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”Ending Impunity for Massive Crimes: Prosecutorial Strategies” | Africa and the ICC: Lessons Learned and Synergies Ahead

H.E. Mrs. Fatou Bensouda; Prosecutor of the International Criminal Court

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

Excellencies, Ladies and Gentlemen, Distinguished Guests,

At the outset, I wanted to thank the students in the room for being here. I’m told that you have been patiently waiting for this evening’s session since early this afternoon. This demonstrates your commitment and interest in international criminal justice and our work at the ICC. I am grateful for this and I am most pleased to see you all here. Indeed, the future of this continent is in your hands as is its relations and interaction with international criminal justice. Once again welcome and thank you for your interest.

The topic we are addressing this evening is quite technical and goes to the heart of any Office of the Prosecutor’s work.I will try to summarize and quickly cover the topic.

The success of the International Criminal Court is critically important for ending impunity for mass crimes and thus contributing to their prevention. The great women and men who engineered the Rome Statute envisaged that the ICC for the most part would be investigating past crimes, not in the context of on-going conflicts.

Experience to date, however, demonstrates that the ICC is repeatedly being called upon to exercise its jurisdiction in on-going conflict situations – and this trend is most likely to continue. The challenge for my Office is to maximize its impact by establishing the truth and securing convictions based on the evidence.

The strategies of the Office of the Prosecutor have evolved over time since the start of the Office’s operations based on the lessons acquired from practice.

The Office has always followed an extensive consultative process in formulating its strategies. This has ensured that all interested parties, including civil society, ad hoc tribunals, legal bodies and States can contribute ideas, provide comments and suggestions, and many of these have been incorporated in our strategies when in line with the Rome Statute. The successive strategies of the last years reflect the different stages of the development of the Office and its work, as well as a response to new challenges.

The first three years of the Office’s existence were devoted to establishing the office itself, recruiting the necessary staff, consulting stakeholders and formulating policies that would guide our operations. The first prosecutorial strategy adopted in 2006 took into consideration the lessons learned from the first three years of operations and was a result of extensive internal and external consultations. Three key principles can be discerned from the 2006 Prosecutorial Strategy: positive complementarity; focused investigations and prosecutions, and maximizing the impact of the Office’s work.

It was natural that a Court based on the principle of complementarity should ensure the international rule of law by creating an interdependent, mutually reinforcing international system of criminal justice. The Office adopted a positive approach to complementarity, meaning that it would encourage genuine national proceedings where possible.

Based on the Statute, the Office decided to focus on those who bear the greatest responsibility for the most serious crimes. The Office also adopted a sequenced approach to selection of cases inside a situation, thus selecting cases on the basis of gravity. Selection of a few incidents, and as few witnesses as possible, was intended to ensure short investigations and speedy trials.

The Office’s 2009-2012 strategy largely followed the earlier strategy adopted in 2006, with the addition of one principle – addressing the interests of victims. The approach was to seek victims’ views at an early stage, before launching investigations, and to continue the assessment of their interests on an on-going basis.

This was a clear recognition of the important role played by victims and affected communities throughout the whole work process of the Office as well as of the fact that victims are unquestionably our first raison d’être.

Building up on the first five years of operations, by 2009, the workload of the Court had grown, and this was reflected in the objectives set for 2009-2012. These were to complete at a minimum three trials, starting at least one new trial; continuing ongoing investigations in seven cases, conducting up to four new investigations of cases within then current or new situations, and conducting up to ten preliminary examinations in relation to on-going or new situations.

2009 to 2012 marked a process of polishing and deepening the first Prosecutorial strategy, continuing to improve the quality and increasing the quantity of prosecutions.

But as we turn a new page in the history of the Court and that of the Office, and as we further evolve in order to fulfil our objectives as an international criminal court, new objectives and strategies were developed to cope with new challenges and realities. On the basis of the experiences of the earlier years and the lessons learned, and following a thorough and candid evaluation of our early practices, the Office worked on further enhancing its prosecutorial strategy, as well as its policies and operating procedures, where necessary, in order to meet new challenges.

I believe that this second decade of the Court’s operational existence in which we find ourselves is a critical period in the life of the institution, and it is incumbent upon us to ensure we do our level best to advance the mandate of the Court and to strengthen public confidence in its crucial activities. To this end, my Office has instituted a number of significant changes at the policy and organisational level; all with the aim of enhancing efficiencies and deliverables.

We are committed to further improve the quality and effectiveness of our key preliminary examinations work, investigations and prosecution activities, as well as to develop policies and operating procedures, as we strive to hone our performance. The Office’s Strategic Plan for 2012-2015, adopted in autumn, last year, is a concrete example of such efforts and reflects an entirely new approach to our core activities.

The Office has to constantly learn from its experiences and thereby become a learning organisation, in order to properly discharge its mandate.

The 2012-2015 Strategic Plan places stronger emphasis on the critical importance of preliminary examinations. Indeed, in addition to establishing whether reasonable grounds exist to proceed to an investigation, the aim of preliminary examinations is also to promote genuine national proceedings and the prevention of mass crimes. We are currently engaged in 10 preliminary examinations, including with respect to countless countries outside of the African Continent like Afghanistan concerning the conduct of Taleban, government and international forces; Ukraine; Georgia; Colombia and Iraq, the latter regarding allegations of systematic detainee abuse by the UK armed forces from 2003 to 2008.

The Office’s investigative and prosecutorial strategies have also undergone tectonic changes. To cite a few examples: (1) We are now increasingly diversifying the forms of evidence on which we rely and moving away from a previous heavy reliance on witness testimony. (2) We are shifting from the previous focused investigations towards in-depth and open-ended investigations to ensure our cases are built on more solid basis; I should mention that as a matter of practice, we now religiously undertake comprehensive case-reviews throughout the lifecycle of a case to test our hypotheses against evidence on hand. (3) Additionally, where appropriate, we will look to prosecute lower or mid-level perpetrators and move-up, building a case against those most responsible. (4) We will also strive to be as trial-ready as possible at the initiation of the judicial process, that’s by the time we request arrest warrants or, at the latest, at confirmation of charges stage of the proceedings.

Ever since assuming my mandate as Prosecutor, we have also engaged in a robust recruitment campaign to hire experienced and top talent from around the world, including from Africa with a particular focus on the Prosecution and Investigation Division, but across the Office. Focus has also been on policy development culminating with the adoption of a Code of Conduct for the Office earlier this year. This detailed Code provides clear guidelines for OTP staff to uphold an impeccable standard of professionalism, efficiency, independence and integrity in performing their respective duties and functions. For me this is very important. The Code is equally applicable to myself as Prosecutor and my Deputy.

I’ve already ensured that all the Office’s staff undergoes mandatory trainings on the Code. In June of this year, we also launched our policy paper on sexual and gender-based crimes. This comprehensive document is a demonstration of the Office’s as well as my personal commitment to enhancing the integration of a gender perspective in all areas of Office work and to being innovative in the investigation and prosecution of these heinous crimes.

Moreover, we have just embarked on a consultation process for the development of a children policy: my Office will soon be seeking external input and views.

I am similarly considering developing a comprehensive policy to assist the Office in the methodological investigation and prosecution of attacks against cultural property.

These non-exhaustive changes are the result of a deliberate and systematic effort by the Office, intensified in the past two years, geared towards refining our performance and processes.

Excellencies, Ladies and Gentlemen,

Allow me to conclude with the following: although the new strategy is still in the early stages of implementation, positive results have already been achieved. A number of preliminary examinations have either been finalized or are in the process of finalization. These gains, together with the confirmation of charges in the cases against Mr Laurent Gbagbo for the situation in Côte d’Ivoire and Mr Bosco Ntaganda for the situation in the Democratic Republic of the Congo in 2014, already demonstrate what can be achieved with the right level of staffing and with the new approach to investigations.

The important mandate of the ICC and the hopes of millions around the world who look to it to deliver independent and impartial justice indeed demand that we engage in a continuous process of honest self-assessment to hone our performance and effectiveness in the discharge of our mandate.

As we pledge to execute our mandate as effectively as possible, we cannot fulfil this promise alone and require the assistance and cooperation of all relevant stakeholders, first and foremost, the Court’s States Parties, civil society and other key players in the ever growing international criminal justice system.

There’s much more to be said and elaborated upon, but I think I’ll stop here. Thank you.

 

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