Revisiting the Odi Massacre: The Position of The International Criminal Court

It was a fair Wednesday morning at the Nigerian Law School, Abuja Campus – the day slated for Criminal Litigation lecture. It was just before noon, and group presentation of pre-class assignment had already begun. Of particular relevance to this discourse is the passionate presentation delivered by an Ijaw youth on the jurisdiction of the International Criminal Court to try crimes. He concluded his presentation with the assertion that “…if the International Criminal Court had been established when the Odi Massacre happened, the likes of President Olusegun Obasanjo would have been tried and imprisoned by the court for Crimes against humanity“.

These final words from the presenter above seemed to advance the notion that the International Criminal Court, much like the proverbial lion looking for whom to devour, roves the face of the earth arbitrarily bringing perpetrators of international crimes to justice. In this brief article, the validity of this notion will be examined with particular attention to the fundamental principles guiding the body’s functions and jurisdiction. This will help to determine what role the ICC would have played if it were in force when the unfortunate event now popularly referred to as the “Odi Massacre” transpired.

The Odi Massacre occurred on the 20th of November, 1999. It was reported that the Nigerian Military, acting on the orders of then President Olusegun Obasanjo, invaded Odi – a predominantly Ijaw community, killing about 2,500 unarmed civilians according to a report by Nnimmo Bassey, the then Executive Director of Environmental Right Action.

The Nigerian Army claimed that their attack on the community was retaliatory, after the discovery of the corpses of 19 soldiers who had been reportedly murdered on the 12th of October, 1999 by Tiv militia; and the murder of 12 members of the Nigerian Police on 4 November 1999. The affair which burgeoned into a full-blown litigation “war” was resolved with the Federal High Court awarding a ₦37.6 billion settlement in favor of the Odi Community against the government.

Millions of lives have been lost over the world due to atrocious and inhuman wars, genocides, ethnic and tribal wars, etc. The crimes of the Hitler-led Nazi Germany, the mass murder of the Albanians in Yugoslavia, the genocidal ‘ethnic cleansing’ of the Tutsis by the Hutus in Rwanda, and so many others which are but a minute fraction of the horrendous atrocities that quite easily comes to mind and that have resulted in wanton destruction of millions of human lives and properties. The ICC was instituted by the state parties to the Rome Statute, the treaty establishing the ICC, vested with the jurisdiction to adjudicate and prosecute the most serious crimes of concern to the international community.

It is necessary to take a look at the fundamental working principles of the ICC vis-a-vis its jurisdiction to prosecute international crimes and criminals. Article 5 of the Rome Statute grants the court jurisdiction over crimes of aggression, genocides, war crimes and crimes against humanity. Article 12 of the Rome Statute also provides that, as a precondition for the court to exercise its jurisdiction, “a state which becomes a party to this Statute accepts the jurisdiction of the court with respect to the crimes referred to in Article 5” It also states “[it] may assume jurisdiction if a state, though not a party to the Statute, by way of declaration with the registrar of the court, accepts the exercise of jurisdiction by the court with respect to the crime in question”

Paragraph 10 of the preamble and Article 1 of the Rome Statute, stipulates that the ICC shall be a complement to national jurisdiction. This is popularly known as the complementarity principle. As observed by Roy S. Lee ” this principle means that the court will  complement ,but not supersede national jurisdiction . National courts will continue to have priority in investigating and prosecuting crimes within their jurisdiction, but the ICC will act when national courts are ‘unable and unwilling’ to perform their task”.

Article 17 also sets forth the admissibility standards for cases before the court. Cases are not admissible in the ICC if a state with jurisdiction

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• Is investigating or  prosecuting the case
• Has investigated and decided not to prosecute
• Has already tried the individual for the conduct and the retrial would be barred under the ne bis in idem provisions of the statute.

The above provision reflects deference to national prosecution, also allaying concerns of a state losing her sovereignty and the right to exercise criminal jurisdiction over cases within its purview. The only exception occurs when a state with jurisdiction is ‘unwilling or unable genuinely to carry out the investigation or prosecution. However, the jurisdiction of the ICC can be initiated by the process of referral by a state party, or by the U.N Security Council acting in accordance with Chapter VII of the Charter – which provides that it must consider the situation to be a breach of, or a threat to, international peace and security; guided by conditions such as the gravity of the crime in question, how the indigenous national authorities handle the case, or by the Office of the Prosecutor acting proprio motu  after an authorization by the Pre-Trial Chamber of the ICC.

In deciding whether to initiate an investigation or seek the authorization of the Pre-Trial Chamber for an investigation, the Chief Prosecutor must consider the following factors:

• Whether the information available is sufficient – that is, whether the factual and legal basis of allegation of crimes are met
• The admissibility of the case under Article 17 discussed above, and
• The gravity of the crimes and the interest of victims; whether the investigation would serve the interest of justice.

Summarily, following the foregoing discourse, it is clear that the tentative notion advanced by the passionate espousing of the Ijaw man above presenting the ICC as possessing arbitrary international jurisdiction is not tenable, as its prosecutory powers are fettered by both the complementarity principle and the admissibility standard set forth in Article 17 of the Rome Statute. Hence, the question regarding what the ICC would have done about the Odi Massacre, given the precedents espoused above, will depend on the following considerations: –

• Whether Nigeria was a state party to the Rome Statute. If so, the court would only be authorized to prosecute if Nigeria is genuinely “unwilling or unable” to investigate and prosecute.
• If Nigeria were not a state party to the Rome Statute, the ICC would be powerless to act in any jurisdictional capacity, except the Security Council by way of resolution acting in accordance with Chapter VII of the UN Charter refers the situation to the Office of the Prosecutor to investigate, being satisfied with the available evidences that make the matter a possible threat to international peace and security, whilst also considering the gravity of the crime.

Kolawole Olaniyi Emmanuel has keen interest in International Law, Intellectual Property, Corporate Practice, Entertainment and Media law.  He can be reached at Kolaniyi86@gmail.com.