I believe in law as power for all; it is the ultimate weapon that the weak have against the strong. Indeed, when implemented equally and fairly, the law sets one standard for everyone; it empowers all peoples and provides justice for all. It does not allow any individual or any segment of society to override or manipulate it, if backed by good institutions.
As Aristotle once said: “Law is order, and good law is good order.” Good order can only be brought about by good institutions. But what about the international context? How are we supposed to counter and prevent massive crimes of global character such as genocide, crimes against humanity and war crimes? We need institutions: more comprehensive institutions of international character.
The Rome Statute that created the ICC is a reflection of this idea: a judicial institution to contribute to the prevention of massive atrocities by adding an independent and permanent justice component to the world’s efforts to achieve peace and security. To quote William Sloane Coffin: “We must be governed by the force of law, not by the law of force.”
Justice William Douglas said: “Law is essential if the force of arms is not to rule the world. “The most important aspect of the rule of law, both in the international and domestic contexts, is the protection of individuals and citizens.”
Similarly, with the advent of the ICC, the individuals that are nationals of states are protected not only at the domestic level, but also at the international level. Today, 2,4 billion people are under the protection of the Rome Statute system of global justice.
However, it is important to note that states themselves benefit from ICC protection. The make-up of the states parties of the court is quite revealing. Our 121 states parties come from the three regions that have taken the lead in terms of international justice efforts: Africa, Europe and South America. Their decisions were not just based on principle but realism.
These regions have suffered from massive crimes and eventually learnt that a national state acting alone cannot protect its citizens from these cross-border crimes.
Europe has seen how massive crimes spilled over during the Nazi regime and the Balkan conflicts, whereas South America and Africa witnessed similar atrocities throughout the Cold War. Africa also suffered the Rwandan genocide, which resulted in the death of almost one million people and flows of refugees into neighbouring countries. This exodus was the root cause of the Congo wars, which killed four million people.
A few years ago, the Ambassador of Costa Rica to the UN explained why his country was so active in the Security Council on the issue of Darfur and why Costa Rica had shown leadership on an issue apparently so far from its interests: “There are 26 countries with no armed forces in the world; Costa Rica is the biggest among them”.
Thus, Costa Rica perceives promoting the rule of law on an international level as a matter of domestic security.
Similarly, Christian Wenaweser, Liechtenstein ambassador to the UN and former ICC president, said states parties are under ICC protection, indicating the rule of law is a fundamental cornerstone of the international criminal justice system.
The answers to the questions of how to stop the genocide in Darfur, or how to prevent a new cycle of violence during the next elections in Kenya, lie with the preventive ICC impact.
Since the inception of the ICC, the office of the prosecutor has opened investigations and brought cases in seven situations: Uganda, the Democratic Republic of Congo (DRC), Central African Republic (CAR), Darfur, Kenya, Libya and Côte d’Ivoire (and lately Liberia). The office is also engaged in preliminary examinations in Honduras, the Republic of Korea, Afghanistan, Nigeria, Guinea, Colombia and Georgia. These cases reverberate across the world.
For instance, quite recently, the court rendered its decision on Thomas Lubanga Dyilo and found him guilty of enlisting and conscripting children under the age of 15. Even before the final decision, the trial process had helped trigger debates on child soldiers and child recruitment in countries far from DRC like Colombia and Sri Lanka. Nepal and Somalia started taking measures against the conscription of children.
This is the effect of what UN Secretary General Ban Ki-Moon has depicted as “the shadow of the court” — its preventive impact.
The Jean Pierre Bemba case is also illustrative of the preventive impact of the court. According to our evidence, Bemba clearly failed his responsibility to stop and prevent his militia forces from using rape as a weapon of war. The ICC’s decision will influence the behaviour of thousands of military commanders from the 121 states parties, and beyond.
This is what we have been doing for millions of victims of ICC crimes in Uganda, DRC, CAR, Darfur, Kenya, Libya and Côte d’Ivoire. We have done it with the strong co-operation of African states parties, and African civil society.
However, this is unfortunately not the story relayed in the media. Instead, we hear criticism about our so-called “focus on Africa”. Anti-ICC elements are working very hard to discredit the court.
But with due respect, why should we focus on the propaganda of a few powerful, influential individuals, and forget about the millions of anonymous people that suffer from their crimes?
Indeed, the greatest affront to victims of these brutal, unimaginable crimes is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a “pro-Western” court.
Our focus is on individual criminal behaviour against innocent victims. My focus is on Joseph Kony, Bosco Ntaganda, Ahmed Harun, Omar al-Bashir.
The world increasingly understands the role of the court. As Africans, we know that impunity is not an academic, abstract notion.
International justice gives power of leadership to small and medium countries, not the power of arms, to protect their citizens and their territories. Political leaders can lead efforts for international justice in the global arena by supporting the ICC.
Senegal was the first country to ratify the Rome Statute in 2002. South Africa refused to invite President Omar al-Bashir to the inauguration of President Jacob Zuma in 2009. Botswana President Ian Khama has consistently expressed his strong support for the work of the court. Just recently, the Foreign Affairs minister of Zambia stated that al-Bashir would “regret the day he was born” if he tried to enter Zambia. These countries, these leaders, are showing leadership.
The ICC sets a very clear and basic limit: violence cannot be used to gain or retain power. These leaders have understood this, and factored it into their relations with others. Cases in Kenya and Côte d’Ivoire sound a warning.
l Bensouda is ICC prosecutor-elect. This is an abridged version of a keynote speech she delivered at a recent conference in Cape Town.