Explaining the legal basis for criminal investigations of the Lekki Shootings in Lagos, Nigeria from the Hague, Netherlands [Pulse Contributor's Opinion]

#EndSARS protesters at the Lekki Toll Gate, Lagos What would later be described by Amnesty International as an act of "extrajudicial execution” of unarmed protesters took place on the night of Tuesday, October 20, 2020 at about 6:50pm when "members of the Nigerian armed forces opened fire on peaceful EndSARS protesters at the Lekki toll gate in Lagos State, Nigeria". These were the same protesters who had believed that if they chanted Nigeria's national anthem while also waving the Nigerian flag, their safety would have been assured and a "massacre" like that of October 20 would never have occurred. After days of self-denial, on the 26th of October 2020 , the Lagos State government led by Mr. Babajide Sanwoolu constituted a Judicial Panel of Inquiry and Restitution for Victims of SARS-related Abuses and Lekki Toll Gate Incident to investigate "happenings during the ENDSARS protests and to establish who shot protesters, who was affected, how much compensation victims should get and who should be prosecuted". After its call for submission of petitions against police brutality, this Lagos State Judicial Panel has been receiving tonnes of reports of torture, killings and human rights abuses which have been attributed to the unwholesome activities of the Nigeria Police Force. In what may then appear to some Nigerians especially non-lawyers and strangers to international law as "wetin concern you", it was reported on November 04, 2020 by Dennis Erezi of The Guardian News that "International Criminal Court opens investigation into #EndSARS protest"; this is coming just nine (9) days after the Lagos State Government commenced its own investigation into the same event. According to Erezi reporting for the Guardian, the office of the ICC prosecutor headed by Fatou Bensouda said the "ICC investigation will be hinged on if the Rome Statute crimes may have been committed during the EndSARS".
Introduction
The aim of this essay is to examine the legal basis for investigating from the Netherlands alleged acts of criminality that took place in Nigeria within the context of the widely reported Lekki Toll Gates Shootings. The objectives of this essay are to answer the following questions:
taste buds a) What law empowers the Office of the ICC Prosecutor of the Netherlands to open criminal investigations into shootings in Nigeria? b) What conditions must be met for a criminal investigation to proceed under (a) above c) What likely crimes could arise for investigation under the law that empowers the office of the ICC prosecutor? Q and A
Q(a): What law empowers the Office of the ICC
Prosecutor of the Netherlands to open criminal investigations into shootings in Nigeria? A(a): The Rome Statute of the International Criminal Court is the law that empowers the Office of the ICC Prosecutor of the Netherlands to open criminal investigations into shootings in Nigeria pursuant to Articles 42 and 15. While Article 42 (1-2) provides for the office of the prosecutor as a separate organ of the ICC, acting independently, with the responsibility to receive referrals and any substantial information on crimes within the jurisdiction of the court and with the prosecutor as head of the office, Article 15 clearly provides for and enumerates the functions of the prosecutor and the stages involved in the discharge of the functions some of which includes: initiating investigations pro motu on the basis of information on crimes within the jurisdiction of the court...submit to the Pre-Trial Chamber a request for authorization of an investigation... etc. #EndSARS protesters at the Lekki Toll Gate, Lagos The Rome Statute of the International Criminal Court was adopted in 1998, came into force in 2002 and has been widely acclaimed by "governments, legal experts and civil society" as a treaty which is the "most significant development in international law since the adoption of the United Nations Charter" as reported by Amnesty International USA. Q(b): What conditions must be met for a criminal investigation to proceed under (a) above?
A(b): The conditions to be met for a criminal investigation to proceed under (a) above are those enumerated under Article 15, 53 and 54 of the Rome Statute.
Under Article 15, the prosecutor in opening an investigation based on information on crimes within the jurisdiction of the ICC must analyse the seriousness of the information and where necessary seek additional information from States, organs of the UN, NGOs etc. If based on his/her analyses of the information, the prosecutor concludes that there is a reasonable basis to proceed with investigation, s/he shall submit a request to the Pre-Trial Chamber for an authorization for investigation... If the Pre-Trial Chamber also agrees with the prosecutor that there exists a reasonable basis for investigation of crimes within the jurisdiction of the ICC, the chamber shall authorize the commencement of the investigation. Under Article 53, the factors to consider in determining if a prosecutor should initiate an investigation are stipulated as follows: Under Article 53, the factors to consider in determining if a prosecutor should initiate an investigation are stipulated as follows: a) if the information of crime made available to the prosecutor discloses any reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed b) the case is or would be admissible under article 17 c) whether when the gravity of the crime and interest of the victims are considered, there are still substantial reasons to believe that an investigation would not serve the interests of justice. Under Article 54, the duties and powers of the prosecutor when investigation fully begins are provided to include:

On duty: to establish the truth by examining all facts and evidence that would help reach a clear assessment of whether a criminal responsibility has arisen under the Rome Statute; to take appropriate measures to ensure the effective investigation and prosecution of crimes; to fully respect the rights of persons arising under the Rome Statute On powers: to conduct investigations on the territory of a state pursuant to Part 9 or as authorized by the Pre-Trial Chamber under article 57 , paragraph 3(d) of the Rome Statute, collect and examine evidence, request the presence of and question persons being investigated, victims and witnesses...etc.

Nb: while commencing an investigation fully lies on the assessments and authorization of the prosecutor and Pre-Trial Chamber respectively, a decision not to open investigation by either the prosecutor or the Pre-Trial Chamber can be upturned by the Pre-Trial Chamber or reviewed by the prosecutor on the emergence of new facts or information.

Q(c): What likely crimes could arise for investigation under the law that empowers the office of the ICC prosecutor?



A(c): The likely crimes that could arise for investigation under the law that empowers the office of the ICC prosecutor are those crimes which the said law creates and recognizes.

The crimes are genocide, crimes against humanity, war crimes and crime of aggression which are enshrined and defined under Articles 5-8bis of the Rome Statute. With particular reference to the Lekki toll gates shootings, Article 7 crimes in the Rome Statute are the most likely crimes to be investigated if the office of the ICC prosecutor is authorized to commence investigation. This Article 7 crimes are the infamous crimes against humanity under which are "murder, extermination, enslavement, torture, enforced disappearance of persons" among others.

They are the most likely to be investigated because they are crimes recognized by Article 7(1) as "acts ... directed against any civilian population..." which the Lekki Toll Gates Shootings are a clear example of since the victims at the Lekki Toll Gates were mostly Nigerian civilian population.

Conclusion While the bullets may have been fired in Nigeria, bullet shells, bodies hit by the bullets and the crimes committed by firing the bullet can come under the forensic scrutiny of international criminal law agencies and bodies like the office of the ICC prosecutor which is a creature of a statute operating from the Hague, Netherlands. There is just one statement this clearly makes: the quest for justice knows no boundaries under International LAW. -----

Pulse Contributors is an initiative to highlight diverse journalistic voices. Pulse Contributors do not represent the company Pulse and contribute on their own behalf. -----

About the author: Babajide Michael Olusegun is a final year student of law at University of Lagos.