Complementarity or Capitulation? The OTP’s Memorandum of Understanding with Nigeria

[Chuka Arinze-Onyia is a doctoral student researching universal jurisdiction at Griffith University Law School]

Only weeks after the Nigerian government entered into a Memorandum of Understanding with the ICC to prosecute crimes committed by Boko Haram and the Nigerian military, the Nigerian Airforce on 11 April 2026, launched airstrikes that killed over 100 people and injured several others. There will be no investigation, and even if there is, the Nigerian military will find no evidence of wrongdoing. We know this in part because the military has already released a statement on Twitter (X) describing the attack in which scores of civilians including children lost their lives as “a precision strike on a known terrorist enclave and logistics hub.” They further claim that:

“post-strike assessment confirmed that the target area was struck with high accuracy… scores of terrorists were neutralised in the strikes… while surviving elements were observed fleeing in multiple directions.”

The statement released by the Nigerian Army has already begun the process of exculpating the military from any wrong-doing, by characterising the victims as terrorists. As a result, one can be almost certain that there will not be any real prosecution of the persons involved in conducting these airstrikes.

Another reason we can be certain that there will not be genuine prosecutions or investigations of this incident, is because Nigeria already has an established pattern of not investigating or prosecuting atrocities committed by its armed forces. Amnesty International documented this pattern in its Willingly Unable report, which demonstrated that investigations of the Nigerian military were always orchestrated to shield the officers from future investigations. There can be no doubt that this pattern is bound to repeat itself in this instance.

Accountability for crimes committed by the Nigerian military is unlikely to come from domestic courts. The International Criminal Court, in 2020, recognised this pattern when it concluded with respect to the Nigerian situation that while there are some efforts to prosecute low-level Boko Haram fighters, the military authorities usually examine and dismiss allegations against their troops. This led the office to conclude that the statutory criteria for opening an investigation into the situation in Nigeria were met and “the next step will be to request authorisation from the Judges of the Pre-Trial Chamber of the Court to open investigation.”

Unfortunately, for nearly six years, the OTP declined to take this important next step. In 2025, Amnesty International filed an application before the Pre-Trial Chamber to compel the Prosecutor to commence proceedings in Nigeria, arguing quite convincingly that the Prosecutor had no discretion as to whether to open an investigation, once s/he determines, as the office did in 2020, that the statutory criteria for an investigation had been met. This argument represents the most accurate interpretation of Article 15(3) which provides:

[I]f the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected.

In simpler terms, once the office finds that there is reasonable basis for an investigation, it must approach the Pre-Trial Chamber to request authorisation. This was the interpretation adopted by the OTP in its own Policy Paper on Preliminary examinations where it wrote that:

“[i]f the Office is satisfied that all the criteria established by the Statute for this purpose are fulfilled, it has a legal duty to open an investigation into the situation.”

In 2020, the Office reached that determination with respect to Nigeria, and yet it declined to comply with its legal duty to open an investigation. The attempt by Amnesty International to compel the office to fulfil its legal duty to investigate also failed, as the Pre-Trial Chamber ruled in a 2-1 decision that Amnesty International and Jire Dole (a network of victims and survivors of the conflict in Nigeria) lacked the standing to bring such an action. The majority adopted the OTP’s argument that victims had no standing to initiate proceedings and could only participate in judicial proceedings which had already been initiated by the Prosecutor. Therefore, since the OTP had not initiated proceedings in the Nigerian situation, victims had no recourse.

This position is even more troubling when one considers that Article 15(3) was a compromise included in the Rome Statute as a check on a potential rogue prosecutor acting in violation of the spirit of the statute and pursuing a political agenda. Yet, in the Pre-Trial Chamber’s interpretation of this sub-article, they have created just that, a prosecutor above accountability, even when acting in clear contravention of the Rome Statute. The preferred minority opinion of Judge Socorro Flores found that the Pre-Trial Chamber “has the duty to ensure that the Prosecutor acts within the remits of the statute.” Judge Flores persuasively argued that the Prosecutor had a duty to request authorisation once the office determines that there was reasonable basis to proceed with an investigation, and not doing so constituted an abdication of responsibility.

A Memorandum in Lieu of Investigations

Instead of acting within the bounds of the Rome Statute by proceeding with an investigation, in March 2026 the OTP decided to enter into a memorandum of understanding with the Nigerian government. Under this MoU, the Nigerian government will be given at least two years to conduct investigations and prosecutions, with both parties agreeing to assess the implementation of the memorandum twice a year and share helpful information between themselves. As a safeguard, the OTP retains in the memorandum, the prerogative to request authorisation to open an investigation.

One may have thought that after a preliminary examination, the OTP had the choice under the Rome Statute either to seek authorisation to proceed with an investigation if there is reasonable basis to do so or to close the situation, if the statutory criteria for an investigation are not met. It appears, however, that the OTP has unlocked a non-statutory third choice of entering into a memorandum even when there is reasonable basis to conduct an investigation. The OTP claims it is doing this to support domestic prosecutions in Nigeria, in line with its so-called positive complementarity framework.

There is absolutely no reason to believe that this MoU would spur domestic trials, especially of military officials that kill civilians. Since the beginning of the ICC’s preliminary examinations, the Nigerian government has strung the ICC along with limited cooperation, particularly by prosecuting low-level Boko Haram supporters and members in mass trials. (See the reports on preliminary examination 2020, 2019, 2018 etc). However, high-level Boko Haram members and the members of the Nigerian Security forces continue to enjoy impunity. The office in 2020 claimed with respect to domestic prosecutions in Nigeria that it had:

“given ample time for these proceedings to progress, bearing in mind the overarching requirements of partnership and vigilance that must guide our approach to complementarity.”

In 2026, however, the Office now claims that it:

“has received additional information on relevant domestic proceedings. This includes proceedings in relation to alleged crimes committed by Boko Haram and the Islamic State in West Africa Province, and members of the Nigerian Armed Forces.”

The OTP provides no evidence of these new proceedings, which it is suggesting offer justification for not opening an investigation. And there is no reporting in the media of such high-level prosecutions.

While there is no evidence of high-level prosecutions, there  is evidence of even more mass trials, conducted over a four-day period in April 2026, where over 500 persons were charged, with 386 convicted, eight discharged, two acquitted, and the remaining 112 cases adjourned to a later date. 386 convictions secured over four days before only 10 judges does not exactly provide strong evidence of genuine trials, sufficient to satisfy even the most lenient complementarity assessment. Most likely, these mass trials, or more accurately, mass convictions were done to subvert criticisms that the Nigerian government is not doing enough to end terrorism.

Conclusion

The airstrikes of 11 April 2026 are not an aberration. It has happened before, and in all likelihood, it will happen again.  It is the predictable outcome of a system that has been allowed to fail, repeatedly and without consequence. The Nigerian military conducts a systematic attack on civilians, describes them as terrorists, and faces no meaningful scrutiny, no prosecutions or convictions. Domestic courts have neither the independence nor the institutional will to hold the Nigerian military accountable. The ICC, the court of last resort for victims when national systems fail them, has spent the last six years finding reasons not to act, and has now formalised its inaction in a memorandum that rewards a government for the very pattern of impunity the Court was designed to punish.

What the OTP has effectively communicated to the Nigerian government, and to every other state party, is that a sufficiently patient state can outlast international accountability. Extend just enough cooperation on low-level cases, conduct mass trials of civilians and foot soldiers, and the OTP will grant you time, then more time, then a memorandum. The victims of the April airstrike, like the victims who came before them and the ones who will inevitably come after, will wait. Most likely, this wait will be unending unless the OTP decides that their lives and suffering have value and deserve redress.

The ICC’s credibility rests on the proposition that the worst crimes will not go unanswered simply because powerful institutions find it inconvenient to answer them. That proposition is being tested in Nigeria, and so far, the Court is failing the test. The Pre-Trial Chamber has already decided that the Prosecutor is not accountable to either victims or the Court in any of its pre-investigation activities. Even when the OTP acts in clear contravention of the Rome Statute.  And the international community must recognise that an MoU signed with a government that just killed over a hundred of its own citizens is not complementarity but capitulation.

Photo Attribution: “Aero L-39 Albatros Nigerian Air Force” by Gar3th is licensed under CC BY SA 3.0