The ICC: A response to African concerns - Fatou Bensouda

Key note address by court's new prosecutor at Institute for Security Studies

Key note address by Mrs. Fatou Bensouda, Prosecutor of the International Criminal Court, Seminar Institute for Security Studies (ISS), Pretoria, October 10 2012

Setting the record straight: the ICC's new Prosecutor responds to African concerns

Reconciling the independent role of the ICC Prosecutor with conflict resolution initiatives

Your Excellencies,

Ladies and Gentlemen,

Thank you for being here today and thank you in particular to the Institute for Security Studies for so very kindly organising this important seminar.

It is a great pleasure for me to talk to you to you on pressing issues relating to justice, peace and security from the perspective of the International Criminal Court, a unique institution of which I have the privilege to serve as Prosecutor since 15 June 2012.

 The mandate of the Prosecutor and how the work of the Court and the Office of the Prosecutor can contribute to the management of conflicts and the prevention of massive crimes has to be well understood.

The fact that we are debating matters relating to peace and justice today shows how innovative an idea it is to have international criminal justice.

60 years ago, in the Nuremberg Trials,  those who committed massive crimes were for the first time held accountable by the the international community through a judicial process.

Nuremberg was a landmark. However, the world was not ready to transform such a landmark into a lasting institution. In the end, the world would wait for almost half a century after Nuremberg, and would witness again two genocides - first in the Former Yugoslavia, and then in Rwanda - before the UN Security Council decided to create ad hoc international criminal tribunals, thereby connecting peace and international justice again.

The ICTY and ICTR paved the way for the decision of the international community to establish a permanent criminal court in an effort to avoid a repetition of  past experiences. A court built upon the lessons of decades when the world had failed to prevent massive crimes. 

With the Rome Statute  the world created a permanent and independent judicial institution, complementary to national jurisdictions, designed to put an end to impunity for the most serious crimes of concern to the international community and thereby contribute to the prevention of such atrocities, as a new component to the world's efforts to achieve peace and security.

The Rome Statute framework has created an opportunity to realize international justice by applying one standard to all its States Parties and the 2.3 billion people that are under its protection.

The Rome Statute consolidates the new trend. The message of the Statute is clear: there shall be no impunity for anyone who commits  massive crimes.

Excellencies, Ladies and Gentlemen,

All States Parties to the Rome Statute commit to investigate, prosecute and prevent massive crimes when perpetrated within their own jurisdiction. 121 States today have accepted that should they fail in this primary responsibility, the ICC can independently decide to step in.

Under the Rome Statute, States Parties also commit to cooperate with the Court whenever and wherever the Court decides to act. The Court can therefore rely on the cooperation of the police of all States Parties to implement its decisions. This is not just an abstraction.

Let me highlight in particular the support the African continent, as the largest regional bloc of States Parties, has been giving to the Court from its inception, providing assistance to the Court at each step of its development: in showing confidence in the Court by referring situations of massive atrocities to the Office for investigation, in cooperating with the Office and facilitating the investigations, in pursuing and arresting individuals sought by the Court, in protecting witnesses, etc. African States, including Non States Parties, receive more than 50 per cent of the Office's requests for cooperation. Over 70 per cent are met with a positive response.

Largely thanks to this African support, the Court today is in motion, working for the millions of victims that are crying for our help.

The Office of the Prosecutor has opened investigations in 7 situations. In these situations, we have opened 15 cases in relation to 29 persons. The Court has cast 1 verdict, and more are soon to follow. Additionally, the Office is engaged in preliminary examinations, in Honduras, the Republic of Korea, Afghanistan, Mali and Nigeria, where the Office is analyzing alleged crimes, and in Guinea, Colombia and Georgia, where the Office is assessing if genuine national proceedings are being carried out.

These preliminary examinations, which are a legal prerequisite for opening any investigations, constitute a comprehensive process during which the Office independently and impartially considers whether there is a reasonable basis to proceed with the opening of an investigation.

The Rome Statute is a unique innovation in that for the first time in history an international Prosecutor is given the mandate to independently open investigations in situations where crimes are committed. This is indeed unlike the Nuremberg and Tokyo military tribunals, or  the ad hoc tribunals for the former Yugoslavia and for Rwanda where States or other political bodies selected the situations to investigate.

The Prosecutor of the ICC must determine whether there is a reasonable basis to initiate an investigation based on legal criteria provided by the Rome Statute, relating to jurisdiction, admissibility and the interest of justice. A Security Council referral or a request from a State Party does not bind the Prosecutor and is subject to the same legal criteria.

The jurisdictional limitation is the main reason why the Office cannot investigate in Non States Parties such as Somalia, Israel or Syria. The lack of jurisdiction can only be repaired by a referral of the UN Security Council or through acceptance of jurisdiction by the State concerned, such as done by Côte d'Ivoire.

The Statute also requires that the crimes reach a threshold of gravity. For instance, the Office conducted a preliminary examination of alleged crimes committed in Iraq by nationals of 25 States Parties involved in the military operation there. It found cases of willful killings and torture but they were not committed "as part of a plan or policy or as part of a large‐scale commission". So the Office could not open an investigation because the cases did not reach the gravity threshold established by the Statute. In addition, the States concerned were conducting domestic investigations and prosecutions, so on the basis of the complementary nature of the Court, the Office could not step in.

This complementary nature of the Court is also not well understood. Simply put, the Court can not investigate if a State itself is investigating and prosecuting the same crimes. In all situations referred to the Court by States themselves (Uganda, DRC, Central African Republic,... ) the Office started investigating only after determining that there were no ongoing investigations. Even in situations referred to the Office by the UNSC (Sudan and Libya) or situations in which the Office opens investigations by his own motion (Kenya) the Office is obliged to first determine whether there are ongoing national proceedings before starting its own investigations.

Finally, in accordance with the Statute, the Prosecutor should not proceed with an investigation or prosecution if it is not in the "interests of justice". It would however be exceptional to decide that an investigation would not be in the interest of justice and the victims. I should stress here that the "interests of justice" must not be confused with the interests of peace and security, which falls within the mandate of other institutions, notably the UN Security Council and the African Union.

The Court and the Office of the Prosecutor itself are not involved in political considerations. We have to respect our legal limits. The prospect of peace negotiations is therefore not a factor that forms part of the Office's determination on the interests of justice.

The international community has put in place some clear divisions of responsibility. The UN Security Council is in charge of peace and security. The ICC is doing justice.

It is important to realize though, that it is only in the last ten years, following the entry into force of the Rome Statute that this independent and permanent criminal justice component has been added to the toolbox of international policy options available to international policy makers as they work to achieve peace and security. It therefore makes sense that the relationship between peace and justice is complex, with international criminal justice mechanisms at a relatively early stage in their evolution.

As part of peace and security mandate, the UN Security Council has the option  of referring situations to the Office of the Prosecutor for investigations, in particular concerning those States not Party to the Rome Statute where there are prima facie indications that widespread serious crimes that fall within the jurisdiction of the Court are being committed.. By the same token, the Council also has the power under article 16 to request a temporary deferral of an investigation or prosecution undertaken by the Court.

The reasons for which these powers may be exercised are clearly a matter for Security Council members themselves and are not issues with which the Court and the Office of the Prosecutor can or should be involved.

Excellencies, Ladies and Gentlemen,

There is no doubt  that the world today is increasingly united by the conviction that no leader can be allowed to commit massive atrocities to gain or retain power. The responsibility to turn that conviction into reality, as in so many other areas of international life today, is shared.

By joining the Rome Statute  States turn this conviction into a legally binding commitment. In States Parties, the Rome Statute system foresees that in case of massive crimes there will be investigations and prosecutions carried out by the State authorities itself, or, in the absence thereof, by the ICC. There will be legal consequences and accountability for the crimes.

However, in situations concerning Non States Parties, if the State takes no action, it is up to the Security Council to decide, on a case by case basis and without one particular standard, to refer the situation to ICC. To increase the prospects of changing behavior and preventing crimes or an escalation thereof, the Security Council could therefore warn States of the possibility of an ICC referral.

Once the Security Council takes a political decision to refer a situation to the Prosecutor, the judicial process begins and all the necessary legal requirements must be fulfilled for the case to move forward. The Office of the Prosecutor will investigate according to the Statute and pursue cases wherever the evidence may lead. Judges will issue arrest warrants or summonses to appear if they are satisfied that the evidence presented by the Prosecutor meets the required legal threshold..  This judicial process  can only be interrupted by a further decision of  the Security Council acting under article 16 of the Statute.

It should nonetheless be recalled that an article 16 deferral does not divest the Court of jurisdiction - the deferral  only suspends the process for a renewable 12 month period. It is in this regard that, the Council would no doubt need to consider whether there has been a change of circumstances within the situation that would justify continued suspension of investigations and prosecutions or resuming them. A deferral is not an amnesty, nor an offer of immunity from prosecution - it buys time perhaps, but it does not buy a way out for alleged war criminals.

In most situations before the Court, conflict management and often specific peace negotiations have been underway while the investigations and prosecutions are proceeding. The role of the ICC has never precluded or put an end to such processes. Rather, I would say, it has proved a spur to action, for example, as in the case of the Lord's Resistance Army (LRA), where ICC arrest warrants themselves have been  widely acknowledged to have played an important role in bringing the LRA to the negotiating table in the Juba Peace Process in the first instance. This was despite initial fears by some - emphasised and exploited by the LRA leadership themselves - that if the indictments were not lifted, they could threaten the peace talks. At that time, my predecessor appropriately referred to this as blackmail.

As the example of Joseph Kony shows, there can be obvious perverse side-effects from deferring judicial proceedings in the name of peace and security. Succumbing to pressure to restrain justice may send out a message to perpetrators that arrest warrants can be stayed if only they commit more crimes or threaten regional peace and security. Court proceedings or the possibility of Security Council deferrals should not be used by alleged war criminals as a tool to divide the international community.

The mandate of the Office of the Prosecutor is to ensure accountability for those who bear the greatest responsibility for the commission of the most serious crimes. The policy of the Office is to pursue its independent mandate to investigate and prosecute those few most responsible, and to do so in a manner that respects the mandates of others and seeks to maximize the positive impact of the joint efforts of all. To preserve its impartiality, the Office cannot participate in peace initiatives, but it makes clear that any proposed solutions in peace talks have to be compatible with the Rome Statute. It will inform the political actors of its actions in advance, so they can factor the Court into their activities.

The Office of the Prosecutor's experience after 9 years, looking at various conflict resolution initiatives around the world, has reaffirmed my deep-seated belief that both peace and justice are necessary and integral elements in any sustainable route to lasting stability.

By way of conclusion I would like to quote UN Secretary-General Ban Ki-Moon speaking at the ICC Review Conference in 2010, who emphasised much the same point:

"Perhaps the most contentious challenge you face is the balance between peace and justice. Yet frankly, I see it as a false choice. In today's conflicts, civilians have become the chief victims. Women, children and the elderly are deliberately targeted. Armies or militias rape, maim, kill and devastate towns, villages, crops, cattle and water sources - all as a strategy of war. The more shocking the crime, the more effective it is as a weapon. Any victim would understandably yearn to stop such horrors, even at the cost of granting immunity to those who have wronged them. But this is a false peace. This is a truce at gunpoint, without dignity, justice or hope for a better future. (...) [T]he time has passed when we might speak of peace versus justice, or think of them as somehow opposed to each other. (...) We have no choice but to pursue them both, hand in hand. (...) Now, we have the ICC. Permanent, increasingly powerful, casting a long shadow. There is no going back. In this new age of accountability, those who commit the worst of human crimes will be held responsible. Whether they are rank‐and‐file foot soldiers or military commanders; whether they are lowly civil servants following orders, or top political leaders, they will be held accountable."

If perpetrators and potential perpetrators of war crimes, crimes against humanity and genocide are to be deterred from committing more crimes, a strong and consistent message is required from all quarters - whether from the Court, State Parties to the Rome Statue, Non States Parties, the African Union, the UN Security Council, or others - that peace and justice can work together and that the era of impunity is over.

Looking ahead to my tenure as Prosecutor, I hope I may count on your support and assistance to end impunity for the crimes that have plagued our continent and elsewhere. Having been nominated and supported for this position by the AU, I consider myself to be an extension of the African fabric for ending impunity. Solely guided by the law and the cardinal principles of independence, impartiality and fairness, I will serve the victims of massive crimes in need of our support, wherever and whenever they cry for help. I stand ready to work with you and others in answering their call.

I thank you for your attention.

Issued by the ISS, October 10 2012

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