The International Criminal Court (ICC) at The Hague has confirmed that it is considering petition submitted to it by human rights lawyer Femi Falana, SAN over alleged crimes against humanity committed in the context of the arms procurement scandal.
The ICC revealed this in a letter dated 1 February 2016 with reference: OTP-CR-32/16 and signed by Mark P. Dillon, Head of Information & Evidence Unit of the ICC.
The letter reads in part: “The Office of the Prosecutor of the International Criminal Court acknowledges receipt of your documents/letter. This communication has been duly entered in the Communications Register of the Office. We will give consideration to this communication, as appropriate, in accordance with the provisions of the Rome Statute of the International Criminal Court.”
It would be recalled that Falana had in a petition dated 19 January 2016 requested the ICC to “investigate allegations of crimes against humanity committed against the Nigerian people by some former and serving military as well public officials and private persons who engaged in the criminal diversion of $8 billion earmarked to procure equipment for the armed forces to fight insurgency”
The petition reads in part: “On account of the deliberate refusal of the former military authorities to equip and motivate the members of the armed forces involved in combat operations the insurgents have killed about 25,000 soldiers and civilians including children and displaced over 2,000,000 people. Having compromised the security of the people of Nigeria by collaborating with the terrorists the former military authorities deliberately encouraged the brutal killing of innocent people including ill-equipped officers and soldiers.”
“During a visit to Borno state in 2014, former President Jonathan revealed to some selected leaders of the community that it was when Alhaji Modu Ali Sheriff caused the extra judicial killing of the leader of the Boko Haram sect, Mohammed Yusuf that the group declared war on the Nigerian people. Even though President Jonathan knew that Alhaji Sheriff was a major sponsor of the terrorist group the government did not charge him to court under the Terrorism Act applicable in Nigeria.”
“In order to divert the attention of the Nigerian people and the international community from the afore mentioned crimes against humanity, scores of soldiers were put on trial before courts-martial for demanding for equipment to fight the well-armed members of the Boko Haram sect. The military courts convicted the soldiers and sentenced them to various terms of imprisonment while 70 were sentenced to death. Over 3,000 others were dismissed from the Nigerian Army in similar circumstances.”
“Having investigated and confirmed that the said soldiers were sacrificed to cover up the criminal negligence of the former military authorities the current Army leadership has ordered the recall and reinstatement of the 3,000 dismissed soldiers and commuted the death sentence of 66 out of 70 convicts on death row to 10 years' imprisonment.”
“The inquiry conducted by the Presidential Panel on arms procurement has established that the bulk of the sum of $2.1 billion and N643 billion ($4 billion) earmarked for the purchase of military hardware to fight terrorism was criminally diverted by the former government through the office of the National Security Adviser, Col. Sambo Dasuki (rtd). It has also been confirmed that the said Col. Dasuki colluded with some serving and retired military officers and civilians to divert the sum of $2 billion and N29 billion set aside for the procurement of fighter jets and other equipment for the Nigeria Air Force.”
“As if that was not enough, the sum of $322 million and £5.5 million from the Abacha loot which was illegally transferred to Col. Dasuki by a former Finance Minister, Dr. Ngozi Okonjo-Iweala for prosecuting the war on terror has also been criminally diverted. Part of the stolen fund was used to fund the campaign for the re-election of President Goodluck Jonathan in the 2015 general elections.”
“Apart from diverting the fund for acquiring military equipment some corrupt public officers also stole money set aside for acquiring the necessary gadgets and equipment for securing the Nigerian people. For instance, the $470 million contract awarded in 2009 for the installation of CCTV cameras in Abuja, the seat of the federal government, was poorly executed due to corrupt practices. Thus, the identification of terrorists who launched bomb attacks in public places in Abuja has been frustrated by the government officials who stole the contract sum.”
“Notwithstanding the deliberate refusal of the military authorities to purchase arms and armament due to the criminal diversion of the security fund, Col. Dasuki gave a lecture at Chartam House in London on February 8, 2015 where he claimed that Nigeria had acquired adequate equipment to prosecute the war on terror. At the time he was addressing his London audience Col Dasuki was well aware that the fund for procurement of weapons had been stolen by himself and his cohorts.”
“However, out of the fear that he could be made to account for his role in the diversion of the security fund the then Chief of Defence Staff, Air Marshal Barde disclosed, while he was retiring from the service on July 30, 2015, that the armed forces led by him lacked the equipment to fight the terrorists. In his reaction to the disclosure Col. Dasuki stated sometime in August 2015 that the equipment ordered by the Jonathan Administration had not arrived the country!”
“It is submitted that the former public officials, serving and military officers as well as civilian collaborators who engaged in the criminal diversion of the security fund are liable to bear full responsibility for the death of about 25,000 people who were killed by the Boko Haram sect and the over 2,000,000 people displaced by the terrorist organisation.”
“Nigeria is a state party to the Rome Statute and deposited its instrument of ratification on 27 September 2001. The preamble to the 2003 United Nations Convention against Corruption (UNCAC), which Nigeria has also ratified states that corruption “is no longer a local matter but a transnational phenomenon that affects all societies and economies”.
“We strongly believe that allegations of corruption so far made against Col. Sambo Dasuki and other public officers have had catastrophic effects on the lives of over 25,000 Nigerian soldiers and civilians including children akin to crimes against humanity as contemplated under the Rome Statute and within the jurisdiction of the Court. 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.”
“Corrupt officials in the government know well that their conduct is criminal and injurious, and that their ostentatious lives, built on a radical breach of solemn trust, aggravate their crime against humanity. We believe that these allegations of widespread and systematic corruption amount to crimes against humanity and therefore clear violations of the provisions of the Rome Statute of International Criminal Court. These allegations have given rise to individual criminal responsibility of those suspected of perpetrating corruption, as entrenched in the Rome Statute.”
“We therefore submit that this is sufficient to hold Col Dasuki and others that have been indicted in the arms theft scandal responsible for crimes against humanity perpetrated against Nigerians. The failure of a former Finance Minister, Dr Ngozi Okonjo-Iweala to prevent widespread and systematic corruption including the re-looting of the Abacha loot amounts to complicity under the Rome Statute, and therefore fits the legal requirements of a crime against humanity.”
Falana then asked the ICC Prosecutor to:
1. Urgently commence an investigation proprio motu on the allegations of the criminal diversion of the security fund of $2.1 billion and N643 billion earmarked by suspected perpetrators, with a view to determining whether these amount to crimes against humanity within the Court’s jurisdiction. In this respect, I 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 on the basis of 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.
2. Bring to justice those suspected to bear full responsibility for deliberate under funding of the armed forces through widespread and systematic corruption in Nigeria; and
3. 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 criminal diversion of security fund, testimony, and provide other support to the ICC.