ICC President Chile Eboe-Osuji spoke at the United Nations General Assembly this week. This is the second part of the two part edited essay:By Chile Eboe-OsujiPresident of the International Criminal Court History shows the crimes in the Rome Statute as events that disturb international peace and security. Eventually, leaders of other nations would inevitably intervene with military force and halt the on-going atrocities: rightly compelled by the pangs of their own conscience, or of fear or concern as to the dangers posed by the events (somehow, somewhere) to their own national interests. It is difficult to put it more eloquently than Mr Justice Robert H Jackson of the US Supreme Court put it at the end of World War II. We will recall that he was both the Chief US Representative at the London Conference of 1945 and, later, the Chief US Prosecutor at Nuremberg. In a speech he gave to the American Society of International Law in April 1945, he said as follows: “We have been a freedom-loving people. Our Constitution and our philosophy of law have been characterized by a regard for the broadest possible liberty of the individual. But the dullest mind must now see that our national society cannot be so self-sufficient and so isolated that freedom, security, and opportunity of our own citizens can be assured by good domestic laws alone. Forces originating outside of our borders and not subject to our laws have twice in my lifetime disrupted our way of living, demoralized our economy, and menaced the security of life, liberty, and property within our country.” Justice Jackson was testifying from the perspective of a person who lived through two world wars, unlike any of us in this room. We must listen to him. In those very words, Justice Jackson was bearing living witness in 1945 to precisely the same phenomenon expressed in the preamble of the Rome Statute in 1998 that ‘all peoples are united by common bonds, their cultures pieced together in a shared heritage’ and that ‘this delicate mosaic may be shattered at any time’. But, the way in which the man-made turmoil of a foreign land affects us at home need not involve the drama of our own military intervention that involves sacrificing the lives and limbs of the young men and women that are sent to engage in that military intervention as soldiers. It is enough that such turmoil would generate refugee crises, from which no nation can truly isolate itself as a physical or moral proposition. It is for that reason that Justice Jackson rightly concluded as follows: ‘Awareness of the effect of war on our fundamental law should bring home to our people the imperative and practical nature of our striving for a rule of law among the nations.’ This august body and the ICC, as multilateral institutions, stand precisely for such ‘rule of law among nations.’ In many an international armed conflict involving interventions to halt ‘mass atrocities that have already commenced, as was the case in the First and Second World Wars and many other international armed conflicts since, we are bound to acknowledge the salutary role that military intervention can play – to the extent that it is consistent with accepted principles of international law, at least, if not structures of international security. But, it is a grave mistake to dismantle existing international structures of human rights and the rule of law, on the uncertain hope that military intervention alone is all that we must rely upon and nothing else. Military intervention has limitations in obvious ways – even when it manages to stop aggression and atrocities already in progress. As noted earlier, they cost human lives of the soldiers sent to stop them. Another obvious limitation is this: to the victims of all the episodes of genocides mentioned above – the millions of European Jews, the hundreds of thousands of Rwandan Tutsis, and thousands of Bosnian Muslim men – military intervention came far too late, where it came at all. That also is the case for the victims of the variegated episodes of crimes against humanity too numerous to mention – from Sierra Leone to South Africa and in a great many places between and beyond. It is also axiomatic that the administration of post-conflict justice is not quite the bailiwick of military intervention.
After the guns have gone silent, the victims’ cries for justice and reparation will still fill the air to vex our conscience. For that, we need a strong international structure of justice to ensure that justice is administered according to law. The subject of administration of post-conflict justice brings me to the matter of a certain misunderstanding that is often expressed as a worry in relation to the jurisdiction of the ICC. That worry takes the shape of the mistaken claim that the ICC is a usurper of national sovereignty. Justice Jackson spoke about this sort of worry in 1945. In his words: ‘Governments in emotional times are particularly susceptible to passionate attack in which this emotion is appealed to, sometimes crudely and sometimes by more sophisticated formulae such as “impairment of sovereignty,” “submission to foreign control,” and like shibboleths.’ Any fear that the ICC is a usurper of national sovereignty proceeds from a clear misunderstanding of the nature of the ICC’s jurisdiction. That fear may indeed be implicated in the reluctance of some States to ratify the Rome Statute, as has been expressed around the world, where ratification has not yet taken hold. Please, allow me to restate and emphasise here the message that the ICC does not usurp or undermine national sovereignty. Quite the contrary, the nature of the ICC’s jurisdiction does the very opposite. It underscores national sovereignty. Yes, the ICC is unusually deferential to national sovereignty: far more so than any other known order of alternative jurisdiction for the administration of criminal justice. And, here, I must underscore the doctrine of complementarity as the modulating feature of the ICC’s jurisdiction. In substance, the idea of complementarity means what the word says. It means that the ICC is a court of last resort. As such, it only steps in to assist national jurisdictions in their needful role of making justice as full as possible for purposes of accountability, when serious atrocities have been committed in a way that concerns the ICC. Notably, the jurisdictions of the other international criminal tribunals were or are primary, relative to national jurisdictions. The statutes of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the Special Tribunal for Lebanon gave them all primacy of jurisdiction in relation to national courts. In contrast, the jurisdiction of the ICC is not primary in relation to national jurisdiction. Indeed, it is important also to keep in mind that the ICC’s jurisdiction is nowhere near as assertive as the ordinary jurisdiction of the courts of a foreign country in the territory of which a citizen of another State commits a crime. It may be noted, in this regard, that even in status of forces agreements (SOFAs) of all nations, it is a generally accepted norm – expressed in a standard clause – that the courts of the country where foreign troops are stationed enjoy primacy of general criminal jurisdiction when a foreign soldier commits a crime within that territory.
The ICC does not have that kind of primacy of claim to jurisdiction. Quite the contrary, under the Rome Statute, the primary jurisdiction belongs to the State with the closest sovereign connection to the situation under consideration. It is only when that State proves unable or unwilling to do justice in the exercise of that primary jurisdiction that the ICC is legally entitled to intervene. The essence of the doctrine of complementarity, then, is that justice must not suffer the fate of the neglected orphan in the province of sovereignty of nations.Beyond the elegant terminology of ‘complementarity’, what is this thing really all about – in practical terms? That is an important question. The answer is quite simple, really. First of all, we will all accept that anyone can violate human rights, but not everyone can do justice. That is to say, criminal justice systems are not all equally able everywhere in the world to administer justice for the purposes of accountability and reparation, according to the generally accepted international standards. Here, you may think of the average failed State where humanity is hostage to daily fear of rampant lawlessness and violent tyranny. Here is a classic case. Somewhere in our world, an inferno of human-to-human violence engulfed a beautiful country in April 1994. But, it had not occurred without warning. Indeed, the internal circumstances of that country had been brooding toward the direction of that event long before April 1994. There had been prior series of episodic violence and other manner of systematic persecution, in which human beings were killed with impunity, on account of their ethnicity. Precisely one year before April 1994, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions conducted a mission to that country and duly submitted his report to the Commission on Human Rights (as it was then called). Concerning that country’s pre-conflict judicial system, he wrote as follows: “It is the serious failings of [the judicial] system that have made possible the impunity enjoyed by the persons responsible for the killings. The system’s failure to function has been noted on many occasions, notably by [a] national commission … which reached the conclusion that many courts were in a state of paralysis. This state of affairs is partly attributable to the lack of resources available for the administration of justice, but chiefly to the lack of political will shown by the authorities in bringing guilty parties to justice …” To varying degrees, that is the story of many countries with chronic histories of human rights violations. For States like those, the value of the ICC as a viable back-up system of justice is all too apparent. And, here, we need not also consider that in the country indicated above, the number of legal professionals – including judges and lawyers – was reduced to less than 300 in the killings of the many hundreds of thousands that occurred in 1994. Now, how could such a country be expected to administer justice meaningfully soon after the conflict? The example of that country underscores the importance of ICC’s complementary jurisdiction, in the most practical terms, in most cases. In that regard, we have in the ICC a permanent institution of its kind, which is in place and readily available to be engaged without delay: thus obviating the need for ad hoc solutions, which, for a great many reasons, may never materialise. But, even for the more able States, the ICC remains valuable – not as a usurper of sovereignty – but as a mirror of conscience. Such is the case where political will appears a little shy to address the needs of justice, behind the veil of sovereignty. It is noted in this connection that war crimes do occur in almost every war. And the culprits can come from the rank and file of the most disciplined and professional armed forces in the world, in spite of the best efforts of their commanders acting with unimpeachable good faith. In his war memoirs, a famed American General of Second World War stated that axiom in terms, in a conversation he had with the Grand Vizier of Morocco during the Second World War. “As I told him,” recalled the General, “in spite of my most diligent efforts, there would unquestionably be some [soldiers who would commit rape], and I should like to have the details as early as possible so that the offenders could be properly hanged.” The Rome Statute does not require States to ‘hang’ their soldiers at all – let alone to do so ‘properly’ – when they commit rape or other war crimes during armed conflicts. The Rome Statute’s requirements are more modest – and far more humane. It requires only that suspects of war crimes be prosecuted and punished – ‘properly’. And the ICC would remind able States to do just that – because they can. Failing that, the ICC would exercise jurisdiction – as a matter of last resort. Here the ability of States engages their duty to do justice – not impunity/immunity for their citizens. There is no usurpation of sovereignty in that. In this connection, I call in aid again the very thoughtful observations of Justice Jackson, in the following words: “It is futile to think … that we can have an international law that is always working on our side. And it is futile to think that we can have international courts that will always render the decisions we want to promote our interests. We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage.” Those are wise words. The only revision that may be necessary is to say that when international law operates to make our world a better place for humanity in the long run, it would have worked to ‘our national advantage’; though it may not seem like it in the short run. In addition to the many situations and cases at the phases of preliminary reviews, investigations, pre-trial, trial and appeal, the Court is now increasingly engaged in the reparations phase of proceedings, involving also the important role of the Court’s Trust Fund for Victims. This additionally underlines the prominent position that victims hold in the system created by the Rome Statute. The cooperation of States as well as the United Nations and other organisations remains of critical importance for the Court’s ability to carry out its mandate effectively. Earlier on, I had recalled that a primary moral impetus to the Rome Statute’s adoption 20 years ago was the horrifying history of the 20th century: The Holocaust, the Rwandan Genocide and the Srebrenica Massacre are examples of such ‘unimaginable atrocities’. The ICC is one real structure that we now have to try those who would commit such crimes, in hopes of preventing their repeat in future. In this regard, I cannot but invoke the following words of Nigeria’s President Buhari on the occasion of the 20th anniversay of the Rome Statute: ‘The Rome Statute created more than a court; it created the outline for a system of justice for horrific crimes rooted first in national courts doing their job, and where they fail to do so, the ICC stepping in only as the “court of the last resort”.’ I urge you to make it stronger in every way that you can. Do not allow it to be weakened. Here, again, I quote President Buhari one more time: “I urge all States that have not yet done so to, as a matter of deliberate State policy, accede to the Rome Statute of the International Criminal Court so that it can become a universal treaty.” Before concluding, I must recall the famous words of Edmund Burke: to the effect that ‘all that is necessary for evil to prevail is for good men to do nothing.’ But, I must revise it to say this: All that is necessary for evil to prevail is for good men and women to refrain from doing all that is possible and necessary for them to do to prevent such evil. It is both necessary and possible to strengthen the ICC. For, that is to strengthen the wall of conscience and of international law against ‘unimaginable atrocities that deeply shock the conscience of humanity’. And whenever we think of human history as being also a history of ‘unimaginable atrocities that shock the conscience’ of humankind, let us also always remember the following wise words of Eleanor Roosevelt: ‘It is better to light a single candle than to curse the darkness.’ The ICC was such a candle, lit 20 years ago. It behoves all of us to keep it alight.