The president of the International Criminal Court (ICC), Judge Chile Eboe-Osuji, whose work lately rubbed the US government the wrong way, spoke with Aggrey Mutambo on keeping the court steady.
The ICC is almost two decades old. What would you say are its successes in helping victims of atrocities?
ICC has established and consolidated its reputation and purpose as a permanent institution where victims of specifically genocide, crimes against humanity, war crimes and the crime of aggression, can hope to look for justice on the international stage, when other avenues for justice have become unavailable at the national level.
The ICC was set up by the international community mindful that serious crimes must not go unpunished. Our track record has demonstrated the independence and impartiality of the Court and strong respect for fair trial rights.
One of the greatest achievements of the ICC is to put victims at the centre 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 with exclusively punitive justice – is a hallmark of the ICC’s proceedings.
The ICC’s Trust Fund for Victims is currently realising 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 programmes.
The Court is facing threats, especially from the US, seeking to discredit its work. How does that affect the future, legitimacy and authority of the Court?
These are disturbing, unacceptable, and unprecedented. However, we have clearly said that our commitment to fulfilling the Court’s mandate under the Rome Statute remains unwavering. We owe it to the victims of atrocious crimes and to the 123 states parties that have mandated us to work for justice, for the rule of law, and for accountability.
It is also in the nature of the ICC’s mandate to attract opposition and criticism — and this opposition shows one thing: That the ICC matters. Demands for more justice and accountability have never been so high. Since 1998 and the adoption of the Rome Statute, high-intensity conflicts have increased rather than decreased, globally. Humanity needs the ICC today as much as it did in 1998, if not more.
Court officials have been slapped with travel bans by the US. Will that slow or force the ICC to abandon any proceedings against US citizens? What is the alternative?
First, there are no proceedings against US citizens. The prosecutor has been authorised to investigate the situation in Afghanistan, including crimes allegedly committed by the Taliban, by Afghan security forces, and by US personnel. And the reason for granting the prosecutor that authorisation is because the alleged events occurred in Afghanistan, and that gives ICC the power to investigate and prosecute, because Afghanistan is a member state of the ICC.
Now, whether that investigation will ever lead to proceedings against specific US citizens is uncertain at this stage and depends on many factors, beginning with evidence, but also whether the US or Afghanistan would deal with any possible cases through their own justice systems. That would be something that the ICC would prefer, because that is how the ICC system is set up.
States have the primary right and duty to serve justice. We have no jurisdiction, when they do so. If states do not take up their responsibility, then the ICC is mandated to act as a court of last resort, which must respond to the victims’ demand for justice.
The ICC is not an organ of the UN, yet it draws some legitimacy from the UN Security Council (through referrals) and its members are also members of the UN. Does the Court have any plans to have non-members accept its role and even join up?
The ICC has 123 member states while the UN as a global body has 193. We keep encouraging non-members to join up so that ICC’s reach would be truly universal and without the need to depend on the Security Council to refer situations from those that are not yet member states of the ICC. As with any international treaty, it is of course a sovereign decision for each state whether to join — or not. And we fully respect their decisions.
I am, however, convinced that, slowly but surely, the ICC’s membership will continue to grow. The Court’s purpose and mandate is compelling: Putting an end to the reign of impunity for crimes that have caused humankind to suffer for centuries.
The UN Security Council only makes referrals to the ICC, not instruct it to take up any specific case or direct how any case should be handled. Those are independent decisions taken by the ICC prosecutor and the judges.
Where is the Court currently engaged?
The Office of the Prosecutor has 13 ongoing investigations concerning conflicts in Uganda, the DR Congo, the Central African Republic, Darfur (Sudan), Kenya, Libya, Côte d’Ivoire, Mali, Georgia, Burundi, Bangladesh/Myanmar and Afghanistan. These investigations are at various stages; some have already yielded cases against specific individuals that have already been tried; in other situations, arrest warrants have been issued but trials are yet to commence. And in other such as Burundi or Georgia, there have not yet been any charges but investigations continue.
The prosecutor is also conducting preliminary examinations in other conflicts, to assess reports of alleged crimes and to determine whether the criteria for opening an investigation, as defined in the Rome Statute, are met, in Ukraine, Venezuela, Colombia and Palestine.
The Court continues its work despite the special circumstances in which we are due to the Covd-19 crisis.
Some critics argue the Court has focused on Africa since it was established. How does the Court balance its operations globally?
The ICC has neither intentionally focused on one continent or region nor picked situations or cases for purposes of ‘balancing’ operations globally. The ICC’s work is driven by its mandate, which is to serve justice when national jurisdictions have for any reason failed to do so, and genocide, crimes against humanity or war crimes, or the crime of aggression, have been committed in one of the ICC’s states parties. The ICC is not about acting against any country, religion, nation or region. Such allegations are often mere attempts to distract the public from the ICC’s real mission — to ensure accountability.
Should we say to victims that the Court cannot hear allegations of crimes against them because we already have other investigations and cases from the same continent? Indeed, I have never heard African victims complain about the ICC’s involvement in their countries. More to the contrary.
The vast majority of the 33 African states parties have remained strongly committed and supportive of the ICC. They may not have been as vocal as some powerful people on the continent who chose to perpetuate negative perceptions about the ICC, but the co-operation of those countries has been steadfast. Now that the ICC is facing serious challenges and opposition in its efforts to expand its operations on other continents, I would expect even those in Africa who used to criticise the Court to speak up in its defence.
African states were critical in creation of the ICC for they spearheaded the early ratification of the Rome Statute and operationalisation of the Court. Today, they form the largest regional group in the ICC membership.
What is your take on the arrest, and imminent prosecution, of Rwandan fugitive Félicien Kabuga, arrested 26 years after his alleged crimes?
Kabuga’s case is not before the ICC because he was indicted by the UN International Criminal Tribunal for Rwanda, ICTR, which is a different tribunal from the ICC. I worked at the ICTR many years ago as a lawyer, I feel strongly about the importance of achieving accountability for the genocide against the Tutsi in Rwanda, which was one of the darkest episodes of human history.