transferring children of the group to another group.

In order to prove that genocide has been committed, two elements have to be proven: a) the actus reus, i.e. that these acts occurred and b) the mens rea, i.e that the acts were committed with the specific intention of destroying, in whole or in part a particular group (for the purposes of genocide this is also called dolus specialis). These elements are cumulative, therefore you need to prove both, otherwise the claim that genocide has been committed will fail.

In the same way, one approaches the other two crimes.

Crimes against humanity – Article 7

Requires acts such as:

• murder;
• extermination;
• enslavement;
• deportation or forcible transfer of population;
• imprisonment;
• torture;
• rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;
• enforced disappearance of persons;
• the crime of apartheid;
• other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.

These acts must be part of a widespread or systematic attack directed against any civilian population (actus reus) and with knowledge of the attack (mens rea).

War Crimes – Article 8

“War crimes” include grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international armed conflict and in conflicts "not of an international character" listed in the Rome Statute, when they are committed as part of a plan or policy or on a large scale. These prohibited acts include:

• murder;
• mutilation, cruel treatment and torture;
• taking of hostages;
• intentionally directing attacks against the civilian population;
• intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals;
• pillaging;
• rape, sexual slavery, forced pregnancy or any other form of sexual violence;
• conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

Note that war crimes can be committed both during an international armed conflict and a non-international one (but not in cases of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence, or other acts of a similar nature – Article 8(2)(d)).

So in summary, as long as terrorist acts meet the elements of the above crimes, they will fall under the jurisdiction (ratione materiae) of the ICC.

II. Nigeria and Boko Haram

With respect to Nigeria, some additional comments need to be made. As I already mentioned, Nigeria is party to the ICC Statue, which has jurisdiction for the aforementioned crimes committed after 1 July 2002.

The question is whether the acts of the Boko Haram can satisfy the elements of the crimes of the ICC Statute. In fact, the Office of the Prosecutor of the ICC has been conducting preliminary examination of the situation in Nigeria since 2010. In August 2013, the Office concluded that "there is a reasonable basis to believe that, since July 2009, Boko Haram has committed the following acts constituting crimes against humanity: (i) murder under article 7(1)(a); and (ii) persecution under article 7(1)(h)" (see here, para. 15). However, with respect to war crimes, they concluded that there was not sufficient basis to believe that war crimes had been committed.

Nonetheless, very shortly after that, the Office of the Prosecutor changed its position on that point. This was partly due to the fact that the data on which they relied in their August report was only up to 2012, and partly due to new facts coming to light. In both the 2013 Report (November 2013) and the 2014 Report (December 2014) on Preliminary Examination Activities, the Prosecutor concluded that apart from the acts that could be reasonably be believed to be crimes against humanity, the situation with the Boko Haram amounts to a non-international armed conflict (2013 Report, para. 218; 2014 Report, para. 178) and that therefore the acts committed could also amount to war crimes (2013 Report, paras. 209-229;  2014 Report, paras. 179-181).

At the moment the Office of the Prosecutor is in contact with the authorities in Nigeria, to establish whether the national authorities are indeed investigating and prosecuting properly the persons responsible or whether the situation should be referred to the ICC.

In summation, the Office of the Prosecutor of the ICC is of the opinion that the terrorist actions in Nigeria, are not genocide, but there is reasonable basis to believe that they amount to crimes against humanity and war crimes.

About the author
Panos Merkouris is Lecturer on Public International Law at the University of Groningen and a qualified lawyer (Athens Bar Association). He specializes in law of treaties, humanitarian law, and international environmental law.