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“Challenging the Culture of Impunity” | AFLA Seminar and Book Launch on the ICC: One Decade On

fatou bensouda

H.E. Fatou Bensouda; Prosecutor of the International Criminal Court. (© Journalists for Justice)

Excellencies, ladies and gentlemen,

Allow me at the outset to express my sincere thanks to Africa Legal Aid and the Ministry of Foreign Affairs of the Netherlands for hosting this important seminar, and for giving me the opportunity to talk to you today about such a crucial topic: the relationship of the International Criminal Court with the African continent, more than ten years since the start of our activities.

This subject is topical more than ever, in light of the recent developments.

I gladly accepted the invitation to be with you today as I believe that the book that is being launched today, and to which I was also honored to add a few words, is an important contribution that will hopefully help to pave the way for a more constructive discussion on Africa, criminal justice and accountability, and the role of the ICC in that debate.

Indeed, I firmly believe that, while a critical interrogation of international criminal justice in Africa is always warranted and welcome, such discourse must be informed and objectively undertaken, devoid of political posturing.

It surely cannot be an acceptable fact of modern day life in Africa or elsewhere that during war and conflict women are mercilessly raped, children abducted, drugged and used as killing machines or as sex slaves; neither can we continue to tolerate large scale killings and displacement of innocent African civilians.

And indeed, it cannot be accepted that those who seek to gain or to retain power at any cost can do so by committing mass atrocities against civilians and not be held individually accountable for such crimes.

Failure to hold to account anyone responsible for these crimes – irrespective of their status – would constitute a denial of the victims’ right to justice.

The reality we face is that in our times my beloved Continent, Africa has been inflicted with atrocities that shock the conscience of humanity; sadly with more frequency than any other Continent.

Currently, 80% of United Nations Peacekeeping missions are in Africa. In each of these conflicts, untold suffering has been inflicted on innocent civilians.

The era of individual criminal responsibility for mass atrocities and the end of impunity was heralded seventeen years ago in Rome when the international community adopted the Rome Statute that created the International Criminal Court.

As the preamble of this seminal document indicates, the adoption of the Rome Statute demonstrates a clear determination of the international community to put an end to impunity for perpetrators of atrocity crimes and by so doing, to contribute to the prevention of such crimes.

While sceptics and naysayers have been at pains to question the legitimacy of the ICC and to portray a dooms day scenario of an institution that does not enjoy the support of the African Continent, facts point to the contrary.

It is now well accepted that without Africa’s support in the period leading up to and during the Rome Conference, the ICC would not have been borne.

In fact, in February 1999, it was no other than an African country – Senegal – that became the first State Party to ratify the Rome Statute. This was a historically important step and a hugely important one symbolically, which was soon followed by other states around the world.

Not only has the African continent and individual African States been instrumental in the creation and functioning of the ICC, African States continue to provide the critical support and cooperation for ICC operations including with protection of victims and witnesses.

Indeed, without such support from African states, the ICC would not have recorded important successes such as the arrest and surrender of Thomas Lubanga, Bosco Ntaganda, Dominic Ongwen, al-Mahdi, to mention a few, neither would my Office have secured the necessary evidence to advance with its cases.

It is also worth recalling that since the Court became operational in 2002, my Office has received a number of formal requests from African states to investigate allegations of atrocities committed on their territories. Uganda, the Democratic Republic of the Congo, Côte d’Ivoire, Mali and the Central African Republic on two occasions, have all invited my Office to step in to investigate and prosecute.

Just recently, Gabon referred the situation on its territory since May 2016 to my Office. Such self-referrals are clear demonstrations of the trust and confidence that many African States have in the Court, and its importance to addressing serious crimes committed on their territories.

Your Excellencies, Ladies and Gentlemen,

We must also recognize that the relationship between the African Union, certain African states and the ICC faces a number of challenges. However, these challenges would best be addressed through engagement and dialogue.

After all, there is much common basis on which such dialogue can be built.

Ending impunity for mass crimes is not the preserve of any one institution – it is a common goal and aspiration that ties us all together in our shared quest for justice, peace and stability in Africa and beyond.

The Article 4 of the Constitutive Act of the African Union is very clear: it recognizes an obligation to respond to mass crimes and underscores the importance of ending impunity. This novel ideal has to be translated into reality by holding perpetrators to account through effective, timely genuine investigations and prosecutions.

There are also, of course, the African Commission on Human and Peoples’ Rights and the African Court of Justice and Human Rights.

These institutions certainly have their challenges, but from a ‘Continent building’ angle, these are all progressive and critically important achievements. Africa should be proud of these achievements and should build upon them to make them more effective.

There is no conflict in building institutions at the national or regional level which are able genuinely – and I emphasize this point – to bring victims to atrocity crimes, while also supporting the need to ensure justice at the global level. These systems are complementary, and we all know that the role of the ICC will only come to play when efforts at the national level have not been forthcoming.

In this new century, first and foremost, Africa should continue to strengthen its well established commitment to the rule of law and accountability for mass crimes, and reaffirm, now more than ever, that historical commitment in both words and deeds.

Ladies and Gentlemen,

I believe that, as Africans, we should take pride in the many virtues of our Continent. But we must also recognize that there is much work to be done.

There can be no doubt that we all want to see a prosperous and more peaceful Continent in which democratic values, the rule of law, and human rights are universally respected and advanced. Holding those responsible for these crimes accountable is key for the Continent’s success.

In a decade from now, I’d like to see the Continent emerge that is blessed with fully developed infrastructure, continuous economic growth, and ample opportunity for its young population, so that they can constructively contribute and secure the Continent’s future; a more integrated and proudly pluralistic Africa which reverses its brain-drain problem and increasingly engages its vast and influential diaspora in moving it towards bigger and better successes.

We must also acknowledge that fighting impunity for atrocity crimes and cultivating the rule of law are fundamental preconditions for a more peaceful and prosperous African Continent.

How can societies plagued by recurring conflict in Africa or elsewhere prosper, attract investment or facilitate an environment conducive to economic growth and productivity?

History has shown that establishing the rule of law and a healthy, well-functioning judicial system are fundamental pre-requisites to political stability and economic growth in any country

While in times of conflict, war economies may thrive, the net result is damage to the infrastructure, overall economy, development and investment in the country.

Therefore, to the extent that investigating and prosecuting mass atrocities will deter war making and the commission of such 8 / 9 destabilizing crimes, certainly then, criminal justice at the national or international level can play an important role in Africa’s economic growth and prosperity.

Allow me to also add that the claim that peace and justice are mutually exclusive is indeed questionable. Apart from the fact that the Rome Statute legal framework already provides for a workable relationship between peace and justice efforts, I am indeed convinced that peace and justice are complementary and that sustainable and durable peace cannot be achieved without putting an end to impunity for atrocity crimes.

Your Excellencies, Ladies and Gentlemen,

Let me conclude by observing that the fight against impunity, the ICC, and the international criminal justice system it is aiming to create, will persevere and thrive.

I believe that one of humanity’s proudest moments was the creation of the International Criminal Court, against all odds.

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

We must do all we can to ensure that security, stability and the protective 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.

We have come a long way, but we have miles to go still.

And as we travel this path to a more just and enlightened world, I am confident that despite the recent setbacks, Africa will continue to play its crucial role to preserve the dignity and sanctity of human rights on the Continent and across the globe.

I thank you for your attention.

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