Judge Chile Eboe-Osuji was the 4th President of the International Criminal Court. He is the Distinguished International Jurist at the Lincoln Alexander School of Law at the Toronto Metropolitan University and a Special Advisor to the President of the University. From 2012 to 2021, he served as a judge at the ICC, first as a trial judge and eventually as an appellate judge.
Prior to joining the ICC, Dr Eboe-Osuji served as the Legal Advisor to the United Nations High Commissioner for Human Rights in Geneva. Earlier in his career, he worked at the International Criminal Tribunal for Rwanda and at the Special Court for Sierra Leone, as a senior prosecution counsel. Before joining the international public service, he practiced law as a barrister in Canada and Nigeria.
Following the end of his tenure at the ICC, he has also served in the following visiting professorships: the Paul Martin Senior Professor of Political Science, International Relations and Law at the University of Windsor; visiting professor of law at the University of California in Los Angeles; the Herman Phleger Visiting Professor of Law at Stanford University Law School; Distinguished Visitor at the University of Toronto Faculty of Law; and a senior fellow at the Carr Center of the Harvard Kennedy School. He has also taught as an adjunct professor at the Faculty of Law of the University of Ottawa.
He received his PhD from the University of Amsterdam (the Netherlands); his LLM degree from McGill University (Canada); and, his LLB degree from the University of Calabar (Nigeria). His achievements include prestigious awards and membership in esteemed legal organizations. He has also authored several books on international law topics.
In this interview with JURIST Senior Editor Tarazi Mohammed Sheikh, Judge Eboe-Osuji offers his valuable insights on the recent situations surrounding the International Criminal Court (ICC)’s impartiality in pursuit of global justice.
JURIST: During your presidency at the ICC, you mentioned the challenges of the ICC being perceived as biased against certain regions in your speech “Struggles of Justice in a Highly Political Context.” Considering the current state of global politics, how do you think the Court can strive for universality while addressing these perceptions?
Chile Eboe-Osuji: The “Struggles for Justice in a Highly Political Context” was a pre-pandemic lecture that I delivered at The Hague Academy of International Law in January 2020. It seeks to address some misconceptions in the world of law in general and international law in particular.
One vital problem that the essay engages is the perpetually frustrating objection which argues that an international court of law must decline to adjudicate a dispute presented to it because that dispute is “political”. To describe that argument as “frustrating” is to put it in the politest term possible. Some states have been known to make that argument boldly in the context of questions presented for judicial determination both at the ICC and the ICJ. It is a very poor argument in the mouth of any international lawyer. The practical result of it would be to leave violent self-help as the default strategy for dispute resolution between disputing parties — as lip service is limply and routinely paid to encourage the parties to “return to the negotiating table” even when one side or both adamantly refuse(s) to do so and there is no way of compelling negotiations let alone one that produces the desired outcome that would end violence and bloodshed. There is, of course, the possibility that perpetual armed conflict is good for the weapons industry whose profits would be good for their national economies (see here and here.) So, therein lies a major disincentive for speedy resolution of a particular armed conflict, let alone eradicating the phenomenon of wars altogether.
The argument that courts should not adjudicate disputes seen as “political” strangely ignores that since 1919 (upon the founding of the League of Nations) and certainly since 1928 upon the adoption of the Kellogg-Briand Pact, the international order stands on two principal normative pillars. The first is the general prohibition of the use of force, and the other is the requirement that disputes of any kind must be settled by no other means except through peaceful means. And a cardinal mechanism of peaceful settlement of disputes is adjudication of the dispute in question. So, for instance, we cannot leave a dispute that has endured for over 100 years between Jews and Palestinians, in which ever-escalating violence has been used, with the loss of countless lives of Israelis and Palestinians, to persist without adjudication, because of any theory that it is a political question from which courts of law have no say.
On the basis of the Kellogg-Briand, reiterated in the opening articles of the UN Charter, it is precisely the mandate of international courts — both the ICJ and the ICC — to adjudicate questions of international law presented to them. And they must adjudicate such disputes without fear or favor wherever the jurisdiction of the particular court reaches. Be it in Côte d’Ivoire, Darfur, Kenya or Palestine.
JURIST: If we delve more into recent contexts, notably the arrest warrants sought in relation to the situation in the State of Palestine, there are many questions surrounding the application. One such question is concerning the jurisdiction of the ICC. What is your take on that?
Chile Eboe-Osuji: The ICC has jurisdiction to adjudicate on any international crime listed in the Rome Statute if such a crime occurs on the territory of Palestine. The textual basis of that jurisdiction is to be found in article 12(2)(a) of the Rome Statute. I also addressed the doctrinal correctness of that jurisdiction in an essay recently published in Verfassungsblog, the German-based online journal. Although the essay addresses certain arguments that have been made in the context of the situation concerning Israeli and Russian nationals, it also addresses the situation of Myanmar. In the context of the Palestinian situation, I understand that there is a new objection to the ICC jurisdiction on a theory that the Oslo Accord obstructs the ICC jurisdiction. It is a curious argument. From all indications, it looks like the Oslo Accord has been honored more in the breach than in the pursuit of its purpose of peace (see here). The Jerusalem Post published a piece in 2010 in which Prime Minister Netanyahu apparently acknowledged that the Oslo Accord had failed, and he claimed credit for that failure. It all leaves you wondering what all this means in the context of the fullest appreciation of the Vienna Convention on the Law of Treaties. Notably, article 60 of the instrument relieves a party of its obligations under a treaty if the opposite party breaches the treaty in a material way. The question arises, have either the Palestinian or Israeli authorities engaged in material breach of the Oslo Accord to an extent that gives it its current understanding rightly or wrongly as a moribund bundle of papers? Should the world just continue to stand by — only meekly urging both sides to return to the “negotiating table” — rather than do all that is possible (such as through processes of international courts) to try and protect human lives on both sides of the conflict?
JURIST: It is reported that the ICC Prosecutor Karim A.A. Khan has received threats, which particularly specified that the court was “built for Africa and for thugs like Putin, and not for the West and its allies.” How do you think this sort of events affect the ability of the Court to function impartially and independently?
Chile Eboe-Osuji: We must, of course, all hope to live long enough to read the memoirs of Mr Khan in his old age to learn who said that. But the mindset is as abominably crude as it also reveals staggering ignorance or brazen willingness to ignore history — or, else, the discredited belief that might make right. Staggering ignorance of history is because some of history’s worst atrocities have been attributed to individuals from “the West.” People like King Leopold II for atrocities in Congo, Kaiser Wilhelm II for transgressions of World War I, Adolf Hitler for the Holocaust.
But we need not dwell on a litany of atrocities and the origins of their authors or masterminds. It is, perhaps, more helpful to recall what I call the “Jackson Doctrine” — after Robert H. Jackson, the former US Supreme Court justice and US Chief Prosecutor at Nuremberg. Shortly before his appointment to the latter role in April 1945, he addressed the American Society of International Law about the value of international courts as instrument of the rule of law among nations: “It is futile to think,” he said, “that we can have an international law that is always working on our side. And it is futile to think that we can have international courts that will always render the decisions we want to promote our interests. We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage.”
JURIST: We’ve seen joint efforts of countries, institutions and distinguished individuals standing united against impunity, both in the past and now. In your opinion, how do these efforts impact the Court’s objective to remain independent and impartial?
Chile Eboe-Osuji: The hope remains that the unfortunate mindset discussed in the immediately preceding question is an aberration. Beyond that, it is important that everyone supports international courts as the most impactful methods we have for peaceful settlement of international disputes. We cannot look at them as an optional alternative to the use of force. Salmon O. Levinson, one of the leading brains behind the Kellogg-Briand Pact, put it brilliantly in an essay he published in The New Republic on March 9, 1918. As he put it: “A trial before an international court must not be an alternative to war; it must be made a substantial and complete substitute for war.” But, that requires supporting institutions like the ICJ and the ICC to carry out their mandates in an independent and impartial way. That abjures supporting the courts when they inquire into the conduct of our adversaries, and at the same time vilify them when they inquire into the conduct of our friends — even if that approbation and reprobation are occurring at once.
JURIST: Turning now to your distinguished career, you’ve advocated international justice across various roles, that serves as an inspiration for many. Reflecting on these experiences, what single lesson or principle has resonated most deeply with you that you would like to share with aspiring legal professionals and those pursuing global justice?
Chile Eboe-Osuji: The one message I have is to underscore that the critical need for the joint efforts in support of international law and the imperatives of accountability needs to be both mindful, manifest and firm. That message goes not only for aspiring legal professionals but also for every policy decision maker and every citizen of every nation.
All around us, we see political developments that threaten to pull the thread from the seams of the international order, if not incinerate that order altogether. Those who threaten the international order in that way are inclined to do so because they see themselves as powerful now. But, if history tells us anything, it is that power is never a perpetual attribute for any nation. The wheel of power does turn, you see. The British Empire was once the dominant power amongst nations — lording it over India and other nations. Japan lorded it over China, and Germany over Europe. America has enjoyed global dominance for sometime now. China is quietly challenging that dominance. India is now wealthier than Great Britain, its former colonial master.
It is terribly shortsighted for anyone in Washington or elsewhere to embrace the policy of undermining the international rule of law — of which the ICC is a meaningful mechanism — rather than fortify and support it to protect everyone now and in the future.
Just as importantly, it is critical for the citizens of the world, often led by young people in impactful ways, to support international law and its mechanisms, by taking positive actions. The future belongs to them. They must not allow the reckless bronco riders of power today to do foolish things that endanger the world the youth will inherit tomorrow, when those rough riders are nowhere to repair the damage they have done. I end by recalling what Francis Bacon said about maintaining justice: “If we do not maintain justice, justice will not maintain us.”
