Relevance of the ICC has increased rather than declined – Eboe-Osuji ICC President Chile Eboe-Osuji spoke at the United Nations General Assembly this week. His remarks have been edited into a two-part essay.This is the first part of the essay. By Chile Eboe-Osuji President of the International Criminal Court This year marks the 20th anniversary of the adoption of the Statute of the International Criminal Court, fondly called the Rome Statute. As part of my written contribution to the Nelson Mandela Peace Summit held in September, I had recalled that the Rome Statute was adopted on the eve of Mandela’s birthday 20 years ago – on 17 July 1998. The occasion of the 20th anniversary of the Rome Statute compels us to reflect on what the mere conclusion of that treaty, together with the Court that it brought in, all under the aegis of [the United Nations], mean for the world and its teeming humanity. The theme we chose for that reflection is ‘Back to basics.’ That theme requires us to return to two basic questions. The first re-engages this query: Why was the Rome Statute adopted? The very preamble of the Rome Statute itself answers that question. The preamble recites the following apposite declarations, amongst others: [The] Conscious[ness] that all peoples are united by common bonds, their cultures pieced together in a shared heritage, and [the] concern that this delicate mosaic may be shattered at any time; [The] Mindful[ness] that during [the 20th ] century [in which the Rome Statute was adopted] millions of children, women and men ha[d] been victims of unimaginable atrocities that deeply shock the conscience of humanity; [The] Recogni[tion] that such grave crimes threaten the peace, security and well-being of the world; [The] Determin[ation] to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes … The second of the basic questions that the 20th anniversary of the Rome Statute compels us to reflect upon is whether our world and civilisation have arrived at the stage where those legislative worries that gave impetus to the negotiation and adoption of the Rome Statute have now become a thing of the past: such that the world no longer needs the Rome Statute and the ICC. One of the most highly respected African statesmen of our time answered that question in a very straightforward way. As part of his own reflections during the 20th anniversary of the Rome Statute in July, Nigeria’s President Muhammadu Buhari answered that question in these words: “With the alarming proliferation of the most serious crimes around the world, the ICC, and all that it stands for, is now needed more than ever, in ways that were unforeseeable to its founders. The ICC may have been created at a time of optimism that it would not need to be utilized frequently, but, unfortunately, the increase in international crimes has only increased the Court’s relevance.” And if any one of those legislative worries that impelled the Court’s creation stands out for a special focus, it is this.
During the 20th century, ‘millions of children, women and men ha[d] been victims of unimaginable atrocities that deeply shock the conscience of humanity.’ Can we be sure that at the close of the 21st century, humanity will not be left singing the same sad song – in the absence of the Rome Statute and the ICC remaining in place and supported by all to serve, at least, as a whistle of caution (if not a real obstacle of conscience) to those inclined to commit such crimes? In her opening remarks a month ago, the President of this Assembly rightly reminded us that millions of people around the world are enduring war and violence. Indeed, important statistics even suggest an increase in the incidence of war and violence over the past 20 years since the adoption of the Rome Statute – possibly by as much as three times or more. This must trouble us: given the phenomenon of armed conflicts as the most common vectors of atrocity crimes – typically those that come in the manner of ethnocentric mass violence, sexual violence and sundry war crimes. There are many reasons to insist that the mere existence of this permanent judicial mechanism for accountability does truly serve as an inconvenient obstacle to the freewill of those inclined to engage – even unwittingly – in conducts that create the circumstances that conduce to crimes of atrocity. That modest value alone is enough of a return on the ICC investment. Still, we must remain troubled by the unrelenting frequency of armed conflicts in the world. It is in this respect that the objectives of the United Nations and the ICC remain unsurprisingly at one. They commonly involve the global project to protect peace and security and human rights, through multilateral cooperation and action – backed by the international rule of law. Mr Antonio Guterres, the Secretary-General, was on point in calling for a ‘renewed commitment to a rules-based order’, in his address to this Assembly a month ago. On behalf of the interests that the ICC represents, it is truly encouraging to hear many of the delegates restate, during the general debate, that the ICC occupies a cardinal place in that ‘rules-based order’; and that every effort must be made to protect and support it as such. Whenever a man champions an important idea to a successful outcome, we are always quick to engrave the man’s name eternally onto that idea, by calling him ‘the father’ of the idea.
We rarely do the same for the very many women who championed some of the ideas that have defined human history. This is perhaps a regrettable case of inordinate pre-occupation with dreams of fathers, the elusive men who are often absent from our lives for all kinds of reasons that seem important to them; and in the process we take our long-suffering mothers for granted. Eleanor Roosevelt was a great champion of the history of human civilisation, no less so than any man ever was. We should all get used to calling her ‘the mother of human rights.’ And, here, I must quote her call for united action to improve the world under the banner of the United Nations: ‘Our own land and our own flag cannot be replaced by any other land or any other flag’, she said. ‘But, you can join other nations, under a joint flag, to accomplish something good for the world that you cannot accomplish alone.’ A product of such joint action among nations, the ICC was established as a court of last resort – a literal instrument of the rule of law. Its mandate is to try those who commit some of those ‘unimaginable atrocities that shock the conscience of humanity’.
For present purposes, let us call these crimes by their names. They are genocide, crimes against humanity, war crimes and the crime of aggression. These are crimes that have blighted humanity for long periods of time up until the negotiation and adoption of the Rome Statute – in 1998. We can be even more specific in recalling the history of evil in the period leading up to 1998. And, in that regard, let us recall that no less than 7,000 Bosnian Muslim men and boys were massacred in Srebrenica in 1995. The International Criminal Tribunal for the former Yugoslavia has pronounced their killing as amounting to genocide. The year before – in 1994 – about 800,000 Tutsis were killed in the Rwandan Genocide. About 50 years before that, six million innocent human beings were killed in a genocide in East and Central Europe, because they were Jews. Let us also recall that it was only in the early 1990s, shortly before the adoption of the Rome Statute that apartheid – a crime against humanity, over which the ICC now has jurisdiction – came to an end in South Africa. And let us recall that beginning in 1991, Sierra Leone was engulfed by a brutal civil war. In addition to the rapes, the sexual slavery, the murders and the conscription of children into military use, that civil war was also marked by a particular brand of cruelty and terror. It involved the heartless amputations of the arms of human beings by their fellow human beings: leaving the victims with disabling physical and mental scars that last a lifetime. It was a crime against humanity that left its very visible hallmark on that country and on our collective conscience as human beings – even today. We must give due credit to the joint action of nations, for the adoption of the Rome Statute, in order to have in place a permanent mechanism to ensure eventual accountability for those who subject their fellow human beings to such cruelty in future. That is the point of the Rome Statute and the ICC. It is nothing else. In that and other aspects of international law, what the international community has done through joint efforts has been to occupy the field with complementary legal structures of human rights and international criminal justice.
By occupying the field in that way, there has been a correlative shrinking of the field of play for the malevolent forces that would commit genocide and other crimes against humanity without qualms. We can readily appreciate the certainty with which these malevolent forces will move in and occupy the ground that will be vacated upon any dismantling of these existing multilateral mechanisms of international law and justice. Not only will the malevolent forces move in with certainty; they will move in with celerity.
