In the Name of Prosecution: Striking a balance of the International Criminal Court’s work in the first decade

Ladies and gentlemen,

I am delighted to be with you here this afternoon to share with you the achievements and challenges of the most innovative institution of the 20th century, the International Criminal Court. I deeply appreciate the opportunity that the Heinrich Böll Foundation has given me to address you. 

Since Nuremburg, the international community yearned to establish a permanent institution to deal with heinous crimes that shock the conscience of humankind. In 1998, States recognized that accountability and the rule of law were fundamental preconditions to provide the framework to protect individuals and nations from massive atrocities, to promote peace and international security and to manage conflicts. In Rome, after several weeks of negotiations, the Statute establishing the International Criminal Court was concluded with the goal of holding accountable the perpetrators of massive crimes, by building an interdependent, mutually reinforcing system of justice, based on the principles of complementarity and cooperation. 

The Rome Statute, in its preamble, recalls ‘the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, thereby giving States Parties the primary responsibility for investigating and punishing atrocities. It is only if States Parties are unwilling or unable to address the crimes through their national justice systems that the Court can intervene. In that event, the Rome Statute obliges States Parties to cooperate with and provide judicial assistance to the Court.

The strength of the Rome Statute system lies, therefore, in the possibility for shared responsibility, mutual support and complementary action between the Court and the domestic authorities. 

The system put in motion in Rome in 1998 is gradually evolving into an operational network. In each country, political leaders, public servants, members of the civil society, even ordinary citizens, are part of the network. National judges in Guinea and Colombia are conducting proceedings into massive crimes. Libya is asserting its right to investigate and prosecute crimes committed by its citizens. Diplomats in New York are discussing referrals of situations to the Court. Youth groups in the US are drawing the world’s attention to atrocities committed by LRA militias and calling for their arrests. Each of them in their own way is contributing to move the Rome Statute forward.

The Court, by virtue of this mandate and operations, has introduced a new paradigm in international relations: utilizing the same standard of law as a global tool to promote peace and international security and put an end to impunity. The Rome Statute’s underlying norms have now crystalized and have become part of the arsenal of mechanisms available to the international community in times of crises and conflict. 

The Rome system is protecting the rights of more than 2.3 billion persons who live in the territories of 121 State Parties. Even beyond, there are many other citizens from all over the world requesting the intervention of the Court. 

Ladies and Gentlemen,

The work of the Court has steadily progressed since 2002 when it began its operations. The Office of the Prosecutor currently has eight situations under investigation and is conducting preliminary examinations in seven other situations to determine whether it should proceed with the opening of an investigation. Four persons are in custody, one of them convicted.

Allow me to highlight some of the cases emanating from the Office’s investigations. In March 2012, the judges handed down the Court’s first verdict against Thomas Lubanga Dyilo, for recruitment and use of children under the age of 15 in armed hostilities in the Democratic Republic of Congo. Thomas Lubanga was sentenced to 14 years imprisonment. 

The second case against Mathieu Ngudjolo Chui, accused of committing crimes the village of Bogoro, also in the Democratic Republic of Congo, in 2003, ended last year when the accused was acquitted in December. The Office of the Prosecutor is appealing the judges’ decision acquitting Ngudjolo. The judgment shows that the ICC truly is a court of law, where any individual will receive a fair trial with the opportunity to prove his or her innocence. A verdict regarding Ngudjolo’s co-accused, Germain Katanga, is still pending.

In our third trial, against Jean-Pierre Bemba, a former Congolese Vice-President who stands trial for alleged crimes committed by his troops in the Central African Republic, the Prosecution has closed its case and the Defence is presenting its part. The Court will likely pronounce a decision in the course of this year. It is the first time for the international criminal justice system to address a situation where allegations of sexual crimes far outnumber alleged killings. It is also the first trial before the Court that concerns command responsibility. The judges will decide on Jean-Pierre Bemba’s individual criminal responsibility, but the Court’s decision could have an important deterrent impact, influencing the behaviour of thousands of other military commanders from 121 States Parties and beyond. 

By focusing its investigations and prosecutions on only those individuals deemed most responsible for alleged crimes in a given situation, the Office hopes to set an example for complementarity efforts by national judiciaries that wish to prosecute lower ranked perpetrators.

With regard to the situation in Kenya, trials have been scheduled to commence on 10 and 11 April against four individuals who are believed to be most responsible for the post-election violence that occurred in the country in 2007-2008: William Ruto and Joshua Arap Sang in the first case; and Francis Muthaura and Uhuru Kenyatta in the second case. These cases make clear that electoral violence will not go unpunished. Hopefully, the coming elections will remain without conflict.

In the situation in Côte d’Ivoire, the Office is preparing for the commencement of the confirmation of charges against former President Laurent Gbagbo, on 19 February. An arrest warrant has also been issued for his wife Simone. Other investigations into other alleged crimes in Côte d’Ivoire are ongoing.  

In the situation of Darfur, the Sudan, a trial date is awaited in the case against Abdallah Banda and Saleh Mohammed Jerbo, two leaders of armed factions charged with attacking AU peacekeepers at Haskanita base in 2007.

With regard to the situation in Libya, in the case against Saif Al-Islam Gaddafi, son of the late Colonel Muammar Gaddafi, the Court is currently dealing with an admissibility challenge, based on the primacy of national proceedings, by the Libyan authorities, in order to decide whether or not a trial can take place in Libya.

Ladies and gentlemen,

The aforementioned cases and proceedings show that the Court is working. It has become a reality and is now part of the international landscape. 

Nonetheless, in other cases prosecutions have proven more difficult, in particular due to challenges relating to the arrest and surrender of individuals against whom arrest warrants have been issued. The ICC does not have its own police force, and relies completely on the cooperation of its States Parties and other actors. When these individuals are protected by active militias, such as Joseph Kony in Uganda, or when they use the State apparatus to commit alleged crimes, like in the case of Sudanese President al Bashir, the arrest and surrender can be particularly problematic.

Also in other areas of support, such as witness protection, and the identification, seizing and freezing of financial assets of suspects, cooperation with States Parties can be challenging.

Cooperation is critical for the successful implementation of the mandate of the Court and the Office of the Prosecutor. Lack of cooperation or inordinate delays in dealing with requests from the Office will affect the legitimacy and efficiency of the Court. 

Strategies and efforts to ensure the execution of arrest warrants and other Court decisions must therefore be on top of the foreign policy agenda of all States Parties if we want to see the violence against citizens come to end. Victims of massive crimes are still crying out for our help, so if we want to turn the promise we made in Rome in 1998 into a lasting reality, the Court needs the necessary assistance.

This brings me to my next point. 

It is not enough for a court to just produce legal debates in the courtroom, and to be ignored in the management of massive violence. The Office’s mandate is to investigate the facts with impartiality and apply the law with integrity. But it should not be an isolated institution. Reality shows that some of the leaders sought by the Court threatened to commit more crimes to retain power, blackmailing the international community with a false option: peace or justice. The effectiveness of the Court will depend on how political leaders and conflict managers react to such blackmails. 

This risk of isolation also informs discussions on the relationship between the Court and the UN Security Council, especially in those situations referred to the Court by the Council. It has to be clear that a referral is not a means by itself and that the United Nations Security Council has to follow-up on its referrals of situations to the Prosecutor by providing concrete backing and support to the Court.

A key feature of the Court which cannot be compromised is its independence. Prevailing national or parochial interests may provide incentives to control the Court. Leaders who are using crimes to retain power have criticized the Court for being an instrument in the hands of western power and managed to mobilize some international support to this end. On a completely different level, States Parties have struggled to prioritize their commitment to international justice over more immediate economic interests. Lack of funding may limit the Prosecutor’s options and thus influence exercise of independent choices. 

The Office’s independence is the cornerstone of the Rome Statute system and should at all times be respected and protected, in particular by States Parties. It should not be taken for granted. 

Also in the interplay between conflict resolution initiatives and justice, the independent mandate of the Court and the Office should always be respected. At no point will the Office take into account political considerations, such as the prospect of peace negotiations. The Court must work concurrently with other actors such as those involved in security, humanitarian relief and peace building.

Ladies and gentlemen,

As its activities progress, it becomes clear that the ICC, as a new and independent institution, is only one part of an emerging criminal justice system whose aim is to put an end to impunity for perpetrators of crimes under the Statute. If societies are to be helped to come to terms with the past and to move forward, if justice is regarded as essential for human rights and if perpetrators are to be brought to justice, a framework for an effective international system of justice is necessary. This legal framework is predicated upon national courts, in the first instance, to hold perpetrators to account, and relies on coordinated action by a variety of actors that are part of the network. 

The Office has therefore adopted a positive approach to complementarity, meaning that it encourages, in the context of its core activities, genuine national proceedings where possible, through publication of periodic reports, dialogue with States and support for national proceedings. Through this process the Office hopes to work with States and other actors to ensure that the aspirations of the Drafters of the Rome Statute are achieved.

Only when an effective, comprehensive system of justice is established will the Rome Statute deliver on its promise to end impunity for all perpetrators of massive crimes and contribute to the prevention of such crimes.

In doing so, to ensure that perpetrators and potential perpetrators of war crimes, crimes against humanity and genocide are to be deterred from committing more crimes, a strong and consistent message is required from all quarters – whether from Court officials, Government representatives, parliamentarians, civil society, and others – that the era of impunity is over. 

We are all part of the network of actors that has been built and extended by the Rome Statute, to enforce common legal standards in situations of massive crimes.

I thank you for your attention.