A Nigerian international lawyer and human rights crusader has written to the Chief Prosecutor of the International Criminal Court (ICC), faulting her recent report on Nigeria. In the letter written to mark this week’s World Human Rights’ Day and the 70th anniversary of the Declaration of Human Rights, Emmanuel Ogebe, Esq., Managing Partner of the Washington-based US Nigeria Law Group (USNLG), told ICC Chief Prosecutor, Fatou Bensouda, that major atrocities by Fulani killer herdsmen in 2018 were not reflected in her report. He also frowned at the fact that “no crimes perpetrated by FGN such as Shiite massacre, IPOB massacre, etc, is currently amongst eight cases ICC is reviewing” and that the “Report blames everyone except Fulani herdsmen for their atrocities.”

Below are relevant parts of the report (in bold letters) and Barrister Ogebe’s observations:

218. The armed conflict in Nigeria continued during the reporting period. At least three factions of what is jointly referred to as Boko Haram currently operate in Nigeria and the Lake Chad region bordering Niger, Chad, and Cameroon. These include the Boko Haram faction led by Abubakar Shekau, the Ansaru splinter group and the ISIS-supported Islamic State West Africa province led by Abu Musab Al-Barnawi. Whereas the intensity of the hostilities between the NSF and the different Boko Haram factions was lower than in previous years, military operations against Boko Haram in the North East of Nigeria continued under Operation Lafiya Dole. Boko Haram also continued to engage the NSF and to launch further attacks against the civilian population. It is estimated that the armed conflict resulted in over 2,000 deaths during the reporting period, including combatants and civilians.

219. In addition, from January to June 2018, over 1,300 people were reportedly killed as a result of violence between herders and settlers in Plateau, Benue, Nasarawa, Adamawa and Taraba States and about 300,000 persons were displaced.

29 See ICC-OTP, Situation in Nigeria: Article 5 Report, 5 August 2013.

30 See ICC-OTP, Report on Preliminary Examination Activities 2015, paras. 195-216.

A. COMMENT/ANALYSIS: We appreciate that the Prosecutor has taken note of the violence in the Middle belt which it describes as between “herders and settlers.” We observe however that you did not point out that the herder violence claimed more lives than the Boko Haram terrorism. The Prosecutor states that 2000 people were killed by Boko Haram in the entire period under review. However over 1600 people were killed just in the first half of 2018 implying therefore that the number of deaths from the herder conflict was equal or more than the Boko Haram when taken in totality the period under review. This means that the herder violence is noteworthy as a comparable if not deadlier situation of crimes against humanity. Without this important clarification, the erroneous impression given is that the magnitude of the herder violence is less.

New alleged crimes

227. During the reporting period, new crimes were alleged in the context of the armed conflict between Boko Haram and the NSF and with respect to communal violence in Nigeria’s North Central and North East geographical zones.

228. Boko Haram reportedly continued to engage in conduct that falls within the potential cases identified by the Office in 2015, relating to the commission of crimes against humanity and war crimes under the Statute.35 This includes attacks against women and girls and attacks against education (including schools, teachers and schoolchildren). UNICEF estimates that in the last 9 years, at least 2,295 teachers have been killed and more than 1,400 schools have been destroyed in northeastern Nigeria. On 19 February 2018, 113 girls from the Government Girls’ Science Technical College in Dapchi, Yobe State, were allegedly abducted by Boko Haram. The group later released 107 of them, while five reportedly died during the abduction and one remains captive. Boko Haram also reportedly continued to intentionally target buildings dedicated to religion. For example, on 21 November 2017, an alleged Boko Haram suicide attack on a mosque in Mubi, Adamawa State, reportedly conducted by a young boy, caused the death of at least 50 persons.

33 See also ICC-OTP, Report on preliminary examination activities 2016, paras. 292-294. 34 ICC-OTP, Report on preliminary examination activities 2016, para. 295.

35 ICC-OTP, Report on Preliminary Examination Activities 2015, paras. 195-216.

B. COMMENT/ANALYSIS: We observe that the Prosecutor reported on the Dapchi schoolgirl abductions but failed to state that Leah Sharibu is still held captive as a result of her Christian faith. Rather in the very next sentence, the report says Boko Haram targets religious buildings and cited an attack on a mosque,

“The group later released 107 of them, while five reportedly died during the abduction and one remains captive. Boko Haram also reportedly continued to intentionally target buildings dedicated to religion. For example, on 21 November 2017, an alleged Boko Haram suicide attack on a mosque in Mubi,”

It is odd that the continuing captivity of Leah Sharibu now Boko Haram’s most famous captive for her Christian faith was not highlighted but a mosque bombing was as an example. Fairness and balance would have required both be acknowledged.

229. There are furthermore allegations on new crimes by Boko Haram, such as attacks against personnel involved in humanitarian assistance and taking protected persons as hostages. On 1 March 2018, Boko Haram members allegedly attacked the town of Rann, Borno State, killed, among other victims, three humanitarian workers and abducted three female health workers, two working for the International Committee of the Red Cross (“ICRC”) and one for UNICEF. Reportedly, the ICRC health workers were then murdered in September and October 2018.

230. The Office is also analysing information related to new allegations implicating the NSF. In particular, different sources reported on alleged sexual violence against women and girls in camps of internally displaced persons in the north- east Nigeria which are under the control of the NSF and the Civilian Joint Task Force.

231. Furthermore, the Office received communications on attacks allegedly carried out by Fulani herders and Christian settlers in the context of the violence in Nigeria’s North Central and North East geographical zones. This violence, which has been observed by the Office since 2016, is often referred to as a conflict between Fulani herders and Christian farmers, stemming from limited access to water, land and other resources.

C. COMMENT/ANALYSIS: The Office of the Prosecutor (OTP) mentioned “new crimes” allegedly “carried out by Fulani herders and Christian settlers.” However they did not give a single instance of the said attacks. A few notable massacres that occurred during the period under review which gained international notoriety are:

the New Year’s Day Massacre of 86 Christian farmers and family members by Muslim Fulani herdsmen in Benue State

The Morning Mass Massacre of two priests and 17 Christian congregants at St Ignatius Catholic Church in Benue State last April by Muslim Fulani herdsmen

The Barkin Ladi Massacres by Muslim Fulani Herdsmen that claimed the lives of over 200 Christians in Plateau State in June

It is worrying that the OTP did not mention any of these horrific attacks most of which far exceeded the fatalities in the mosque bombing earlier alluded to and all of which occurred in a non-combat setting, to wit, the mass slaughter of innocent civilians in their homes and even in a place of worship. This is unmistakably a crime against humanity bordering on genocide.

D. COMMENT/ANALYSIS: Besides the factual problem of the non-recognition of globally noted atrocities, there is also a conceptual problem with the characterization of these crimes viz

i. “Fulani herders” - the reference to Fulani herders needs to be further qualified as “FULANI HERDSMEN”. The reason is that these attacks are exclusively carried out by MEN not women to distinguish them from innocent female herders who do not participate in perpetrating these atrocities.

Similarly it should be further qualified that these are “MUSLIM FULANI HERDSMEN”. The reason is that these attacks are exclusively carried out by Muslim Fulani herdsmen as Christian Fulanis do not participate in them.

In addition, it should be clearly stated that these are “MUSLIM FULANI KILLER HERDSMEN.” The reason is that there are regular Muslim herdsmen who do not perpetrate atrocities. Indeed in most instances the killer herdsmen do not have cattle with them during their genocidal attacks.

ii. “Christian Settlers” - this reference needs to be corrected to “indigenous local communities”. The inference of “settlers” is that these are migrants who “settled” on other’s lands whereas in actual fact these are indigenous people ordinarily born to and preexisting on their ancestral lands.

It is odd that the OTP did not identify the Fulani herdsmen as “Muslim” but only ascribed religion to the “Christian settlers.” An uninformed reader would erroneously be unaware of the pervasive Islamist and jihadi undercurrent to the atrocities and even mistakenly assume that the incursion of the “Christian settlers” is to blame.

The fact is that the Killer Fulani Herdsmen are 100% Muslim and should be recognized as such and the indigenous peoples are not 100% Christians. Non-Fulani Muslims in the northwest Zamfara State have also been killed in furtherance of a Fulanization policy by the attackers although the vast majority of those killed elsewhere are non-Muslims.

iii. “By Fulani herders and Christian settlers” - the report erroneously ascribes moral equivalency to both groups as though this was indeed a symmetric conflict between equal combatants. It is anything but.

The indigenous farming communities are generally overrun and ravaged by invading Muslim Fulani marauders. The attackers are men. The victims are local men, women and children in their villages. The reverse is seldom ever the case. It is exceedingly rare that indigenous farming communities invade and attack nomadic villages because by definition the nomads do not have villages in the Middle belt per se but only a few settle in host communities of indigenous people.

iv. “Observed since 2016” - We want to point out that the herdsmen atrocities have been ongoing for long. In particular the Dogon Nahawa massacre in Plateau State in 2010 was the slaughter of over 500 indigenous people in two Christian farming communities by Muslim Fulani killer herdsmen. It was and remains the worst single day atrocity yet and we engaged with the OTP on this particular situation. We also reported to the OTP on the trial and conviction of several Fulani herdsmen for this crime in December 2010.

The issue now is for the OTP to determine whether the current Buhari-led Government of Nigeria has shown similar will or commensurate commitment to prosecute the ongoing atrocities as the administration of late President Yar’Adua did. We especially urge the ICC to request a validation from the FGN by VP Osinbajo that 800 Fulani herdsmen were in prison. This will go a long way in establishing the adequacy, genuineness and efficacy of local prosecutions in your complementarity and admissibility assessment.

v. “stemming from limited access to water, land and other resources”. The OTP seems to advance the “climate change” theory or resource conflict as the raison d’ etre for these atrocities. It is our humble position that global warming is a universal phenomenon but these mass atrocities seem localized, limited and peculiar to Nigeria. We submit further that this is in fact in furtherance of a racist, religious and supremacist ideology against non-adherents, non-subscribers and non-members of the caste.

232. The escalation of violence in late 2017 and 2018 is reportedly the result of the rise of ethnic militias and community vigilantes and the passage of grazing laws in some of the affected States that reportedly imposed restrictions on herders, among others. Militias are also reported to have clashed with NSF deployed in the affected area to address the deteriorating security situation. Some of the attacks on civilians were allegedly committed by criminal gangs involved in cattle-rustling that were subsequently blamed on Fulani herders. The Office has reviewed these communications and continues to gather additional information to determine whether there is a reasonable basis to believe that the crimes allegedly committed in this context fall under ICC jurisdiction.

E. COMMENT/ANALYSIS: then there is the appearance of obfuscation and exculpation of the atrocities and perpetrators

vi. “Escalation due to anti grazing laws” - the assertion that the atrocities are attributable to grazing laws is disturbing. No crime against humanity can be justified on the basis of a legitimate law that is neither unconstitutional, nor repugnant to natural law equity and good conscience. The laws were passed by Benue State in an effort to STOP the killings. The laws did not START the killings.

It is troubling that the OTP seems to have bought into the narrative of the killer herdsmen who claimed responsibility for the attacks and actually announced them in advance. In the face of clear admission of guilt by the killer groups, the only issue for determination for the Prosecutor is whether the self-admitted perpetrators have been prosecuted by the FGN. We submit that the answer is in the negative.

Indeed any group that espouses violence in resistance to legitimate laws of duly constituted authorities is an anarchist insurgency or insurrectionist. The mass slaughter of innocent civilians pursuant to such a political agenda is the classic definition of terrorism.

vii. “Ethnic militias...imposed restrictions on herders” - pursuant to the ranching laws, livestock guards were appointed to enforce the duly passed state laws. To deem these constituted authorities as “ethnic militias” responsible for the “”escalation” of violence is regrettable. More so it should be clear that the laws do not impose restriction on herders but on herds. In other words, the restriction is on the indiscriminate movement of cattle to protect humans, their lands, farms and lives.

Rather than restrict, the laws created parameters for ranching of cattle in the interest of public safety for all concerned.

viii. ethnic militias and community vigilantes and the passage of grazing laws...Militias are also reported to have clashed with NSF... attacks on civilians were allegedly committed by criminal gangs involved in cattle-rustling that were subsequently blamed on Fulani herders.

Most troubling of all is that the entire narrative of the OTP’s report on the herdsmen violence did not once ascribe any aggression, responsibility or any act to them! The whole report blames everyone EXCEPT the herdsmen for the atrocities. Below is a listing of the Prosecutor’s alleged causes of the conflict:

“Access to land, water resources”

“Ethnic militias”

“Community vigilantes”

“Criminal gangs”

“Grazing laws” by states

Nowhere does the report acknowledge at any point whatsoever the actions of the Muslim Fulani killer herdsmen themselves who have on several occasions proudly claimed responsibility for their atrocities. The OTP report appears to be exculpatory, reductionist and dismissive of the culpability of the self-confessed attackers. The Prosecutor would appear to have assumed the toga of Defense Counsel with regard to the aggressors pleading mistaken identity, provocation, etc, on behalf of the killer herdsmen.

It is our considered opinion that a proper and objective evaluation of the horrific nature of these village massacres as distinct from actual combat, the pervasive and systematic nature, the overweening supremacist ideology & theology and the impunity and scant prosecutions by the FGN which is headed by a member of that caste and an official of their association reveals that there is a reasonable basis to believe that the crimes allegedly committed in this context fall under ICC subject matter jurisdiction to wit the crimes against humanity of murder pursuant to article 7(1)(a); other inhumane acts pursuant to article 7(1)(k); and persecution pursuant to article 7(1)(h) of the Statute.

Conclusion and Next Steps

249. Since 2017, the Nigerian authorities appear to have taken concrete steps toward fulfilling their primary responsibility to investigate and prosecute ICC crimes. While there seems to be a tangible prospect of further proceedings against members of Boko Haram, including high-level commanders, at this stage the same cannot be said of the NSF, in particular since the Nigerian authorities tend to deny any allegation against the latter.

250. While acknowledging the cooperation of the Nigerian authorities in the course of the preliminary examination, the Office will require, for the purpose of expediting its complementarity assessment, further information and evidence demonstrating that relevant national proceedings are being or intended to be conducted without delay.

F. COMMENT/ANALYSIS: With regard to the above, we wish to state that OTP does not appear to have identified ANY potential NEW crimes for examination SINCE 2015 even though Nigeria has consistently remained in the top 3 most terrorized countries in the world each year since then, the Fulani killer Herdsmen have been recognized by the Global Terrorism Index and Nigerian Security Forces have consistently killed Shiites annually in clashes under the Buhari administration beginning in December 2015.

We are concerned that there appear to be no recognition or prosecutions of mass atrocities by Muslim Fulani killer herdsmen. However we do note the conviction & death sentence for 5 indigenous people over the death of a Herdsman in Adamawa state.

We urge the Prosecutor to open an examination into the New Year Massacre, the St Ignatius Morning Mass Massacre in Benue State and the Barkin Ladi Massacre In Plateau In January April and June 2018 inter alia.

We urge the Prosecutor to request from the Attorney General of Nigeria the list of prosecutions related to the atrocities of killer herdsmen in the past three years and retaliations against herdsmen if any.

Also please find attached an analytical piece we wrote in an effort to help properly elucidate the issues related to the Herdsmen attacks for public enlightenment.

We look forward to continuing engagement with you to advance the cause of human rights for all in the new year ahead.

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