20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
14 December 2021
Name of the Event: What is ICC Prosecutor Fatou Bensouda’s Legacy (co-hosted by: International Federation for Human Rights (FIDH), Women’s Initiatives for Gender Justice (WIGJ), No Peace Without Justice (NPWJ))
Report by: Lilian Srour, Junior Research Associate PILPG-NL
Highlights:
This side event focused on the legacy of the previous International Criminal Court (ICC) Prosecutor, Fatou Bensouda. It also formed the launch of FIDH’s report “International Criminal Court. An Analysis of Prosecutor Bensouda’s Legacy.”
The discussion centered around three themes: accountability for sexual and gender-based crimes, preliminary examinations, and outreach to victims, affected communities, and civil society organizations.
Speakers agreed that Fatou Bensouda left a solid foundation and legacy for the new prosecutor, Karim Khan QC, to build on.
Speakers:
Raquel Vazquez Llorente, Permanent Representative to the ICC and the Head of Delegation in The Hague, International Federation for Human Rights (FIDH)
James Stewart, Deputy Prosecutor ICC
Diane Brown, Senior Legal Advisor at the Special Tribunal for Lebanon
Miriam Antadze, Project Coordinator at the Georgian Centre for Psychosocial and Medical Rehabilitation of Torture Victims (GCRT)
Calixto Ávila Rincón, Lawyer specialized in human rights and public international law
Alison Smith, International Criminal Justice Director at No Peace Without Justice (NPWJ)
Summary of the Event:
Fatou Bensouda’s term as the second ICC Prosecutor ended on 15 June 2021, when she passed the responsibility on to newly elected Prosecutor Karim Khan. FIDH took this moment to conduct a review of the Office of the Prosecutor’s (OTP) work under Bensouda’s term (2012-2021). FIDH’s report “International Criminal Court. An Analysis of Prosecutor Bensouda’s Legacy”, published the morning of this side event, covers three key areas of particular relevance to FIDH’s mandate: accountability for sexual and gender-based crimes, preliminary examinations, and outreach to victims, affected communities, and civil society organizations (CSO). The report compiles three papers published over the course of 2021, which you can separately find here, here, and here. NPWJ and FIDH conducted extensive consultations with stakeholders to inform these reports.
Raquel Vazquez Llorente opened the side event by introducing FIDH’s report and the three key areas covered in it, after which the floor was opened to the OTP’s Deputy Prosecutor, James Stewart. Mr. Stewart served as Bensouda’s deputy for eight years, allowing him to share during this event a very personal view of her legacy. He expressed his strong support for Karim Khan, as he has begun to reorganize the office inherited from Bensouda. In reflecting on Bensouda’s legacy, Mr. Stewart suggested seven features: integrity, courage, intelligence, consensus, policies, successes, and foundation. He first noted that Bensouda recognized the fine line that the OTP walks between justice and politics, and that Bensouda strongly believed in following the Rome Statute and in impartial, independent, and objective justice (hence integrity). Second, he included courage as Bensouda’s legacy, noting she remained undeterred when intimidated or threatened, for instance by US sanctions. Third and fourth, he noted Bensouda’s intelligence and her wish for consensus on issues, while always being prepared to follow her own view to make decisions. Fifth, Mr. Stewart referred to the OTP policies adopted under Bensouda, which “helped shape attitudes not just on the international level, but domestically too”, noting that these form a lasting part of her legacy. Sixth, he noted Bensouda’s success in court, the product of the OTP’s hard work under her leadership. Lastly, he concluded Bensouda left a solid foundation for the new prosecutor to follow and that “those who come now stand on the shoulders of those who have come before.” The quest for accountability continues, only the torch has been passed to “fresh hands.”
Next, Diane Brown presented the findings of FIDH’s report relating to sexual and gender-based crimes (SGBC). She agreed with Mr. Stewart that Bensouda leaves behind a strong legacy of accomplishments addressing SGBC as well as a solid foundation for Karim Khan to build on. Ms. Brown noted several examples of significant developments under Bensouda, such as the prioritizing of the policy paper on SGBC, 9 of 14 preliminary examinations featured SGBC, the opening of 7 investigations of which 6 included allegations of SGBC, convictions featuring SGBC, and the Al-Hassan case as the first to include gender-based persecution in international law. Challenges remain in establishing the link between the accused and the SGBC of which they are accused (e.g. Ntaganda and Bemba).
Moving to the third key area, Mariam Antadze discussed outreach to victims, affected communities, and CSOs. She underlined that in relation to the investigation in Georgia, CSOs operated in a vacuum of information relating to the investigation, leaving victims in a vulnerable position which led to mistrust of the ICC amongst victims. She noted that Bensouda’s approach has been a positive step, but that there is room for improvement, including 1) improved early engagement and 2) more in-country presence. She explained that in Georgia, most victims had not heard of the ICC, and of those that had heard of the ICC only 2% had received information through an ICC representative. Acknowledging the confidential nature of information, Antadze suggested that moving forward and building on Bensouda’s legacy, the Court should implement more effective outreach strategies, allowing for better communication with CSOs and victims. She recommended that the new prosecutor should 1) provide detailed information, 2) develop a court-wide strategy, and 3) conduct an in-depth background assessment during preliminary examinations to obtain a cultural and social understanding of the situation in countries to devise an appropriate investigation
Regarding the second key area, preliminary examinations, Calixto Avila discussed the lack of trust in investigations and electronic communications, alongside the security issues relating to digital information transmitted to the OTP. However, on Bensouda’s legacy, he positively noted the OTP’s policy paper on preliminary examinations and that Bensouda has been able to standardize approaches, allowing for a framework of procedures for effective analysis of cases. Concluding, he highlighted remaining challenges with respect to Latin America, using Mexico as an example. He explained that despite the difficult situation the country is experiencing, more information on the situation must be provided. He then moved to Colombia, noting the effective engagement of CSOs with the Court. Mr. Avila expressed his hope that in his time in Office, Karim Khan will publish reports on preliminary examinations to share information with victims and CSO alike.
Following questions regarding the definition of SGBC and Bensouda’s legacy, Diane Brown noted that the Rome Statute defines gender as male and female and does not, perhaps, fully reflect the gender spectrum. Nevertheless, she explained that the definition of SBGC does not impede the ICC’s ability to prosecute SGBC despite the gender. Mainly because of the gender neutral and inclusive formulation of crimes, which refers to persons. Further, Brown pointed to article 21(3) of the Rome Statute, highlighting that the Court needs to interpret the law in line with international human rights law, without distinction on any grounds, including gender. She finally positively noted that Bensouda streamlined SGBC in international criminal law with her policy paper. Nevertheless, the policy paper should continue to be updated, she added, which current prosecutor Karim Khan intends to do.
To conclude the event, Alison Smith emphasized that the report shows the interconnectedness of everything, in particular when it comes to outreach. She noted the critical importance of building on the work done by Bensouda and to develop not just an OTP strategy but an integrated outreach strategy for the Court as a whole. She warmly thanked all panelists for their reflections, and thanked all those who contributed to the report.