ICC prosecutor: Our resolve to create a more just world must remain firm

ICC Prosecutor Fatou Bensouda © CICC/Solal Gaillard

ICC Prosecutor Fatou Bensouda © CICC/Solal Gaillard

In this submission to the International Center for Transitional Justice’s debate on the fight against impunity, ICC Prosecutor Fatou Bensouda argues that the world must harden its resolve to hold perpetrators of mass atrocities accountable.

As the final guest contributor, I have the benefit of having closely followed and carefully observed the various submissions on this timely and important debate. I am grateful to David Tolbert and ICTJ for affording me the opportunity to contribute to this platform for reasoned debate on such a crucial issue.

Despite the different theses presented on whether the international community has abandoned the fight against impunity, there are many common strands in the main positions advanced in the context of this debate.

As observed in prior contributions, indeed, we find ourselves facing a number of daunting situations of serious and violent conflict around the globe where peoples’ common bonds and shared heritage are being shattered, and where millions of children, women and men are falling victim to unimaginable atrocities. Grave crimes are being committed which shock our collective conscience and threaten the peace, security and well-being of our societies.

While in historical terms, in the 21st Century, the world’s human rights and human security landscape is in fact less violent than what humanity has experienced in the past, it is nevertheless grim and worrying. History has indeed taught us that, alas, peace and tranquillity are simply respites between wars and conflict.

Yes, mass crimes do still occur in our times and often perpetrators go unpunished. While regrettably this may be true, it does not however mean that we should despair or capitulate; neither should we conclude that the fight against impunity has been abandoned as Professor Ignatieff implies. Rather, we must remain unwavering in our resolve to create a world that seeks justice for atrocity crimes, universally and blindly applied. Our actions –braced by our collective determination– must carry this conviction forward.

It has been observed that the atrocities of the first and second World Wars in particular, left the face of international peace and justice reeling. And it was in the world’s response to such heinous crimes that humanity’s hope emerged triumphant over misery and despair.

The establishment of the United Nations (UN) on the strength of its Charter, the numerous conventions and institutions aimed at the promotion and protection of human rights, as well as efforts exerted to bring method to the cruelties of war and accountability for mass crimes, were all conceived from necessity built on the costly sacrifice of our past.

To be sure, humanity was shocked into a paradigm shift in thinking, enabling it to break with the past and to take concrete measures aimed at protecting future generations from the horrors of war and mass atrocities.

The Vienna World Conference on Human Rights in 1993, which marked a “renewed effort to strengthen and further implement the body of human rights instruments” constructed on the heels of the Universal Declaration of Human Rights (1948), is yet another milestone in humanity‘s push forward.

The call to strengthen international conventions and bodies to report and enforce human rights at both the national and international levels also precipitated the rise of international criminal justice.

Indeed, the creation of the International Criminal Court (“ICC” or “the Court”) builds on efforts, firstly in Nuremberg and Tokyo after WW2, and later through the UN ad hoc tribunals for the former Yugoslavia and Rwanda. All of these institutions are conceived with the intention to put an end to impunity for perpetrators of mass crimes and thus contribute to their prevention.

The ICC is in many ways the by-product of a global awakening that subscribes to the view that the horrors witnessed during war and conflict must no longer be tolerated, but rather met with the full force of the law. That during war and conflict, the laws must no longer remain silent.

An isolated snapshot of today’s often unbridled mass violence in hotspots around the world might appear discouraging. Yet this should only reinforce our resolve to see peaceful resolution of conflict, universal respect for human rights and measures aimed at ending impunity for mass crimes as virtues that need to be further cultivated and advanced in the world. Our duty to attain this necessary goal must strengthen our common bond and commit us to the task no matter how formidable the challenges.

As Prosecutor of the ICC, I am most committed to doing my part within the framework of the Rome Statute, and I am consistently engaged in efforts to translate this vision into reality. My belief in the power of the law to serve as a potent tool to stop and prevent violence and to pacify communities gripped by conflict remains unshaken. Strengthening our investigative and prosecutorial activities and capabilities, as well as our cooperation networks and devising meticulous and transparent strategic plans and policies are crucial to these efforts. We are doing just that.

It is a hard fact that calls for my Office’s intervention have continued to grow unabated since the entry into force of the Rome Statute just over a decade ago. Regardless of the limits of its jurisdiction, the ICC has become a prominent feature in any discussion on how the international community ought to respond to a given conflict, whether in Ukraine, Iraq, Syria, Palestine or South Sudan.

We should not forget that the mere existence of the ICC is a major achievement and representative of the international community’s commitment to the fight against impunity. The Court aims to end impunity for mass crimes and curb the destructive impact of conflicts on civilians. What is more, while the ICC is still in its infancy, important empirical research has already emerged suggesting that the prospects of investigations and prosecutions in situations where the Court has jurisdiction can have a cooling effect on the commission of mass crimes, in particular by state actors. It is also posited that they enhance complementarity by encouraging national investigations and prosecutions. While more research and case-studies are required to give added support to these findings, the conclusions of these preliminary research studies are promising. Deterrence is, of course, one of the chief objectives of the Rome Statute and the ICC.

Each year I witness how demands on the ICC keep growing with governments, parliamentarians, international organisations, civil society, and affected communities from all corners of the world calling for universal ratification of the Rome Statute; referrals of situations of mass violence to my Office, and acceptance of the Court’s jurisdiction in the face of conflict and the commission of atrocities. My Office receives hundreds of communications annually from, amongst others, ordinary citizens concerning alleged crimes, hoping that the Court will exercise its jurisdiction. These trends are clear indicators that the world has not abandoned its fight against impunity.

Politicians, human rights activists, members of the legal profession, academia and the media, to name but a few, all have a role to play in advancing the cause of international criminal justice.

Taking bold and meaningful action through the vector of the law to protect citizenry from the scourge of war and mass violence demonstrates political leadership, not weakness.

To the extent that investigating and prosecuting perpetrators will deter war making and the commission of mass crimes, international criminal justice can also play an indirect but important role by contributing to stability, economic growth and development. These are all important truths that need to be widely accepted.

Seldom have major advances in human progress traveled the path of least resistance. The fight against impunity will have its successes and challenges. That is inevitable and to be expected, especially as international criminal justice reveres the rule of law as one of its core principles, and challenges impunity for perpetrators irrespective of status or official capacity.

Looking back at the past year alone, we welcomed positive developments at the ICC, including the adoption of the Office’s comprehensive Policy Paper on Sexual and Gender-Based Crimes, and charges being confirmed in four of our cases before the Court’s Chambers. 2014 also had its share of challenges as we ultimately had to withdraw charges in relation to one of our cases in the Kenya situation. We were also obliged to hibernate our active investigations with respect to Darfur due to the ineffective follow-up and support in relation to my Office’s investigations, including regarding the various outstanding warrants of arrest issued by the Court. Here, I acknowledge the points made by Prof. Ignatieff, in particular regarding the extent to which our results are the sum of the actions –or lack thereof– of many actors involved, with States Parties and the UN Security Council where it has referred cases to the ICC, being responsible for critical assistance required for the Court’s judicial activities and the effective implementation of its decisions.

Notwithstanding these realities, international criminal justice has made important inroads. Much as the international community is yet to fully embrace the ICC, learn how to effectively and consistently support it or recognise its vast potential in contributing to peace and justice processes, its underlying norms have already crystallized and have become part of the arsenal of mechanisms available to the international community in times of crises.

2015 has started with encouraging developments for the ICC and international criminal justice. The recent transfer of one of the top commanders of the Lord’s Resistance Army (“LRA”), Dominic Ongwen, into the custody of the Court has provided momentum and revived our investigations into the situation of Uganda and the prosecution of high-ranking members of the LRA. My recent visit toUganda at the end of February, including to the north of the country as well as the Central African Republic, only reinforced the importance of the fight against impunity for mass crimes and the hopes affected communities place on the ICC to deliver justice for wrongs committed.

And though the interests of peace and justice has long been a precarious balancing act, this recent development brings us one step closer to bringing justice to the people of Uganda, and sends a clear message that the ICC is permanent and patient, and no matter how long it will take, arrest warrants remain in effect until successfully executed.

The ICC also saw its number of States Parties rise to 123 following the accession to the Rome Statute by Palestine. On the 16th of January, I opened a preliminary examination into this situation on the basis of the declaration lodged by Palestine pursuant to article 12(3) of the Rome Statute and following the Government of Palestine’s accession to the Rome Statute on 2 January 2015. This latest decision has brought the number of preliminary examinations undertaken by my Office—to determine whether there is a reasonable basis to initiate investigations—to nine. Other situations under preliminary examination include Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria and Ukraine. In all these situations, my Office conducts its work in complete independence and impartiality and monitors if the requirements of the Rome Statute are met. Impunity is not an option. My Office will execute its mandate as prescribed by the Rome Statute without fear or favour.

This brings me to the following point: universality of the Rome Statute remains an important goal in order to avoid an impunity gap which may deprive recourse to justice for potentially millions of victims around the world. With many countries in the world yet to join the Rome Statute system, in particular in West Asia and the rest of the Asian continent, the Court will be limited by its jurisdictional parameters and will not be able to dispense justice uniformly when mass crimes are committed. This deficit must be remedied.

The primary responsibility to investigate and prosecute international crimes rests in the first instance with States. The unfortunate reality, however, is that far too often, states have failed to shoulder this responsibility. The Court, in such circumstances, could work as a safety net. I nonetheless agree with Betty Murungi that national justice systems must be strengthened as the first line of defense against mass crimes. The ICC is not incompatible with this notion. On the contrary, it reinforces it through the principle of complementarity.

We must also be realistic and recognize — as UN High Commissioner Zeid observes in his rebuttal remarks – that indeed, the ICC is not a panacea in the fight against impunity. My Office, within the Rome Statute framework, will do its part to encourage and support proceedings at the national level where possible, including by sending missions, making public statements and cooperating with State authorities and various judicial networks through, for instance, the sharing of information and evidence.

The ICC does not work in isolation. The interplay between conflict resolution initiatives, development efforts and justice mechanisms is a prominent feature of my Office’s work in all situations in which we are involved: after all, our preliminary examinations, investigations and prosecutions are carried out during or directly after a period of conflict when other actors are concurrently working on conflict resolution, security, humanitarian relief and peace building, as well as justice initiatives.

The fight against impunity has thus become an integral part of the world’s efforts to ensure peace and security. The roots of international criminal justice have been firmly planted and the soil is fertile enough to enable its progressive growth. Let us not allow skepticisms to persuade us otherwise.

Even if one does not believe in good faith or in historic moral progress, let us then at least fully ascertain ourselves that indeed, as Michael Ignatieff states, “we shape history with our own hands”, and that we all do our part in this common endeavour. No tectonic shift in history has been achieved without its share of hurdles and difficulties.

Notwithstanding the challenges, when properly understood, ours is in fact the age of rights consciousness where humanity no longer accepts that victims of gross human rights violations and mass crimes suffer in silence; are forgotten or that their perpetrators escape justice.

Ours is the age where dignity, equality and respect for life and liberty amongst other fundamental rights and guarantees have sacred value amongst the people of the world, and have become fixed in an ever emerging global awakening.

And while archaic vices of tribalism, sectarianism and bigotry continue to taint the pages of history, I am confident that universal values of human rights and yearning for their widespread protection, and calls for ending impunity for mass crimes will increasingly define the 21st century.

The fight against impunity, the ICC and the international criminal justice system it is aiming to create in its own image will persevere and thrive.

They will do so not because of hopeful aspirations of their supporters or faltering by their detractors. But because of what they stand for as powerful ideas; because they meet vital needs for humanity’s progress in the modern era; because without them, we’ll regress into an even more turbulent world where chaos, volatility and violence are seen as inevitable norms. This, humanity will not allow.

We owe it to ourselves, our children and to future generations to nurture the ICC so that it carries on with its crucial work to fight against impunity and to foster the Rome Statute system of international criminal justice.

We must do all we can to ensure that security, stability and theprotective embrace of the law become a reality to be relished by all, in all corners of the world. Our responsibilities remain great, but our resolve must endure.

On this path, humanity has come a long way indeed, but ‘we have miles to go still before we sleep.’

This post originally appeared on ictj.org.

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