Virtual Meeting: A Conversation With ICC President Chile Eboe-Osuji

Monday, July 6, 2020

President, International Criminal Court (ICC)


Partner, Arnold & Porter; Adjunct Senior Fellow for International and National Security Law, Council on Foreign Relations

International Criminal Court (ICC) President Chile Eboe-Osuji discusses the purpose and value of the ICC’s work and the ICC’s relationship with the United States.

U.S. Founders Respected International Law (Research paper submitted to CFR by ICC President Chile Eboe-Osuji)

BELLINGER: Thank you and good morning. Welcome to today’s Council on Foreign Relations virtual meeting with Judge Eboe-Osuji, president of the International Criminal Court. I’m John Bellinger, partner at Arnold & Porter in Washington, D.C., and adjunct senior fellow on international law here at the Council on Foreign Relations. Judge Eboe-Osuji has been a judge on the International Criminal Court since March 2012. He’s been the president or chief judge of the eighteen-judge court since March of 2018. He joins us today from the court’s offices in the Hague.

Judge Eboe-Osuji, welcome and thank you for joining us today.

EBOE-OSUJI: Thank you very much. It’s a great pleasure to be with you.

BELLINGER: So some brief context. We’ve got many members who are very familiar with the court, others less so. So just some very brief context. As you know, Judge, the United States has had a rollercoaster relationship with the International Criminal Court since the beginning. During the Clinton administration, the United States participated actively in negotiating the treaty that created the court, but then was only one of seven countries to vote against the final draft of the treaty, Rome Statute, in 1998. President Clinton then later authorized the U.S. to sign the Rome Statute treaty, but he said that the treaty had, quote, “significant flaws,” and that he would not submit it to the Senate for advice and consent until U.S., quote, “fundamental concerns” were addressed.

In the first term of the Bush administration, the U.S.—in the first term of the Bush administration the U.S. formally un-signed the Rome Statute, in a letter to the U.N. signed by John Bolton, that he said was the happiest day of his time in government. Then in the second term of the Bush administration, when I was legal advisor, the Bush administration took a more cooperative approach, agreeing to the Security Council resolution that referred the Darfur genocide to the court, and helping—and offering to help the court with certain investigations. The Obama administration also worked with the court on some investigations but refused to send the Rome Statute treaty to the Senate for approval.

And now the Trump administration has returned to a hostile approach to the court. On June 11, the president issued an executive order authorizing the denial of visas to ICC judges and prosecutors and freezing of their assets in the United States. So with that background, Judge, what’s your view of the U.S. rollercoaster relationship with the court, and with the longstanding U.S. view that the Rome Statute has, quote, “significant flaws”?

EBOE-OSUJI: Thank you very much, John. First of all, I do acknowledge the role you played when you entered the administration, to soften what was an initially heady period. At the end of this broadcast or engagement, we’ll be sharing with CFR a paper I’ve written—a recent paper I’m written that engages some of those difficulties and some of the flaws in the arguments that have been made against the court. But the current circumstance we’re talking about, the more aggressive turn of events we’ve noticed, is emblematic, of course, of the general attitude that the current administration has towards the international court. We’ve seen it in relations with Human Rights Council, with the UNESCO, with WTO, even with the World Health Organization that is supposed to coordinate efforts to protect the health of the world.

I dare say, with respect, that this is not the American way, as the world has come to know it. When we talk about the American way as the world has come to know it, we may look at four documents—short documents that I will urge your members to review once again. One of them is the speech of Robert H. Jackson on the 13th of April 1945, titled The Rule of Law Among Nations. The other one, the second document would President Truman’s speech at opening of the United Nations conference in San Francisco on the 25th of April 1945. Another document to look at would be same President Truman’s speech at the closing of that conference in June 1945.

And lastly I recommend people to look at the op-ed piece written just last week by General Wesley Clark, the supreme NATO commander, retired, in which he said this, quote, “The United States benefits from its leadership role in the international order. When the United States does that, it helps the world to protect not only American troops and citizens, but also the world in general. That is his point, in a piece titled: The United States Has Nothing to Fear from the ICC. In a nutshell, I would call these the—what would encapsulate what I will call the American way as the world has known it all along.

Now, in the paper that I will share that will also be discussing the role of the U.S. founders in the establishment of the international order, going not only back to the foundation of the current world order since the end of the Second World War, but all the way back to the foundation of the American republic itself. I will perhaps in the course of these discussions be returning to some of this, but I can say this for now: I have seen it—I’ve heard it argued that, well, the ICC would the founders’ worst nightmare. I’ve heard that said repeatedly. And whenever I hear that, I smile. Why? Because I happen to have studied the U.S. Constitutional history as part of my curriculum when I was in law school. And I’ve enjoyed doing that.

So I found it a little strange when people make that argument about international law, and how the founders would find the ICC the worst nightmare. That is not true. If anything is to be discerned from the thoughts put on paper, on record, by the U.S. founders, it would be this: That the leading lights of the U.S.—among the U.S. founders in fact would have embraced the ICC. They would not have attacked the ICC. That’s one less that—I can say that without fear of contradiction, that you can distill from a review of the record of the thoughts of the U.S. founders. From the time of the republic declaration up until the constitutional conference in Philadelphia in 1787 it is eminently obvious that they would have embraced international law, and the ICC. And the ICC being situated, at that time.

And another thing is that the policy of isolationism, insularism was not in the blueprint of the U.S. founding. So I can say that, again without equivocation. You see all that argument made in greater detail in the paper that will be sharing with your member. But I’ll leave it there for now.

BELLINGER: Well, thanks for that introduction. It would be interesting to know what our framers would think of the International Criminal Court. As I’ve noted, there really have been some bipartisan concerns about the court, even going back to President Clinton, who said that the Rome Statute has significant flaws. But let’s focus for a moment on the Trump administration’s actions. The president—

EBOE-OSUJI: May I interrupt you for a minute, please, on that? And we could have an exchange. When we talk about significant flaws, of course, you did mention that. Again, in the paper I would argue that that is precisely something that the U.S. founders who understand, because people complained about that when the U.S. Constitution itself was drafted and adopted. There were significant flaws, and there was acrimony about it, even to the level, I could say, that you saw in U.S. approach or relationship with the ICC’s Rome Statute. The same thing happened with the United States Constitution. So this is nothing new. I’m sure the founders would have understood that. But go ahead, please.

BELLINGER: Fair enough. Fair enough.

So let’s focus then on the president’s executive order, which he issued earlier this month. That came in response to a decision by the prosecutor and approved by the court itself in March to open an investigation into actions by the U.S. military and the CIA relating to Afghanistan, that the prosecutors said may constitute war crimes. So in his executive order, President Trump declared, and I’m quoting here, “any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States. And I hereby declare a national emergency to deal with that threat.” So what’s your reaction to President Trump’s executive order?

EBOE-OSUJI: The premise, with respect, is just as grotesque as it seems, that the idea of doing justice is something that would provoke—the idea of doing justice by a court of law is something that would provoke national emergency in any liberal society is something that boggles the mind. It cannot be sustained, again, on the review of the record. Here we look back to, again, some of your founders. Alexander Hamilton, what did he say, in Federalist Paper number seventy-eight? What did he say? The judiciary, according to him, may truly be said to have neither force nor will, but merely judgement, and must ultimately depend upon the aid of the executive, even for the efficacy of its judgement, unquote.

Now, here he is, saying this is the weakest organ of government. And people are now arguing that this weak organ of government is such that when its mere judgement is handed down, national emergency would result. That is an absurd proposition. And moving forward, again, back to, again, U.S. founders—I like to stand on their shoulders to make some of the arguments I make here. In 1787, at the opening of the Philadelphia conference, James Madison endorsed the opening statements of Edmund Randolph, who argued that one of the reasons why you needed a federal government—a strong federal government, away from the confederacy—was to be able to restrain the rampancy of violations of international law that was happening in the various states. They said: For that reason we do need a strong federal government that will control or punish those violations of international law. That was the first speech made at the convention by Edmund Randolph.

Now, when Madison supported that speech he added in his own way, quote, “the rupture with other powers is amongst the greatest national calamities.” In other words, violation of international law, such as may lead to a rupture with other powers, is amongst the greatest of national calamities. So there you see it. So you cannot begin to make that case that complying with international law is something that will result in national calamity in the United States, when what we are talking about, in fact compliance of international law, is actually compliance with United States law itself.

If you fall down in any pile of the United States law that deals with the subject of torture—which is what the prosecutor is interested in, in respect to the U.S. involvement in Afghanistan. If you fall down any pile of American law on that subject, when you get up the types all around you would be saying: American law forbids torture. You see that not only in Article 6 Paragraph 2 of the Constitution itself, that says treaties are, you know, part of the supreme law of the law. The treaties we’re talking about here are the Geneva Conventions, which is America’s own treaty. Convention Against Torture, which is America’s own treaty.

And then you come down to the American defense manual on the law of war, again, say American soldiers must not commit torture. You move it to the manual, U.S. Army Field Manual on intelligence, interrogations, again, there’s an annex to that document that forbids torture by excerpting provisions of the Uniform Code of Military Justice. So everywhere you look America’s own law is basically forbidding what the prosecutor is saying we’re interested in investigating here. So I cannot see how obedience to American law itself would be something that would provoke national emergency. I’ll leave it there for now. There’s a lot more to say on the matter, but.

BELLINGER: Well, good. Well, it’s—the framers unfortunately are not here today to tell us what they would think about the International Criminal Court, but what we—

EBOE-OSUJI: But in that record—in that record that we can consult and make sense of what they were thinking—especially when people say the United States—sorry—the ICC was the founders’ worst nightmare. You can’t make that case and get away with, with respect.

BELLINGER: So let’s get into the investigation that has prompted this current crisis, because there was, in fact, a reasonable live and let live relationship between the court and the United States for fifteen year, until the prosecutor opened this investigation into U.S. activities in Afghanistan. So I know you have recused yourself from the specific case, so I’m not going to ask you to comment, and I’m not going to ask you comment specifically about the pending investigation, but let me ask you this in the abstract: Given the court’s limited

resources and the large number of cases that the court’s already handling, or is considering taking, shouldn’t the prosecutor and the court take into account in deciding whether to open a new investigation the likelihood that those most responsible for any alleged offenses would ever face trial in the Hauge? Shouldn’t the court, in approving investigations, consider whether an investigation would undermine support for the court and potentially damage the court’s work in other cases? So I guess what I’m really asking you here is: Should the prosecutor and the court itself, which approves the prosecutor’s decision, exercise discretion in deciding what cases to bring?

EBOE-OSUJI: It is, of course, a good question, if we took it from the last—your last reference there, should the prosecutor exercise discretion? That is entirely up to her, as a matter of investigation. As a judge, as you rightly pointed out, my job is to examine the evidence that has been brought and weigh that against the law and the standard of proof and come to a judgement. And those who worry about what the court does will know that there have been many instances where the judges of the court have acquitted people on the basis that the evidence was not laid out to the requisite standard. There have been instances of that. People complain about it, but we’re not embarrassed about that. So that’s how the law should work, a court of law.

But beyond that, some of the other hints we’re talking about, the most responsible, that’s probably part of the discussion we will have that’s in this thing. The idea of most responsible, let me deal with that in two ways. First of all, I think by now it must be clear that the Rome Statute does not require that only the most responsible could be prosecuted at the ICC. This is something that I don’t know how it entered the thinking of the ICC lexicon. It came from the Special Court for Sierra Leone, where the Security Council specifically put in the statute of that court—or not Security Council; the U.N. specifically put in the statute of the Special Court for Sierra Leone that only the most responsible could be proceeded against. But that was not the standard all along.

At the ICTY and the ICTR, they did not go after the most responsible all the time. There was time when it was people who actually were caught committing crimes that were proceeded against. But at the ICC somehow the idea of most responsible crept in. Again, I don’t know how it got in there, in the Office of the Prosecutor. But I think they’re learning now that it’s not always easy to go after the, quote/unquote, “most responsible.” That I can say.

Now, I do not know who are the most responsible in the context of the Afghanistan case. I don’t know that. It’s up to the prosecutor and what her investigation, if she carries it out, will reveal. But it’s important to stress, John, that the responsibility of the foot soldier who is actually caught committing alleged violations, that—the responsibility of that individual does not go through anybody else who may have been implicated in orders, or structures, or whatever. No. Anybody who commits a crime will be responsible for it. So I don’t know who else would be most responsible, who maybe evidence will reveal—

BELLINGER: Well, let me jump in here, just because I don’t want to get off on the higher level versus lower level. I’m asking a slightly different question here, which is the courts—and I’m going to get to a minute in the court’s workload. But as you know better than anybody, it’s got a lot of cases. It’s struggling already, and there are more referrals. And so the question is, in the abstract, at least, should the prosecutor in considering whether to take a new case consider the likelihood that the people she’s investigating will ever appear in the court, or whether ultimately taking on an investigation is a quixotic effort that’s not going to ultimately be successful and may ultimately hurt the court?

EBOE-OSUJI: I may have, you know, alluded to some of that in what I said earlier, but I can say this: That is for her, is for the prosecutor to make that judgement.

BELLINGER: But it’s not just for her. As you know, the court itself has to consider whether to allow her to go forward with an investigation. And the pretrial chamber, with respect to Afghanistan, told her not to go forward in the interest of justice, and then an appellate chamber reversed that, telling her to go forward.

EBOE-OSUJI: Yeah, but the appeals chamber was the last to speak on that in the discussion of what’s in the interest of justice. But the more important thing is this: What is a court set up to do? Is the court set up to, OK, when it’s difficult then shy away? Or is it if the victims come and complain that we’ve not had justice, you know, the doors of access to justice are closed to us everywhere else, and the national jurisdiction, ICC, you’re a court of last resort. Is the court supposed to say: Sorry, victims, go away, because it will be a difficult case for us to investigate and get into? I’m not sure that that is the answer to be given to victims.

Now about other cases you’re talking about, and the why—and, again, I’ve been asked this question by some other—I’ve been asked this question before. Why Afghanistan? Let’s consider here that the bulk of the—larger bulk of the interests, as I understand it, from the prosecutor’s interest would be, again, the conduct of the Taliban, the conduct of the Afghan security personnel. It’s only in the third, say, level that question about the American personnel behavior toward, you know, detainees is an issue. Mind you, here—as I understand it—the prosecutor is not even saying that she has probable cause to worry that American troops committed war crimes in the heat of battle. I don’t understand that to be the case of the prosecutor.

So those who shout or yell that this is something to go after American soldiers who are fighting to protect their country, that is quite frankly a red herring. But when you now return to the subject of whether this case is important or not, the Afghanistan, considering again Taliban, Afghan National Security Forces, right, and as I say the third order would be American personnel related to detainees. It would be difficult, I would imagine, to say: yes, prosecutor, go ahead and do the Taliban, do the Afghan national security, but if there’s something that concerns Americans make sure you don’t touch that. (Laughs.) I don’t see how you can construct an authorization to investigate in that way.

OK, moving forward now. And—

BELLINGER: My point is, there are a lot of victims that are out there, and the court really can’t take every case. But let me—

EBOE-OSUJI: But that’s important. Let me deal with that, John. I was coming to that actually as my next point.

There are a lot of victims out there. Now, when you consider, for instance, the Guinea is one of the cases at the court—the situation in Guinea, resulting from post-election violence. You consider the situation in Kenya, resulting from post-election violence. You consider the case in Côte d'Ivoire resulting in post-election violence. Now, look at Guinea. It happened over, I believe, a one-day incident. About 200 people casualty. Kenya, two-month incident, about less than 1,300 people died. Côte d'Ivoire, four months, about I believe three to four thousand—about three thousand people casualty. Look at that.

And when you put all that together, the pale in comparison with Afghanistan. What is the statistics on Afghanistan? The war had gone on for 216 months. Not one day in Guinea. Not one month in Kenya. Not four months in Côte d'Ivoire. But 216 months in Afghanistan. In which, at least thirty-five thousand people were killed. Now, I do not know those who say, well, Afghanistan, why didn’t you look at somewhere else, other victims elsewhere? How do you make that case with these sort of comparative statistics? I don’t know.

BELLINGER: So let me—let me jump in there, because I want to make sure the members have a chance to answer—or, to ask question, and for you to answer them. I’ve got lots more questions, but I think I can only squeeze in one or at most two. So let me turn to something different. And that’s the—how the court is doing overall, over the last eighteen years. So as you know well, the Trump administration may be the most vocal but they’re not the only critics of the court. Many ICC member states, and even some human rights groups, have criticized the court as inefficient and badly managed.

A few months ago, the Foreign Minister of the Netherlands Stef Blok, who’s a friend of the court, and of course the Hauge hosts the court, took the very unusual step of writing a public op-ed in the Washington Post, of all

places, arguing that the ICC is in urgent need of reform. And he noted that the court, and I’m quoting here, has a, quote, “meager track record of nine convictions and four acquittals,” that ICC members frequently propose, his words, “mediocre judges” for election, and that ICC decisions are inconsistent. And then he specifically criticized a lawsuit that you and a group of other ICC judges have filed against the court in Geneva asking for a substantial increase in pay over the roughly $200,000 that judges already receive.

So what do you say to these people, including many friends of the court like Stef Blok, who say that the ICC is badly managed, has unqualified judges, and needs to be reformed? And here I’m just repeating what we see from others.

EBOE-OSUJI: Again, that’s a good question, John. But I must tell you this, that’s not the only thing that Mr. Blok wrote in the op-ed. You picked out a small—a sliver of what he wrong. It was a long piece, in which he criticized even the U.S. government for its attitude, criticized states parties to the Rome Statute for not cooperating with the court, for bringing—executing arrest warrants of the court. Of course, the criticism about who is elected a judge of the court cannot be an issue for the judges, but I can tell you there are very, very good judges here. Some of the best legal professionals you can have. We would have liked to see U.S. part of that and get their own input on the judiciary on the bench of the court.

So all that said, I told him that I disagreed with him on the part of his commentary that you just quoted. I told him with respect that it was wrong on that. And we can discuss that at length. But let me put it this way: The—of course, if the argument is that the court can do better, I will be the first to agree with that proposition, that the court can do better. That is a criticism that the judiciary all over the world have faced, not only the ICC, you know, judiciary, or legal system. Judiciaries even in those judiciaries where the judges are paid a lot more than the ICC judges are paid. That criticism that they could deliver better on justice.

So I don’t want to spend time discussing the, you know, summary and lawsuit. I can only tell you that on that matter itself, what the judges were saying, as you can see from this targeting, we’ve had these so-called sanctions imposed on the court including—without excluding the judges, as something that comes from them doing their work. That shows you kind of how difficult this work is at the ICC, for staff and the officials. When we do our work, we face aggressive behavior. Even now, the threat of sanctions being imposed against the judges. Mr. Bolton threatened malicious prosecution against even judges for doing their work.

That is—that tells you how tough this work is. And the judges were only saying—look, they were not asking to be paid more than other international judges. They’re asking to be raised in terms of their conditions of service to the same level as other international judges, because that is not the case as it is. And, by the way, about lawsuits, I’m glad you raised it. In the United States judges have resorted to lawsuits to resolve matters about their conditions of service. You know that very well. In Canada, that has happened. In the United Kingdom, that has happened. In fact, in 2008 Chief Justice Judith Kaye, the chief judge of New York, commenced litigation because after ten years of salary freeze she felt there had to be litigation to correct that.

ICC judges have had a pay freeze for more than seventeen years. So it is not at all something to be embarrassed about. It’s just using the legal process to correct something that needed to be corrected, rather than go on strike or down to—sort of make all kinds of noises in the press. That hasn’t happened from ICC judges. It’s just saying, look, there’s something here that doesn’t look right. Correct it. That’s all there is to that.

But, again, returning—but that’s not the main issue. The issue here is, is the court doing the best that it can in difficult circumstances? Answer to that—yes, it is. Are the judges working very hard and staff? Yes, they work very, very hard. And when they work hard, they face aggressive treatment from states who don’t like the work they’re doing. In the Philippines, Duterte threatened the court. In Kenya there were a vilification of the judges and the court in the media all the time we were doing those cases. Now we see the most powerful country in the world saying: We will impose sanctions against the court and its officials. So these are some of the circumstances of what’s going on here. There is still a need to do better, in spite of all of that. And that, I would

say, again, nothing different from what you obtain in national jurisdiction. But that is no reason to throw the baby out with the bathwater.

BELLINGER: Well, a lot more to discuss here, judge. I know I’d like to ask you about the investigation that the prosecutor has proposed to open into Israeli actions in Gaza and the West Bank. But let’s hold that because I’m past my time. I suspect someone will ask about that. So we’re now going to open the floor to questions from our members. And I’ll turn it over to the members to ask.

STAFF: (Gives queuing instructions.)

We will take our first question from Mark Ellis.

Q: Thank you very much, Mr. President and John. A great session.

Mr. President, I have to say I’m one of those—I represent the International Bar Association. So you know, the IBA has been a very strong proponent of the court. But I must say the statement about pursuing a rise of judicial salaries makes it very difficult for NGOs like ours to continue to actively promote it. So I did want to say that. But it moves to this point of over eighteen years of having eight convictions, four acquittals, well over a billion euros spent. And I’m wondering whether it would be better to start shifting resources to this principle of complementarity and supporting national cases and using universal jurisdiction in a much more active way. And I ask this question as one who supports the court, but I think there are real challenges that the court is facing right now. And I’m wondering if that’s one of the solutions. Thank you.

EBOE-OSUJI: Let me take that question immediately. Shifting resources to complementarity, what does that mean? It sounds vague for a number of reasons, for what it says. That we don’t know what this entails. And we know that the idea is that it should be done—justice should be done at a state level. That is something we all agree on. And that is in fact the premise of the Rome Statute itself—the jurisdiction of the court. But why was the court created? The court was created because states have not done it all along. Violations have been committed throughout the history of humanity, with no permanent decision to ensure that justice is always done. So and that was why the court was created in 1998.

Is this argument now, shifting resources to complementarity, does it mean returning to status quo? The very reason why the court was created, let’s go back there? That’s a question for all of us to ponder. I don’t think that that is answer. It doesn’t give us clarity about where we’re going with that. But let’s move back now about comments about resources well over a billion. I’m not again impressed at all by that argument—at all. The reason is this: Well over a billion dollars. When you say that—actually, we can say $2 billion throughout the court’s existence. But that goes for a period of eighteen years, $2 billion. When you compare that to what—I mean, that’s $2 billion over eighteen years to try and do justice.

Now, compare that to what states spend in military hardware or weapons ever year. What we are talking about almost $2 trillion—in other words, two thousand billion dollars that countries spend on military every year. Compared to $2 billion over eighteen years. And what does that $2 trillion buy us? Some of the difficulties that we are left to clean up—questions of justice that arise when wars are prosecuted the way they are prosecuted, and there’s nobody to do justice on that account. It’s now left to the ICC to use an average of, say, $112 million every year, because that’s what $2 billion translates into when you break it down. About $112 million annually.

A hundred and twelve million dollars, excuse me to use this comparison, is less than—at the height of the ICC budget—is less than the annual budget of the police department of the city of Minnesota. I mention the city of Minnesota because it is a mid-sized United States City. And the budget of the court, it’s less than the police department’s annual budget. And people complain about $2 billion over eighteen years. I’m not at all impressed by that. I’m also surprised that the IBA, we’re talking about—complaining about eight convictions. How many convictions should we be having as an ICC? Are we supposed to convict everybody? No. We look at the judges,

we look at the evidence. If the evidence does not justify a conviction, we will not conviction. We will acquit. That is doing justice. It doesn’t help the victims if this is seen as something of a one-way street—once you get in there you can’t come out. No. We do review the—critically—the evidence and the law. And we come to the judgement.

I will not say any more about the comment about judges salary. As you know, this is less than what you see in many national jurisdictions.

BELLINGER: Let’s move on. Mark, thanks for that question and let’s take another.

STAFF: We will take our next question from Valentina Barbacci.

Q: Yes. Good afternoon here from London. Thank you so much for your comments and your conversation today.

I work on behalf of many organizations as a social impact advisor, but one particular one that I have been working with recently focuses on the Rohingya and other minority populations that have been targeted in Myanmar or Burma. And I would be—you know, since August of 2017 we’ve—I think most on the call here will be quite familiar with what’s going on. But in case, we’ve seen hundreds of thousands, if not by now millions, of people flee Myanmar as a result of the persecution on behalf of the government, and a blatant denial of that government of their sort of wrongdoing in all of this. And I would be delighted to hear your thoughts on the current situation, given that we’re now several years on and the public attention has obviously diverted mostly elsewhere, since its original sort of pickup in 2017. So I’ll leave it at that because I just welcome your thoughts on that in general. Thank you.

EBOE-OSUJI: I will be very, very brief on that. And I will tell you, of course, that I understand where you’re coming from on that question and why you would ask it. Regrettably, it’s one of those questions—one of those questions that I cannot answer, for the obvious reason that the matter is still—is an active case pending before the pretrial chamber court. Basically, it’s still in the court. And I cannot comment on that because who knows, the question may come up before me as a judge in the appeals chamber, and then it would be difficult. But I do respect that you asked the question. Thank you.

BELLINGER: Let’s take another one, then.

STAFF: We will take our next question from Kip Hale.

Q: Hello, Mr. President. Hello, Mr. President, thanks so much for your time. Kip Hale here, former of the American Bar Association.

From my experience having worked inside international criminal tribunals and also in civil society working on U.S. ICC issues, where I was based in Washington, D.C., I have often noticed that on both sides of the Atlantic when it comes to the U.S.-ICC relationship, they talk past each other. They often don’t speak the same language. And I chalk it up to a lack of familiarity, particularly on the U.S. side, with the ICC and how it works, but also on the ICC side and how the different equities that U.S. government officials deal with. I’m curious as to your thoughts as to how to bridge that gap, and how to make the two sides more familiar with themselves. And one last thing, I will say I know that the ICC has to deal with many countries and can’t give any country a specific treatment. So I just—with that caveat, I would just be curious as to your thoughts on the matter.

EBOE-OSUJI: Thank you. That’s a great question. And the caveat, you need not worry about it. The caveat is, you know, entirely appropriate, but you don’t have to worry about it. We do try our best to engage with countries, different countries, even those that have matters pending before the court. To give you one example, the Office of the Prosecutor, for instance, was seized with what they call preliminary review. Basically, they

get—you know, for the audience—the information comes in—both news reports and other NGO reports come to the Office of the Prosecutor if something is going on in the country where the ICC has jurisdiction. And the Office of the Prosecutor has to review that before making a decision of how to deal with it substantively.

And one of the countries that there is a review pending, or preliminary review, is Nigeria, the country of my own nationality. But in spite of that, the Nigerian government has continued to support the court. As a matter of fact, in July 2018, the twentieth anniversary of the adoption of the Rome Statute, President Buhari, the president of Nigeria, I invited him to come and give a keynote speech, and he accepted. When he came, he basically told the world that the ICC is needed now more than ever, given the level of violations that happen all over the world. Those are his words. You can Google his speech, the keynote speech of the ICC, President Buhari.

And following that, he called upon all nations who have not yet joined the ICC to do so as a matter of national priority. This is, again, the president of a country that the Office of the Prosecutor was digging to see whether something had gone wrong there. It’s about engagement, how you talk to people, answer their questions, and then perhaps there’s an understanding. So I have held, myself, the hand out for the U.S. administration, and it has not been accepted—to engage in discussion with the administration.

I held my hand out to African leaders who complain before I came into office about ICC targeting the African region. And they agreed to meet with me. And in addressed some of their concerns, some of the information you talked about. There was also misinformation that stoked the anxiety of the African leaders. I addressed those concerns directly. And they hopefully saw the point. So I was hoping to do the same thing with the U.S. administration. That hasn’t happened. Maybe the paper I promise to share with the CFR can help to do that or engage in some of those subjects or objects of misinformation. Whether that does it or not, I don’t know. But that’s the best I could do.

BELLINGER: You may have some work to do with our Senate as well. But let’s take another question.

STAFF: We’ll take our next question from James Reinol (ph). Mr. Reinol (ph), please accept the unmute now button.

Q: Hi. Can you hear me?

BELLINGER: Yes, go ahead.

Q: Great. Thanks so much. Thanks so much for the briefing today.

Listen, obviously the ICC came into existence in a different era, when the world was moving forward to something that was more global in nature. And nowadays, we live—it seems we live in a different kind of environment. And we’re seeing lots of transborder prosecutions at the moment. There’s the one in Turkey at the moment, relating to the Khashoggi’s killers. There’s Germany’s ISIS case. There’s Iran’s request for an Interpol warrant against Trump. And of course there’s the difficulties you guys are having with the Americans. I guess my question is about the world becoming more polarized, politicized, and fractured. And in that kind of environment, does it become more difficult to dispense what might look like a credible form of justice for the world?

EBOE-OSUJI: Brilliant question. Brilliant question. In that kind of world, the support for the ICC becomes even more crucial, because it is that kind of world that led to the events that led the world in 1998 to say: Never again. We want a permanent institution to deal with these things, these violations when they occur. So it is those tensions that resulted ultimately in those sorts of events, First World War, Second World War, and all the other atrocities we’ve seen committed elsewhere. So that makes the work of the court even more pressing, however diffic

And you are quite correct to say that ICC was created at what I call a lucid moment in time. And that is why it is so, so, so crucial to make sure we don’t take that achievement for granted. Because the creation of the ICC did not start in the 1990s. It was a project that goes back to 1919, at the end of the First World War. Article 227 in the Treaty of Versailles, if you look at it, you can begin to see the hint of a desire for an international court of law. It didn’t work until 1945, after the Second World War, Nuremburg, again, proceedings which started the discussion—Nuremburg proceedings in which Americans played a leading role. That started the discussion.

After the Second World War, after the Nuremburg proceedings, the Americans inspired the United Nations to adopt an international code of crimes against—offenses against peace and security of mankind. That was the work of the United Nations—United States, inspiring the U.N. to do that. And part of that work was to have also a mechanism to enforce that law, that code of crime. That was what’s culminated in the adoption of the Rome Statute in 1998. But let’s go back a little to see that lucid moment in time.

Let us now look at that context. 1990 saw the fall of the Berlin Wall at the beginning. Nelson Mandela, you know, released from prison. Paris troika, you know, making the world feel a better place. All of that. So the smooth or the good feeling at the time opened up an avenue that allowed the ICC to be created after a long period, you know, of stumbling blocks to make that achievement. So we suddenly had an opening in 1998, and the statute was adopted.

Now, when you look at where we are now, I think somebody maybe drinking something or smoking something if they thought that kind of feat could be achieved again in the current circumstances of the world. I don’t think that’s possible to contemplate. And that is one reason why we cannot take this institution for granted. We understand that nobody likes a code of law to be interested in its affairs. That’s a natural feeling. But that’s not reason to say: Let’s destroy the whole thing or undermine it to the extent that we can. There are areas where we can agree to disagree, and there are a lot of areas where we can agree to do something together. And that’s what the 123 states parties that created this court had in mind. And that’s why more states need to join that effort, rather than undermine it.

BELLINGER: All right. Let’s take another.

STAFF: We’ll take our next question from Hank Cohen.

Q: Greetings, Mr. President. I’m a retired U.S. diplomat. I was assistant secretary of state for Africa under George H. W. Bush.

I have a question about eligibility for submitting cases. There is a group of nine Canadian jurists who recently submitted a case against the Kabila administration in the Democratic Republic of Congo. Is this group eligible to submit a case, or must it come from a government? Thank you.

EBOE-OSUJI: Thank you very much. That will be a question most appropriate for the prosecutor to answer, because a lot of—prosecutors receive, as I understand, I don’t know how, again, she chooses what cases she pursues. But one way that cases come to the ICC is when people provide the prosecutor with information. That information can lead her to look more closely at the situation being complained about. If there is sufficient basis for her to take up the matter, and she wants to investigate, then she has to get authorization from the judges to move forward. So that is one way that cases can come to the ICC. And that is the third way—way number three.

The first way is when a state party to the Rome Statute refers a case to the court. That’s the number one way to do that, because an event has happened in the territory of that state party or the nationals of that state party are suspected of having committed a Rome Statute crime. Some may even say that it may not be something that happened in the territory of the same state party. Other states can refer one another to the ICC, but that remains to be seen. But that’s number-one way, state referral.

The second way is when the Security Council refers a situation to the prosecutor to investigate. And that has happened in the case of Darfur. It happened in the case of Libya because Sudan is not a state party and never was, and so to Libya. But the Security Council chose to refer the case to the ICC.

But the third way, I described earlier, is the prosecutor doing what we call a proprio motu, you know, proceeding—in other words, she starts herself, but then she cannot move with it without authorization from the judges. That’s where we are with the—in the Afghanistan scenario, for instance, where she moved proprio motu, or out of a motion of her own, but she needed to get authorization from the judges to do that. In an event concerning the territory of a state party being Afghanistan. So that’s the best I can answer that question. So the eligibility of the referral will be for the prosecutor to look at.

BELLINGER: Since we’re running out of time, I’m going to seize the presider’s prerogative and ask a question that I think is on a lot of people’s minds, particularly our Congress. And that has to do with the prosecutor’s decision to open investigation of Israel with respect to war crimes that she says Israeli officials have allegedly committed in Gaza and the West Bank. And she has said that she has jurisdiction to investigate, even though Israel is not a party to the Rome Statute because Palestine has declared itself to be a state and has joined the Rome Statute. So the prosecutor says that she has jurisdiction therefore and could proceed. But as you know, she has then asked the court to confirm that she has jurisdiction before she does proceed. So that essentially kicks it up to the judges to determine whether under international law Palestine actually is a state that can refer matters to the International Criminal Court.

So mindful of what you said to the previous question I’m not going to ask you the specifics of this cause, but there could be other states where someone declares themselves to be a state and then asks the ICC to investigate. So my question for you is, should it be up to the judges of the International Criminal Court to decide who is a state and who is not a state? Or is that more appropriately a question for the political organs of the U.N., like the Security Council?

EBOE-OSUJI: That’s a loaded question, in a way, but let me try and deal with it. First of all, I think it’s important to clarify that the prosecutor, as I understand it, is not investigating so far. I do not understand that she’s investigating in Palestine, in that specific area. What I understand has happened is that the Palestine referred the matter to the Office of the Prosecutor, the situation in Palestine, to the Office of the Prosecutor. And the prosecutor asked the question about jurisdiction. So however you look at that, that is a question that carries with it the risk that the judges may say no, there is no jurisdiction. If that is the answer the judges give, that is the end of the matter.

But if the judges say, yes, there is jurisdiction, then it’s up to the prosecutor to decide—so it’s a second level of decision—should she now investigate since the matter has been referred by Palestine. But so far, again so we get the facts straight, there is no investigation, as I understand it. Again, the matter before the judges is to determine whether there is even jurisdiction to proceed further with that case.

But then you ask the question, well, is it up to the judges to determine statehood. And that is what I said the question is loaded. As if the—what’s at issue there is determination of statehood rather than has there been violations that make humanity victims of certain conduct in an unfavorable way. If you look at it—I will not give you the answer to this—but let’s look at—let’s ask the question: Is it possible that that question might actually be confusing to plight of victims in any situation—since you say, well, could it be up to any state to say, we’re a state, you should take the case?

The reason I ask that question is this: I want to you, John, to imagine this. Forget now that this is a case that we all know. We’re not children. We know that the matter of Israel and Palestine has been a fraught one for, you know, since 1914, at least, going to now. It has been that fraught. But let’s hypothetically step back and say: OK, let’s remove the question of a possibility of fault on the part of Israel. I’m not saying there is fault at all,

I’m saying let’s just look at that. And say: OK, just remove Israel from the equation. Say Israel has nothing at all to do with the situation in Palestine.

Let us say, as happened in Kenya, Guinea, Côte d'Ivoire, election violence. Let’s say there’s election violence in Palestine that went horribly wrong, the same way we’ve seen in some other places. And the prosecutor says: Sorry, I have to look into this. Israel has nothing to do with that. Are we—is the question to be, no, ICC, sorry this horrible thing happened in Palestine? Nothing to do with Israel but the alleged victims of that event. The matter has not been investigated or prosecuted in Palestine. What should be the answer we should give? This is for all of us. Should we say, sorry, nothing can be done because if you take it up it means Palestine is a state?

Again, I haven’t got an answer to that question, but it is one that I’ve often asked myself. I haven’t got an answer to keep it, but we’ll keep on pondering it. And I’m sure you will. I’ll leave it at that.

BELLINGER: Well, we’ve got lots more questions that we could ask. I’m afraid we’re going to have to leave it there. So thank you very much for joining us in these socially distant times. We wish we could have you here in New York. But thank you for joining us from the Hague and answering our questions today. So I understand that this was on the record, so the audio and the transcript of today’s call will be posted on the CFR website. Thanks very much for joining us, Mr. President.

EBOE-OSUJI: Thank you very much for having me. I’ve had a lovely time.


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