An informal
gathering of the “Friends of the ICC”, convened on May 13, 2015 at the
Headquarters of the United Nations in New York for a round table discussion
with Fatou Bensouda, Chief Prosecutor of the International Criminal Court. The Friends of the ICC is the caucus formed
by countries that are particularly in support of the Court. Its formation began during the negotiations
of the Rome Statute. The Friends of the
ICC is a large group with no formal rules about who can participate and
includes several organizations such as Human Rights Watch. Active participants are countries from most
of Western Europe, Latin America and many from Africa. A number of current issues and concerns
related to the ICC were addressed.
Fatou
Bensouda brought up funding issues that the Court is currently facing. She said that unexpectedly being able to
bring charges against Dominic Ongwen has meant scaling back activity on
other cases due to budget constraints. Ongwen
is a member of the Lord’s Resistance Army, a sectarian military and religious
group in northern Uganda and South Sudan.
He is allegedly guilty of four counts of war crimes (murder, cruel
treatment of civilians, intentionally directing an attack against a civilian
population and pillaging) and three counts of crimes against humanity (murder,
enslavement and inhumane acts of inflicting serious bodily injury and
suffering). In 2015, he escaped detention, was captured by a Seleka rebel
group, and delivered to the US Embassy in Kigali which arranged with the help of other countries to have him sent to
the ICC. Having Ongwen in its custody
came as a surprise to the Court.
Bensouda’s comment is in keeping
with past statements she has made to the UN, insisting that the court will not
be able to act on referrals unless they come with money. Fatou Bensouda went on to explain that the
Court needs financial support to fully address its multiple
responsibilities. This includes ensuring
sufficient and timely investigation before the case begins, being able to build
a strong prosecutorial case and supporting the Trust Fund for Victims. The Trust Fund for Victims (TFV) is an
independent institution within the ICC that
provides reparations to victims.
Also on the
examination of possible crimes, Bensouda talked about how the Court was
attempting to improve its current strategies and policies in regards to this
task. These changes include more
open-ended investigations as opposed to deciding the focus of the investigation
early on.
Another change is avoiding reliance
on witness testimony when building a case.
This could be in connection to difficulties (such witnesses being
threatened away from testifying before the court) that the Court has faced in
pursuing cases such as the ones resulting from the Kenya situation though such
was not stated by Bensouda during the meeting.
Bensouda asserted during the meeting that increasing resources available
to the teams undertaking formal investigations increased their output as shown
in all recent cases leading to charges against subjects. Bensouda also mentioned that other aspects of
her policy for the OTP that she would like to implement include refocusing policies
about children which has started including both the children involved in the armed
conflict as well as those affected by it.
In the following discussion, the Permanent Representative of the
Palestine Authority to the UN questioned Bensouda on whether charges will be
pressed against Israel for the continued existence of the settlements. Bensouda maintained that the OTP is still
carrying out a preliminary examination, which she stressed is not an official
investigation, of the Palestine situation.
She explained that while she encourages Israel to cooperate in the
investigation, her office is obligated to examine the actions of both sides of
the possible case and to obtain their cooperation. Also, if either side chooses
not to cooperate, she will have to find the evidence elsewhere. It was also
explained that the Office has not yet fully assessed if crimes under the Rome
Statute have been committed and if the situation falls under the jurisdiction
of the ICC. She went on to say that the
OTP seeks to finalize these rulings as soon as possible.
During the discussion, the
representative of Kenya expressed the belief that the country was not being
appropriately represented in the UNSC and because of this, he wanted to convene
a group of countries outside the Council.
It seemed clear that he hoped that this group could put pressure on the UNSC
and the ICC after the long series of contentions between the institutions and the country.
Other
current subjects in questions to Bensouda
included the terrorist group ISIL.
The prosecutor explained that while the jurisdiction of the ICC is
limited in this particular conflict, charges are still possible. This is because while Iraq and Syria have not
yet ratified the Rome Statute, there are still nationals of state parties
involved in the conflict. That said, it
is primarily the responsibility of these state parties to investigate the
crimes. Should they fail to do so,
Bensouda asserted that a UN Security Council referral would be the best
starting point.
On the Libya situation, Bensouda
reiterated her stance from yesterday, saying that the international community
should be more proactive in ending the conflict and that the Office was
actively investigating the possibility of other cases involved in the
situation. She emphasized that the Office faces challenges of insufficient
access and resources in properly investigating these crimes. She also expressed her gratitude to members
of the Security Council in their calling for the surrendering of Saif al-Islam
Gaddafi.
Bensouda
was asked about the possibility of members of Boko Haram being charged by the
Court. Bensouda remarked that the ICC
has already indicated that the crimes being committed in Nigeria by Boko Haram
are crimes against humanity and that a mission was sent to Nigeria before the
elections took place. As such, the
crimes occurring there may possibly fall under the jurisdiction of the Court.
It is worth
noting that Bensouda heavily emphasized her commitment to transparency and
non-politicization of the Court. This
was warmly received by the members of the Friends. Several of the members recognized that this
would be a difficult task in some of her upcoming decisions.
After Bensouda left, there was a
second session of the discussion. During
this time, reports were given by the liason between the UN Security Council and
the Friends. The report was on the
activities that the UNSC conducts in connection with the ICC. There was also a report from the Argentine
representative on the activities of the New York Working Group. The New York Working Group is an organization
based in New York which was convened by the bureau of the ICC to act as a
committee on various issues and to advise the bureau on them.
