The chief prosecutor of the International Criminal Court (ICC) says she rejects any suggestion that the tribunal has unfairly targeted African countries.
Fatou Bensouda, who became chief prosecutor last June after eight years as deputy chief prosecutor, said in an interview it will take a lot of work to correct suspicions of bias against Africa.
“Changing this perception of course will not depend solely on myself, it will depend on other actors, it will depend on the organs of the court, it will depend on states, parties [and] it will depend on international partners. But, I do intend to play my part,” said Bensouda, a native of Gambia.
She blamed accused persons who have committed international crimes for spreading allegations that the ICC targets Africans.
“I think what we need to do here is to move the focus away from those who perpetuate these crimes. They perpetuate these crimes and they send this propaganda that ICC is targeting Africa, and by so doing, the focus that we should have on the victims of their crimes is moved away,” Bensouda said.
“The ICC is working with Africa and in fact Africa has been coming towards the ICC from the time of establishing this court from the very beginning. In fact this idea that Africa is being targeted was demystified, by the recent referral we received from Mali.”
In July, Mali’s minister of justice, Malick Coulibaly, led a delegation to The Hague to request officially that the ICC to investigate crimes allegedly committed by Islamists in the West African country’s north. The request cited international crimes which include summary executions of soldiers, rape of women and young girls, massacres of civilians, the use of child soldiers and pillage.
So far 33 African countries have ratified the Rome Statutes that established the ICC. They contribute financially to the operations of the court.
“Individual African countries have been cooperating very well with the ICC. We hardly have a request for assistance going out to African countries that does not meet with a positive response,” Bensouda said.
US and international justice
The Deputy Assistant U.S. Secretary of Defense for Rule of Law and Detainee Policy says Washington is playing a lead role in ensuring that those who commit international crimes face justice.
“We play a very similar role to [the one] we’ve played throughout recent history, and that’s a leadership role, in making sure that we don’t live in a society where criminals can continue with their behavior with impunity. But, it’s one that also makes sure that when we bring them to justice, we do it in a way that elevates the rule of law,” said William Lietzau.
Lietzau rejects allegations that the United States is not fully committed to the work of the Hague-based International Criminal Court. The United States is not a signatory of the Rome Statute that established the ICC.
Some experts on the ICC have said Washington’s refusal to sign weakens the power of the court. But, Lietzau disagrees.
“I don’t think that is an appropriate criticism of our role with respect to international criminal justice in general,” he said.
“The questions the United States has about the ICC are related to the structure of the court and the formulation that was chosen in the Rome treaty. That does not mean we have any lesser commitment to justice or the rule of law.”
Lietzau said the U.S. works with the ICC to help the Hague-based court carryout its mandate in a way that respects the rule of law.
“The ICC’s work of brining wrongdoers to justice is something that we are very much committed to and we will continue to support that work as we do with other tribunals. I don’t think there is any country that has invested as much in international criminal justice as the United States,” he said.
Lietzau also spoke about organizational links between the ICC and the U.N. Security Council, which can ask the tribunal to prosecute certain international crimes.
“There are legitimate questions as to various aspects of the courts structure and role among other international organizations,” he said. “We don’t want to see the International Criminal Court used for purposes of promoting a political agenda. But, we are absolutely committed to ensuring that criminals are not allowed to commit grievous international with impunity.”
Heads of state immunity
The chief prosecutor for the Special Court for Sierra Leone (SCSL) says heads of state should not be immune from criminal prosecution if they commit international crimes.
Brenda Hollis says current international law now stipulates that national leaders have immunity from prosecution unless they are charged by an international court with crimes against humanity.
“I think that the law has evolved at a point that if it’s an international crime and an international court then that head of state would not have immunity. Regardless of whether he was a sitting head of state at the time he was charged and tried or he was a former head of state,” said Hollis.
Critics have said the International Criminal Court (ICC) has often targeted mostly Africans. One example sometimes cited was the court’s arrest warrant against Sudanese President Omar Hassan Al-Bashir on charges of war crimes and crimes against humanity in Darfur. The government of Sudan has rejected the charges.
But, in an interview, Hollis denies accusations that Africans are being targeted by the ICC.
Sudan is not a signatory of the Rome Statute that established the ICC. But despite this, the U.N. Security Council can still refer a case to the chief prosecutor of the ICC to investigate alleged international crimes involving Sudan.
The Security Council’s referral about the situation in Sudan’s Darfur region, where thousands have died, led to the ICC investigation and the subsequent indictment of Mr. Bashir on charges of war crimes and crimes against humanity.
Hollis expressed her views about Security Council referrals and their impact on claims of immunity by government leaders.
“That referral imbues the International Criminal Court for that case with the authority and with the consent of members of the United Nations because when the United Nations Security Council refers that case to the ICC, it is acting on behalf of all member states of the United Nations,” Hollis continued.
“For those heads of state who are members of the United Nations that would be, in my view, an implicit waiver of immunity, by virtue of their membership of the United Nations. I think that is the current state of the law.”
Crime of Aggression
Liechtenstein’s top diplomat to the United Nations says he is working with African countries to ratify an amendment on so-called crimes of aggression. The amendment gives the ICC authority to investigate and prosecute such crimes. It was approved by a Review Conference of the Rome Statute of the International Criminal Court (ICC) in 2010.
Legal experts describe the amendment as a breakthrough in the development of international criminal law. Thirty states must ratify the amendment for it to come into force. So far, only two have signed.
“We are working with our African partners, and we are organizing next year a workshop in Botswana with the Botswana government to which African states would be invited,” said Ambassador Christian Wenaweser.
“We would simply explain the outcome of the Kampala agreement. We’d explain the legal challenges, [and the] ways of ratifying and implementing it. We hope that this will push the effort forward.”
Officials say for the first time since the Nuremberg and Tokyo military tribunals following World War II, the there is a possibility that individual leaders who plan and launch military aggression against other countries will be subject to prosecution by an international court.
Ambassador Wenaweser said he is hopeful that African countries will soon ratify the amendment on the crime of aggression so it can be implemented.
He expressed concerns, however, that some leaders are not aware that they can take action today.
“A lot of people misunderstand [and believe] that it’s not possible to ratify now; [that you can only do so] in 2017, when in fact the opposite is true. You have to ratify it now in order for it to enter into force in 2017,” said Wenaweser.
Proponents of the amendment say the campaign has been hindered by a lack of support from powerful nations. Wenaweser said he will continue to push for its passage.
He also outlined his expectations for next year’s workshop in Botswana on the amendment.
“I hope we have a very good turnout of African states and [that] we will be able to reach [out to] people in ministries who are in charge of this. We will tell them this is how you can do it, this is how you can move forward, and they will see what their peers are doing,” said Wenaweser.
The president of the Assembly of State Parties to the Rome Statute says she is working to restore political support for the International Criminal Court (ICC).
“Yes, there are concerns that there is less political enthusiasm about the court right now, and one of the reasons is quite obvious. The court is 10 years old so a lot of countries who in principle are very committed, they just take the court for granted. A lot of countries do not realize how much political support the court still needs,” said Ambassador Tiina Intelmann.
“They are forgetting that we are really in the business of trying to bring perpetrators of atrocities to justice. And it just so happens that very often the perpetrators of such crimes are people who have held or are holding high positions [in government]. So, by definition, political support is necessary because these issues, besides being legal, are also political.”
Her comments follow at a two-day conference in Nuremberg, Germany as part of activities to mark the 10th anniversary of the establishment of the ICC.
Some members of the African Union (AU) have expressed concern that the international court appears to be unfairly targeting Africans. This led to the AU’s decision to advise its members not to cooperate with the Hague-based court following the refusal of the ICC to suspend its indictment and subsequent arrest warrants against Sudanese President Omar Hassan Al-Bashir.
The court accused the Sudanese leader of committing human rights abuses and crimes against humanity in Darfur - charges Khartoum has rejected. Analysts say tension between the AU and the ICC has reduced political support for the court in Africa.
Officials of the ICC say the court faces financial challenges that need to be addressed if the court is to continue prosecutions for international crimes.
“Yes, the court faces financial challenges, not least because its workload is increasing and that is the problem,” says Intelmann. “Ideally, the court should be the last resort that is there, that serves as a deterrent, and that encourages states to do their domestic prosecutions. But it’s mostly the failure of states themselves to prosecute that brings all these cases to the ICC.”
“There is a reasonable understanding right now about the budget that the court would have. It’s also clear that at no point in time will the court have an unlimited budget,” Intelmann said, noting that signatory nations to the court are obligated to fund its core activities.