This is the full transcript of former ICC Chief Prosecutor Madame Fatou Bensouda's Nelson Mandela Annual Lecture 2021 address.
NMF 2021 Lecture by Dr. Fatou Bensouda
Theme: The Rule of Law, International Criminal Justice and its Contribution to Sustainable Development
Excellencies, distinguished guests, dear friends, ladies and gentlemen,
Allow me to start by thanking the Nelson Mandela Foundation for inviting me to address this esteemed audience across the globe.
From those viewing in the host nation of South Africa, to those in attendance online, thank you for joining us in these unprecedented times.
In the past few decades, I have had the opportunity to deliver notable lectures, BUT it is an incredible honour to be invited by the Foundation to address those who hold a shared vision of advancing the legacy of H.E. Nelson Mandela: one of the world’s greatest public servants and civil rights icons. His life continues to inspire us all, as we tackle the multifaceted challenges that face humanity today.
During apartheid, Mandela’s name became a beacon of light in the struggle against oppression and injustice. With courage on one hand, and tenacity on the other, he guided South Africa through murky waters and wrote his name on the sands of time as a symbol of peace and reconciliation, resonating across Africa and beyond.
Years ago, as a young girl growing up in The Gambia, a relative of mine who served as the Principal Magistrate of the City of Banjul, always spoke highly of Mandela and his vision to uphold human rights.
Many of us across the continent remember hearing songs of praise about Nelson Mandela, whether by Youssou N’dour in Senegal or Ladysmith Black Mambazo in South Africa. Despite being held captive far away in Robben Island, Madiba's voice and principles echoed and guided us. He was present in our conscience and daily lives; embedding in me an innate strive for justice, especially in my early years as a human rights practitioner. The more I learnt about Madiba, the more I learnt about steadfastness and resolve. His dedication to non-violence in spite of his circumstances, remains an upright quality we must continue to uphold in turbulent times, even in South Africa today.
I must commend the work of the Nelson Mandela Foundation for keeping his memory and legacy alive, by reviving a living archive anchored on peace and reconciliation. As custodians of his life’s work, centring accessibility, solidarity, and collaboration across institutions, reinforces our global fight for freedom by all means necessary.
I should confess that the relationship between international criminal justice, the rule of law and sustainable development has attracted and continues to engender interesting but at times, very heated and controversial debates. One of those being the classic dilemma of pursuing peace versus justice.
During my career as Chief Prosecutor at the International Criminal Court, while investigating alleged commission of crimes in areas of armed conflict, some negotiators often believed the ICC’s intervention would impede the peace process.
I have always been of the view that peace and justice must work contemporaneously. Prioritising one over the other jeopardises the chance of achieving either. As is often cried on the frontlines, no justice, no peace.
For this reason, I remind fellow human rights practitioners how important it is for communities to understand that the promise of peace comes with justice and accountability. I believe this package is a more sustainable recipe for actualising Madiba’s vision of transitional justice; whether through redress or transformation of political and social systems. We must continue to question how we approach these processes to attain more sustainable and progressive futures.
Today, I urge us to collectively examine these probing questions:
“To what extent does international criminal justice and the rule of law contribute towards sustainable development?”
“Specifically, how can institutions such as the ICC – whose principal object is to bring to justice individuals responsible for crimes of concern to the international community – contribute to the multifaceted value of peace and sustainable development?”
Sustainable development meets the needs of the present, without compromising the ability of future generations to meet their own needs.
It calls for concerted efforts towards building an inclusive and resilient future for people and our planet. To achieve sustainable development, we must harness our social capital and efforts of civil society on the ground, to build more robust and responsive instruments of change.
Goal 16 of the 2030 Sustainable Development Goals identifies three key elements namely: Peace, Justice and Strong Institutions. The goal is to promote peaceful and inclusive societies, provide access to justice for all, and build effective, accountable and inclusive institutions at all levels. I will address our questions by discussing these three themes.
Let me start with PEACE.
At a glance, it is evident that conflict is an ever-present process in human relations; with PEACE being the desired antidote. As a proud African, I want to see Africa as most Africans do: a prosperous and more peaceful continent in which democratic values, the rule of law, and human rights are respected and advanced.
With over three thousand ethnic groups and a myriad of languages, Africa is amongst the most heterogeneous regions in the world. However, this seeming blessing has equally fuelled past and ongoing conflicts, often fought along ethnic and religious lines.
It is important for governments – especially democratic governments – to understand that their primary duty is to safeguard the rights of citizens – whether economic, political or social. This is what tills fertile ground for inclusive and sustainable development, rooted in values of peace and unity. In principle, any government unable to safeguard these rights has failed to discharge its primary duty.
When a government does not invest in human development, namely healthcare, education and standard of living, the people despair.
When a government does not adopt growth-oriented policies, factoring comprehensive socio-economic challenges, the people despair.
When a government runs a sham democracy and fails to take into account the socio-political plight of vulnerable and marginalised groups, the people despair.
You see, despair is no ingredient for prosperity; and without hope we cannot actualise or activate peace, especially among increasingly globalised and rapidly developing societies in Africa. When heads of States and leaders fail to build solidarity, the people often fall back to tribal or religious divisions for example, as a reactionary means of survival. In trying to survive, a breakdown of law and order often leads to the commission of egregious crimes by both State and non-state actors. A leader who fails to quell violence but rather fans the flames of divisiveness, should be held accountable.
In such a case, where the parameters of admissibility and complementarity are satisfied, the ICC could intervene. The goal outlined in the Rome Statute is to end impunity and contribute towards lasting peace. Whether through setting judicial precedent or deterring future crimes, it is important to acknowledge the role and responsibility of leaders in the deprivation or realisation of peace.
I dare to say that the level of greed and impunity on the African continent strongly limits our strive towards lasting peace. When leaders sabotage their own countries, do they not have future generations in mind? This short-sightedness fails to anticipate the ripple effect of their actions, not only on themselves but on the people whom they took an oath to serve. We must hold accountable the perpetrators of neopatrimonial politics and gerontocratic regimes with outdated imaginaries of the state.
On this note, I invite us to collectively envision what a new liberatory social contract might look like.
To begin, we must confront ourselves honestly, as we have, about the root causes of this rampant social disorder. If we all yearn for peace, are our leaders implementing steps towards necessary radical reform? By this I don’t simply mean more steps, but different steps. It is time to see solidarity in action, effective dialogue, and response that puts victims first; not politics first.
Through his work and lived experience, Madiba taught us that embracing our identity should not come at the expense of humanity. He galvanised a country divided along racial lines under the umbrella of a “rainbow nation”. Madiba dreamt of a nation where peace and freedom formed the foundational basis of a modern democracy. Towards the turn of the century, he brought promising hope to Africa, the African diaspora, and marginalised people across the world.
However, as we know, Rome was not built in a day.
Recent events in South Africa have shown that there is urgent work to be done, to build a more inclusive society. It is clear that economic inequality and mistrust in public institutions have fuelled a hostile response amongst the people. The expanding wealth gap is a clear pointer that we must work towards a progressive economic model that levels the playing field.
We must work together to keep the Madiba candle of hope burning in a time where multilateralism, neo-apartheid, and weak pillars of accountability continue to impede sustainable development. Despite the many challenges, there is room for progress, to reduce inequality, fight corruption and restore trust.
The legacy of apartheid is a vivid example of the urgency for systemic change. However, this reform must be sustainable, meaning all parties must be served including those in the margins (the victims, the dispossessed, the women, the children), and a propelled spirit of resistance should bring foresight and comprehensive policy building.
This also means lifting systematic and institutional barriers, by providing equal opportunity for all members of society – including women in critical decision making – to thrive, reach their full potential, and to succeed. We have a collective responsibility to advance gender parity in Africa and beyond.
It has been a commitment of mine to champion the rights of women and children, and increasingly those of younger generations. When the youth are disregarded, both imminent and future progress is stifled. This is a threat to future economies and the sustainable development of our continent and the world.
A new liberatory social contract therefore, would see a world where young people have a seat at the table and speak boldly on issues which impact our collective futures.
In a world where we must learn to coexist in mutual respect despite our differences, we are tasked with the responsibility not just to learn but to UNLEARN; to break generational cycles as a form of catharsis.
Above all, we must continue to hold the essence of peace and humanity as sacred in this boundless and ever-changing world.
A new social contract would require convergence, solidarity and collaboration between government, non-State actors, and civil society. This calls for not only more institutions but better and stronger institutions: ones not riddled in identity politics, but driven by the rule of law.
Turning to STRONG INSTITUTIONS.
One thing I often say is: “The Law is my Boss.” This motto reinforces the concept of “the rule of law” in my experience as a justice and human rights practitioner.
In many parts of the world, bureaucracy has brewed a culture of adopting legislations without implementation. Oftentimes, the concepts underpinning these laws (such as peace and justice) seem abstract, cliché, and detached from the desperate daily needs of the masses. The power of strong institutions lies in their ability to activate these concepts from theory into practice, through swift and efficient systems.
In my line of work, I have witnessed the ramifications of lack of rapid response to victims, and the trauma it brews over generations. Within this process lies the paradox and nuances which institutions like the ICC are tasked with dissecting and resolving.
As captured in SDG 16, people around the world need to have faith in the institutions responsible for ensuring justice. Strengthening institutions, with a commitment to ensuring their independence, impartiality and ability to achieve set mandates, must be the driving force and rationale behind coordinated policies at both domestic and international levels.
As you know, the International Criminal Court is the world’s first permanent criminal court holding accountable those responsible for the commission of crimes of concern to the international community – including genocide, war crimes, crimes against humanity and the crime of aggression. Over the last two decades, it has developed a body of knowledge that addresses these questions through various opinions and jurisprudence.
The Rome Statute criminalises and seeks accountability for conducts which strike the very heart of our societies. These include not only violent crimes against protected groups and persons, but also crimes against cultural property and emerging frontiers yet to be captured by the Rome Statute system.
While examining the relationship between international criminal justice and the broader challenges of attaining sustainable development, it is important to stress that the independent mandate of the Court and its Office of the Prosecutor must always be respected and protected. This institution, seeking justice for victims, should be shielded from political interference, resource paucity, and any other internal risks which may threaten its effectiveness and efficiency. As you may already know, some of these issues are currently being addressed by the ongoing review of the Court.
I strongly believe that intervention by an independent and impartial Court — as the anchor of the international criminal justice system — plays a critical role in contributing, even if indirectly, towards peace, reconciliation, and reconstruction of societies recovering from the ravages of war and conflict.
This intervention not only supports accountability and justice efforts, but in the long run contributes to the construction of judicial and other rule of law institutions within national legal systems – all of which are critical to facilitating sustainable development.
Some may argue that there are no positive linkages between international criminal justice and peace building. A proponent of this school of thought, Hideaki Shinoda notes that:
"[E]xcessive pursuit of justice in an unstable society risks undermining opportunities of peace."
In opposing the signing of the Rome Statute by the then President Clinton of the United States, one commentator specifically argued that, and I quote:
"[The ICC is] the wrong instrument for dealing with large-scale war, devastation, destruction and crimes against humanity […]. Developing stable democratic societies and limiting the loss of life require prudent political calculations, not judicial findings. Judgements about individual guilt can point in one direction, and judgements about political order and the promotion of peace and democracy can point in another."
As the ICC engaged in its first situation in Uganda, some vehemently criticised the Court for allegedly impeding the peace processes in northern Uganda by its issuance of arrest warrants against the key perpetrators of crimes in the region.
The criticism and fears surrounding the ICC were aggravated by the fact that the alleged perpetrators had refused to sign the peace agreement, to benefit from “amnesty” in Uganda as long as the warrants of arrest were still in place.
These views were and still remain contradictory to the soul of the Rome Statute. The adoption of the Rome Statute demonstrates the clear determination of the international community to put an end to impunity for perpetrators of atrocity crimes that threaten the peace, security and well-being of the world, and, by doing so, aid in their prevention. Let me recall here the immortal words of Kofi Annan. He said:
“We have little hope of preventing genocide, or reassuring those who live in fear of its occurrence, if people who have committed this most heinous of crimes are left at large, and not held to account. It is therefore vital that we build and maintain robust judicial systems, both national and international – so that, over time, people will see there is no impunity for such crimes.”
If we flip through the pages of history, we are constantly reminded that there can be no healing without peace; there can be no peace without justice; and there can be no justice without the rule of law. In commemoration of the 1994 Rwandan genocide, the UN General Assembly underscored the importance of justice and accountability in the following words;
“Exposing and holding perpetrators, including their accomplices, accountable, as well as restoring dignity of victims through acknowledging and commemorating their suffering would guide societies in the prevention of future violations.”
It is therefore important for policymakers, legal practitioners and all relevant parties, to continue exploring innovative ways to strengthen national institutions, including through international cooperation, building capacity with the weapons of the law.
There is a need to improve how we approach our pursuit of justice in a concerted effort to build solidarity. When we build on lessons learnt and best practices, it sets the stage for innovative and sustainable solutions to the types of challenges we have illustrated today.
As you know, the effects of war have intra- and inter-generational repercussions. But how can the long arm of strong institutions avert and mitigate some of the consequences?
When considering the rights of future generations – those that include the long-term protection of humanity through robust and sustainable mechanisms – we must adopt a new precautionary principle, evolving from punitive law which punishes after the fact, to anticipatory law, aimed at prevention.
Globally, the number of people fleeing war, persecution and conflict currently exceeds 70-million. To combat this comprehensively, new systems must involve diverse factions of society, including across borders. At the core, lies the safeguarding of future generations, the young torch bearers of our tomorrow.
According to UNICEF, about 33-million children have been forcibly displaced worldwide by violence and conflict, with an estimated 19.4-million of them within their own countries. Furthermore, crimes against children, involving the use of child soldiers for example, call for urgent action at all levels.
It is estimated that by 2050, Africa will have the greatest potential among all continents in respect of its young and dynamic labour force. Protecting and cultivating this enormous potential must be a strategic imperative for African countries.
In a world where our struggles are increasingly interconnected and the value of pre-emptive measures is evident, we must engage all critical actors: governments and their institutions, international, non-governmental organisations and civil society.
It would be nothing short of an illusion to think that we can rely exclusively on States to uphold respect for human rights and the rule of law. When governments fail, active citizens moving in solidarity, even across borders, build new orders that propel the vision of a more just world.
While I served as Chief Prosecutor, my office held biannual meetings with members of civil society organisations committed to holding individuals to account for international crimes. This enabled collaboration with external partners for practical pursuit of our mandate.
On the other hand, delays in implementation of the reparations mandate of The Trust Fund for Victims, and lack of cooperation from situation countries, call for greater creativity in addressing challenges that fail to harness a collective and sustainable approach.
The emergence of new actors has led to the expansion of frontiers in the field of international law at its intersection with climate justice, data privacy, cyber-security, and business and human rights, among other fields. These increasingly sophisticated systems reshape and reform the ways in which we strategise and fundamentally understand our interconnectedness.
Let me finally address JUSTICE.
I recently met with a few young people who asked me the question: “Are you scared for the future of international criminal justice, given the current trajectory?” My response was simple: there is nothing to be scared about, as I believe in the collective power of those championing the global and constant fight against injustice.
Despite the challenges with multilateralism and cooperation between States and institutions, I firmly believe in the efficacy of international treaties and national instruments.
But how do we strengthen institutions tasked with dispensing justice?
The causal link between justice and sustainable development is global access to the former without prejudice. The concept of justice conflates the principles of fairness and equity. A just and equitable society is one which prioritises, among other things, equal access to education, zero tolerance for discrimination against women and girls, non-discriminatory laws and policies, and education on human rights.
My primary agenda as Chief Prosecutor was to ensure that victims of international crimes were given access to justice. I was certainly met with adamant resistance; needless to recall all the details. The reluctance and rejection of the ICC jurisdiction also contributes to the denial of justice, especially where national systems are unwilling and unable to dispense justice. This is a tool politicians and governments use to prosper their own agenda, even when allegedly committing atrocity crimes.
Accessibility to forms of redress is a crucial aspect of sustainable development when it comes to justice. During my time at the ICC, one of the main challenges the Court faced, and may continue to face, is dissemination of knowledge about the Court’s jurisdictional parameters and function.
The ICC is a court of last resort. It is an extension of national judicial systems in the fight to end impunity. The Office of the Prosecutor liaises with domestic systems by encouraging and supporting, in the context of its core activities, genuine national proceedings, and dialogue with States.
The ICC is not designed to replace national systems, nor is it designed to take over what is primarily their responsibility to investigate and prosecute serious crimes of international concern. It is therefore important that at the national and regional levels, awareness is raised about how strong institutions working in collaboration can produce better outcomes in the fight against injustice.
Various campaigns labelled the ICC as a “white man’s court” on the false premise that the Court targets African countries and leaders, but not their global counterparts. This fallacious and unjustifiable claim pushed some African States to attempt to withdraw from the Rome Statute. However, it must be said that there can never be an excuse for impunity. Victims should never be re-victimised.
What surprised me the most about the above events was the lack of discussion around justice for victims of these alleged crimes. The failure to centre victims when seeking justice, can deter this critical debate from the essential.
Your excellencies, ladies and gentlemen, dear friends, let me CONCLUDE.
There is more work to be done. We MUST pursue peace by upholding the rule of law through strong institutions, and strive towards a more just world.
I remember hearing stories of how Madiba reacted to maltreatment by prison personnel, saying:
“General, I want to say one thing to you, you are a general on the other side while I am a commander on this side. When we have fought it out and reduced our country to ashes, it would still be necessary for one to accept the surrender from the other – whoever wins or whoever loses, but how we would behave at that moment of surrender would be determined by how we have treated each other now …”
Only someone with such integrity and foresight could sustain Madiba’s frame of mind. He understood that burning bridges, while always an option, was not a viable alternative in the given circumstance. Preserving these ideologies, as effectuated by the work of the Nelson Mandela Foundation, defines how we recount history on our own terms, and shape young minds of today for tomorrow.
So, I implore us to ponder the bigger picture and embrace the goal of peace, justice and sustainable development within the framework of strong institutions.
Let me end by asking, what is YOUR contribution to sustainable development?
We must remember and uphold our collective and individual roles and responsibilities as active citizens of the globe. How we choose to come together in solidarity, to build systems of accountability that strive towards peace and justice, can truly forge transgenerational impact and sustainable change. Again I quote Mandela as he said, this great rock of QUNU: “It is in your hands to make a difference.”
That’s what he said. And for us, ladies and gentlemen, I do acknowledge that much work has been done, but there are miles to go still, before we sleep.