Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

Dapo Akande: 00:00  The ICJ is not going to save the world. The ICJ has an important role to play, but we can’t expect the ICJ to do things that are not for courts to do. 

[INTRO MUSIC]

Narrator: 00:12  Our society is completely broken. This argument of self-defence, it died a long time ago. We have lunatics and crazies involved in the ICC. Trials are not conducted by the court of public opinion. You’re listening to Asymmetrical Haircuts, the international justice podcast with Janet Anderson and Stephanie van den Berg. All rise. 

Janet: 00:34  Hi Steph.

Stephanie: 00:35  Hi Janet.

Janet: 00:35  Should we start by saying where I am?

Stephanie: 00:37  Yeah, I think you have the more interesting location of the both of us, so go ahead. 

Janet: 00:41  Yeah, I mean, I’m British and I’m being looked at by the Queen who is no longer. It should be a picture of the King, shouldn’t it? But I don’t think Andy Warhol’s done such a great picture of him yet. I’m at the British Embassy, the one in The Hague. Very nice of them to invite us in. Do you want to explain why we’re here Steph?

Stephanie: 00:57  Well, we are here to have a chat with the UK government’s candidate for judgeship at the ICJ, who is Dapo Akande. Hi, Dapo.

Janet: 01:06  Welcome, Dapo.

Dapo Akande: 01:07  Very nice to be here. It’s lovely to do this in person, well, at least in person with you, Janet.

Janet: 01:13  Yeah, just to explain if things don’t quite sound right, Steph’s actually stayed at home. There’s zillions of transport strikes, lots of rain, but she’s on signal, so I’m just going to kind of move her across to ask her questions as needed. Do we need to actually explain who Dapo is? I mean, he’s just so ubiquitous. Everybody knows about him. He’s a professor, a writer, a podcaster. But I looked back to see what we’d actually said about him when we last interviewed you in 2021. I don’t know if you remember that. You’d just been elected onto the International Law Commission, and then we just said exactly professor and the EJIL:Talk! podcast. Has anything changed? Is it just more travel and hobnobbing and great and good and things, or is there something else that we need to add? Have you been given an honour in the meantime or anything like that?

Dapo Akande: 02:03  So maybe there are things to take away, because I did used to be one of the editors of EJIL:Talk!, the blog, but no longer. And I did also used to be one of the conveners of EJIL: The Podcast!, but no longer.

Stephanie: 02:17  And we’ve also noticed that your social media is a little less. There’s a Dapo Akande X account, but it’s focused only on your candidature. So we’re not getting a lot of opinions about the rest of what’s happening in international law. I’m guessing that is intentional.

Dapo Akande: 02:33  I’ve never really been big on social media, including X. I think at the time when we last spoke, there was a social media account. But if I can confess now, I didn’t actually run it myself [laughter]. So it was a bit more active at that time than is the case now.

Janet: 02:52  What, you had some poor exploited intern?

Dapo Akande: 02:54  It wasn’t an intern and the person wasn’t exploited, but it wasn’t me.

Janet: 02:59  Okay, I can tell you’re not going to say any more. That’s fine. But I mean, are you finding that you have to actually curb your enthusiasm for public pronouncements now because you’re running for judgeship?

Dapo Akande: 03:09  Yeah, that’s the case. There are things that I feel like I can’t talk about, or things that I shouldn’t talk about, not least actually because, you know, if I am elected, if I have that honour, you have to be careful about talking about things that may come before the court. There have, in fact, been cases where judges have been challenged for positions that they took before they were appointed to, or elected to, the ICJ. So if you’re a candidate, you kind of need to bear that in mind. In a way, I actually miss that. I actually really did used to enjoy talking to the media about questions of international law. I think it’s particularly important to have people who are in the field do the kind of things that you are doing, which is explaining. And I thought that I enjoyed it, but I also thought it was a responsibility. But I’ve had to step back from doing that.

Stephanie: 03:57  And how does it work to get picked as a candidate for ICJ judgeship? Do you have to put yourself forward and lobby really hard? Or is it like the King’s Birthday Honours, where you can’t actually nominate yourself but somebody else has to do it? Or is there some kind of commission in the UK of wise men and women that looks and says, here is our ideal candidate?

Dapo Akande: 04:19  So I can first of all talk about the formal things, and then I can talk about how things—

Janet: 04:23  Yeah, reality, Dapo, reality.

Dapo Akande: 04:26  So, you know, formally, all candidates are nominated by national groups of the Permanent Court of Arbitration. And in the Statute of the ICJ, those national groups are encouraged to consult within their countries. So that’s what you have on paper. I suspect that the reality varies from country to country. I can only tell you about my experience in the UK, and I don’t know whether this is how it’s been done in the UK in the past. So I was indeed nominated by the national group of the UK. They did, in fact, write to universities at some point, I think early in 2024, I think might have been the case, expressing an intention to nominate a candidate and sort of indicating that they’d be open to hearing from these universities as to who might be nominated. This is actually just fulfilling something in the Statute. And then in my case, I hope it’s not revealing a kind of big secret, I was asked whether I would like to be considered. And as I was asked, I said, yes, I’d like to be considered. And so I then had to, in a sense, put in an application. And the national group, I am told, interviewed people. I was certainly interviewed. And then at some point, I was told that I was the candidate.

Janet: 05:42  What I think we need to actually get on the agenda and get through is the issue of Chagos, because that’s the live wire, in my view at least, of the relationship of the UK and the ICJ. And there you go, Dapo, sort of stepping right on the third rail in the middle of it. Let’s hope we can get you to say something interesting. We will need some Stephapedia. We’re looking back at 2019, I think, when the UK found itself on the wrong side, in inverted commas, of a dispute over the Chagos Islands and sovereignty. And I think I’ll come back at the end with a bit of the liveness of this in British political life at the moment. So take it away, Steph.

Stephanie: 06:23  Well, I’m going to 2017, when the UN General Assembly asked for the International Court of Justice to issue an advisory opinion on the Chagos Islands. Britain split that island archipelago off from the colonial island territory of Mauritius in 1965, three years before granting independence to Mauritius. And then when they did, they did it minus the islands. Then in the early 1970s, the UK evicted around 2,000 residents to Mauritius and the Seychelles Islands to make way for a US base on the largest island called Diego Garcia. It was leased to the United States, and they have a huge and strategically important military base there. It’s gotten much more strategic again because it’s kind of close to Afghanistan, when that was happening, and now, of course, it’s close to China and things like that. So for the US to reach those kinds of countries, this is a very important base. In 2019, the court said Britain had acted unlawfully, and this is an advisory opinion, so we always have to put in the Reuters blurb that it’s advisory and countries are not obliged to act on it. But, you know, the weight of international law and this opinion from an international court is a big deal. The ICJ would probably agree. It ruled that Britain had acted unlawfully in the decolonisation process and should relinquish control over the islands, which it calls the British Indian Ocean Territory. And the court was not really asked to give an opinion on sovereignty, but the judges in that ruling also urged that Britain hand over the islands to Mauritius. Now I’m going to hand back over to Janet, a fellow UK passport holder, to say what happened in the fallout of that ruling. 

Janet: 08:05  And, of course, we’re going to give Dapo the opportunity to correct our journalistic summary at any point that he needs to. So despite the court ruling that the UK should no longer have rights to what their lead lawyer Philippe Sands really ingeniously positioned as this last UK colony – hello Falklands, I mean, really, I’m not too sure what’s colonial anymore – therefore Mauritius became the party to negotiate directly with the US and the UK. Well, really with the UK, but with the US kind of in the background, over this military base in Diego Garcia. One of the reasons why this is relevant is because it was widely seen that this way that the UK was fighting the case over Chagos at the International Court of Justice was one of the reasons why, for the first time since the ICJ came into being, the UK lost having a judge at the ICJ, alongside all of the other permanent members of the Security Council have always had a judge representing them there. And an Indian judge, quote, took the UK seat. And it was all interpreted, particularly in the British press, as very much end of empire, you know, one defeat after another, you know, we come to the end. I’m wondering now that I see again the issue going backwards and forwards in the British press, becoming very live, and what I understand the current position is that the UK is not actually abiding by the ICJ ruling. And what do you have to say about states that don’t abide by advisory opinions, including the state that is backing you?

Dapo Akande: 09:44  So Chagos, for me, is a very interesting case-

Janet: 09:47  My God, that word ‘interesting’ carries so much [laughter], doesn’t it? Dapo

Dapo Akande: 09:51  It does, It does carry, It does carry a lot. So this is for me personally, in the first place, Chagos is interesting. It’s actually the first case where I had pleaded before the ICJ. So I had been involved in some ICJ cases beforehand, but this was the first time that I was actually standing up as counsel and advocate before the court. I wasn’t counsel for the UK, I should say, in the Chagos advisory opinion. I was counsel for Zambia. And Zambia was, shall we say, in Team Mauritius.

Janet: 10:22  Well, what a surprise, like the whole rest of blooming Africa.

Dapo Akande: 10:25  So on the side of of Mauritius, I was counsel for Zambia in the Chagos and on that side of the argument. The other thing that I should say is that actually by the time the court was hearing the Chagos advisory opinion, there was not a UK judge. So the loss of a UK judge on the court actually preceded the Chagos advisory opinion. That had actually happened in 2017, the election in 2017, and so before the hearings and certainly before the judgement.

Janet: 10:53  But it was very much, in my view, in that context of that the UK was fighting this.

Dapo Akande: 10:58  So it was in that context and maybe had an influence, but it actually came before the case. But what I would say about Chagos is actually Chagos is a really good example of the significance of decisions of the ICJ. As you say, this is an issue that continues to rumble on in British political life. The UK government, after the Chagos advisory opinion, immediately after, didn’t comply. It wasn’t like the UK government, as soon as the court rendered its advisory opinion, said, that’s it, we’re out of Chagos. But, of course, the government did in fact enter into a series of negotiations with Mauritius and did reach an agreement with Mauritius to transfer the Chagos Islands back to Mauritius. Now, that agreement with Mauritius has not yet been implemented, but the government, as far as I understand it, still says that it is committed to that agreement. As you say, there have been complications, not least with with the US.

Janet: 11:57  [Laughter] Again, another word-

Dapo Akande: 11:57  Yeah-

Janet: 11:58  A great word.

Dapo Akande: 11:59  Yeah, you know, that’s that. But I think it’s significant, actually, that the government entered into this agreement with Mauritius. At least they still say that they’re committed to it, but that actually—

Janet: 12:08  But the US is arguing the other way and the UK is folding. On international law, the UK is not standing up for principle.

Dapo Akande: 12:14  Yeah, but I think the interesting thing is, and I think this is why I say it’s a very good example of how the ICJ works, as difficult as this issue has been in UK political life, the UK is still saying that they are committed to handing over the Chagos Islands to Mauritius. Without the ICJ judgement, my view is that actually the chances of this happening would have been zero. So, on such a difficult issue that the UK has had with its most important ally, the US, the UK is in a position where it’s effectively still saying, look, we’ve got this agreement. It was very, very difficult, actually, for the government to enter into this agreement, not just internationally, but domestically. The pressure in the UK not to actually agree-

Janet: 12:59  Absolutely- 

Dapo Akande: 13:00  to hand over was huge.

Janet: 13:02  Yeah, from the right-wing press, particularly.

Dapo Akande: 13:04  It was really huge. And I think that, as I said, without these proceedings at the ICJ and without the advisory opinion – I said judgement, but it’s an advisory opinion – without the advisory opinion at the ICJ, none of this would have happened. So this shows actually the influence of international law. And we’re not there yet. We’re not there yet because the Chagos Islands is still actually with the UK. But I think we’ve actually seen how international law and how using the ICJ can help to shift things. And I think things have shifted significantly before the advisory opinion and after the advisory opinion. And, you know, let’s hope we get there.

Stephanie: 13:44  Let me do my Dutch characteristically blunt assessment and explain to the listeners that what Dapo so euphemistically refers to as trouble or complications with the US is actually the US government, I think, outright telling the UK that they should scrap this agreement to give the Chagos Islands to Mauritius in this very Trumpian way where it’s stupid that you should do this, don’t do this, listen to me kind of thing. But that is entirely on my conto that I say this, which kind of leads me to the next question for Dapo, because you’re being super diplomatic, which you have to do in this campaign. How much campaigning for this have you had to do? You are now talking to us. Is this like a monthly thing where you meet people to talk about your candidacy? Are you dashing around the world to speak to other diplomats who follow the ICJ? How does that work? Or are you going to have, like, a jam-packed week in The Hague where you meet every ambassador in The Hague that deals with the ICJ to woo them?

Janet: 14:42  Yeah, he’s got the King’s birthday party tonight, Steph. So yes, he’s going to meet every ambassador in The Hague and he’s going to shake their hands and he’s going to tell them.

Dapo Akande: 14:51  So, you know, the thing with this thing is it’s an election. And okay, so it’s my second UN election. I was a candidate for the ILC five years ago, and so this is kind of second time around. But before being a candidate for the International Law Commission, I had not run for anything in the UK. I don’t know how it works in other countries. In your class, you can be class president or class captain. I hadn’t even done that. I had not even put myself forward for that kind of thing before. So for me, this was, like, entirely new. Have to, you know, face an election and actually have to explain to people what you do. So because it’s an election, you do have to go around and you have to sort of meet people. If somebody had asked me, like, in the abstract, just generally, 193, is that a small number or a big number? I would have said small number, because you could have a billion, you could have, like, two billion. Those are big numbers. 193 – that’s the number of member states of the UN, by the way – I would have said that’s a really small number. But then when someone says you have to meet and explain your candidacy to 193 states, I realise actually that is a big number. So yes, it has been two years in my case. My candidacy was announced two years ago. It’s been two years of going around and explaining my candidacy, saying who I am, talking a bit about my experience, doing that in New York, of course, where the elections will take place, a bit in The Hague, and also in various capitals around the world.

Janet: 16:23  Do these countries ask you very specifically about the UK positions on something like Chagos? Do they also wonder whether you’re going to take sort of a pro-UK position if you become a judge? There was one kind of friendly UK diplomat who said to me, he’s acted for us and he’s acted against us. So that kind of sense that that would be their expectation also for you as a judge. But is that the kind of question you get from governments?

Dapo Akande: 16:50  So sometimes that is asked, but, you know, my response is always: I’m UK candidate, but if I’m elected, I won’t be a UK judge. I’ll be a judge on the court, but not a UK judge. And, of course, as we just discussed in relation to Chagos, I was on the other side, acting on the other side from the UK side. So I have in fact acted against the UK in a number of cases. Sometimes people ask those questions, but I think overall people do understand that the position of a judge is one which is, you’re independent. People have questions. Sometimes they want to know your views about international law. Sometimes they want to know your views about specific questions of international law. Sometimes they want to kind of know generally how you lean one way or another on these things. And it depends on who you’re talking to, what kinds of questions you get.

Stephanie: 17:37  And in all these chats, I’m wondering, is there any place that’s particularly friendly to you? I’m going to say Zambia, and I don’t want to pigeonhole, but you did act also in support of Mauritius in the Chagos Island case. Is there a support from kind of the African continent at large, or is there other states that are particularly warm to you, you feel?

Dapo Akande: 17:59  Yeah, so I’ve been lucky and I’ve been privileged to have worked for a number of countries on questions of international law. So either as counsel in cases before the ICJ and other tribunals, or just giving legal advice to countries. And you, you hope that they will, shall we say, remember you fondly [laughter]. And yeah, that has in fact been the case. So it’s nice to sort of go back to the old friends, countries that one has worked for. But you can’t assume also, you can’t assume support. So, you know, it’s a bit of a lobbying process, and it’s not something that I, as I was saying before, it’s not something I’d really done before. And maybe it’s not natural me to do that. But actually, I think there is value in having to go and talk to people. I learned a lot from that, but also in people actually getting to know who you are.

Janet: 18:46  Well, what do they get to know? Are you actually as you appear, which is very nice and quite nerdy, or are you just, are you a bit of a chameleon? And that’s just how you put yourself across to me?

Dapo Akande: 18:56  So hopefully- well, I think I am nerdy, that’s for sure. Hopefully I am nice, but that’s for others to judge. But also, you do, in a way, have to present yourself differently to different people, just because you are talking to different people. So it’s one thing for me to be talking to a legal adviser of the Ministry of Foreign Affairs, and they might have very specific legal questions, or a legal adviser of a mission of a state to New York. I remember somebody asking me a question about a particular decision of the ICJ, a particular, like, paragraph, what the court said, what did I think? And actually, I did enjoy that. That’s kind of like the nerdy me coming out. But then if I’m talking to a foreign minister of a state who knows a bit about the ICJ, but not really, that can’t be me. I have to present myself-

Janet: 19:42  Dial it down.

Dapo Akande: 19:42  I have to dial it down, it has to be a little bit different. I mean, the hope is that however you present yourself, people see different aspects of you, but they still see the real you. That’s what I hope anyway.

Stephanie: 19:54  In these discussions, when we look at the state of the world and the pressure, essentially, on the global rule of law from a number of autocratic governments like Russia and China and, of course, not autocratic but nominally democratic in the US, how does that get reflected with states? Are they on the, you know, the ICJ is the last bulwark of international justice, or maybe it’s not so relevant anymore and we’re doing away with international law?

Dapo Akande: 20:22  So in a way, actually, you get the whole spectrum, because it comes back to 193 is a big number. And, of course, within all of those states you’re talking to different constituencies, you know, whether you’re talking to a lawyer or a politician, so there’s a whole spectrum. Having said that, though, what I have found – and this is what I mean by it’s actually been really useful for me, and in one sense an education – what I have found is that on the whole, at least at this time, there is actually quite a lot of respect for the ICJ. It’s exactly this point that you just made about it sort of being the bulwark. So there are lots of parts of international law that are regarded as failing, and then people see the court, which is super busy in terms of the number of cases, in terms of actually, more significant I think, the number of states that are involved in those cases. And also in terms of, you know, it’s not politics. That’s not to say that the ICJ doesn’t work on cases that are political, but the answers don’t break down into the kind of normal political answers. And actually, on the whole, the diplomats that I speak to find that refreshing, because that is exactly what they would like to keep. That’s the system that is sort of failing that they would like to see carry on. So for me, it’s been great actually to see the faith in the system, but at the same time, you want to see some realism. There’s a lot of faith, but the ICJ – I gave an interview recently, you know, I said – the ICJ is not going to save the world. The ICJ has an important role to play, but we can’t expect the ICJ to do things that are not for courts to do.

Stephanie: 21:58  I’m going to jump in there and then kind of elaborate on this, because there is this new direction, in a way. I used to spend a lot of time doing the ICJ on maritime boundaries and is the rock dry or wet at a certain stage, and what does this mean for territorial waters? Now we see a lot of states that go to the ICJ and have it look at issues of humanitarian and more general international law via the Genocide Convention, but also via other avenues like the Torture Convention and the anti-discrimination treaties. And there has been some talk that this is expanding what the court does and having it more look at humanitarian law, which was usually the purview of international criminal tribunals, and the ICJ is kind of expanding in that territory. What do you think of that direction? Are you a fan? Are you cautiously supportive, but think that they should watch out? What’s your stance, if you have one?

Dapo Akande: 22:53  Yeah, so you’re absolutely right. In one sense, the ICJ is a bit of a human rights court at the moment. I’ve given a couple of lectures on this, actually, this year, on the ICJ and the protection of human rights. So you look at the docket of the court as it stands today, a third of the cases before the court deal with human rights. But in another sense, actually, this is not really new. When I say in a sense it’s not really new, if you go back to the ’60s and the ’70s, the ICJ actually played a big role in human rights in a kind of different sphere, by which I mean the cases arising from South West Africa and Namibia, the right to self-determination. The court was at the forefront of those developments, those advisory opinions. The difference, though, is that at that time, the court itself was a bit cautious about having other states being able to bring these kinds of cases on behalf of victims of human rights. I think where the court has got to is the right place, but ultimately it’s for states to decide on what kinds of cases. What I would say, though, even though I say the court is a human rights court, the court is also a generalist court. So the Statute talks about the court being able to deal with any question of international law, and we’re seeing that variety. So it’s human rights, but these maritime boundary cases, territorial disputes, they haven’t gone away. They’re still there before the court. And then we’re also seeing cases dealing with all kinds of other issues, issues to do with civil aviation and things like that. It’s a mix. And I think that’s where the ICJ is at its best, when it’s dealing with a mix of things, but with a heavy dose of human rights.

Janet: 24:31  You use the word busy. I mean, is the ICJ actually too busy? Does it have the capacity to keep on being demanded by states to do all the work that it does?

Dapo Akande: 24:41  I don’t know if I’ll say it’s too busy, but I would say it needs help to be able to deal with the number of cases that it is dealing with. And actually states have to help the court to find solutions. So too busy suggests that there should be sort of fewer cases, but I don’t think that’s where the answer lies. I think the answer lies in finding ways to deal with the number of cases that it has at the moment.

Janet: 25:04  But there are only so many days of the year.

Dapo Akande: 25:06  There are only so many days of the year, but there are things that you can in fact think about. One of the things which, again, this is primarily for states to think about, is using chambers of the court. So every case that goes to the court now goes to the full bench, which is the default, all 15 judges plus ad hoc judges. It’s possible for states to take cases to chambers of smaller groups. States don’t seem to want to do that. What’s interesting is that in the International Tribunal for the Law of the Sea, almost all the cases go to chambers, and you could have chambers that are still quite broad. A chamber of seven judges plus two ad hoc judges is nine judges. That’s still quite a lot of judges. And you could have two chambers operating at the same time. And then, of course, the court has to think also about its own working methods. So I think you can speed things up a bit, but it needs the help of states and also the court thinking about how to do that.

[MUSIC]

Janet: 26:00  Just to say, you can also support this podcast. Check out our supporters page, and there you’ll find details of our Patreon and our newsletter.

Stephanie: 26:08  Yeah, if you haven’t had enough of us chatting about war crimes and making inappropriate jokes, then go over to Patreon, where you can get extra bonus content, where Janet and I run our own War Criminals Book Club. We read books about war criminals. We don’t commit our own. 

Janet: 26:25  And it’s just the price of a cup of coffee. So see you there.

[MUSIC ENDS]

Stephanie: 26:31  One of the pressures that the ICJ is under is kind of time pressure and the amount of cases that you get, especially after the kind of erga omnes partes, any state can bring a case under the Genocide Convention. Although I know you can’t comment probably on running cases, but with Nicaragua and Germany, they are now arguing at the moment that if you have a twice-removed case where none of the parties is involved in the conflict that’s at the heart of the case, erga omnes shouldn’t count. We won’t ask your opinion on that. But I thought it was an interesting opinion, an interesting debate that I’m sure we’ll get back on on the podcast. But what we see in other pressure on these institutions, especially in the UN and the ICC, is also budgets and threats of sanctions if the courts-

Janet: 27:13  And reality of sanctions as well.

Stephanie: 27:16  And yeah, and reality of sanctions in case of the ICC and judges being sanctioned, which is an absolute kind of novelty for us. Does that add an extra pressure or stress for you as, you know, a potential judge of the ICJ? What if they make a decision that the US doesn’t like? You know, you could be losing your credit card and access to your streaming services or your books on Kindle or all those things. And probably for the BBC, I would have to say other book-reading apps are available. But does that worry you? Is that something that you think might happen?

Dapo Akande: 27:49  Let me start by making an allusion to a British comedy that this topic that we’re dealing with is actually extremely serious, not funny. But I don’t know if you know how many listeners are familiar with the comedy Yes Minister or Yes, Prime Minister.

Janet: 28:03  Box set at home.

Dapo Akande: 28:04  Yep, yep. So from the 1980s, and every episode is about this kind of dispute between the civil servants and the minister. And whenever the civil servants wanted to dissuade a minister from doing something, they would say, ‘ah Minister, that’s very brave of you.’ And then the minister gets worried: ‘brave, brave, what is what’. So on this campaign, when I’ve had these meetings that we’re talking about, a number of people have said, it’s very brave of you to be a candidate for an election to an international court at this point in time. And I think, brave, gosh, what am I doing? Is this brave? But in a sense, that’s where we are. And, of course, it’s very serious. And it’s, it’s not just the streaming services. It’s not being able to just live your life as normal. I had an interview with former ICC prosecutor Fatou Bensouda where she was saying, when she was in The Hague, special arrangements had to be made. She couldn’t pay her mortgage, right? These are very, very serious things for these individuals. And to be sanctioned because you’re a judge, obviously, we would have thought that those things were unthinkable. But that’s where we are. Thankfully, we haven’t seen that with the ICJ. Can I make noise and touch wood?

Janet: 29:11  Yes, yeah. He’s banging the table.

Dapo Akande: 29:13  Banging the table, touch wood, that that will continue to be the case. But you do have to think about it because these were things that we thought were sort of unthinkable, but that’s just the reality today.

Janet: 29:24  But what does that mean, do you think, for the future of these multilateral institutions?

Dapo Akande: 29:28  I mean, I hope that they will continue. I mean, coming back to being brave, people are being brave. It’s amazing that even for the ICC – obviously, I’m a candidate for the ICJ – but even for the ICC elections, which are also taking place this year, where we have seen the reality of sanctions, we have a lot of candidates. That’s good. That’s people actually being brave. You’re really putting yourself forward, knowing what the risks are. And I think that with that kind of overall bravery that these institutions will continue, at least that’s what I hope.

Janet: 30:03  The last time we had you on, it was with Phoebe Okowa. I saw her in the street in The Hague a couple of days ago and said, hey, I’m going to do an interview with Dapo, because she got onto the court before you. You both joined the ILC at the same time. Jealous?

Dapo Akande: 30:16  Envious. Envious

Janet: 30:18  That’s the correct term. Yeah, sorry. I should have said envious.

Dapo Akande: 30:21  [Laughter] I wasn’t intending to correct. I was just trying to say in the sense of she’s doing the job which I would like to do.

Janet: 30:29  And has she given you any tips?

Dapo Akande: 30:30  Well, she’s already been through an ICJ election once, so yeah, we’ve spoken.

Stephanie: 30:36  Thank you so much for coming on the pod. We’re going to wrap it up because I think the embassy needs the room for something else. But we always end with some Asymmetrical Haircuts questions. And one of them is very generally, is there something that we didn’t ask or didn’t touch on that you really want to put forward? This is where you put your election pitch, if we didn’t ask for it more specifically. Vote for me because I will do X, Y and Z.

Janet: 31:02  He could do an election pitch or, you know, there were two questions we missed out, which were on erga omnes and on Article 63. So if you want to nerd out instead on either of those, then go for it.

Dapo Akande: 31:14  I like the nerdy questions. So can I pick those instead?

Janet: 31:17  Yeah, please. Pick one of them. Do you like what they’ve done by accepting all of these cases, which is kind of parallel with what you already asked, Steph, about the different cases, but they’ve really said, yes, other states can get involved. This is by the Genocide Convention and could be via other conventions like the Torture Convention to say, because you’re all signed up to this convention, yes, you have the right to bring cases. And we do try to avoid Latin in the podcast, but it’s fun to throw in a bit of erga omnes in there.

Dapo Akande: 31:47  Yeah, so this is about states being able to bring cases where they are not directly injured, right? So we’re talking about Gambia-Myanmar, Gambia bringing a case on behalf of Rohingya victims, or the one that you mentioned under the Torture Convention, Canada and the Netherlands.

Janet: 32:02  It was electrifying when this was allowed. We never thought that this was going to be a way that the ICJ would be used.

Dapo Akande: 32:08  I mean, I think it’s the right decision. So the fact that these erga omnes obligations exist, actually, we’ve been talking about that now for about 50 years. The court first talked about it way back in a case called the Barcelona Traction case in the early 1970s. The International Law Commission included this notion of erga omnes obligations and the fact that other states, states not directly injured, can invoke the responsibility of the wrongdoing state. What we didn’t see was it being operationalised. So it’s kind of there on the books without states doing it. And it’s good to see that states are now doing it. I mean, I think that there are a number of questions that the court will have to work out. It’s not always going to be smooth sailing. But I think taking these things off the books and actually having them operationalised, I think, is the right thing. The real question, I think, is not so much for the court. It’s whether states will continue to have the appetite to do this. I think that’s the real question, whether states will continue to want to bring these sorts of cases.

Janet: 33:07  Why wouldn’t they?

Dapo Akande: 33:08  Well, because-

Janet: 33:09  Costs a lot of money?

Dapo Akande: 33:10  It costs money. You have to have-

Janet: 33:11  And diplomatic capital.

Dapo Akande: 33:12  It’s diplomatic capital. And one of the things that I think is, you know, Gambia-Myanmar is a case where you had a state from the Global South bringing a case against another state from the Global South. 

Janet: 33:24  So it has a particular look in the world.

Dapo Akande: 33:27  The optics of, exactly.

Janet: 33:28  And it can be different. I mean, I put it in my terms, when you have states like the Netherlands and Canada versus a state like Syria in the torture case, the optics are different. 

Dapo Akande: 33:39  The optics are different. And these are things that states would have to consider. So when you say, why wouldn’t they? These are the kinds of things that states have to think about. And then there are some legal questions that I think the court will also have to grapple with as it goes along. So Gambia-Myanmar is a case where the victims are nationals of Myanmar. There is no directly injured state that is there. So it’s a state bringing a case on behalf of individuals who are victims and there’s no directly injured state. There will be some other cases where there is a directly injured state. So it’s one thing when a state brings a case on behalf of victims, but there’s no other state that could have brought that case. It’s another thing when one state brings a case and there is, in fact, a directly injured state. Then the relationship between those two states also matters, right? So there are a number of things that I think we’ll have to grapple with along the way. But on the whole, as I say, we’ve kind of known that this is possible for a while. Good to see it being used.

Stephanie: 34:40  One other deeply nerdy question we had is, in these genocide cases, we see also a huge growth in state interventions via Article 63. And is it useful for judges to actually know states’ positions on these conventions? Or is it kind of more cosmetic? A lot of states also repeat the same things. How do you see that rise in interventions? 

Janet: 35:05  Or is it just jobs for international lawyers before they become candidates for the ICJ, writing blooming opinions?

Dapo Akande: 35:11  Writing, yeah, yeah. So, I mean, I think that’s the tricky thing, working out when it is useful and when it’s not useful. I suspect, obviously, I’m not a judge on the ICJ yet, I suspect that what the judges don’t want is an intervention that is just about political support. I suspect that that is probably not deemed to be that useful. But on the other hand, I do think that there are many cases where it is actually useful to have the views of other states as to how these treaties are interpreted. That’s the whole point of intervention, right? It’s a multilateral treaty, and it’s not just for the two parties to say. So all the other parties can get involved. The jobs for international lawyers point. So I was counsel for the UK as intervenors, one of joint intervenors in Gambia-Myanmar. And the joint intervenors, it was a group of European states acting together. They put forward some interpretations of, or questions relating to the interpretation of the Genocide Convention, in relation to sexual and gender-based violence and in relation to actions done against children. And I think those states felt, and I felt, that actually was useful to put forward these interpretations as to how the court should think about genocide with respect to these particular kinds of conduct. I think it’s going to be whether or not states are actually putting forward things that go beyond just saying, we support you, that are really about the interpretation of the convention that the court is being asked to deal with.

Janet: 36:43  Our final question is always, is there anything that you would like to recommend to our audience that you’ve been reading recently, listening to, watching? It can be in this field, or it can be something used to relax apart from Yes, Minister.

Dapo Akande: 36:55 [Laughter] Oh, I think I can’t, definitely recommend this. 

Janet: 37:01  Do you have any time? 

Dapo Akande: 37:02  One of my goals is to watch a bit more football.

Janet: 37:05  Who do you support?

Dapo Akande: 37:06  Oh, this might cost me votes. Can I say this? Okay

Janet: 37:10  He doesn’t know.

Dapo Akande: 37:11  Yeah. 

Janet: 37:12  Okay. 

Dapo Akande: 37:13  It’s Manchester United. Yeah, it’s Manchester United. Yeah.

Janet: 37:16  Okay.

Dapo Akande: 37:17  That’s who I support. So I’m trying to watch a bit more sport, actually. That’s what I’m trying to do. But then finding the time is not easy.

Janet: 37:26  Dapo, thank you so much for making the time during your heavy schedule, lobbying away and preparing to schmooze away at the diplomatic events that you have going on. Really appreciate you making the time for us. Thank you.

Dapo Akande: 37:38  And I’m really envious of the mics. I love the mics.

Stephanie: 37:41  Good luck with the elections. It would be nice to see a friendly face in the blossom sometime.

Dapo Akande: 37:46  Thank you. Thank you very much.

Stephanie: 37:48  But of course, as a podcast, we cannot express any preference for one candidate or the others. And we should say, if there’s other candidate judges out there that would like to come and talk to us and be interviewed, we also would welcome them. Get in touch. 

Dapo Akande: 38:01  Thank you so much. Thank you.

Stephanie: 38:02  Okay, thank you.

[OUTRO MUSIC]

Narrator: 38:09  That’s it for this episode of Asymmetrical Haircuts, the international justice podcast created and presented by Janet Anderson and Stephanie van den Berg in partnership with The Hague Humanity Hub. Our music comes from audionautix.com. If you want show notes, past episodes, or just to dig deeper into what we’ve covered today, head to asymmetricalhaircuts.com. And if you enjoyed this one, subscribe wherever you listen, leave us a rating and tell a friend.

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