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.
Written by Rebecca Leaf