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In the pursuit of international criminal justice, without fear or favour

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“What is required, today more than ever, is greater support for the ICC, its independent and impartial work, and the international rule of law.”

By Fatou Bensouda, Prosecutor of the International Criminal Court.

My mandate as Prosecutor of the International Criminal Court (”ICC” or ”Court”), is to independently and impartially examine and investigate the world’s gravest crimes under the Court’s jurisdiction – namely, genocide, crimes against humanity, war crimes, and the crime of aggression – and prosecute the perpetrators to deliver a measure of justice for the victims. 

With this mandate comes great responsibility and fortitude. I had no illusions of the enormity of the task when I assumed my new role as Prosecutor back in 2012. I knew then, as I do now with a few scars to show for it, that to truly live by and give breath to the Rome Statute as the treaty’s founders envisaged, meant genuine commitment, pain and courage in the face of adversity. It meant an unyielding devotion to the pursuit of international criminal justice without fear or favour, and a firm belief in the enduring value of the Court to the progress of humanity where wars and conflicts are checked by the power of the law without fail. It also meant always striving for excellence to honourably discharge a complex multi-faceted mandate, one that is largely without precedent with over a dozen countries where investigations have been opened, with an additional nine under preliminary examinations, covering situations spanning the globe.

My term as ICC Prosecutor is coming to an end next summer. It is therefore an opportune moment to reflect on the achievements, but also the setbacks and challenges encountered during my term in office.

When I became Prosecutor, the Court had been functioning for nearly a decade. Having previously served as Deputy Prosecutor, I took over the office with an intimate familiarity with what worked well and what required improvement. Now, in my new role as Prosecutor in the driver’s seat, it was important to engage in critical self-reflection on past performance, see where we could build on what was accomplished, and to enhance our operations.

The changes we undertook were sweeping. We announced and quickly moved to take a number of initiatives concerning strategic direction, organisational management, and internal office culture. We adopted a new prosecutorial strategy with a major shift in how we investigate and build our cases. The strategy, among other things, focused on in-depth investigations and being as trial-ready as possible before triggering the judicial process. We enhanced our quality control mechanisms, streamlined and strengthened our administrative procedures, improved transparency in how we conduct our work, and made significant efforts to build a positive office culture, including by adopting a Code of Conduct for the Office with mandatory trainings, and instituting the Core Values of “Dedication, Integrity, and Respect.” These organisational values are to guide all aspects of our work. We are strengthening an Office that is accountable at all levels, both in terms of performance and professional conduct.

Our focus has been on quality rather than quantity to secure successes in court. A number of important litigation successes and landmark decisions have since ensued, including the ruling delivered in the Myanmar/Bangladesh situation confirming the Court’s jurisdiction over the alleged deportation of Rohingya people (an investigation is now open), and the appellate ruling  on head of state immunity in the Al Bashir case in the Darfur (Sudan) situation, to name a few.  As a direct result of the changes in our new investigative and prosecutorial strategies, we have secured important convictions in the Katanga, Ntaganda and Al Mahdi cases (in Democratic Republic of the Congo, Mali situations, respectively) and in proceedings regarding offenses against the administration of justice against other accused persons. In January 2021, we also expect judgement in the Ongwen case in the Uganda situation.

In the Ntaganda case, my Office secured the conviction of the accused on all counts, including, for the first time in the Court’s history, the crime of sexual slavery as well as the crime of rape against women and men. Through this case, we have contributed to emerging jurisprudence by extending the protections under international humanitarian law to also cover crimes committed by an armed group against members of their own group.

The Al Mahdi case sent a clear message that the intentional attacks against historic monuments and buildings dedicated to religion is a serious crime under international law. This message was widely recognized and amplified as it reverberated through a variety of international actors, including our institutional partners at UNESCO who were invested and assisted with this case. We have since strengthened our important institutional relationship with UNESCO. There is no better celebration of our common humanity and the richness of our diversity than cultural heritage. Protecting it is an act of self-preservation and a joint responsibility.

These cases, I believe demonstrate, the unique contribution my Office can make in the fight against impunity for atrocity crimes, including with respect to those crimes that are typically underreported and/or insufficiently addressed at the domestic level, such as sexual and gender-based crimes, crimes against or affecting children, and crimes against cultural heritage. We have elevated the first two issues to key priorities under the Office’s Strategic Plans and adopted comprehensive policy papers to highlight the importance of addressing these crimes, to elaborate on the applicable legal framework, take a systematic approach to the prosecution of these crimes and to provide a reference to the extent that our work and best practices can be helpful to efforts at the national level. A third policy, on the protection of cultural heritage within the Rome Statute framework, is currently being finalised and will be launched prior to the end of my mandate.

The demands for the Office’s intervention are ever increasing. We are currently conducting preliminary examinations in situations across the globe, including in Venezuela, Nigeria, Ukraine, The Philippines, and elsewhere, to determine if there is a legal basis to commence investigations in accordance with the Rome Statute. We are additionally actively collecting evidence during our investigations in the situations in Libya, Darfur (Sudan), Georgia, Bangladesh/Myanmar, and others. And we are engaged in prosecuting cases against alleged perpetrators of Rome Statute crimes, including in the Central African Republic and Mali situations.

Across situations, the scale of criminality we deal with coupled with our severe resource constraints means we have to make tough choices, including which cases to prioritise as we try to manage the expectation of victims and affected communities. We are committed to responsible and accountable stewardship of our resources, and we produce transparent budget proposals, making flexible and efficient use of resources and ensuring sound financial management. But there is a limit to how much we can do.

The Office carefully thinks through and seeks to discuss, through open and frank dialogue with States Parties and other stakeholders, a number of critical challenges faced by the Office, including as it concerns the mismatch between its limited resources and demands, possibilities for further prioritization, and the development of completion strategies.

While the work is progressing well in most situations, we have, however, not escaped some setbacks, despite our best efforts. We have had cases overturned on appeal, notably the Bemba acquittal amid a divided appeals bench, or charges vacated in the Kenyatta, Ruto and Sang cases which operated in a complex environment where we experienced lack of sufficient cooperation and witness tampering, and more recently, acquittals in Gbagbo and Ble Goude cases, which are currently on appeal.

These setbacks have given rise to questions and criticism. While we are not fazed by misplaced and ill-informed commentary, we have always and will continue to embrace well-founded critique as an opportunity for self-reflection and, ultimately, growth. The Office, under my direction, is committed to a culture of continuous learning and improvement. We recognise that setbacks can serve as a learning experience and an opportunity to make improvements where required. This embrace of change management and continuous learning is reflected in the three consecutive strategic plans issued during my term.

In this spirit, along with my senior management, I hence also fully supported the mandate for the group of independent experts commissioned by the States Parties at the Assembly of States Parties in 2019, to review and enhance the functioning of the Court as a whole, culminating in a report published this autumn. We are currently studying the report’s recommendations and are pleased to note that many of them confirm our own processes, thinking and improvement projects. We will be looking to the report of the Independent Experts for inspiration and fact-based actionable recommendations which we can then carry forward with this overall objective in mind.

The review should necessarily also take into account the performance of other actors in the Rome Statute system. The ongoing process provides an opportunity to render the system as effective and efficient as possible, always true to the Statute’s laudable goals and values. 

One key external challenge for the next Prosecutor will continue to be the political environment and other outside conditions under which the Office operates.

Tangible and timely cooperation is crucial to the Office’s ability to conduct effective investigations and prosecutions. While cooperation has been generally forthcoming, it also remains a continuous challenge and needs to be promoted and fostered. My Office actively engages with States and other relevant stakeholders – including through the many Embassies in The Hague as key stakeholders and first entry points –to ensure the requisite level of assistance to our operations, to enhance diplomatic and political support for its work, and to improve the general understanding of its mandate. We are proud of the relationships of trust and mutual respect that we have fostered during my tenure.

We are enhancing our own efforts to identify, support, and engage with initiatives undertaken at the domestic level, to respond to situations where crimes under the jurisdiction of the Court may occur, including by responding, where possible, to requests for assistance from States to access our information, or to share our lessons learned and best practices. This is another way we contribute to closing the impunity gap through exploring synergies and cooperation with other actors. The Court was not designed to address all instances of criminality under its subject matter jurisdiction. It is a court of last resort that fully respects the primary jurisdiction of states.

As my Office and the Court more broadly, carry out our crucial functions, we must be allowed to do so without interference.

In this context, I wish to refer, in particular, to the unprecedented coercive measures taken by the current US administration through the issuance of an Executive Order against the Court, and the imposition of economic sanctions on me and a senior staff member of my Office as well as travel plans. I hasten to add that these tactics will not deter us from continuing to do our work dispassionately and honourably. I do hope the US Government reconsiders its policy of hostility and adopts a more constructive approach towards the ICC and its crucial work of fighting impunity for atrocity crimes.

The response from the States Parties and other stakeholders in the face of such challenges will determine in many ways how the Rome Statute system will shape up for the foreseeable future. I wish to seize this opportunity to thank all the States Parties and other supporters of the Court’s work in the United States and across the globe that have stood up in no uncertain terms in the defence of the ICC.

I equally hope that my successor, whoever that may be, will equally pay homage to the Rome Statute as we have done – with utmost integrity and professionalism, led by our sense of unflinching responsibility towards our mandate, solely by the dictates of the Rome Statute.

Ultimately, international criminal justice, with the ICC at its core, serves humanity as a whole.

What is required, today more than ever, is greater support for the ICC, its independent and impartial work, and the international rule of law.

I am very proud of my dedicated and professional staff, who work day in day out in the trenches to fight impunity for the world’s gravest crimes.

During my tenure, I have done everything in my power, with dedication and integrity, to ensure that as many victims as possible will have their voices heard, and be able to reap the benefits of justice.

We must protect the progress made towards a culture of accountability for atrocity crimes as an essential pillar of a rules-based global order.

We cannot undo the suffering of the past and the horrors of history, but we have a joint responsibility not to repeat them.

* Fatou Bensouda is the Prosecutor of the International Criminal Court. and the first woman to serve in that capacity. She was elected by consensus by the Assembly of States Parties to the Rome Statute and assumed her nine year mandate in 2012.