“No Immunity for Any President Implicated in International Crimes”

Despite the seeming challenges at home, Nigerian Lawyers and Judges have, over the years, distinguished themselves, including at being Prosecutors, Judges and Chief Justices of some African countries. This chain of achievements has not yet ended. Onikepo Braithwaite and Jude Igbanoi sought out one of these rare gems who rose from the Nigerian legal sphere, Judge Chile Eboe-Osuji, the first black and African President of the International Criminal Court, seated at The Hague, Netherlands (ICC). Called to the Nigerian and Canadian Bars, Judge Eboe-Osuji is actually home-grown. He graduated from the University of Calabar, practiced in Port Harcourt before going abroad for his Masters and subsequently, his Doctorate. In 1997, Judge Eboe-Osuji started worked at the UN where he served in various capacities. It was from the UN that he was elected to serve as a Judge of the ICC in 2012. He distinguished himself and earned the confidence of his fellow Judges at the Court, and in 2018, they elected him as the 4th President of the Court where he presided over sensitive international criminal cases during his three year tenure which ended in 2018. The author of a book titled “End of Immunity”, a detailed discussion on the history of international law on immunity, Judge Eboe-Osuji shares his views on several issues, including the ICC issuing an arrest warrant in relation to crimes committed in Gaza and Ukraine

Judge, kindly, give us an overview of your career and how you ended up as the 4th President of the International Criminal Court at The Hague

To summarise, starting with my educational background: I received my LLB degree from the University of Calabar in 1985. Did the legal professional training course at the Nigerian Law School, and was called to the Bar in 1986. And, so, yes, I’m a member of the “notorious” Call Class of ’86. I did my National Youth Service in Port Harcourt  and after that, I went to Canada two years later. I did my LLM degree at McGill University in Canada; and eventually, my PhD much, much later at the University of Amsterdam in the Netherlands.

Regarding my legal work, before going to Canada, I practised law in Port Harcourt from 1986 to 1988. In Canada, I re-qualified, got called to the Bar and practised law in both Vancouver and Toronto.

Come 1997, I was recruited to work at the UN International Criminal Tribunal for Rwanda, as a Prosecution Counsel. I was the first Nigerian to be recruited as a Prosecutor, in an International Tribunal. Later, I also worked as a Prosecutor at the Special Court for Sierra Leone in Freetown. I eventually ended up in Geneva working as the Senior Legal Advisor to the UN High Commissioner for Human Rights.

It was from that last position that I was elected to serve as a Judge of the International Criminal Court, starting in 2012 – the first Nigerian to serve as an ICC Judge. In 2018, my fellow Judges at the ICC, elected me to serve as Court’s President. That was the first and the only time, that a black person and an African served in the position.

Why does it appear as if Nigerians/Africans do not play many roles in these international courts unless their springboard is from outside Nigeria, from places such as UK, Europe, USA, Canada etc?

I can’t speak to the experience of other Africans. Regarding Nigerians, however, I will insist that a Nigerian is a Nigerian. I don’t accept the mindset of finding reasons to draw distinctions between Nigerians – “What’s her ethnic group? What’s his religion? Is she ‘home-based’ or a ‘Diasporan?” and so on. 

Nigerians are driven by one circumstance or another, to ply their trades where they do. Naturally, when the time comes to dive into the swimming pool of opportunity, you leap from springboard on which you stand. And, when I speak of swimming pool of opportunity, I must stress that these are veritable swimming pools – often infested with things that can bite you – in which you must swim well, lest you sink or drown.

The more interesting question, though, should be why it is that Nigerian Lawyers don’t serve as Judges in the various international courts as frequently as Nigeria’s size commands – given a population of over 220 million people and more than 200,000 Lawyers according to certain estimates. It has been a hit-and-miss; a once-in-a-blue-moon story. 

The primary reason for the spotty showing, is because these positions are filled through highly competitive international elections. But, more often than not, those who nominate Nigeria’s candidates will brush aside the best candidates available – and then send forward candidates on the basis of other non-professional considerations. The candidate then goes to compete and ends up losing, because they were competing with better candidates from the other countries. And, the cycle is repeated next time.

What are the core objectives of the ICC? How well would you say the court has done in achieving same?

The core objective of the ICC is to be a court of last resort, which insists on accountability when international crimes – that is, aggression, genocide, crimes against humanity, and war crimes – have been committed and the national authorities with the primary jurisdiction either fail to investigate and prosecute, or fail to do so genuinely.

So far, the ICC has done remarkably well, if we all keep in mind what the court was set up to do – also keeping in mind the structures of its jurisdiction.

Often, people impose their own interpretations of the court’s mandate – as well as their own expectations upon the court – without having actually read the court’s statute to see what its mandate really is, and the framework that constrains what the court is permitted to do.

Here, we must consider that the court can exercise jurisdiction only in any of the following circumstances: first, over nationals of member States wherever those nationals commit international crimes; second, over individuals who commit international crimes on the territory of a member State of the court, even when the State of nationality of the culprit is not a member State of the court. The court’s jurisdiction over Russian nationals for alleged crimes committed in Ukraine- and the jurisdiction over Israeli nationals for alleged crimes committed in Gaza – come under this rubric. A third way to seise the court of jurisdiction is when the UN Security Council refers a case to the ICC, regardless of the nationality of the territory or of the accused person; and it doesn’t matter that the State concerned is not a party to the Rome Statute.

The record of the court’s activities, shows that it has generally done quite well in discharging its mandate. 

The court’s biggest image problem, comes from two primary sources. The first is that, when the court seeks to subject the leaders of a country to accountability – as it must when the occasion requires – those people invariably unleash the most ferocious propaganda campaigns against the court, regardless of the truth. The second source of image problem comes from the failings of the court’s member States, who fail to play their own parts – often due to their own political choices. In a strange, unexplained phenomenon, the court gets blamed for those failings of the States. Take for instance, arrest warrants. The court issues two arrest warrants in legally identical circumstances: one against the leader of an ally, the other against the leader of an adversary State. What often happens is that an ICC member State – or a State with interest – will cheer the court for the arrest warrant against the adversary, and then simultaneously vilify the court for the arrest warrant against the ally. We see this phenomenon in the arrest warrants against Mr Putin and Mr Netanyahu. And, the vilification is based on nothing more than political gas fire – not on the facts and the law. No one ever says, “No the facts do not support the arrest warrant”. It is always other arguments – mostly political noises. And, some gullible people end up believing the tripe. Even some of the questions in this interview, reveal the extent to which the unwary seem to believe or unintentionally relay these campaigns against the court.

It is on record that the USA, UK, Russia and a few other major countries are neither members of the ICC, nor signatories to the enabling statutes, particularly the Rome Statute. This appears to lend credence to the assumption that the court was set up mainly to hound African leaders and leaders from third world countries. To what extent would you say this assumption is justified?

The UK is a member State of the court. So is France, Germany, Italy, Spain and all of Western Europe. By regional distribution, there are 33 African States, 28 States from Latin America and the Caribbean, 25 from Western Europe and their kindred States (including Canada, Australia and New Zealand), 19 from the Asia-Pacific region, and 19 from Eastern Europe. All for a total of 124 States. That number is 47 States more than the 77 States that have accepted the compulsory jurisdiction of the International Court of Justice. So, the premise of concern is not borne out, when it is contended that the preferences of any State – such as US, Russia, China or India – to not ratify the Rome Statute lend credence to the argument that the ICC was set up “mainly to hound” the leaders of developing countries.

But, even in itself the concern that the court “hounds” the leaders of African States is a mistaken view. For one thing, there are arrest warrants now out for the President of Russia and one of his Ministers; as well as for the Prime Minister of Israel and his former Defence Minister. These are not African leaders.

Finally, I was not impressed with the concern, which was rife at some point, that the Court was too focused on Africa. The complaint was not impressive, because the argument was never that the crimes never occurred. Nor was the concern lodged from the perspective of the African victims of atrocities. No one ever pointed out one African victim of atrocities, who complained that the ICC should not be doing the cases it was doing.

I remember a discussion I once had in 2018 or 2019 with a Rwandan official who complained that the ICC was “too focused on Africans.” It turned out that the official was Tutsi. I asked him whether he realised that the logic of his complaint would have meant that the Rwandan Genocide Tribunal should not have done its work, because that work was “too focused on Africans.” But, we cannot ignore the fact that the crimes we are talking about here, are crimes which Africans committed against Africans. ICC takes them up, only because the national system concerned did not investigate or prosecute.

You recently authored a Book ‘End of Immunity’. Tell us briefly about the Book which we are told is a must read, and whether you agree that certain leaders are not accountable for their actions. Some have said that if an African leader did a quarter of what Netanyahu has done to the Palestinians or Putin to the Ukrainians, they would be facing sanctions by now, if not, arrest for offences like genocide and crimes against humanity. Take Charles Taylor of Liberia for example; he bagged a 50 year jail sentence for his crimes against humanity etc, while some countries are defending Netanyahu for his own atrocities. Why the double standards? Will the stronger world leaders ever be made accountable?

I’m grateful to those who see my new book, End of Immunity, as a must read. A family member who is a medical doctor and a friend who is an engineer, both of whom have read the book, said very much the same thing about the book. I intentionally wrote the book in a style and language that make it accessible to everyone – and not only to Lawyers. My engineer friend told me that his copy was delivered to him at 11:30 pm and he made the “mistake” of starting to read it then – he couldn’t put it down.

Regarding the subject-matter, there are some people who mistakenly think that international law had recognised immunity for Heads of State alleged to have committed international crimes. The book is an in-depth exposé of the history of international law on that question. And, it reveals that, at no point had international law ever recognised immunity for even Heads of State who are under investigation or prosecution before an international court for international crimes. Quite the contrary, at every opportunity – since 1919 – the international community had rejected such immunity. 

That, in a nutshell, is the central story of the book. But, it needed telling with all the historical records that demonstrate the proposition.

How can we make our own Nigerian leaders accountable?

It depends on the subject-matter. In relation to ordinary crimes, immunity is often provided in the Constitution of nations. Many national Constitutions – not only Nigeria’s – provide that while in office the Head of State may not be prosecuted for ordinary crimes. That privilege is exclusively reserved, for Heads of State within national law.

But, for international crimes, there is no immunity for anyone including heads of State. So, any Nigerian – including the President – who is implicated in a genocide, crimes against humanity or war crimes, should expect to be tried at the ICC. There is no immunity. It is that simple.

There was no ICC during the Nigerian civil war. I have no doubt at all that, had the court existed at the time, Nigeria’s leaders would have found themselves under investigation and prosecution at the ICC. There’s no doubt at all about that. So, it is important to ensure that that national experience is never repeated.

Kindly, share with us a few cases which you adjudicated upon at the ICC that impacted on global diplomacy in any way. There was the Kenyan case involving Ruto and Kenyatta, even before you became President of the ICC. 

One matter that I adjudicated at the ICC that remains topical, was the question of immunity in relation to President Omar Al-Bashir of Sudan. I was the presiding Judge of the appellate chamber of the ICC, when the question was presented to the Appeals Chamber for the first time. The question was whether there was immunity for a Head of State in international law. Following an extensive research and analysis, we unanimously answered the question in the negative: no, there never was immunity in international law for anyone – including Heads of State – when facing charges of international crimes before an international court. 

There have been quite a number of complaints that the ICC since its inception in 1998, with tens of billions of Dollars, has only been able to secure very few convictions so far. What could be responsible for this state of affairs at the court?

For one thing, I don’t know where the statistics of “tens of billions of dollars” comes from. You better verify the actual figure.

Then again, every Lawyer knows that you don’t judge the performance of a legal system, by the number of convictions its criminal courts have rendered. I cannot not imagine how anyone could see it as a good thing, for a legal system to be renowned for a high rate of convictions. That was the hallmark of the inquisition! Some may reasonably worry about the opposite problem, in the event of a high rate of acquittals. But, an old legal aphorism may well tell us where the right mark should be. You will recall that old saying by William Gladstone, that it is better to acquit 10 guilty persons than to convict one innocent person. But, the statistics of the ICC comes nowhere close to a 10:1 ratio of verdicts in favour of acquittals. Although there have been some acquittals, there are more convictions than acquittals. Then again, I insist, that should not be the measure of justice.

There are applications before the court that the Israeli Prime Minister Netanyahu be arrested and tried by the court. How can this be achieved since Israel isn’t a member of the ICC? Can the same call for arrest be extended to Vladimir Putin, given the alleged crimes being committed in Ukraine? Does such a call for arrest bear upon the sovereignty of these countries? 

As I indicated earlier, the ICC has jurisdiction over nationals of its member States regardless of where those individuals commit crimes. ICC also has jurisdiction over crimes committed on the territory of its member States, even when the accused is a citizen of a State not party to the Rome Statute. It is on the latter ground, that the ICC has issued an arrest warrant in relation to crimes committed in Gaza and Ukraine.

Beyond the foregoing considerations, there is an old doctrine of international law – going back to the time of the Roman Empire – to the effect that, States are entitled to punish persons or other States who violate legal norms that serve to preserve the international community or its member States. You don’t need the States being punished to give their consent, or to be members of the court doing the punishing. It was on that basis that nationals of Germany and Japan were prosecuted at the end of World War II in international courts established under legal instruments, to which Germany and Japan were not parties. The same goes for the ICC, in relation to nationals of Russia and Israel. 

Thank you Judge.