Mrs. Fatou Bom Bensouda, the Gambian born lawyer serving at the International Criminal Court (ICC) as Deputy Prosecutor, on Friday 29 January, gave a lecture to Gambian lawyers attending The Gambia Bar Week at the Kairaba Beach Hotel. Mrs. Bensouda was invited by the Gambia Bar Association to deliver a paper on the topic ‘A Prosecutor’s Perspective: “Challenges facing the ICC”. The Bar Week is centered on the general theme “Legal Practice in the 21st Century”

Mrs. Bensouda said that the International Criminal Court is a new instrument of peace in a world where conflicts transcend borders. She said the ICC is not only about altruism, it is also about our self- interest. She indicated that if States do not deal with massive crimes, there will be no safe borders for the global community. She noted that a global problem needs a global solution.
“The ICC is more than a Court; it is a comprehensive and global criminal justice system”, said Deputy Prosecutor Bensouda.
The ICC Deputy prosecutor noted that in 1998 in Rome, participants from civil society and representatives of countries with different legal traditions debated on the creation of the Rome Statute from different perspectives, but all shared the same sense that this Conference was not just an exercise in putting ideas on paper. She stressed that the participants knew that the new legal design would profoundly impact on the way international relations are governed. She said the participants considered that accountability and rule of law would be the framework of it.
The Deputy ICC Prosecutor said “Under the Rome Statute, substantive law has been codified into one detailed text, that; States have reaffirmed their duty to prosecute the worst criminals; an independent, impartial and permanent International Criminal Court has been established; and authority has been vested on the Court to intervene if States fail to carry out their own responsibility to conduct genuine proceedings, while at the same time providing an incentive to States to assert their own responsibilities in the cause of international justice.”
She said the Court is complementary to national jurisdictions.
“But let us understand well the meaning of complementary: if the States do not prosecute those responsible, the ICC will do it. Impunity is not an option”, said Mrs. Bom Bensouda.
The Deputy ICC Prosecutor stressed that the drafters of the Rome Statute clearly recognized the intrinsic link between justice and peace. She observed that in the Rome Statute Preamble, by putting an end to impunity for the perpetrators of the most serious crimes, the Court can and will contribute to the prevention of such crimes, thus having a deterrent effect.
Prosecutor Bensouda noted that there are new challenges that require new models adding that the Rome Statute defined three crimes that required global regulation — “genocide, crimes against humanity and war crimes’.
Prosecutor Bensouda added that the Rome Statute’s Preamble calls for the need “To put an end to impunity for the perpetrators of the most serious crimes of concern to the international community and thus to contribute to the prevention of such crimes”. She said, “There is a need for innovative, strong and consistent diplomatic and political action by all actors to ensure compliance with the Court’s decision. When it comes to perpetrators of massive crimes, there should be only one answer: the full and transparent implementation of the law.”
The ICC Deputy Prosecutor said the most challenging area for the ICC and the Office of The Prosecutor (OTP) is cooperation. She indicated that the Rome Statute establishes a comprehensive regime for the prosecution of genocide, crimes against humanity and war crimes. She however, pointed out that the Court has the necessary judicial powers, but it does not have an independent mechanism to enforce its decisions.
“Accordingly, the successful implementation of its work depends on cooperation with the international community, in particular States Parties - although needs often has to be met by States which are not part of the Rome system,” said the Deputy Prosecutor.
She continued, “Cooperation is necessary, for instance, in assisting the Court with the protection of victims and witnesses, the execution of warrants of arrest, the transfer of suspects to the Court as well as logistical and administrative matters.”
According to the ICC Prosecutor, Thirty (30) African States are State parties to the Rome Statute. This, she said, is a clear demonstration of the high level of responsibility expressed by the African States, including the Gambia. The International Court Prosecutor said the core values of the ICC are consistent with African norms, noting that even those African countries that are not yet States Parties to the Rome Statute share their objective of working for greater accountability.
Mrs. Bom Bensouda highlighted another challenge that faces the OTP which specifically relates to how to initiate its investigations. She said, “For the Prosecutor and myself, our mandate is clear. We have to apply the law. As an independent Prosecutor with “propio motu” powers, the Prosecutor has the responsibility to select the cases of the Court. This was seen in Rome as the most sensitive of issues. But selection of cases is, at the end of the day, straightforward.”
She said the Prosecutor investigates those most responsible for the most serious crimes of the gravest situations under there jurisdiction. ‘Nothing more, nothing less’, she stressed, adding that this is what they did and will continue to do.
As a result of the application of the law, the Deputy Prosecutor said the ICC is prosecuting Thomas Lubanga for recruiting child soldiers, Joseph Kony and other leaders of the LRA for abducting children and transforming them into sexual slaves and killers, Germain Katanga and Matthew Ngudjolo for killing and raping civilians, Jean-Pierre Bemba for a campaign of rape and pillages, Harun and Kushayb for attacking civilians in villages, Abu Garda for attacking AU peacekeepers in Haskanita on 29 September 2007 and have requested for an arrest warrant against president Omar Al Bashir for genocide, crimes against humanity and war crimes.
“The ICC is building the foundations of an international criminal system for centuries, based on the highest standards. This is justice done and not only seen to be done. Fair trials are the cornerstone of our legitimacy’, said Deputy Prosecutor Bensouda.