The Socio-Economic Rights and Accountability Project (SERAP) has sent a petition to Mrs. Fatou Bensouda, Prosecutor, International Criminal Court (ICC), urging her to use her “good offices to investigate whether the problem of out-of-school children in Nigeria, and the failure of the Nigerian authorities over the years to address it amount to violence against children and crimes against humanity within the jurisdiction of the ICC.”

The organisation urged Mrs Bensouda to: “Push for those suspected to be responsible for this problem, including current and former presidents and state governors since 1999, who directly or indirectly have individually and/or collectively breached their special duty toward children, and are therefore complicit in the crime, to be tried by the ICC.”

In the petition dated 19 July 2019 and signed by SERAP deputy director Kolawole Oluwadare, the organisation said: “Investigating and prosecuting high-ranking Nigerian officials and providing reparations to victims will contribute to serving the best interests of Nigerian children, the most vulnerable citizens in our country, and ending the impunity that is denying them their right to education and a life free of violence and fear.”

SERAP said: “These out-of-school Nigerian children have been exposed to real danger, violence and even untimely death. Senior Nigerian politicians since 1999 have failed to understand the seriousness of the crime of leaving millions of children out of school, and have made an essential contribution to the commission of the crime.”

SERAP also said: “The ICC has stated in the Lubanga case that the interruption, delay and denial of the right of children to education is a crime within the jurisdiction of the Court. SERAP believes that the reality for children living in the Ituri region of the Democratic Republic of the Congo is similar to the reality faced by millions of out-of-school children in Nigeria, as the situation is depriving an entire generation of children of their right to education and human dignity.”

The petition reads in part: “There is no immunity for crimes under the Rome Statute. The crime of leaving millions of Nigerian children out of school is an opportunity for your Office to show the Court’s commitment to effectively enforce its Policy on Children and other important statements of international criminal justice.

“Putting millions of Nigerian children that should be in school on the street exposes them to violence, including sexual violence, gender violence, abduction, and other forms of exploitation and violence against children, and implicitly amounts to enslavement, trafficking of children, and ill-treatment, three of the eleven acts that may amount to a crime against humanity under the Rome Statute.

“Unless the ICC declares the problem of over 13 million out-of-school Nigerian children as violence against children and crime against humanity, and hold those suspected to be responsible since 1999 to account, the number of out-of-school children will continue to rise, and these children may never receive any formal education at all.

“Nigeria is a state party to the Rome Statute and deposited its instrument of ratification on 27 September 2001. According to Nigeria’s Universal Basic Education Commission (UBEC), the population of out-of-school children in Nigeria has risen from 10.5 million to 13.2 million.

“This figure is based on a joint survey conducted in 2015 by the United Nations Children Fund (UNICEF) and the Nigerian government. Data by the UNICEF also shows that one in every five of the world’s out-of-school children is in Nigeria. However, Nigeria's former Minister of Education Mr Adamu Adamu has suggested the figure of out-of-school children in Nigeria to be 10,193,918, citing a recent ‘National Personnel Audit’ of both public and private schools in the country.

“According to the former Minister of Education, all of the 36 states in Nigeria are affected by the problem of out-of-school children but the problem is more widespread and systematic in the following states: Kano, Akwa Ibom, Katsina, Kaduna, Taraba, Sokoto, Yobe, Zamfara, Oyo, Benue, Jigawa and Ebonyi states.

“Girls are disproportionately represented among out-of-school children. In north-eastern Nigeria alone, 2.8 million children are in need of education-in-emergencies support in three conflict-affected States (Borno, Yobe, Adamawa). In these States, at least 802 schools remain closed and 497 classrooms are listed as destroyed, with another 1,392 damaged but repairable.”

“Under Nigerian law and international human rights treaties to which Nigeria is a state party, the Nigerian authorities at both the Federal and State levels have a legally binding obligation to immediately provide free, universal quality primary education for all Nigerian children, and to progressively provide education at all other levels without discrimination.

“Nigerian authorities over the years have restricted educational opportunities for children with disabilities including by failing to provide equipment such as hearing aids, ramps to school buildings, wheelchairs, crutches, glasses and surgery to children in need, and failing to address educational challenges facing children with disabilities, in general.

“SERAP notes the launch by your Office in 2016 of the Policy on Children, which aims to send ‘a firm and consistent message that humanity stands united in its resolve that crimes against children will not be tolerated and that their perpetrators will not go unpunished.’ The Policy aims to assist your Office in its efforts to robustly address these crimes, bearing in mind the rights and best interests of children.

“SERAP notes also that at the launch of the Policy you stated among others that, ‘a crime against a child is an offence against all of humanity; it is an affront to our basic tenets of human decency. Children are our greatest resource, and must be protected from harm so as to reach their full potential. We, at the ICC, intend to play our part through the legal framework of the Rome Statute’.

“This statement is entirely consistent with the UN Convention on the Rights of the Child, to which Nigeria is a state party and shows that children will not be invisible in the exercise of the jurisdiction of the ICC, and that your Office will extend its work to ensure the well-being of children, including millions of out-of-school Nigerian children.

“The Rome Statute’s sensitivity towards children's issues is clearly demonstrated in Article 68(1) to the effect that the Court must ‘have regard to all relevant factors, including gender and the nature of the crime, in particular, where the crime involves sexual or gender violence or violence against children.’ Under Article 54(1), ‘the Prosecutor shall take into account the nature of the crime, in particular where it involves violence against children’.

“SERAP is seriously concerned that the problem of out-of-school children is widespread and systematic, cutting across the 36 states of the country and Abuja, and spanning many years since 1999. The problem of out-of-school children has had catastrophic effects on the lives of millions of children, their families and communities, akin to violence against children under the Court’s Policy, and crimes against humanity as contemplated under the Rome Statue.

“The Rome Statute in article 7 defines “crime against humanity” to include “inhumane acts causing great suffering or injury,” committed in a widespread or systematic manner against a civilian population. The common denominator of crimes against humanity is that they are grave affronts to human security and dignity.

“The consequences of throwing millions of Nigerian children that should be in school out on the street are similar to those of the offences in article 7(1)(k) of the Rome Statute. Senior government officials know well or ought to know that their failure to prevent millions of Nigerian children from roaming the street will expose the children to violence, deny them their human dignity and exacerbate the growing insecurity in the country.

“SERAP considers the apparent failure of successive governments and high-ranking government officials to prevent widespread and systematic problem of out-of-school children as amounting to complicity under the Rome Statute.

“This crime against Nigerian children has continued to rob our children of their innocence, childhood, and often, tragically, resulted in their untimely deaths, denying Nigeria of its future potential and of its greatest resource.

“The national authorities of the Court’s States Parties form the first line of defense in addressing the crimes against children, as they shoulder the primary responsibility for the investigation and prosecution of perpetrators of the crimes. But successive governments in Nigeria have been unwilling or unable to address the problem of out-of-school children, and end the crime against humanity.

“SERAP believes that substantial grounds exist to warrant the intervention of the Prosecutor in this case. Pursuant to the Rome Statute, the Prosecutor has power to intervene in a situation under the jurisdiction of the Court if the Security Council or states parties refer a situation or if information is provided from other sources such as the information SERAP is providing in this case.”

SERAP therefore urged the ICC Prosecutor to:

Urgently commence an investigation proprio motu on the widespread and systematic problem of out-of-school children in Nigeria since the return of democracy in 1999, with a view to determining whether these amount to violence against children and crime against humanity within the Court’s jurisdiction. In this respect, we also urge you to invite representatives of the Nigerian government to provide written or oral testimony at the seat of the Court, so that the Prosecutor is able to conclude since available information whether there is a reasonable basis for an investigation, and to submit a request to the Pre-Trial Chamber for authorization of an investigation;

Bring to justice those suspected to be responsible for widespread and systematic problem of out-of-school children in Nigeria;

Urge the Nigerian government to fulfil its obligations under the Rome Statute to cooperate with the ICC; including complying with your requests to arrest and surrender suspected perpetrators of the widespread and systematic crime of leaving millions of Nigerian children out of school, testimony, and provide other support to the ICC

Compel the Nigerian authorities at the Federal and State levels to ensure that millions of out-of-school children are afforded their right to education, access to justice, and ensure reparations to victims, including restitution, compensation, rehabilitation and guarantee of non-repetition.

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