The 15-minute promenade from the International Criminal Tribunal for the former Yugoslavia (ICTY) in Churchillplein under the chilling temperature of about five degrees through the Zorgvliet park and forest to the Peace Palace in Carnegieplein, was memorable.
It was far more interesting crisscrossing the beautiful parks and lush forest of Zorgvliet – The Hague’s “international zone” and home to the ICTY, the Organisation for the Prohibition of Chemical Weapons, Europol, the World Forum Convention Center and the Peace Palace.
After security clearance at the gate, this reporter alongside 20 others from across the world, were sauntered into the expansive and greenest premises of the Peace Palace, the 103-year-old international law administrative building housing the Permanent Court of Arbitration, the Hague Academy of International Law, the Peace Palace Library and the 70-year-old International Court of Justice (ICJ).
A middle-aged man quickly ushered us into the court room saying “the judge has been waiting.” Standing behind the podium inside the highest United Nation’s court was Julia Sebutinde, a judge of the ICJ, and a rarity on the ICJ panel as both a woman and someone from Africa.
“You are welcome to the ICJ,” the 62-year-old Ugandan jurist, a woman who survived three civil wars but still braced the odds to emerge the first African woman to be elected as a judge of the ICJ.
ICJ is one of the six organs of the United Nations, and the only one located outside New York, United States. The court is where nations go to argue among themselves.
“The idea is that fighting in the courtroom is a lot less bloody than fighting on the battlefield. Unlike the neighbouring International Criminal Court, the ICJ never tries or investigates individuals: it exists to arbitrate between countries, and in doing so prevent war,” the jurist said.
Surviving three civil wars
In 1985, Sebutinde was living through her second civil war in Kampala Uganda. She’s just returned to her house with her one-week -old second child when five AK-47 wielding drunk soldiers barged into her room. The soldiers finally left after she gave them a radio but left her terrified particularly after undergoing a caesarian section a week earlier.
“I personally lived through three civil wars and I nearly lost my life and nearly lost my children,” the African most senior judge said in a soft-laden voice.
Standing under the eight glittering chandeliers in a wood-panelled court room, the jurist calmly told her story: “Living as a citizen in Uganda, we went through three civil wars. Most people ran away. I wasn’t able to leave the country. I had just my second child. I was just freshly out of hospital with a baby. And the baby was crying as you can imagine a new baby cries, and everybody in the town had left. Just a few isolated houses in Kampala.
“So I was there one night, my husband was stuck in Kenya. The border was closed so I was practically alone at home with a baby. So at night, five military guys drunk with AK-47s and bayonets came and broke my door down because they heard the baby crying. They entered the house, they demanded money. I didn’t have any because I had run out of money. I still had stitches (from giving birth). All I had was a little portable radio and I knew they loved radios so I offered this to them. And then they grabbed it and said, ‘how do you think we’re going to share this amongst five of us. Give us a second and a third. Give everybody a radio.’ I said, I don’t have five radios, that’s all I have and the baby. And somehow, by the grace of God, that was enough. They took the radio and they left,” she said.
Sebutinde added that “I was very very scared for my life and I knew people had lost their lives very very easily in that whole mess of the civil war and so forth. It was 1985. I can tell that because that was when my daughter was born.”
Prosecuting Charles Taylor
Despite the terror of civil wars, she would live and rose through the ranks of Uganda’s judicial system, before being seconded to the Special Court on Sierra Leone in 2005.
She was later appointed the Presiding Judge in Courtroom II, at that time responsible for hearing the case against former Liberian President Charles Taylor.
On 26 April 2012, Charles Taylor became the first African head of state to be convicted for his part in war crimes.
Speaking on her experience trying Africa’s one of the most powerful and richest warlords, Sebutinde said “it was not much different from any other trial that we’ve conducted. This gentle man was just another accused person entitled to fair trial rights like any other suspect.”
She said “we did not treat him like a ‘head of state’ because the statute made it very clear that the suspect’s political office as not relevant in the way he was to be treated. Of course after conviction and during sentencing we considered the use of political power and other national resources by a head of state in pursuance of war crimes and crimes against humanity was an aggravating factor that we took that into consideration in enhancing his sentence.”
“We considered as a court that a head of state was in particularly a strong position and the fact that they thought it proper and appropriate to take the resources of their country and of another country in terms of weapon, finances, military personnel and to use those for their personal benefits in order to mine the diamond, we thought that that was egregious and that in our view was an aggravating factor,” she said.
Becoming ICJ’s first African woman judge
Having convicted Taylor, the jurist suddenly announced her candidature for a position as judge on the ICJ, the world’s highest court.
In its 70-year-old history, the court had only four female judges, including Sebutinde. By this, the United Nations General Assembly – which elects judges – needed some convincing. But after a record 13 rounds of voting, the Ugandan jurist had secured the necessary majority, and in 2012 become the first ever black African woman to serve on the world’s highest court.
She explained that “I’ve often heard people say, even women say, during the campaign and after, that it’s not a big deal for a woman to be on this court. They have no idea what a deal it is. It is a big deal.”
It was a bruising election as every stage was herculean task. “When I was toying with the application, I went to the website and looked at the pictures [of men, almost exclusively] and was almost scared out of the idea. I thought these people will never accept me as one of their own. Would I say anything that they would even listen to? These are the scary thoughts that come to your mind,” she said.
She said “Africa is sometimes its own worst problem because where we can put forward one candidate, we can put forward 13 candidates and all kinds of issues come into play.”
She went memory lane describing the hurdles she crossed to be at the ICJ thus. “So for me it was not easy – I went through 13 rounds in the UN! Thirteen rounds, that’s a Guinness Book record. Nobody has gone past the fourth round but I hung in there and I said it’s not over until it’s over. When the Security Council finally says you’ve lost, I’ll say I’ve lost. So I hung in there and I tell you, I lost a few kilos just in that process. So for me I value the fact – for me it’s not a given – I value the fact that I’m here.
“Young and old, women all over Africa said to me, ‘you have opened the door for so many others that thought this was not possible.’ Why does it even matter that an African woman should sit on the court? The short answer for me is, why not? Are we not part of the world community?”
On why she defied all the odds in her journey to the world court, Sebutinde explained: “One of the motivating factors in running as candidate for the court was: I come from the Great Lakes Region where, as you know, there is always conflict. Interstate conflict, internal conflict, there are so many displaced persons. Most of them are women and children. The greatest number of rapes, the greatest murders, come from that region. And as a woman judge, I had sat in cases and seen what conflict does and I said; if there is a way I can participate in the peaceful resolution of conflicts, why can’t I put forward for candidature.”
“Ten years of sitting in international criminal trials really gets to you. I have had enough. I didn’t want to hear anymore. You tend to lose confidence in humanity when you hear some of the things that human beings are capable of doing to one another. So I said I want to do something else but I want to do something meaningful; something that can be meaningful from where I come from. Concerning the things that I have seen in my home. I personally lived through three civil wars, and I nearly lost my life, I nearly lost my children. So I said to myself if I can as a lawyer and a judge, use what I have in the years that I have left in this field, what do I have to lose? I’ll put my name forward. So I campaigned with that one perspective and mission and I won by the grace of God,” she said.
How Nigeria can ‘reclaim’ Bakassi
One thing that really struck me when I sauntered into the ICJ court room was Bakassi – an oil rich peninsula- Nigeria lost to Cameroun at the world’s highest court.
When I raised the issue with the judge Sebutinde, she said Nigeria can still revisit the case if it wishes.
“We as a court cannot do anything about that. We do not get involved beyond giving judgment. Once we have given judgment our role is done the aggrieved country who feels that the judgment is not favourable, they have the right to approach the United Nations Security Council with the details to put the matter on Security Council if you succeed and can persuade the Security Council to look in to the issue.
“The Security Council will not start by threatening anything. They will first call the two countries to sit and be present and the Security Council will debate and each country will be given the opportunity to state their position. If the Security Council decides that sanctions or whatever else solutions the Security Council may come up with, that is what the Security Council may come up with and beyond that the court cannot help you,” she said.
She admitted that international politics often plays a key role in justice delivery. “More often than not, when diplomacy fails, UN member states more readily resort to political or military solutions rather than judicial solutions. Usually, the stronger states are not willing to come to the court. They don’t see why they should, because they’re stronger politically, or financially, or militarily.”
“That’s not to say the court is not effective,” she said. “It has settled dozens and dozens of disputes, often preventing conflict in the process.”
She said she liked the cases at the ICJ because “they are varied and different every time. The fact that the court is one of first and last instance meaning there is more pressure to be careful about our decisions because there is no appeal.
“I also love judicial freedom to be able to write separate opinions about any matter but for me the best part of the work is the deliberations where I get to listen to the best legal brains in the world debate and argue amongst each other,” the jurist said.
Anger over anti-ICC sentiment
Her civil war experiences make her angry at the growing anti-International Criminal Court (ICC) sentiment in Africa.
“African states should watch out against agents seeking to divide them and draw them into non-peaceful resolution of disputes by undermining the legitimacy of these [international justice] institutions,” she said.
“I’m not saying that the ICC is perfect, it’s still a new institution and it’s finding its feet. But I think that the accusations that have been made against it don’t make sense to me, and I don’t think I’m a stupid person. I sit and I take each argument and I measure it against the facts on the ground. And when it doesn’t make sense to me I dismiss the arguments.”
For Sebutinde, the arguments put forward by the ICC’s opponents seem to favour the perpetrators of state sponsored violence and downplay the rights of the victims of war crimes, genocide and crime against humanity.
“As an African woman who has lived with conflict, I am with the victims, always with the victims. Never with the perpetrators. If you can convince me that the victims are covered, then you can convince me. But if you cannot convince me you have thought about the victims, then [that’s a problem].”
Two hours after the interaction with Sebutinde, the journalists, particularly those from Africa, departed satisfied that the African women are solidly represented at the world’s highest court.
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