View the lecture.
As Prosecutor for the International Criminal Court (ICC), Fatou Bensouda heads the office that investigates and prosecutes what she terms “massive crimes”— crimes against humanity, campaigns of genocide and ethnic cleansing, and war crimes.
Bensouda delivered the 2012-13 Jonathan I. Charney Distinguished Lecture in Public International Law, “Reflections from the International Criminal Court Prosecutor,” at Vanderbilt Law School on August 24. In her lecture, she discussed the role of the ICC in investigating allegations of crimes against humanity and prosecuting the individuals responsible. “The Court offers a tool to protect citizens and territories, to address the wrongs done to victims and to define unacceptable behavior that cannot be tolerated as a tool to achieve power,” she said.
A native of The Gambia, Bensouda became the ICC’s second Prosecutor on June 16, 2012, having served as the deputy in charge of the ICC’s Prosecution Division since 2004. As Deputy Prosecutor, Bensouda supervised the successful prosecution of Congolese warlord Thomas Lubanga Dyilo, who was convicted in March 2012 of the war crime of conscripting, enlisting and using child soldiers in a conflict in the Democratic Republican of Congo and subsequently sentenced to serve 14 years in prison.
Bensouda described and promoted the role of the ICC in advancing the international rule of law and protecting individuals from politically motivated crime on a mass scale. The ICC was established in 2002 by the Rome Statute, a treaty that defines the court’s role and governs its actions. Now with 121 member states, the ICC investigates and prosecutes major crimes against humanity that its member nations are unable to address through their domestic courts because of a civil war, uprising or an ethnic conflict that transcends national borders. “Today, more than 2.4 billion people are under the protection of the global justice system against massive crimes,” Bensouda said.
Countries in Europe, Africa and South America were early parties to the ICC, which is headquartered in The Hague, Netherlands. Citing the Balkan conflict, the genocide in Sudan, and massacres in South American countries, Bensouda noted, “Their decision to promote the international rule of law is not just based on idealism. It is realism. These areas have suffered from massive crimes and know from experience that a nation, acting alone, cannot protect its citizens against massive crimes that cannot be confined within national borders.”
Since its establishment on July 1, 2002, the ICC has opened investigations into crimes committed in what the Rome Statute terms the "situations" in Uganda, the Darfur region of Sudan, Democratic Republic of the Congo, Central African Republic, Côte d'Ivoire, Kenya and Libya. “The effects of these cases reverberate across the world,” Bensouda said, emphasizing the ICC’s role in preventing mass atrocities by focusing attention on them and increasing awareness that individual perpetrators can now be held responsible through an international tribunal. “When the Court found Thomas Lubanga Dyilo guilty of enlisting, conscripting and using children under 15 to fight, it helped trigger debates on child soldiers and child recruitment in other countries, like Colombia and Sri Lanka, and Nepal and Somalia have started taking measures against the conscription of children. This is a perfect example of the preventive impact of the court, and also shows how the law can be used to hold individuals responsible when efforts to prevent massive crimes have failed.”
Although some investigations are initiated by nations that are party to the ICC—Mali recently experienced a coup d’état and requested assistance in dealing with a rebellion in its Sahara desert region—Bensouda emphasized the Court’s independence and specific focus on massive crimes. “The ICC sets a very clear agenda: violent means cannot be employed against civilians to gain or retain power,” Bensouda said. “The cases in Kenya and in Côte d'Ivoire sounded a warning that there is a powerful new tool to control violence in the world.” However, Bensouda emphasized the fact that states that are party to the Rome Statue cannot simply request that the ICC intervene against a particular political party or group participating in a conflict, but must refer the entire situation to the court, noting that the Office of the Prosecutor has charged officials of both major parties in Kenya with crimes of violence related to the last round of elections. “We can only be successful if we never yield to political considerations,” she said. “We are a judicial tool, not a tool of politicians who think they can use us when they need us, but otherwise drop us.”
The ICC has issued arrest warrants for Ugandan warlord Joseph Kony, Sudanese President Omar al-Bashir and Sudan’s former Minister of State, Ahmed Haroun, but must depend on the law enforcement arms of individual nations to serve the warrants. “Impunity is not an academic idea; it is a reality that affects the daily lives of millions of Africans,” Bensouda said, noting that several African countries that have ratified the Rome Statute were committed to arresting al-Bashir if he was discovered within their borders. The ICC is currently examining situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, South Korea and Nigeria, and has published its preliminary conclusions following investigations of alleged crimes committed in Gaza, Iraq and Venezuela. The charges against Saif Ghaddafi of Libya have been the subject of recent controversy, and Bensouda responded to questions regarding that case from the audience.
Another important ICC role is that of giving the victims of war crimes and mass atrocities “an opportunity to be represented against powerful individuals,” Bensouda said. “The Rome Statute is a commitment of the international community to take responsibility for the protection of victims of the most serious crimes. If their own governments fail to uphold this responsibility, they have the help of the international community to achieve this goal.”
Her lecture will be published in a forthcoming issue of the Vanderbilt Journal of Transnational Law.
Before joining the ICC, Bensouda was the general manager of a leading commercial bank in The Gambia. She had previously served as The Gambia’s Solicitor General, Attorney General, and Minister of Justice, a role in which she was the Chief Legal Advisor to the president and the cabinet of The Gambia. She participated in the negotiations to establish the Community of West African States (ECOWAS), the West African Parliament, and the ECOWAS Tribunal. She holds a master’s degree in international maritime law and law of the sea.