Interview of the former President of the ICC, Judge Chile Eboe-Osuji, by Shehzad Charania

 

In the final weeks of the Presidency of ICC Judge Chile Eboe-Osuji, I conducted the following interview with him.

I begin by asking Eboe-Osuji why he wanted to become President. ‘I have always believed in the idea that if you want to achieve real change, you cannot just sit on the sidelines and complain.’ There were things that ‘needed attending to urgently at the Court,’ he says, ‘and I was in a unique position to assist’.

When Eboe-Osuji was elected President, many considered the Court to have an ‘Africa problem’. Nearly all the Court’s ongoing investigations were situations in Africa, all the Court’s live cases involved crimes committed in Africa, and all the indictees were (and still are) African. This triggered an anti-ICC resentment in Africa that began around 2009 and eventually developed into anxiety amongst many about mass withdrawal of African States Parties. It was a big problem for the Court at the time, he emphasises. ‘As an African myself, I felt I would be able to relate a carefully calibrated message to some of the African heads of state and present them with a better understanding of the Court’s mandate and work, while at the same time delivering difficult messages, the good faith of which they would not question easily.’ Eboe-Osuji thought that this would require personal engagement with those African heads of state whose voices would carry real weight and influence. He turned to his own country, persuading the President of Nigeria Muhammadu Buhari to come to the Court on the 20^th anniversary of the adoption of the Rome Statute to give a well-received speech on the importance of the ICC as a key tool in the fight against impunity.

Eboe-Osuji sees clear success in dealing with the question of whether the Court is biased against Africa, noting that we no longer hear about such threats of mass withdrawal. ‘The issue didn’t just disappear though,’ he insists. It took real and sustained engagement, with Presidents, Ministers of Justice, Ministers of Foreign Affairs, and numerous other bilateral exchanges. ‘In the first instance,’ he says, ‘it wasn’t about telling leaders what I thought, but about listening, with respect, and understanding their point of view.’ It was only then he could begin to address some clear misconceptions. ‘A country like Nigeria which has a population of over 200 million is hardly likely to have the ICC at the forefront of its concerns,’ he suggests, ‘so it is understandable that much of the understanding of the ICC would be fragmentary at best.’ One example was article 27 of the Rome Statute. Eboe-Osuji recalls a public speech former President Dr Goodluck Jonathan gave at the African Union summit in 2013, suggesting that article 27 was a new concept in international law, designed to target African leaders. ‘Dr Jonathan is not a lawyer. He has a PhD in agricultural economics. But someone had apparently put into his speech mistaken information about article 27. And that speech reflected a general understanding amongst many African officials and citizens at the time.’ Eboe-Osuji talks of how he subsequently had to explain the history of head of state immunity and reference trials of European leaders, beginning with its origins in article 227 of the Treaty of Versailles, in the effort to try Kaiser Wilhelm II of Germany after World War I, through to Nuremberg and the ICTY. ‘It was therefore not right,’ he had to explain, ‘to say that article 27 was designed with African leaders in mind.’

Another of Eboe-Osuji’s key goals was seeking to explain and reassert the concept of judicial independence. ‘Even the Court’s biggest supporters do not always properly understand the finer points of this concept,’ he claims. This tendency is seen, he insists, in the inclination of some diplomats to want to micro-manage the Court, in the name of the ‘oversight’ mandate of the Assembly of States Parties (ASP); as well as in the expectation that the Court should take its cue from what some States Parties would find politically convenient. ‘I have had to explain that the ASP is not the Court’s ‘political master’. The Court was ‘established’ in article 1 of the Rome Statute. But you have to read all the way to article 112 to come to where the ASP was ‘established’. So there is no ‘superior-subordinate’ relationship. Parliamentary oversight has a legitimate purpose. But that purpose does not require the legislature to be seen as the political master that directs or micromanages the entire government.’

Somewhat controversially, Eboe-Osuji led an effort amongst a number of past and present judges to consider the question of judicial salaries and pensions. ‘This was,’ he insists, ‘a critical point of judicial independence’ and one of the issues that he felt needed the urgent attention of any President of the Court. While he accepts that the salary EUR180,000 (tax-free) is arguably ‘adequate’ – when, according to Eboe-Osuji, considered out of the context of the periodically updated salaries of other international judges in The Hague, Luxembourg and Strasbourg – the issue for Eboe-Osuji is that the amount has remained frozen since the Court’s establishment 19 years ago, with no review mechanism in place to assess adjustments, for example, against a rise in the cost of living in The Hague of over 25 percent during that time. ‘Such rises in the cost of living have the effect of eroding the value of a salary that is not regularly updated,’ he says. He also notes that, at the same time, the salaries of every other internationally recruited official or staff member of the Court received annual upwards adjustments, and as such it was only judicial salaries that remained ‘solidly frozen’. In Eboe-Osuji’s mind, this is a clear violation of the principle of judicial independence. He notes that the Principles on the Independence of the International Judiciary state that ‘Judges should receive adequate remuneration which should be periodically adjusted in line with any increases in the cost of living at the seat of the court’.

But his biggest concern isn’t the salary, but rather the judicial pension. In 2007, the Assembly of States Parties reduced judicial pensions from EUR90,000 a year to EUR22,500 a year after the independent Committee for Budget and Finance referred to the original settlement as ‘excessive’, with, he says, ‘absolutely no independent or proper study done to justify that judgement’. ‘A judge cannot comfortably live on EUR1875 a month,’ he complains, ‘and after nine years of service, this is a harsh settlement for judges, many of whom have left their domestic systems to join the ICC bench.’ When cutting down the pension to the lower figure in 2007, ‘the architects of that development did not bother to inquire whether the level of reduced pension amounted to an adequate sum to guarantee judicial independence. It was all really high-handed, made more so by the adamant refusal of the ASP diplomats to entertain any discussion with the judges on the matter. That being the case, any criticism for the controversy following the judicial proceedings does not lie with its commencement. It lies rather with the fact that the judges were put in the difficult position of needing to commence legal proceedings as a last resort. As the Editors of the New York Times once rightly observed [in this editorial], in a different but comparable context that was even less severe, ‘[t]he Legislature should remove the motivation for the lawsuit [of judges] by raising judicial salaries’ to a level that is appropriate, and by creating an independent, objective commission for the reasonable updating of judicial salaries – in order to protect judicial salaries against inflation and rises in cost of living’. Although Eboe-Osuji regrets that it took the ILO Tribunal almost three years to rule that the suit was filed out of time, he is nevertheless pleased that, in his view, the lawsuit had the effect of finally spurring the ASP ‘to take the right step in the right direction’ by reviewing the judges’ conditions of service.

We turn to the Independent Expert Review (IER). Established in December 2019 by the Assembly of States Parties, independent experts were mandated to review the functioning of the ICC and the Rome Statute system. ‘I convinced my colleagues in the Court’s leadership that we should do a review. We were then left with the choice of modality: whether to do it on our own or bring the ASP in, with the hope that the ASP’s own performance would also be reviewed in their capacity as the second pillar of the Rome Statute system. We ultimately agreed to bring the ASP in.’ Eboe-Osuji says he regrets that the ASP took over the project and turned it into a ‘State Party-directed’ review of only the Court and not the ASP. Although the reviewers did occasionally on their own initiative delve into aspects of the role of States, Eboe-Osuji insists that ultimately this was insufficient, and the ‘IER only considered the role of States when a particular failing in question was somehow refracted as a deficiency on the Court’s part’.

What about the IER’s findings on bullying and sexual harassment, I ask. Eboe-Osuji is clear that he is not going to diminish the findings, in particular with respect to sexual harassment, and he says he is pleased the issue was raised in such stark terms. The Court has now put in place special structures to deal with this, he says. ‘There are people who speak and act inappropriately,’ he accepts. It is particularly problematic, he says, when bullying occurs where there is a power imbalance, though of course it is unacceptable in any form. Eboe-Osuji is adamant, however, that the problem is not endemic within Court culture. Talking specifically about the judges, he accepts ‘there have been instances of inappropriate behaviour from judges past and present’. But, he insists, ‘in nine years at the Court, I have worked with 30 judges and I can tell you that 99 percent of them would not act in a way that would be considered bullying, or indulge in any type of inappropriate behaviour. There has been a tiny minority of judges – most of whom have left the Court – who acted in ways that would on any view be considered bullying. In the nature of things, such a tiny minority would poison the work environment, leaving effects that lingered even after they had left.’

So, what would he do if he had another three years, I ask? Like his predecessor, Eboe-Osuji is clear that a three year term for the ICC President is sufficient. Being President – especially during these past three years when the Court faced unprecedented political attacks – had been an all-consuming and particularly difficult job. ‘It took a personal toll in very many ways, including on family life,’ he says. ‘But the work of ICC President is never done, whether or not there are political attacks against the Court or review exercises to improve its performance.’ It has been particularly difficult during Covid times, and while he says his family have been wholly supportive, he worries that he has not always been there for them.

I probe on this point about the personal toll of the Presidency. Eboe-Osuji says he found the situation around the time of the imposition of US sanctions ‘shocking and abusive’, and felt ‘a profound sense of disillusionment’ at the Trump administration’s actions. At times, he says, he was ‘at a loss for what to think’, particularly when confronted with clear misinformation about the Court’s functions and motives. These attacks were clearly designed to cause worry in the minds of many in the Court, he says. But this was where town hall meetings with staff enabled him to reinforce the mission of the Court, and also bring some perspective. ‘When you think about the atrocities – the genocide, war crimes and crimes against humanity – the Court has been set up to deal with, and when you think about all the people who have died as a result of such crimes, the idea that the Court’s judges, officials and staff should be cowed from their mission because their bank accounts might be frozen was obviously not an appropriate worry in context. It was not necessary to point out that anyone who worried more about their economic comfort than the realisation of the Court’s mandate was clearly working in the wrong place.’

Eboe-Osuji faced real criticism following the judgment of the Appeals Chamber against Jean-Pierre Bemba Gumbo. Although the decision of the majority in overturning the guilty verdict of the Trial Chamber was highly controversial, according to Eboe-Osuji this was ‘a high point of achievement’ for the Court. The Rome Statute, he insists, gives the defendant the right to contest factual findings. He accepts that the Appeals Chamber is not supposed to consider a case de novo. But, he says, the Appeals Chamber’s rejection of factual findings at first instance does not necessarily mean considering a case de novo within the proper meaning of that notion. The matter in Bemba, he says, was rather how to treat the concept of appellate deference, in the context of the right to challenge findings of fact. According to Eboe-Osuji, the concept of appellate deference – which he noted was not provided for in the Rome Statute or the Rules of Procedure and Evidence – had to be handled with extreme caution when dealing with ideas and rights that were enshrined in the Rome Statute, including the requirement to convict only on a standard of proof beyond reasonable doubt and the right of a defendant to challenge factual findings which did not meet that standard of proof. ‘An appellate judge is not free to pride the non-statutory concept of appellate deference over those other statutory concepts. The concept of appellate deference can very quickly become an apology for appellate indolence,’ he says. Eboe-Osuji recalls that in overturning the Trial Chamber’s conviction, he knew the majority would face criticism. ‘The NGOs, academics, and diplomats had got ahead of themselves in celebrating the Trial Chamber’s conviction,’ he says, ‘but we had to do what was right.’

There were some strong sentiments expressed in the various opinions. So, I ask more generally about the lack of judicial collegiality, noted by the IER, and apparent for all to see over the years. ‘Yes, there is the occasional problem in that regard. In fact, some judges have been known to cast their colleagues in a bad light in the gossip fare of the Hague diplomatic circuit. And we’re trying to address the problem, for example through how we induct new judges and through recent amendments to the judicial code of conduct.’ But at the same time, Eboe-Osuji puts part of the ‘perceived disharmony’ down to different cultural approaches to discussion and interaction amongst judges. ‘Some parts of the common law system are punctilious about judicial collegiality. It is not unusual for judges in some countries, even chief judges, to refer to fellow judges as ‘my lord,’ ‘my lady,’ ‘my learned friend’. Such practices may strike the stranger as comical. But they have the psychological value of priming the judicial mind subconsciously to treat fellow judges with respect and dignity. But where these norms are not observed, that does not always mean there is conflict.’

The case of Bemba also revealed tensions in the so-called One Court Principle, that is, the idea that the organs of the Court work in the most joined up manner where possible, thereby ensuring the most effective and efficient institution. Both the Court and States have talked of its importance since the very early days of the Court’s establishment. Following the decision of the Appeals Chamber, the Prosecutor issued a statement where in strident terms she lamented the ‘significant and unexplained departure’ from the Court’s previous jurisprudence ‘as well as international practice’ and ‘its replacement with new, uncertain and untested standards’. Eboe-Osuji responded with his own statement, noting that ‘[w]hile the senior management of the ICC will continue to endeavour to apply a ‘one court’ principle in purely budgetary and other administrative matters of concern to the Court, it is important to emphasise that this does not apply for the purposes of the Prosecutor’s functions and responsibilities, and those of the Judiciary. They must remain separate and independent functions’.

As he reflects on this episode, he expresses his concern with the principle more generally. ‘It is one of those simplistic slogans,’ he says ‘that can do damage, with no-one realising it. Those who love the idea speak of it as a ‘principle’. But the principle is contained nowhere in the Rome Statute nor the rules of the Court. In 2010, States Parties imposed a 10 percent cut to the Court’s budget proposal across the board. The judiciary protested the cut on the basis that its own budget was always extremely low compared to the budget of the other major programmes. The diplomats said they did not want to make a distinction between the organs. There is only ‘one court’ and the 10 percent cut must apply across the board, they said. That, apparently, is how the one court principle was born.’  Eboe-Osuji is concerned that it is now ‘being brandished’ in numerous different contexts. ‘The trouble is that this will give the misleading impression that judges are going against the ‘one court’ principle if they disagree with the Prosecutor. Some may even expect judges to improve the case that the Prosecutor is presenting. Those are very real dangers.’

As we conclude, I ask what advice he has for the new President, Prosecutor and judges. ‘Never compromise the objectives of the Court and what it was set up to do,’ he says. The last few years have seen the Court face a barrage of negative attitudes, he accepts, ‘but it would be a mistake for a new set of elected officials to strive more to avoid upsetting sufficiently powerful nations than to do their job as required by the Rome Statute.’ It is incumbent on the Court, he says, to remember, and remind states, that the jurisdiction of the Court is complementary, and the ICC only engages where justice is slow or unavailable. He insists that the Court will be a strengthened institution if it insists on its core mission. At the same time, he accepts the need for humility. ‘Just because we are a Court of law, this does not mean we are infallible,’ he accepts. Mistakes do occur, he says, and many of these had been adequately captured in the IER report—notwithstanding, he says, that the experts also ‘made many mistakes themselves in their processes, reports and recommendations’. The key is always to ensure the Court acknowledges errors and learns lessons, and that proper systems and structures are put in place to deal with mistakes.

So, what next, I ask. Eboe-Osuji says he will take some time out to reflect, from academia. His career has encompassed life as a prosecutor, judge and legal adviser at the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the ICC and the Office of the UN High Commissioner for Refugees. ‘I have much unused material,’ he claims, ‘and there are books to be written!’

At 58, Eboe-Osuji is as passionate as ever about international criminal justice, and we will be hearing much more from him over the coming years.