By BONIFACE AKARAH

Human rights lawyer Emmanuel Ogebe has challenged the impression that Nigeria has no outstanding war crimes or crimes-against-humanity issues before the International Criminal Court (ICC), arguing that the absence of a formally opened investigation does not erase earlier prosecutorial findings on atrocities allegedly committed in the country.

Ogebe, responding to recent comments by Attorney-General of the Federation and Minister of Justice, Prince Lateef Fagbemi, SAN, said the AGF was correct in stating that there is currently no ICC investigation into Nigeria, but argued that the history of Nigeria's cases at The Hague tells a more complicated story.

The lawyer also cited what he described as a petition by 100 lawyers and previous communications with ICC prosecutors to argue that the handling of Nigeria-related complaints has involved significant procedural and prosecutorial questions.

According to Ogebe, a new 2026 communication on systemic kidnappings, identified as File No. ICC-RoC46(3)-01/26, and signed on August 26, 2026, was dismissed in limine on September 1, 2026.

He stressed, however, that the dismissal meant no ICC investigation was opened and no findings were made on the substance of that particular communication.

"Yes it is true that the NEW 2026 kidnapping communication — File# ICC-RoC46(3)-01/26 — ‘Systemic Kidnappings as Crimes Against Humanity’ ... was dismissed Sept 1, 2026 in limine," Ogebe said.

"No investigation opened, no findings," he added, arguing that the procedural dismissal should not be interpreted as a finding that the underlying allegations were without merit.

Ogebe said the kidnapping allegations should instead be properly re-presented to the ICC Prosecutor for assessment, particularly because, in his view, evidence from victims points to a possible connection between kidnapping-for-ransom and terrorism.

He cited the account of Catholic priest Rev. Father Stephen Ojapah, who reportedly said one of his abductors identified the group as Ansaru and described the group's alleged religious motivation for attacks.

The ICC has previously documented allegations involving Boko Haram's abductions and other attacks. In its 2013 Article 5 report on Nigeria, the Office of the Prosecutor said there was a reasonable basis to believe that Boko Haram had committed crimes against humanity of murder and persecution since July 2009, while also noting allegations of abductions and sexual slavery.

Ogebe further argued that the question of whether kidnapping can form part of Nigeria's atrocity-crimes situation is not entirely new before the ICC.

He referred to a 2022 petition to then-ICC Prosecutor Karim Khan, in which he said the lawyers had cited an October 22, 2021 communication attributed to the Prosecutor's Office concerning allegations involving abductions and the closure of schools.

According to Ogebe's account, that communication stated that "the criteria for opening an investigation into a string of abductions and closure of schools in some parts of Nigeria have been met."

The distinction between a preliminary examination and a formal investigation is significant at the ICC. The Court has explained that preliminary examinations are conducted to determine whether the statutory criteria for opening an investigation are met; a finding that the criteria are satisfied does not itself mean that a formal investigation has already been opened.

The older Nigeria case

Ogebe also pointed to the much older ICC preliminary examination into Nigeria, which began in November 2010 and was concluded by former Prosecutor Fatou Bensouda in December 2020.

The ICC itself confirmed that, on December 11, 2020, its Office of the Prosecutor concluded that there was a reasonable basis to believe that war crimes and crimes against humanity had been committed in Nigeria and that the statutory criteria for opening an investigation had been met.

Bensouda's findings covered alleged crimes attributed to Boko Haram and splinter groups as well as alleged crimes by members of Nigerian security forces.

The allegations against Boko Haram included murder, rape, sexual slavery, forced pregnancy, forced marriage, enslavement, torture, cruel treatment, hostage-taking, attacks against civilians, attacks on schools and places of worship, recruitment of children under 15 and persecution on religious and gender grounds.

The allegations against Nigerian security forces included murder, rape, torture, cruel treatment, enforced disappearance, forcible transfer, outrages upon personal dignity, attacks against civilians, unlawful imprisonment, recruitment of children under 15 and persecution.

The ICC's 2020 documentation also stated that, at the conclusion of the preliminary examination, the Office had found a reasonable basis to believe that crimes within the Court's jurisdiction had been committed. It said the statutory criteria for opening an investigation had been met, while the Prosecutor continued to consider how to prioritise the situation within the Office's workload.

The history goes back even further. In its August 5, 2013 Article 5 report, the ICC Prosecutor's Office said there was a reasonable basis to believe that Boko Haram had committed murder and persecution as crimes against humanity since July 2009. The report cited information indicating that more than 1,200 Christian and Muslim civilians had been killed in suspected attacks across several Nigerian states and Abuja.

The ICC later formally announced the conclusion of its preliminary examination of the Nigeria situation in December 2020.

For Ogebe, therefore, the present procedural status should not be confused with the historical record of what the ICC Prosecutor's Office had already found during its preliminary examination.

His response places the current argument over Nigeria's status at The Hague against a longer record: a newly dismissed 2026 kidnapping communication, earlier communications concerning abductions, and a concluded ICC preliminary examination that found the legal threshold for an investigation had been met.

The ICC's own records make clear that Nigeria's 2020 preliminary examination was concluded after the Prosecutor found a reasonable basis to believe that crimes within the Court's jurisdiction had been committed. They also distinguish that finding from the subsequent decision to proceed with a formal investigation.