An Interview with the President of the International Criminal Court: Judge Chile Eboe-Osuji

Judge Chile Eboe-Osuji is the current President (Chief Judge) of the International Criminal Court, located at The Hague in the Netherlands. He began his nine year term on the ICC bench in 2012 before being elected its President in 2018. Prior to his tenure on the Court, he was the legal advisor to the UN High Commissioner for Human Rights and lead counsel in high-profile cases and ad hoc international tribunals. Judge Eboe-Osuji also practiced as a barrister before the highest courts in Nigeria and Canada and taught international criminal law at the University of Ottawa. He has published over 500 legal research papers, written two books, and submitted numerous amicus briefs to the US Supreme Court and the European Court of Human Rights.

Harvard Undergraduate Law Review (HULR): What inspired a boy born and raised in Añara, Nigeria to pursue a career in international law?

Chile Eboe-Osuji: It is a long story that predates my birth. The story started with my father, who aspired to become a barrister, but could not afford to travel to England for his study. So, he remained a clerical officer in the Nigerian judiciary, eventually becoming a registrar. He ultimately transferred his ambitions to his children. He gently encouraged me in the direction of legal studies. By the age of 15, I knew that I wanted to be a barrister.

I was eventually called to the bar in Nigeria and later in Canada, and I practiced in both countries. I was in private practice in Toronto in 1997, when the opportunity to enter the world of international law presented itself. I received a voice mail from Louise Arbour, Chief Prosecutor of the international tribunals for the former Yugoslavia and Rwanda at the time. I called back and she offered me the opportunity to work for her as a prosecutor. The rest is history.

HULR: You later served as counsel at the Special Court for Sierra Leone where former Liberian President Charles Taylor was the first head of state to be convicted by an international court since Admiral Dönitz was found guilty at Nuremberg. Could you describe that experience?

CEO: There is a temptation to answer questions like this by locking onto the thoroughly satisfying professional experience that it offered. Yes, my work as a prosecutor both at the Rwanda genocide tribunal and the Sierra Leone war crimes court were hugely fulfilling - purely from the perspective of the professional craft and experience. But, what was more important for me was having to confront the reality of the human capacity for absolute evil. In the case of Rwanda, it was the genocide: the actual resolve of human beings to eliminate their fellow humans, for no other reason than the alterity of the group to which their victims belonged. Sierra Leone had its own particular brand of horrors - made especially so by human beings resolving to amputate the arms of their fellow human beings, simply because they had the power to do so.

In those circumstances, the only special value you felt as a prosecutor - and what gave the experience that sense of fulfilment - was the privilege to bring passion to your courtroom advocacy, hoping to have made a small difference in helping to clean up the dross that we are capable of leaving in our wake as human beings who can commit such unbridled evil. You also hope to have derived from the experience a bit of hardwiring to never keep silent in the face of injustice and unfairness.

HULR: The ICC was established in 2002 to try to end impunity by punishing the perpetrators of genocide, crimes against humanity, war crimes, and the crime of aggression. How effective has the Court been in achieving its objectives so far?

CEO: The Court has been very effective in achieving that objective. Those who think of this question often make the mistake of parsing the comparative statistics of convictions and acquittals. It is a mistake, whatever story those statistics may tell. In my view, the more important measure of the Court’s value lies in how well it has loosened the grip of tyranny in our time. This is important because victims no longer have to feel locked down in an oppressive Kafka nightmare, in which there is no ray of any hope that those who subject them to genocide or other crimes against humanity may ever be held accountable. And oppressors can no longer be sure that they would enjoy complete and utter freedom from accountability for their cruelty. Now, that is no longer the case. Victims now have a place that they can complain in hopes of accountability. And the oppressors will always worry about what the ICC might do sooner or later.

With the strong backing of 123 States parties, from all continents, the ICC has become the leading institution of the international criminal justice system. The Court is addressing violent conflicts and atrocious crimes which affect millions of people around the globe. Our track record has demonstrated the independence and impartiality of the Court and strong respect for fair trial rights.

But, beyond those general considerations, it is also the case that during its 18 years of operations, the ICC has done much more than many imagined it could do. The ICC’s Office of the Prosecutor has conducted investigations into 13 different conflicts in 12 countries. Court cases have been initiated against more than 45 persons – some of them heads of state. Crimes charged have included murder of civilians, rape and sexual slavery, conscription of children into military use, forced displacement and deportation, destruction of religious monuments, and election related violence.

One of the greatest achievements of the ICC is to put victims at the center of the international justice system, granting them unprecedented opportunities for access to justice. More than 10,000 victims of atrocities have participated or are participating in the ICC’s proceedings and had their voices heard in the courtroom through their legal representatives. Victims can also request reparation for the harm they have suffered. The focus on reparative justice – as compared to exclusively punitive justice – is a hallmark of the ICC’s proceedings. The ICC’s Trust Fund for Victims is currently realizing the Court’s first judicial orders on reparations. In addition, the Fund has provided physical and psychological rehabilitation as well as socio-economic support to over 450,000 victims through its assistance programs. All that is to say, even with all the challenges that it has faced, the ICC has fundamentally changed the way the world looks at accountability for atrocity crimes.

HULR: In June, President Trump issued an executive order denying visas to ICC officials and freezing their American assets as part of a broader attack on international law and international institutions. But a research paper you recently wrote suggests that the US hasn’t always viewed international law this way. Could you expand on this?

CEO: My point is that available evidence informs us the Founding Fathers of the United States attached great importance to international law. In the very first speech at the Federal Convention in Philadelphia, on Tuesday 29 May 1787, Edmund Randolph insisted that a primary reason for the United States to move from a confederation to a federation (under the Constitution) was to give a strong federal government the authority to “punish” American citizens who violate international law – a rampant phenomenon that had enjoyed impunity in the confederation era. James Madison promptly agreed, adding that a “rupture with other powers is among the greatest of national calamities.”  In a similar vein, John Jay, in urging the people of New York to ratify the new draft Constitution, wrote about the need for America to respect international law in her relations with other nations. According to him, “It is of high importance to the peace of America that she observe the laws of nations towards all these powers.”

Regarding international criminal law more specifically, one can safely say that the United States has played a central role in shaping that branch of international law into what it is today. Perhaps most importantly in that regard is that the International Military Tribunal in Nuremberg would not have been established had it not been for the strong American support for that endeavour under the leadership of President Truman and the central role of Justice Robert H Jackson in the negotiations on the Tribunal’s establishment, and later as the chief prosecutor of the US team.

In the period after the Nuremberg Trials, the United States was among the most fervent proponents of the establishment of a new generation of international criminal justice institutions, such as the tribunals for Rwanda, the former Yugoslavia, and Sierra Leone.

And indeed the United States Senate, with the relentless advocacy of Senator Arlen Specter and Senator Christopher Dodd, specifically urged the US government to support the establishment of the ICC. Also, the US government took active part in the negotiations on the Rome Statute of the ICC and made important contributions in the process, shaping alongside other states the final outlook of that treaty.

HULR: Some other state leaders, including Rodrigo Duterte and Benjamin Netanyahu, have also challenged the ICC. What do you say to those leaders who claim that international courts violate their state sovereignty?

CEO: The claim that ICC violates state sovereignty is mistaken. The nature of the ICC’s jurisdiction does the very opposite of usurpation of national sovereignty. It actually prides and underscores national sovereignty.

Under the Rome Statute, the primary jurisdiction belongs to the state with effective sovereign connection to the locus of the crime or the alleged suspect. It is only when that state proves unable or unwilling to do justice genuinely in the exercise of that primary jurisdiction that the ICC is legally entitled to intervene. Furthermore, the Rome Statute does not give the ICC powers to investigate crimes that may have been committed in states that have not joined the Statute, or crimes by the nationals of such countries.

Obviously, the Rome Statute also cannot create any obligations for states that are not party to that treaty, whereas the States Parties – which voluntarily chose to join the treaty – do have the obligation to fully cooperate with the ICC’s investigations and prosecutions.

HULR: You have indicated that corruption can be just as devastating as armed conflict in the long run. Is there scope for international courts to prosecute those state officials who use their power to steal from their people?

CEO: I expressed that view in my personal capacity as far back as 2000 or so. I remain firmly of that personal view - as an aspiration for the development of international criminal law. Where, for instance, corruption results in denial of basic healthcare - or results in failure to maintain highways properly such that they are turned into death traps or the population suffers from hunger and malnutrition because resources intended for agriculture were embezzled - I would strongly welcome an appropriate amendment to the Rome Statute, so that such culpable corruption could be prosecuted at the ICC, when there has been inability or unwillingness to prosecute the culprits in the national jurisdiction. If it is a credible proposition to bring the Kenya post-election violence to the ICC, with a death toll of about 1,300, I see no reason why a case of gross corruption should not be brought to the ICC in any case in which the demonstrable mortality rate is just as high or higher. This should not be a controversial proposition: there is no country that has not made theft, corruption and breach of fiduciary duty a crime on the part of public officers.

But, that is a vision of the law as it ought to be - not as it is. As it is, the Rome Statute clearly states the crimes under our jurisdiction, and corruption is not among them. Any change to that list of crimes would have to be adopted by the Assembly of States Parties to the Rome Statute – the Court itself has no say in that. Therefore, it is up to the States Parties to decide if corruption should be accommodated - as I think it should - within the scope of the ICC’s jurisdiction.

HULR: The ICC’s bench consists of eighteen judges; no two judges may be nationals of the same state. What is it like working alongside so many judges of different nationalities, who have all come from different legal systems?

CEO: It is thoroughly rewarding and enriching. I much prefer the idea of the global village. And that is one of the major attractions of the international public service in which I have been lucky to serve for more than two decades now. But, like everything else. It can also be incredibly frustrating, at times. The frustration comes especially in times of great pressure, when you kick into automatic mode, leaning on assumptions and residual instincts that have become engraved in the subconscious mind over a lifetime. It is not always easy to realize that those assumptions and instincts are entirely foreign to your colleagues. And that can lead to misunderstandings, especially when you instinctively assume that everyone is on the same page as you, or you fail to explain some propositions that may be very elementary to you because you feel like you are infantilizing your colleagues by explaining such basis concepts. And they also have the same attitude towards you. You can end up talking over people. When you have time on your hands, yes, you can find a way to engage in such discussions more appropriately. It is more difficult when there is little or no time to make a decision. But, for all its frustrations, I would rather have the multi-cultural environment than none at all.

HULR: In March 2021, your nine-year term at the ICC will end. What do you see as the greatest challenges facing the Court in the future?

CEO: The ICC faces and will continue to face a range of different challenges, some of which include the following: inadequate understanding of the concept of judicial independence and reluctance to respect it; budgetary constraints for the scope of work that faces the Court, inadequate cooperation from some States, fugitives that remain at large, and the continuation of trenchant political attacks on the Court, precisely because it dares to want to do its work.

Internally, there is also room for improvement. This is so, of course, for any human institution – even the best judicial systems. It is for that reason that the Court has, under my leadership, fully welcomed and embraced the idea of a review of the entire Rome Statute system. That is to say, a review of the Court itself as well as the supporting structure intended for it in the manner of the Assembly of States Parties – in order to see how the system can be improved and strengthened. The group of experts that have conducted this review are expected to soon publish their recommendations.

Meanwhile, the ICC continues to do what it can on its own to enhance its proceedings. For instance, we recently registered a significant breakthrough in that regard, when the Court’s judges collectively agreed to adopt guidelines on time frames for the issuance of key judicial decisions judgments – specifically to address concerns about lengthy trials and how long judgments take to render. This is the first time that any international court has adopted such timelines.

All that said, the greatest challenge facing the International Criminal Court undoubtedly remains the lack of universal support for the Court, and threats and political attacks aimed at obstructing the Court’s activities. Addressing this challenge goes beyond the powers of the Court itself. The support of the international community as a whole is required to enable the ICC to play fully its role for the good of humanity, in the way the Court’s founders envisaged.

Image Credit: The International Criminal Court