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Statement delivered by Fatou Bom Bensouda at The Gambia Bar Conference "Legal Practice in the 21st Century"

Feb 23, 2010, 1:56 PM

Ladies and Gentlemen,

Thank you for being here, and thank you to the Gambian Bar Association for this kind invitation.

60 years ago, with the Nuremberg Trials, for the first time, those who committed massive crimes were held accountable before the international community. For the first time, the victors of a conflict chose the law to define responsibilities. In the word of the Nuremberg Prosecutor Justice Robert H. Jackson:

"That four great nations, flushed with victory and stung with injure stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of law is one of  the most significant tributes that power has ever paid to reason."

Nuremberg was a landmark. However the world was not ready to transform such a landmark into a lasting institution. The Cold war produced massive crimes in Europe, Latin America, and Asia; Africa was still under the rule of colonialism and apartheid.

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 Security Council decided to create the ICTY and the ICTR, thus connecting peace and international justice again.

The contribution of the ad hoc Tribunals is yet to be fully recognized and measured. They developed the law, prosecuted the worst perpetrators, Generals, members of Governments. They contributed to restore lasting peace in conflict-torn regions. 

The ad hoc tribunals for Yugoslavia and Rwanda paved the way for the decision to establish a permanent criminal court.

The International Criminal Court is a new instrument of peace in a world where conflicts transcend borders. The ICC is not only about altruism, it is also about our self-interest. If States don't deal with massive crimes, there are no safe borders for the global community. A global problem needs a global solution. The ICC is more than a Court; it is a comprehensive and global criminal justice system.

In Rome in 1998, participants including civil society and countries with different legal traditions debated the creation of the Rome Statute from different perspectives, but all shared the same sense that this Conference was not just an exercise in putting ideas on paper. They knew that the new legal design would profoundly impact the way international relations are governed. Accountability and the rule of law would be the framework.

Under the Rome Statute, substantive law has been codified into one detailed text; States have reaffirmed their duty to prosecute the worst criminals; an independent, impartial and permanent International Criminal Court has been established; and authority has been vested in the Court to intervene if States fail to carry out their own responsibility to conduct genuine proceedings, while at the same time providing an incentive to States to assert their own responsibilities in the cause of international justice. The Court is complementary to national jurisdictions. But let us understand well the meaning of complementarity: if the States do not prosecute those most responsible, the ICC will do it. Impunity is not an option.

Furthermore, the drafters of the Rome Statute clearly recognized the intrinsic link between justice and peace. As stated in the Rome Statute Preamble, by putting an end to impunity for the perpetrators of the most serious crimes, the Court can and will contribute to the prevention of such crimes, thus having a deterrent effect.

Today, we are building a global community; new technologies and globalization have deeply contributed to this evolution. Communities and people that were isolated before are today coming together, exchanging and communicating at a tremendous speed.

This global community has also led to the consolidation of global criminality. Global crimes, that transcend borders, that affect entire regions and continents, but with no global government to fight it, and with poor institutional backing. With prevailing impunity.

The current global governance system is using old techniques against new threats. New models need to emerge.

The ICC and the Rome Statute are one of them: creating global governance without a global government but with global/international law and courts.

New challenges require new models. The Rome Statute defined three crimes that required global regulation ? genocide, crimes against humanity and war crimes. It called in its Preamble for the need "to put an end to impunity for the perpetrators of [the most serious crimes of concern to the international community] and thus to contribute to the prevention of such crimes."

There is a need for innovative, strong and consistent diplomatic and political action by all actors to ensure compliance with the Court's decision. When it comes to perpetrators of massive crimes, there should be only one answer: the full and transparent implementation of the law.

I will focus primarily on sketching out what challenges the Office of the Prosecutor, as an organ of the ICC, has faced in investigating and prosecuting crimes in the context of complex modern conflicts. 

1. The most challenging area for the ICC and the OTP is cooperation. The Rome Statute establishes a comprehensive regime for the repression of genocide, crimes against humanity and war crimes. However, while the Court has the necessary judicial powers, it does not have an independent mechanism to enforce its decisions. Accordingly, the successful implementation of its work depends on cooperation with the international community, in particular States Parties - although our needs often need to be met by States which are not part of the Rome system. Cooperation is necessary, for instance, in assisting the Court with the protection of victims and witnesses, the execution of warrants of arrest, the transfer of suspects to the Court as well as logistical and administrative matters.

While cooperation in these fields is requested primarily from the territorial States, we have seen how the support of other States and organisations, particularly that of the UN in the context of the DRC, will often be essential to achieving arrests. 

While it is for the relevant actors to decide how best to facilitate arrests, we have in particular called on all State Parties to consider the following:   

(1) Support to those States on whose territory suspects are located through, for example: sharing information on suspect tracking; logistical support and specialised training for arrest operations;

(2) Investigating issues of supply and support and tackling these networks through domestic or international action, for example UN Security Council sanctions and freezing assets;

(3) Including, where feasible, provisions enabling cooperation with efforts to bring to justice individuals responsible for crimes under the jurisdiction of the Court within the mandate of relevant peacekeeping missions (and ensuring that the necessary resources are provided to effect arrests); and

(4) Creating operational groups comprised of relevant States and organisations to exchange information and coordination on military and diplomatic efforts to secure arrests.

Let me re-emphasize here that the assistance and support of States Parties and other international actors is indispensable for the Court to function effectively.

I would like to point out that 30 African States are State parties to the Rome Statute, which clearly demonstrates the high level of responsibility expressed by the African States, including the Gambia. ICC core values are consistent with African norms. Furthermore, it is clear that even those African countries that are not yet States Parties to the Statute share our objective of working for greater accountability.

2. Another challenge faced by the OTP specifically relates to how to initiate its investigations. For the Prosecutor and myself, our mandate is clear. We have to apply the law.  As an independent Prosecutor, with propio motu powers, the Prosecutor has the responsibility to select the cases of the Court. This was seen in Rome as the most sensitive of issues. But selection of cases is, at the end of the day, straightforward. The Prosecutor investigates those most responsible for the most serious crimes of the gravest situations under our jurisdiction. Nothing more. Nothing less. That is what we did and what we will continue to do.

As a result of the application of the law, we are prosecuting Thomas Lubanga for recruiting child soldiers.

We are prosecuting Joseph Kony and other leaders of the LRA for abducting children and transforming them into sexual slaves and killers.

We are prosecuting Germain Katanga and Matthew Ngudjolo for killing and raping civilians.

We are prosecuting Jean-Pierre Bemba, for a campaign of rapes and pillages.

We are prosecuting Harun and Kushayb for attacking civilians in villages.

We have requested an arrest warrant against Al Bashir for genocide, crimes against humanity and war crimes.

We are prosecuting Abu Garda for attacking AU peacekeepers in Haskanita on 29 September 2007.

As announced late November, we are seeking authorization from the Court?s Judges to open an investigation proprio motu regarding the situation in Kenya and the crimes committed during the post-election violence in December 2007.

We are also carrying out analysis activities in four continents, including in Colombia, Palestine, Georgia and Afghanistan.

3. As a permanent Court, we have to work in situations of ongoing conflict, which is also a constant and considerable challenge. In fact the challenges continue to increase in scope: in Uganda, the investigation proceeded in the midst of violence. In Ituri, we proceeded as local institutions had entirely collapsed. Darfur was the most difficult challenge: it was entirely impossible to protect witnesses in Darfur.

4. In the Courtroom, we are setting the framework for entirely new procedures:

- Victims are participating at all stages, with a right to send information to the Prosecutor to form the basis of the opening of an investigation, and to present their views and concerns during proceedings; they will benefit from a comprehensive system of reparations.

- Witnesses and victims are protected in accordance with statutory requirements while at the same time information is disclosed to defendants; it is a key part of fair trial concept; and one of the most serious challenges we are faced with. Over the last four years, no ICC witnesses or staff have been wounded or killed. This must remain so.

This Court is building the foundations of an international criminal system for centuries, based on the highest standards. This is justice done and not only seen to be done. Fair trials are the cornerstone of our legitimacy.

Possible perspectives on how the ICC and the Gambian Bar Association  can work together

Ladies and Gentlemen,

In the long term, the success of the Rome Statute will be the effective prosecution of these crimes at the national level and the prevention of such crimes through ending impunity around the world. This is an area in which I believe we can work together, since our separate mandates can complement each other. One of the tasks of the Prosecutor is to make it clear to States that he will do his part, but that a positive understanding of the idea of complementarity is essential. It is the key to the success of the system.

What does this mean in practice?

1. We firmly believe that a positive understanding of complementarity means making sure that firstly the Court is taken seriously as an enforcer of the Statute. We believe that we have after five years now crossed a critical threshold where the public and in particular governments realise that the rules have changed and that they have to act. This means for instance implementing the provisions of the Rome Statute into national legislations. This is an area in which the Gambian Bar Association can contribute in a crucial manner.

2. This is the first and necessary aspect of building the system. Secondly, we have created the practice of being as transparent as possible so that States and the public in general will know whether there are situations which may require investigations to be carried out. This gives the relevant States an appropriate opportunity to act: it also allows the public, and victims in particular, to organise themselves and do whatever they feel is correct either in relation to national proceedings or international proceedings.

3. A third thing that the Office can do and has done in the past is to use its access and experience to help broker certain kinds of assistance to national prosecution and judicial authorities. In all of the countries where we are engaged there are efforts to strengthen local justice systems. Wherever possible we have tried to contribute meaningfully in the light of our experiences to those developing such programs so that areas of particular priority might be strengthened and allow the national authorities as quickly as possible to be in a position to carry out genuine national proceedings.

4. The fourth thing that we can do that is addressed by the Statute is that we can provide information to national authorities that we have obtained in the course of our investigations. We are of course willing to do that but any such information will only ever be transmitted if we are satisfied that the security of witnesses can be adequately addressed by the national authorities in question. The Bar Association?s efforts to develop and strengthen the national legal system are complementary to this issue. We have a statutory duty to protect our witnesses and we will always take that duty extremely seriously and avoid putting them in danger.

There are some limits to the kinds of activities we can undertake in trying to make the system of the Rome Statute effective. We must maintain an objective relationship with national authorities because we must be in a position to evaluate impartially the genuine nature of their efforts. Here again, the Gambian Bar Association work regarding the promotion of the rule of law and the development of domestic legal systems can complement ours.

5. We can also work together in more general terms in order to enforce accountability for those who bear the greatest responsibility for the most serious crimes within the jurisdiction of the Court; the ICC could also benefit from the Gambian Bar Association's support in its outreach activities towards victims and affected communities in areas of concern for the Association.


Ladies and Gentlemen,

As Africans, we have drawn a universal lesson from the terrible crimes that have plagued our families, our communities, our continent; impunity is not an academic, abstract notion. This is true for Northern Uganda, Eastern Congo, the Central African Republic, Rwanda and Darfur.  Impunity and the continuation of crimes are obstacles facing all actors engaged in helping Darfurians.

For our part, as the OTP, we stand ready to discuss mutual concerns and areas of common interest. We have met in several occasions with lawyers in Africa in various fora; lawyers engaged in the promotion of international criminal justice and the need to put an end to impunity for the most serious crimes of concern to the ICC. The OTP has also developed over the years informal cooperation networks with different partners, such as civic organizations, NGOs, academia, lawyers' associations...

We would be happy to look on how the Gambian Bar Association and the ICC can work together in order to enforce our mandates and support each other's work. I would be interested to hear your views on this.

Thank you for your attention.