Reflections from the International Criminal Court Prosecutor

By Bensouda, Fatou B. | Case Western Reserve Journal of International Law, Fall 2012 | Go to article overview

Reflections from the International Criminal Court Prosecutor


Bensouda, Fatou B., Case Western Reserve Journal of International Law


Distinguished ladies and gentlemen, I am delighted to be with you today to give the Frederick K. Cox International Law Center Lecture on Global Justice. Allow me to thank the Case Western Reserve University School of Law for inviting me to speak to you. I look forward to our discussion.

In June of this year, I took up the function of Prosecutor of the International Criminal Court, an international, independent, judicial institution that started its activities ten years ago.

After ten years in operation, an overview and definition of the new perspectives related to international criminal justice is essential for reviewing and further improving the operations of the Court.

Within the Office of the Prosecutor, this exercise has coincided with the transitional period, which started last December following my election by the Assembly of States Parties and completed on June 15 when I officially took up my duties. (1)

It is almost an understatement to say that the world today is very different than what it was ten years ago. In 2002, the aim was to establish an innovative and unprecedented institution created by the Rome Statute: the first independent, impartial, and permanent international criminal court. (2) In 2002, the stakes were high: would this new judicial institution be able to assert itself in the international arena? Would it be able to open and successfully carry out a case? Could the Court be anything other than a paper tiger, an abortive project generating legal and academic debates but with no role to play in managing mass violence in real time, and with no hope of contributing effectively to the prevention of such violence?

Ten years on, an objective observation would provide positive answers to all of these questions. The International Criminal Court, by virtue of its mandate and operations in the last ten years, has introduced a new paradigm in international relations: utilizing law as a global tool to promote peace and international security.

To what does the Court today owe its status and legitimacy as a major actor on the international scene in relation to justice and conflict management? I would like to suggest two main causes. Firstly, its operational framework--its mandate--as defined by the Rome Statute; and secondly, the standardized, clear, transparent, and predictable working methods of the Office of the Prosecutor, providing it with the necessary legitimacy as a strictly judicial actor, in order to function effectively in a highly political international environment.

Ladies and Gentlemen, allow me now to briefly present the four cardinal points, the four key elements of the model of international criminal justice established by the Rome Statute, which in my opinion explain why this model is both legitimate and sustainable.

First, the International Criminal Court is permanent and could potentially have worldwide jurisdiction. Differing from other models--from the Nuremberg and Tokyo tribunals to the courts dealing with the former Yugoslavia, Rwanda, Sierra Leone and Cambodia--the Court is a permanent actor with non-retroactive (3) and potentially universal jurisdiction, (4) which provides it with further legitimacy. These characteristics of the Court also encourage States as well as other international actors to realign their positions in accordance with the norms of the Court and to build a relationship and a model of cooperation over the long term.

Second, the Court is independent, as is its Prosecutor. (5) So, it is the Prosecutor who, with complete independence and on the basis of the criteria laid down by the Rome Statute, initiates preliminary examinations, selects situations and cases, and decides whether or not to open an investigation into a situation referred by a State or the United Nations Security Council. (6) The Prosecutor also has the capacity, of course, to open investigations proprio motu, with the authorization of the judges. …

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