Falana Drags Boko Haram War Arms Billions Looters To ICC For Crimes Against Humanity

Prominent Nigerian Human Rights lawyer Femi Falana SAN, has requested the International Criminal Court 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”

In a petition dated 19 January 2016 and sent to the Prosecutor of the ICC Mrs Fatou Bensouda, Falana said, “We are a firm of civil rights lawyers based in Lagos, Nigeria. We are the defence counsel for the majority of the members of the Armed Forces of the  Republic of Nigeria, who were charged with mutiny, cowardly behavior and sundry offences before the courts-martial instituted by the former military authorities. As we shall demonstrate anon, the only “offence” proved against our clients in the military courts was that they had the temerity to demand for weapons to fight the well-equipped troops of the Boko Haram sect.”

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 aforementioned 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 (retd).  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 Chatham 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.”
“The common denominator of crimes against humanity is that they are grave affronts to human security and dignity. We believe that the staggering amount of public funds alleged to have been stolen create just these consequences. Crimes against humanity are not only physical violence; allegations of corruption highlighted above hold a comparable gravity, which the Prosecutor should examine and thoroughly investigate.

“The elements that need to be established to prove a “crime against humanity “under article 7(1)(k) of the Rome Statute are that, the perpetrator inflicted great suffering or serious injury by means of an inhumane act; that the perpetrator was aware of the circumstances, and that the act was committed within a widespread or systematic attack on a civilian population; and that the perpetrator knew of that link. The consequences of allegations of corruption highlighted above are similar to those of the offences in article 7(1).”

“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 the individual criminal responsibility of those suspected of perpetrating corruption, as entrenched in the Rome Statute.”

“Although the government of President Muhammadu Buhari has so far shown some political will to fight corruption and recover stolen assets, we believe that an international investigation by the ICC from the perspective of crimes against humanity would complement the anti-corruption initiatives by the current government and contribute to ending a culture of impunity of perpetrators. We submit that substantial grounds exist to warrant the intervention of the Prosecutor in this case. Under Article 30(2)(b) of the Rome Statute, a person has intent “in relation  to a consequence, [where] that person means to cause that consequence or is  aware that it will occur in the ordinary course of events.”

“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.
 

January 19, 2016

Mrs. Fatou Bensouda,
Prosecutor, International Criminal Court,
Po Box 195192500 CM, The Hague,
The Netherlands.

Request 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

Introduction

We are a firm of civil rights lawyers based in Lagos, Nigeria. We are the defence counsel for the majority of the members of the Armed Forces of the  Republic of Nigeria, who were charged with mutiny, cowardly behavior and sundry offences before the courts-martial instituted by the former military authorities. As we shall demonstrate anon, the only “offence” proved against our clients in the military courts was that they had the temerity to demand for weapons to fight the well-equipped troops of the Boko Haram sect.

We note that the Office of the Prosecutor of the International Criminal Court under your able leadership has investigated and indicted the members of the Boko Haram sect as well as some members of the Nigerian armed forces for crimes against humanity arising from murder, rape, abductions and other gross human rights violations committed against unarmed civilian population in Nigeria. While commending your office for inquiring into the atrocities which occurred in the course of prosecuting the war on terror in Nigeria we are compelled to request you to extend the investigation to cover allegations of 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.
Facts in support of allegations of crimes against humanity.

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. 

Owing to the act of sabotage by the authorities the terrorists invaded and occupied several towns and villages in Adamawa, Borno and Yobe states in the north east region and subjected the inhabitants to rape, kidnapping, slavery, extra-judicial killings and other horrendous human rights abuse.

When over 200 girls from Chibok secondary school in Borno State were abducted by the terrorists on April 14, 2014 the military authorities claimed that they had rescued them. The principal of the college denied the claim. Shortly after that, the then Chief of Defence Staff, Air Marshal Barde(rtd.) disclosed that the girls had been located and that the parents of the abducted girls should exercise patience to allow them to be rescued alive. At the material time, the military officer knew that he was deceiving the parents of the abducted girls. 

This was followed up by the false announcement that the federal government and leaders of the Boko Haram sect had struck a deal to end the war and release the abducted Chibok girls. The “ceasefire” was announced with fanfare by Air Marshal Barde(rtd) who asked Nigerian soldiers to suspend further attacks on the members of the terrorist organization. The announcement was immediately denounced by the sect. Even though the deal was a hoax, it was used to dupe the federal government of not less than $10 million while it assisted the sect to gain some advantage over the armed forces of Nigeria.

Sometime in 2014, the Nigeria Air Force Authorities bought two second hand helicopters from Ukraine at any inflated price. During its maiden flight in the north east zone one of the helicopters crashed leading to the unfortunate death of the two occupants- Group Captain U N Akpan and Warrant Officer Zabesan. It has since been confirmed by the Presidential Panel on arms procurement that the helicopter was not in a serviceable condition.

On April 27, 2012, General Owoye Azazi, the then National Security Adviser to President Jonathan accused members of the ruling party of sponsoring the Boko Haram sect. Shortly thereafter, General Azazi, Governor Yakoya of Kaduna state and their orderlies were killed in a crash in Bayelsa state in another helicopter that was not in a serviceable condition.
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. The suspects arrested by the Economic and Financial Crimes Commission have admitted their involvement in the sharing of the money meant to procure weapons to fight terrorism.

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. 

Although the country has prosecuted the war on terror for five years, the Federal Government did not deem it fit to equip the hospitals in the war-torn areas. Consequently, thousands of people including school children who were injured during bomb attacks in Abuja and other cities in Nigeria were rushed to public hospitals, but the majority of them died due to lack of adequate medical facilities. In the same vein, hundreds of soldiers who were injured in the battle front were rushed to military hospitals, but they too lost their lives because such hospitals are not well equipped. Hence, following the bombing of the United Nations building at Abuja in August 2011, a majority of the people who were injured in the building were flown to hospitals in South Africa for medical treatment. 

In February 2015, under the pretext that they needed time to end the war on terror, the military authorities blackmailed the Independent National Electoral Commission to postpone the general election by six weeks. But the 6-week extension was however used by the service chiefs and Col. Dasuki to further enrich themselves to the detriment of national security.
Based on such acts of sabotage and betrayal on the part of the former military authorities former President Jonathan was forced to admit publicly that there were members of the  Boko Haram sect in his government. But the members of the sect in the government were not prosecuted for sponsoring and promoting terrorism in the country. 

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 Chatham 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!

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.
The common denominator of crimes against humanity is that they are grave affronts to human security and dignity. We believe that the staggering amount of public funds alleged to have been stolen create just these consequences. Crimes against humanity are not only physical violence; allegations of corruption highlighted above hold a comparable gravity, which the Prosecutor should examine and thoroughly investigate.  Indeed, the international community acting through the UN has denounced many harmful practices, and acted to stop them. The UN was established on such principles. Its Charter reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. 

The elements that need to be established to prove a “crime against humanity “under article 7(1)(k) of the Rome Statute are that, the perpetrator inflicted great suffering or serious injury by means of an inhumane act; that the perpetrator was aware of the circumstances, and that the act was committed within a widespread or systematic attack on a civilian population; and that the perpetrator knew of that link. The consequences of allegations of corruption highlighted above are similar to those of the offences in article 7(1). 

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 the individual criminal responsibility of those suspected of perpetrating corruption, as entrenched in the Rome Statute. The 2006 Commonwealth working group on asset repatriation specifically refers to corruption being defined as an international crime. 

Although the government of President Muhammadu Buhari has so far shown some political will to fight corruption and recover stolen assets, we believe that an international investigation by the ICC from the perspective of crimes against humanity would complement the anti-corruption initiatives by the current government and contribute to ending a culture of impunity of perpetrators. We submit that substantial grounds exist to warrant the intervention of the Prosecutor in this case. Under Article 30(2)(b) of the Rome Statute, a person has intent “in relation  to a consequence, [where] that person means to cause that consequence or is  aware that it will occur in the ordinary course of events.”

While thanking you in advance for your attention, we look forward to a continued dialogue on the issues raised in this petition.

Yours Sincerely,
FEMI FALANA

SR