In her lecture, Ms Bensouda explored the relationship between peace and justice, and how the legislative framework established with the Rome Statute has shaped the actions and decisions made by the ICC.
Professor Dapo Akande from the Law Faculty provided the introduction for Ms Bensouda, noting her profound achievements prior to, and within, the office of Chief Prosecutor. Over the course of her impressive career, she has served as Chief Legal Advisor to the Republic of The Gambia, as Attorney General of the Gambia, and as Legal Adviser at the UN International Criminal Tribunal for Rwanda. Before her appointment as Chief Prosecutor in 2012, she was the Deputy Prosecutor of the International Criminal Court for eight years.
Her speech began with contextualising our space here, in Oxford. Prosecutor Bensouda introduced a theme that ran throughout her address, namely, the aspirational requirement of progress and the concurrent need to assert the rule of law against grave violations. Fatou noted that whilst the creation of the ICC (and many other Courts) is the “result of suffering and pain”, “the notion of peace” has endured a profound transformation over the course of time. She first pointed to the treaty of Westphalia, which could perhaps be interpreted as a historic link to the modern obligations undertaken in the Rome Statute. As the treaty establishing the ICC, the Statute defines the functions and structure of the Court and, as such, provided the anchor to Ms Bensouda’s considerations throughout the lecture. The strengths and limitations of the Rome Statute were evident both within the speech and the Q&A.
Ms Bensouda then introduced the second central theme of the lecture – justice. She began by saying that “accountability vacuums created in the absence of justice are central in prolonging the intensity and organisation of mass violence”. Ms Bensouda asserted that “the issue is no longer whether we agree or disagree with the pursuit of justice” suggesting this has become the law as accepted by the 124 contracting state parties to the Rome Statute. The question of justice and peace should not be, as Ms Bensouda suggested, “in conflict”. However, it is evident that peace and justice have different aims, needs and requirements. In demarcating the role and framework of justice, Ms Bensouda drew attention to two important considerations; (i) the interests of victims and (ii) the statutory requirements of object and purpose under the Rome Statute. Crucially, the ICC can decline to investigate and prosecute in situations where doing so is deemed to be threatening (and contrary to) the interests of the victims. The role of the Court is “purely legal” as judicial body, and its function is not a peace-making one. That responsibility resides with the UN Security Council and, as Ms Bensouda herself said, there is a clear “separation of powers” between the ICC and the Council. Although the jurisdiction of the two bodies is complimentary, the competing interests of peace and justice can, at times, be in a tense relationship.
Ms Bensouda then moved on to talk about the role of the Prosecutor’s office, specifically noting the jurisdictional power to decide which prosecutions to pursue (once the minimum thresholds have been established under the Rome Statute). There have been 10 investigations since 2003; the Democratic Republic of the Congo, two in the Central African Republic, Darfur, Libya, Mali, Kenya, Uganda, the Ivory Coast and Georgia. In light of this list, the perception that the ICC has an “African problem” can be better understood, with the Court being almost singular in its prosecutions thus far. She stated that there are 15 arrest warrants currently pending execution, and that achieving tangible results is “certainly not a given”. This, arguably highlights the tension and difficulties in achieving justice within an international criminal context. Prosecutions are subject to rigorous standards and the power and mobility of the defendants cannot be overlooked.
The next central theme was peace. Ms Bensouda carefully and skilfully navigated the contours of peace and justice throughout her address. Despite them having clearly separate identities, reconciling the two is essential, and in the lecture she clearly stated that “it is possible to achieve peace without abandoning justice”. Under this light, she referred to Resolution 1325 of the Security Council, which acknowledges that when women are included in the peace process they tend to bring elements of “healing” and “community building”. Their involvement is, therefore, essential in the peace process, especially in light of the fact that women and girls are frequently the victims of gender and sexually based violence in the crimes that the ICC prosecutes. Moreover, she stated that gendered and sexual violence are present in the “vast majority” of cases. This perhaps demonstrates the fundamental requirement that reflections on peace and justice must propel action that is forward facing. Ms Bensouda closed her address noting Einstein’s observation “peace is not merely the absence of war but the presence of justice, law and order” . This statement is the perspective that should be characterising our current and future understanding of these fundamental issues.
Holly Hemming is an MSc student in the Centre for Criminology.