ICC: too important to falter
The international criminal justice project and its role in building a more secure law-based global order
Fatou Bensouda
Prosecutor of the International Criminal Court

- This article was originally published as part of the 2018 edition of Bled Strategic Times, the official gazzette of the Bled Strategic Forum (BSF) international conference. You can access the full version of this and other BSF publications by visiting our official website.
It was perhaps inevitable that the international criminal justice project, with the International Criminal Court (“ICC” or the “Court”) as its central pillar, should be a child of war. It was conceived in the wake of centuries of human suffering and conflict where lawless violence and impunity wreaked havoc on the lives of countless victims — and left so many behind, without recourse to justice. For centuries, unchecked atrocities as merely politics by other means remained the norm.
Never Again and a rejection of this status quo was the strong message that the international community sent two decades ago with the adoption of the Rome Statute, the treaty that established the ICC. The discipline has come a long way. Thanks to a collective effort, with input from across the globe, it is here and ever evolving. The region where we gather for the Bled Strategic Forum has memories of the torment of war. Its inhabitants know all too well the horror of its lessons and the value of accountability for atrocity crimes.
The vagaries of human behaviour dictate that there will be regional and geographical hotspots of conflict and violence. They shift and change location over time. Ultimately, then, international criminal justice serves humanity as a whole. Its beneficiaries are not limited to one people, one nation, one region of the world. That is why it is crucial to support its progress notwithstanding the challenges.
Historically, international criminal justice built on the important achievements — however imperfect — of the trials in Nuremberg and Tokyo following World War Two, which in many ways triggered a paradigm shift in thinking. Benefitting from a post-Cold War sense of urgency to establish a permanent institution to ensure a measure of accountability and to deter atrocity crimes, the ICC became a reality at the Rome Conference, in 1998. Representatives of over 120 States from all continents, reflecting different legal backgrounds and cultures, supported by the robust activism of civil society and victims’ groups, adopted the Rome Statute. Thus was born the world’s first permanent, independent court with jurisdiction over genocide, crimes against humanity and war crimes. As of the 17th of July of this year, the Court may also try the crime of aggression, an immensely important development in and of itself. This year marks the 20th anniversary of that crucial event in modern history, which changed the world for the better.
The Rome Statute created more than just a Court. It created an interdependent system of international criminal justice, based mainly on two key concepts: complementarity, meaning States retain their primacy of jurisdiction and bear first responsibility to investigate and prosecute Rome Statute crimes; and cooperation, requiring States Parties to comply with the Court’s requests for cooperation. Importantly, in contrast to other international criminal tribunals, the Rome Statute has a potential for global reach and does not predefine specific situations for investigation. For every decision, every determination and every action I undertake as Prosecutor, I adhere strictly to the Rome Statute’s legal dictates the Court’s jurisdictional parameters, the sovereignty of genuine national proceedings, and always with the victims in mind. It is my Office, with authorisation of the Court’s judges where required, that ultimately determines when and where the Court exercises jurisdiction.
These features make the Rome Statute system unique and dynamic; the Court and a myriad of other actors interact at various levels and in both bilateral and multilateral settings. Notably, in the discharge of its mandate under the Statute, the Office of the Prosecutor interacts with national law enforcement agencies and judiciaries, networks of specialized organizations, specialized courts and tribunals, other rule of law actors, conflict mediators, human rights advocates, academics, and beyond. In this diversity and dynamism where collaboration is key to securing results lie the strength and true value of the system. It is also the recipe to overcome challenges, in particular at a time when the notion and benefits of a multilateralism seem to be devalued or underappreciated.
Paradoxically, we must also be vigilant to prevent this diversity, or interdependence, from becoming an Achilles heel: while the Court is doing its part, as the system’s engine, it cannot act alone. Concerted and genuine efforts of all actors within the system are essential for success. In particular, the ICC’s impact depends on the level of political, diplomatic, operational and financial support it receives for its activities from States Parties. That support is crucial, and as custodians of the Rome Statute and its values, States Parties must, first and foremost, champion the goals of the Statute and its implementation in practice.
Since its operational start in 2003, the Office of the Prosecutor at the ICC has opened investigations in eleven situations: the Democratic Republic of Congo (DRC), Uganda, two in the Central African Republic, Darfur, Libya, Kenya, Côte d’Ivoire, Mali, Georgia, and, most recently, Burundi.
We have experienced successes and setbacks in the courtroom. Investigating and prosecuting atrocity crimes comes with their challenges. The Court faces complex operating environments, strict legal criteria and thresholds, large scale criminality and insecurity on the ground, changing political climates, dwindling resource capacity and varying degrees of cooperation in particular concerning the arrest and surrender of suspects wanted by the Court.
In spite of such hurdles, the Court is slowly changing norms by its very existence. In humanity’s evolutionary progress, seldom have major achievements travelled the path of least resistance. The Court’s work is necessary to foster a more rules-based global order and to tame the otherwise lawless reality of war and conflict. Human tragedies unfolding daily on the news reinforce the pressing need to con-
tinue to fight the good fight against impunity for the world’s gravest international crimes, and in the hopes of preventing future atrocities. This is a necessary task — indeed, responsibility — to which I, along with my Office, are firmly committed.
The conviction of Mr Lubanga Dyilo, the ICC’s first case, in the DRC situation, relayed a clear warning across the globe that enlisting and conscripting children into armed groups and using them to participate actively in hostilities is a crime and must be stopped.
More recently, the conviction of Mr Al Mahdi in the Mali situation was the first time that the destruction of historic monuments and buildings dedicated to religion was prosecuted as a war crime at the ICC. This too sets an important precedent in a world where cultural heritage is increasingly targeted and destroyed in the context of armed conflict. These are serious crimes that need to be prosecuted and deterred. These are also issues of global concern that require a global response and organised collaboration between the relevant actors. We need to build on this recognition and existing efforts to preserve our common heritage.
In accordance with my prosecutorial duty under the Statute to determine where the Court’s intervention may be warranted, my Office is currently also analysing a further nine situations to determine if a reasonable basis exists to investigate. These are Colombia, Gabon, Guinea, Iraq (over alleged conduct of UK forces), Nigeria, Palestine, Ukraine, Venezuela and the Philippines. Additionally, last year, my Office requested ICC judges to authorise investigations in Afghanistan, and we have recently approached ICC judges, in a novel step, to clarify a specific question of jurisdiction concerning the situation of the Rohingya.
These activities respond to ever-increasing calls for justice. They also demonstrate our commitment to make full and responsible use of the Rome Statute to contribute where alleged atrocities are committed, by investigating and prosecuting such crimes where appropriate, without fear or favour. As the Court thus forges ahead with its mandate, the 20th anniversary of the adoption of the Rome Statute is an opportunity for all involved in the global system of international criminal justice to take joint stock of its achievements and challenges. Events such as the Bled Strategic Forum allow us to renew our joint commitment to promoting the rule of law, a fundamental precondition for more peaceful and prosperous societies. In doing so, we must also seek to foster a richer awareness and understanding of the Rome Statute and its important goals. Today, the Court benefits from the membership of 123 States Parties, including Slovenia and 17 other Eastern European states. More states ought to consider joining the ICC family of nations, and lend their support to the international criminal justice project.
The Rome Statute drafters clearly recognised the intrinsic link between peace and justice. A lesson of history is that sustainable peace and stable societies where all citizens enjoy basic rights and fundamental guarantees are built on more solid foundation when impunity for atrocity crimes has been meaningfully addressed and a culture of accountability has been cultivated. This, in turn, is key to prevention. Without it, we cannot hope to protect future generations from such destabilizing crimes.
We must ensure the continued march and progress of the international criminal justice project in the modern era. It is too important to falter. The ever-evolving international criminal justice system will ultimately thrive in the face of challenges and the current assault on multilateralism and multilateral institutions. It will do so not because of any idealistic self-deception, but because it stands for a powerful idea, and in the market of ideas and ideologies, it is those that have wide appeal and advance the human experience that ultimately win the day.
Without an international criminal justice system and the ICC as its nucleus, humanity would regress into a more turbulent world where chaos, volatility and violence are the norm. This, humanity must not and cannot allow. The victims embroiled in devastating conflicts, past or present, and the need to protect future generations from the scourge of lawless wars and conflict are the real drivers of the fight against impunity. They deserve our unshakable resolve, in word and in deed. “To Justice Pledged in Our Domain”, the 19th century Slovenian poet, France Prešeren, eloquently wrote. May our commitment to justice and the values of the Rome Statute guide us as we work collectively with likeminded partners to build a more secure, law-based global order.

