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2015 EDITION Vol.3 Issue 11 DIGITAL

encourages all genuine

encourages all genuine efforts to do justice for victims, respecting the highest standards. The Office strives to encourage genuine national proceedings. In the first instance, states themselves must address these crimes. This is why we have been active, for example, in Guinea, and it is encouraging to note the significant and positive developments in the national investigations there. Based on the information available, the national authorities have decided to investigate those responsible for the crimes of 28 September 2009. Such efforts are encouraging, and must continue. In many ways, the success of the international criminal justice system as a whole can be measured by the commitment of states in upholding their primary responsibility to investigate and prosecute atrocity crimes. The ICC will do its part, independently and impartially, but it falls to the states, first and foremost, to do so. Let me also offer the following: we must acknowledge that fighting impunity for atrocity crimes and cultivating the rule of law are fundamental preconditions to the rise of a more peaceful and prosperous African Continent. How can societies plagued by recurring conflict in Africa or elsewhere prosper, attract investment or facilitate an environment conducive to economic growth and productivity? I strongly believe that establishing the rule of law and a healthy, well-functioning judicial system is a fundamental pre-requisites to political stability and economic growth in any country. While in times of conflict, war economies may thrive, the net result is damage to the infrastructure, overall economy, development and investment in the country. Therefore, to the extent that investigating and prosecuting mass atrocities will deter war making and the commission of such destabilizing crimes, certainly then, criminal justice at the national or international level at the ICC can also play an important role in Africa’s economic growth and development. Kata Kata: How do you react to the accusations in some quarters, that the ICC indictment of African leaders is the cause of the refusal of these leaders to relinquish power after their terms in office, because they fear they might be brought to justice by the ICC? Bensouda: Usually this question is raised as part of a wider discussion on peace vs. justice and it can be helpful to address this topic. It is a mistake to think, if you are negotiating peace or if you are going through any form of reconciliation process, that you must forget justice and accountability completely. We need to move away from that perception. These virtues – peace and justice – are not mutually exclusive; they can actually work together. Take the example of the Lord’s Resistance Army (LRA). The Office charged the top commanders of the LRA and identified five people (following the death of two of them, now three). At the time, Uganda was running an amnesty program encouraging people to leave the bush and take advantage of the amnesty The then Prosecutor had publicly stated whom the Office is interested in for their role in committing mass crimes in the country. And that all remaining LRA members wanting to take advantage of the amnesty were free to do so. This is an example which demonstrates that the ICC is Kata kata cartoon magazine 24

not against peace and reconciliation. On the contrary, justice and peace can be complementary. Ours is not a peace mandate. We’re a court of law. While peace considerations are not a legal consideration for the Office, under art. 16 of the Rome Statute, the UNSC, acting under Chapter VII of the UN Charter, can bar or defer an investigation or prosecution for a period of 12 months; this can be renewed by the Council under the same conditions. While peace processes or considerations are not a consideration in our assessment, I should stress that it would nevertheless defeat the object and purpose of the Rome Statute if our intervention would aggravate the plight and situations of victims on the ground. While as a rule, our position is that access to justice is in the interest of victims, their diverging views do factor into our assessment of whether or not to proceed with an investigation as foreseen in Article 53 of the Rome Statute. As to the fact that some leaders do not want to relinquish power, that is the reason why the complementatarity mechanism was introduced as a legal tool in the Rome Statute allowing the Court to step in when national authorities do not uphold their primary responsibility to investigate and prosecute those responsible for atrocity crimes committed in their own countries. Kata Kata: Recently, President Omar al-Bashir of Sudan, a War Crime suspect was to be arrested in South Africa and handed over to the ICC. However, South African government, a member of the ICC state refused the ICC request to arrest and hand over President Omar al-Bashir to the ICC. What is your reaction to this and are there ways to punish or sanction South Africa for such a bold decision? Bensouda: I was deeply disappointed by the event you mention, which took place last June, and my greatest empathy is reserved for the victims of the unimaginable atrocities committed in Darfur. Hundreds of thousands of people have died and more than two million people remain displaced. It is their lament which echoes the loudest. Still, there are positive signs. Domestic legal proceedings in South Africa inspired some hope: the swift decision in High Court of South Africa required the authorities to take all reasonable steps to detain Mr Bashir and ruled that the Government’s failure to do so was unconstitutional. South Africa is a member of the ICC. Under that Rome Statute, the legal obligations of all States Parties are clear: if an arrest warrant has been issued by the Court, then they are under an obligation to detain and arrest that person. The High Court’s decision highlighted that separation of powers and the independence of the judiciary are alive and well in South Africa. It further underlined the growing recognition by domestic courts of the state’s obligation to uphold their commitments under international law. The judgment also clarified South Africa’s clear legal obligations towards the ICC and, by analogy, those of other ICC member states. That much, at least, was a victory for the rule of law and one that I hope provides guidance to other countries. I was also encouraged by the breadth of media coverage the situation has received. Social and news media erupted with expressions of global 25 Kata kata cartoon magazine

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