On 17 February 2012, Mrs Fatou Bensouda, Deputy Prosecutor of the International Criminal Court (ICC) delivered the 2012 Peter Brett Memorial Lecture at Melbourne Law School. The talk focused on two upcoming milestones. Mrs Bensouda will assume the role of Chief Prosecutor from the middle of the year, having been deputy prosecutor since 2004. She used her talk to reflect on both the 10th anniversary of the Rome Statute having come into force (in July) and the challenges of her new role from June.
Her talk fell on another date of interest: the first anniversary of the uprising in Libya that ousted former leader Colonel Muammar Gaddafi after more than 40 years of rule. At present, six cases are before the ICC, all involving African countries – including one against Gaddafi’s second son, Saif Al-Islam, and Colonel Abdullah Al-Senussi. With celebrations being prepared at 9 am local time in Libya, Mrs Bensouda – of the tiny northwest African country of Gambia – took to the podium in Melbourne in a packed lecture theatre on a Friday evening.
Prevention through institutional strength
From the beginning, Mrs Bensouda emphasised how the work of the court can contribute to the prevention of “massive” crimes. Maximising its “preventive impact” is central in her sights, with the ongoing Darfur genocide; violence in Columbia; and the upcoming 2013 Kenya elections dependent on these efforts. She quickly put these forward-looking and wide-reaching designs into view, moving through a short history of the ICC.
For Mrs Bensouda “institution” is the “one word” of most import in respect to prevention – just as at the state level the institutions of parliaments, police and courts promote and sustain secure and peaceful societies, so too is the ICC meant to ensure international peace and security.
… a “new trend”: no more impunity for the use of massive violence to attain or maintain power.
Though the court’s format had its predecessors in the Nuremberg and Tokyo trials of a half-century ago, it took two more generations – and two more genocides, in Yugoslavia and Rwanda – to consolidate that format with a permanent criminal court. The goal was to avoid those experiences – not merely respond to them with improvised trials. The Rome Statute made that possible, creating the permanent and independent institution that is the ICC, which sits at The Hague in the Netherlands.
Now, the court is “part of the international landscape”, Mrs Bensouda explained, with 120 states having signed on to the statute, and with the expectation of more in this and coming years. To Mrs Bensouda all this means a “new trend”: no more impunity for the use of massive violence to attain or maintain power.
In the shadow of the court
With a grand vision and mandate set out, Mrs Bensouda acknowledged the ICC is still a young institution at a “crucial juncture”, noting the imminent closure of a number of trials, and the legitimacy they will add to the work of the court. She hopes its “global impact” – what the UN Secretary-General Ban Ki Moon has called the “shadow of the court” – will contribute to ending violence of the kind characterising the cases now before the ICC. Mrs Bensouda went on to explain the concept of the court’s global impact in some detail.
The three cases brought by the prosecutor’s office in relation to the Democratic Republic of Congo triggered wide-spread debate on the use of child soldiers and the consequences of a failure to prevent the use of rape as a weapon of war. The decisions handed down will influence the behavior of thousands of military commanders in the 120 member states and beyond. As a second example, the trial in relation to Kenya is hoped to promote structural reforms in the country and aid peaceful elections. It will demonstrate to political leaders that the use of violence will result in them being put on trial.
Q & A: Difficulties in internationalising the rule of law
A large portion of the long question and answer session that followed focused on the difficulties the ICC faces – namely in the limits of its jurisdiction and the absence of a police force to capture the indicted. This means that only cases involving states that have signed the Rome Statute (or events that occur in the territories of those states) can be considered by the court. The court’s investigations and issuing of warrants depends on states handing over their indicted for a trial to proceed.
Both aspects of the institutional limits of the ICC account for what might be thought of as the “space” in its shadow. The current events in Syria and the agonisingly drawn-out events in the Darfur and now other regions of Sudan make this “space” one inhabited by the “massive violence” the ICC aims to make history. This is due to want of jurisdiction and apprehension, respectively.
Another multiply mentioned difficulty relates to the “gravity” threshold required to activate the court’s jurisdiction.
A number of Sudanese-Australian refugees made the latter “bloody regime” a focus of the session at different points. At present, Sudan is not willing to cooperate with the ICC in handing over President Omar Hassan Ahmad Al Bashir. Given, however, that the warrants issued have no time limit, Mrs Bensouda remains confident: “It will take time, but I believe Bashir’s destiny is the ICC”.
The same might be said of Syria’s Bashar Al-Assad – but for the likely positions of China and Russia on the UN Security Council resolution that would be necessary to provide the ICC with jurisdiction (given Syria has not signed the Rome Statute).
Another multiply mentioned difficulty relates to the “gravity” threshold required to activate the court’s jurisdiction. Given its focus on the most serious crimes of concern to the international community – genocide, crimes against humanity and war crimes – other crimes that clearly contravene international law are left untried due to their relatively lesser scope, either in nature, methods or impact.
… the actualisation of an institutionalised, international rule of law can be seen as a clearly complex undertaking.
The ICC – for its gaps and growing pains – stands for a principle that can be best explained in a historical narrative: from the Westphalia model of autonomous and absolute states, to the UN system of international scrutiny, the Rome State and the court it established stands for the international rule of law. Ten years after its inception, the actualisation of an institutionalised, international rule of law can be seen as a clearly complex undertaking. The court must work within its mandate.
Perhaps it was fitting that Mrs Bensouda ended her talk by thanking the audience for their support – given the desirability of its objectives – and for their patience, given both the expectations and the difficulties that surround this still emerging institution.