Her Excellency Fatou Bensouda
It is paramount to engage the minds of South Africa’s youth on international criminal justice to contribute to nurturing democracy, upholding the rule of law and defending South Africa’s constitution. These are the nation’s future leaders and it is essential to create the awareness that an assault on any person’s dignity is an attack on the worth of all people.
According to Professor Chris Landsburg, SARChl chair on African Diplomacy and Foreign Policy for the University of Johannesburg, it was fitting that the recent symposium by Africa Legal Aid (AFLA) and the Division for Internationalisation of the University of Johannesburg on October 5, 2016 that he was moderating, be held at the offices of the one of the most prestigious law firms here and in the world, Webber Wentzel in Sandton, Johannesburg.
Engaging South Africa’s Youth in International Justice is an initiative that is part of a broader pan-African programme to engage the youth in Africa in international criminal justice and understanding that human rights and human dignity know no boundaries. This symposium was designed to raise awareness and all its speakers were leaders in their fields.
The keynote speaker was Her Excellency Fatou Bensouda, chief prosecutor at the International Criminal Court (ICC), who shed meaningful insight into the role and importance of the ICC as she tackled the importance of the court for future generations.
“Many of you have heard things about this court through various forms of media, your family or friends,” said Bensouda. “Engage in candid discussion — you deserve to act in a world empowered by truth.”
The search for truth was core to establishing the ICC, which came into being in July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which created the modern system of international justice, and it serves as the ICC’s foundational and governing document. States which become party to and ratify the Rome Statute become member states of the ICC, which currently has 124 states that are party to the Rome Statute and therefore members of the ICC.
ICC states have the primary jurisdiction to prosecute international crimes and the ICC’s jurisdiction is triggered only when states are either unwilling or unable to prosecute. Party states have an obligation to co-operate with the ICC, including the obligation to surrender ICC suspects found on their territory. South Africa ratified the ICC Statute in 1998 and passed the ICC Implementation Act of 2002, thereby becoming the first African state to domesticate the statute.
No fear or favour
“We can finally achieve our goals of a permanent and lasting institution to address the perpetrators of atrocities and crime,” continued Bensouda. “Our mission is to hold the perpetrators of the most serious crimes accountable. These crimes are genocide, war crimes and crimes against humanity. I undertake to continue this mandate, without fear or favour.
“The ICC does not stand alone, but is part of new systems [of international justice created by the Rome Statute]. However, it is an independent entity with enforced principles, part of a system of international justice that is a legacy for the next generations.
“Africa has shown not only the need for the court, but to lead accountability to international law. We must agree that fighting mass crimes are fundamental pre-conditions to the rise of a peaceful continent and economic growth and stability.
“While war crime economies thrive, ultimately they create damage to infrastructure, economy and attracting investment. Certainly criminal justice at national and international level can play a role in Africa’s development and as an office we are also seeking to minimise the impact of these activities to prevent more crimes.
Bensouda explains that the ICC has a two-stage approach to bringing perpetrators to book. Firstly, the ICC conducts a preliminary exam to determine the basis of the statement brought before it and to establish a reasonable basis to proceed to investigation.
Once all the research is complete, witness statements secured and the groundwork finalised, the ICC proceeds to prosecution, the process for which can take years but has had some notable successes, including the sentencing of Sudanese President Omar al Bashir.
However, South Africa’s failure to arrest and surrender al Bashir to the ICC when he attended the AU summit here in June last year — in spite of two outstanding ICC warrants of arrest against him — was an awakening. There is a need to educate those in danger of being disenfranchised, particularly those from underprivileged backgrounds and with limited means to study, making them into conscientious advocates and defenders of human dignity.
“Without co-operation, the ICC will have problems, another example of which is the violence in post-election Kenya with a level of intimidation of witnesses never seen before. There was interference, politicisation and attacks at court which ultimately meant that I had to withdraw the case. I don’t see these challenges going away.
“We also have problems with having sufficent resources and right now my office has never been busier. I have to prioritise some cases and put others on the back-burner. One thing is for sure and that is that every single prosecution is based in law and based on fact,” stressed Bensouda. “It also needs to be understood that we cannot prosecute cases prior to 2002 as we only became a legal entity then.”
When asked a concluding question about what youth can do, Bensouda said: “I think it is very important that youth should firstly try and arm themselves with knowledge about what it [human rights] is all about. Having that knowledge, South African youth have a responsibilty to call on their government about why, for example, they are saying they should leave the ICC. Get a movement together and make the challenge.”
An earlier version of this article stated that Fatou Bensouda was a prosecutor at the ICC. She is in fact the ICC’s chief prosecutor.