That is the complete transcript of former ICC Chief Prosecutor Madame Fatou Bensouda’s Nelson Mandela Annual Lecture 2021 deal with.
NMF 2021 Lecture by Dr. Fatou Bensouda
Theme: The Rule of Regulation, Worldwide Prison Justice and its Contribution to Sustainable Growth
Excellencies, distinguished visitors, expensive buddies, women and gents,
Permit me to start out by thanking the Nelson Mandela Basis for inviting me to deal with this esteemed viewers throughout the globe.
From these viewing within the host nation of South Africa, to these in attendance on-line, thanks for becoming a member of us in these unprecedented occasions.
Prior to now few many years, I’ve had the chance to ship notable lectures, BUT it’s an unimaginable honour to be invited by the Basis to deal with those that maintain a shared imaginative and prescient of advancing the legacy of H.E. Nelson Mandela: one of many world’s best public servants and civil rights icons. His life continues to encourage us all, as we sort out the multifaceted challenges that face humanity in the present day.
Throughout apartheid, Mandela’s identify grew to become a beacon of sunshine within the wrestle towards oppression and injustice. With braveness on one hand, and tenacity on the opposite, he guided South Africa by murky waters and wrote his identify on the sands of time as a logo of peace and reconciliation, resonating throughout Africa and past.
Years in the past, as a younger woman rising up in The Gambia, a relative of mine who served because the Principal Justice of the Peace of the Metropolis of Banjul, all the time spoke extremely of Mandela and his imaginative and prescient to uphold human rights.
Many people throughout the continent bear in mind listening to songs of reward about Nelson Mandela, whether or not by Youssou N’dour in Senegal or Ladysmith Black Mambazo in South Africa. Regardless of being held captive far-off in Robben Island, Madiba’s voice and ideas echoed and guided us. He was current in our conscience and each day lives; embedding in me an innate try for justice, particularly in my early years as a human rights practitioner. The extra I learnt about Madiba, the extra I learnt about steadfastness and resolve. His dedication to non-violence despite his circumstances, stays an upright high quality we should proceed to uphold in turbulent occasions, even in South Africa in the present day.
I have to commend the work of the Nelson Mandela Basis for retaining his reminiscence and legacy alive, by reviving a residing archive anchored on peace and reconciliation. As custodians of his life’s work, centring accessibility, solidarity, and collaboration throughout establishments, reinforces our world battle for freedom by all means obligatory.
I ought to confess that the connection between worldwide prison justice, the rule of regulation and sustainable improvement has attracted and continues to engender attention-grabbing however at occasions, very heated and controversial debates. A kind of being the traditional dilemma of pursuing peace versus justice.
Throughout my profession as Chief Prosecutor on the Worldwide Prison Courtroom, whereas investigating alleged fee of crimes in areas of armed battle, some negotiators typically believed the ICC’s intervention would impede the peace course of.
I’ve all the time been of the view that peace and justice should work contemporaneously. Prioritising one over the opposite jeopardises the possibility of attaining both. As is usually cried on the frontlines, no justice, no peace.
Because of this, I remind fellow human rights practitioners how necessary it’s for communities to know that the promise of peace comes with justice and accountability. I imagine this bundle is a extra sustainable recipe for actualising Madiba’s imaginative and prescient of transitional justice; whether or not by redress or transformation of political and social programs. We should proceed to query how we strategy these processes to achieve extra sustainable and progressive futures.
At this time, I urge us to collectively study these probing questions:
“To what extent does worldwide prison justice and the rule of regulation contribute in the direction of sustainable improvement?”
“Particularly, how can establishments such because the ICC – whose principal object is to convey to justice people answerable for crimes of concern to the worldwide neighborhood – contribute to the multifaceted worth of peace and sustainable improvement?”
Sustainable improvement meets the wants of the current, with out compromising the flexibility of future generations to fulfill their very own wants.
It requires concerted efforts in the direction of constructing an inclusive and resilient future for folks and our planet. To attain sustainable improvement, we should harness our social capital and efforts of civil society on the bottom, to construct extra sturdy and responsive devices of change.
Aim 16 of the 2030 Sustainable Growth Targets identifies three key components specifically: Peace, Justice and Sturdy Establishments. The objective is to advertise peaceable and inclusive societies, present entry to justice for all, and construct efficient, accountable and inclusive establishments in any respect ranges. I’ll deal with our questions by discussing these three themes.
Let me begin with PEACE.
At a look, it’s evident that battle is an ever-present course of in human relations; with PEACE being the specified antidote. As a proud African, I need to see Africa as most Africans do: a affluent and extra peaceable continent through which democratic values, the rule of regulation, and human rights are revered and superior.
With over three thousand ethnic teams and a myriad of languages, Africa is amongst essentially the most heterogeneous areas on this planet. Nonetheless, this seeming blessing has equally fuelled previous and ongoing conflicts, typically fought alongside ethnic and spiritual strains.
It will be significant for governments – particularly democratic governments – to know that their main responsibility is to safeguard the rights of residents – whether or not financial, political or social. That is what tills fertile floor for inclusive and sustainable improvement, rooted in values of peace and unity. In precept, any authorities unable to safeguard these rights has didn’t discharge its main responsibility.
When a authorities doesn’t put money into human improvement, specifically healthcare, schooling and way of life, the folks despair.
When a authorities doesn’t undertake growth-oriented insurance policies, factoring complete socio-economic challenges, the folks despair.
When a authorities runs a sham democracy and fails to take into consideration the socio-political plight of weak and marginalised teams, the folks despair.
You see, despair is not any ingredient for prosperity; and with out hope we can not actualise or activate peace, particularly amongst more and more globalised and quickly creating societies in Africa. When heads of States and leaders fail to construct solidarity, the folks typically fall again to tribal or spiritual divisions for instance, as a reactionary technique of survival. In attempting to outlive, a breakdown of regulation and order typically results in the fee of egregious crimes by each State and non-state actors. A pacesetter who fails to quell violence however moderately followers the flames of divisiveness, needs to be held accountable.
In such a case, the place the parameters of admissibility and complementarity are glad, the ICC may intervene. The objective outlined within the Rome Statute is to finish impunity and contribute in the direction of lasting peace. Whether or not by setting judicial precedent or deterring future crimes, you will need to acknowledge the position and accountability of leaders within the deprivation or realisation of peace.
I dare to say that the extent of greed and impunity on the African continent strongly limits our try in the direction of lasting peace. When leaders sabotage their very own international locations, do they not have future generations in thoughts? This short-sightedness fails to anticipate the ripple impact of their actions, not solely on themselves however on the folks whom they took an oath to serve. We should maintain accountable the perpetrators of neopatrimonial politics and gerontocratic regimes with outdated imaginaries of the state.
On this observe, I invite us to collectively envision what a brand new liberatory social contract would possibly appear like.
To start, we should confront ourselves truthfully, as now we have, concerning the root causes of this rampant social dysfunction. If all of us yearn for peace, are our leaders implementing steps in the direction of obligatory radical reform? By this I don’t merely imply extra steps, however completely different steps. It’s time to see solidarity in motion, efficient dialogue, and response that places victims first; not politics first.
Via his work and lived expertise, Madiba taught us that embracing our id shouldn’t come on the expense of humanity. He galvanised a rustic divided alongside racial strains below the umbrella of a “rainbow nation”. Madiba dreamt of a nation the place peace and freedom fashioned the foundational foundation of a contemporary democracy. In direction of the flip of the century, he introduced promising hope to Africa, the African diaspora, and marginalised folks internationally.
Nonetheless, as we all know, Rome was not inbuilt a day.
Latest occasions in South Africa have proven that there’s pressing work to be performed, to construct a extra inclusive society. It’s clear that financial inequality and distrust in public establishments have fuelled a hostile response amongst the folks. The increasing wealth hole is a transparent pointer that we should work in the direction of a progressive financial mannequin that ranges the taking part in discipline.
We should work collectively to maintain the Madiba candle of hope burning in a time the place multilateralism, neo-apartheid, and weak pillars of accountability proceed to impede sustainable improvement. Regardless of the various challenges, there’s room for progress, to scale back inequality, battle corruption and restore belief.
The legacy of apartheid is a vivid instance of the urgency for systemic change. Nonetheless, this reform have to be sustainable, which means all events have to be served together with these within the margins (the victims, the dispossessed, the ladies, the youngsters), and a propelled spirit of resistance ought to convey foresight and complete coverage constructing.
This additionally means lifting systematic and institutional limitations, by offering equal alternative for all members of society – together with ladies in essential choice making – to thrive, attain their full potential, and to succeed. We now have a collective accountability to advance gender parity in Africa and past.
It has been a dedication of mine to champion the rights of ladies and youngsters, and more and more these of youthful generations. When the youth are disregarded, each imminent and future progress is stifled. It is a risk to future economies and the sustainable improvement of our continent and the world.
A brand new liberatory social contract subsequently, would see a world the place younger folks have a seat on the desk and converse boldly on points which affect our collective futures.
In a world the place we should be taught to coexist in mutual respect regardless of our variations, we’re tasked with the accountability not simply to be taught however to UNLEARN; to interrupt generational cycles as a type of catharsis.
Above all, we should proceed to carry the essence of peace and humanity as sacred on this boundless and ever-changing world.
A brand new social contract would require convergence, solidarity and collaboration between authorities, non-State actors, and civil society. This requires not solely extra establishments however higher and stronger establishments: ones not riddled in id politics, however pushed by the rule of regulation.
Turning to STRONG INSTITUTIONS.
One factor I typically say is: “The Regulation is my Boss.” This motto reinforces the idea of “the rule of regulation” in my expertise as a justice and human rights practitioner.
In lots of elements of the world, paperwork has brewed a tradition of adopting legislations with out implementation. Oftentimes, the ideas underpinning these legal guidelines (resembling peace and justice) appear summary, cliché, and indifferent from the determined each day wants of the lots. The facility of sturdy establishments lies of their capacity to activate these ideas from concept into apply, by swift and environment friendly programs.
In my line of labor, I’ve witnessed the ramifications of lack of speedy response to victims, and the trauma it brews over generations. Inside this course of lies the paradox and nuances which establishments just like the ICC are tasked with dissecting and resolving.
As captured in SDG 16, folks around the globe have to think about the establishments answerable for guaranteeing justice. Strengthening establishments, with a dedication to making sure their independence, impartiality and skill to realize set mandates, have to be the driving power and rationale behind coordinated insurance policies at each home and worldwide ranges.
As you already know, the Worldwide Prison Courtroom is the world’s first everlasting prison court docket holding accountable these answerable for the fee of crimes of concern to the worldwide neighborhood – together with genocide, battle crimes, crimes towards humanity and the crime of aggression. During the last 20 years, it has developed a physique of information that addresses these questions by varied opinions and jurisprudence.
The Rome Statute criminalises and seeks accountability for conducts which strike the very coronary heart of our societies. These embody not solely violent crimes towards protected teams and individuals, but in addition crimes towards cultural property and rising frontiers but to be captured by the Rome Statute system.
Whereas analyzing the connection between worldwide prison justice and the broader challenges of accomplishing sustainable improvement, you will need to stress that the unbiased mandate of the Courtroom and its Workplace of the Prosecutor should all the time be revered and guarded. This establishment, in search of justice for victims, needs to be shielded from political interference, useful resource paucity, and every other inner dangers which can threaten its effectiveness and effectivity. As it’s possible you’ll already know, a few of these points are at the moment being addressed by the continued overview of the Courtroom.
I strongly imagine that intervention by an unbiased and neutral Courtroom — because the anchor of the worldwide prison justice system — performs a essential position in contributing, even when not directly, in the direction of peace, reconciliation, and reconstruction of societies recovering from the ravages of battle and battle.
This intervention not solely helps accountability and justice efforts, however in the long term contributes to the development of judicial and different rule of regulation establishments inside nationwide authorized programs – all of that are essential to facilitating sustainable improvement.
Some could argue that there are not any optimistic linkages between worldwide prison justice and peace constructing. A proponent of this college of thought, Hideaki Shinoda notes that:
“[E]xcessive pursuit of justice in an unstable society dangers undermining alternatives of peace.”
In opposing the signing of the Rome Statute by the then President Clinton of america, one commentator particularly argued that, and I quote:
“[The ICC is] the fallacious instrument for coping with large-scale battle, devastation, destruction and crimes towards humanity […]. Creating secure democratic societies and limiting the lack of life require prudent political calculations, not judicial findings. Judgements about particular person guilt can level in a single course, and judgements about political order and the promotion of peace and democracy can level in one other.”
Because the ICC engaged in its first scenario in Uganda, some vehemently criticised the Courtroom for allegedly impeding the peace processes in northern Uganda by its issuance of arrest warrants towards the important thing perpetrators of crimes within the area.
The criticism and fears surrounding the ICC had been aggravated by the truth that the alleged perpetrators had refused to signal the peace settlement, to profit from “amnesty” in Uganda so long as the warrants of arrest had been nonetheless in place.
These views had been and nonetheless stay contradictory to the soul of the Rome Statute. The adoption of the Rome Statute demonstrates the clear willpower of the worldwide neighborhood to place an finish to impunity for perpetrators of atrocity crimes that threaten the peace, safety and well-being of the world, and, by doing so, assist of their prevention. Let me recall right here the immortal phrases of Kofi Annan. He stated:
“We now have little hope of stopping genocide, or reassuring those that reside in concern of its prevalence, if individuals who have dedicated this most heinous of crimes are left at massive, and never held to account. It’s subsequently important that we construct and preserve sturdy judicial programs, each nationwide and worldwide – in order that, over time, folks will see there is no such thing as a impunity for such crimes.”
If we flip by the pages of historical past, we’re always reminded that there could be no therapeutic with out peace; there could be no peace with out justice; and there could be no justice with out the rule of regulation. In commemoration of the 1994 Rwandan genocide, the UN Common Meeting underscored the significance of justice and accountability within the following phrases;
“Exposing and holding perpetrators, together with their accomplices, accountable, in addition to restoring dignity of victims by acknowledging and commemorating their struggling would information societies within the prevention of future violations.”
It’s subsequently necessary for policymakers, authorized practitioners and all related events, to proceed exploring revolutionary methods to strengthen nationwide establishments, together with by worldwide cooperation, constructing capability with the weapons of the regulation.
There’s a want to enhance how we strategy our pursuit of justice in a concerted effort to construct solidarity. After we construct on classes learnt and finest practices, it units the stage for revolutionary and sustainable options to the sorts of challenges now we have illustrated in the present day.
As you already know, the results of battle have intra- and inter-generational repercussions. However how can the lengthy arm of sturdy establishments avert and mitigate among the penalties?
When contemplating the rights of future generations – people who embody the long-term safety of humanity by sturdy and sustainable mechanisms – we should undertake a brand new precautionary precept, evolving from punitive regulation which punishes after the actual fact, to anticipatory regulation, geared toward prevention.
Globally, the variety of folks fleeing battle, persecution and battle at the moment exceeds 70-million. To fight this comprehensively, new programs should contain numerous factions of society, together with throughout borders. On the core, lies the safeguarding of future generations, the younger torch bearers of our tomorrow.
In accordance with UNICEF, about 33-million kids have been forcibly displaced worldwide by violence and battle, with an estimated 19.4-million of them inside their very own international locations. Moreover, crimes towards kids, involving the usage of little one troopers for instance, name for pressing motion in any respect ranges.
It’s estimated that by 2050, Africa may have the best potential amongst all continents in respect of its younger and dynamic labour power. Defending and cultivating this huge potential have to be a strategic crucial for African international locations.
In a world the place our struggles are more and more interconnected and the worth of pre-emptive measures is clear, we should have interaction all essential actors: governments and their establishments, worldwide, non-governmental organisations and civil society.
It could be nothing in need of an phantasm to suppose that we will rely solely on States to uphold respect for human rights and the rule of regulation. When governments fail, lively residents shifting in solidarity, even throughout borders, construct new orders that propel the imaginative and prescient of a extra simply world.
Whereas I served as Chief Prosecutor, my workplace held biannual conferences with members of civil society organisations dedicated to holding people to account for worldwide crimes. This enabled collaboration with exterior companions for sensible pursuit of our mandate.
Alternatively, delays in implementation of the reparations mandate of The Belief Fund for Victims, and lack of cooperation from scenario international locations, name for larger creativity in addressing challenges that fail to harness a collective and sustainable strategy.
The emergence of latest actors has led to the enlargement of frontiers within the discipline of worldwide regulation at its intersection with local weather justice, knowledge privateness, cyber-security, and enterprise and human rights, amongst different fields. These more and more refined programs reshape and reform the methods through which we strategise and essentially perceive our interconnectedness.
Let me lastly deal with JUSTICE.
I lately met with just a few younger individuals who requested me the query: “Are you scared for the way forward for worldwide prison justice, given the present trajectory?” My response was easy: there’s nothing to be scared about, as I imagine within the collective energy of these championing the worldwide and fixed battle towards injustice.
Regardless of the challenges with multilateralism and cooperation between States and establishments, I firmly imagine within the efficacy of worldwide treaties and nationwide devices.
However how will we strengthen establishments tasked with shelling out justice?
The causal hyperlink between justice and sustainable improvement is world entry to the previous with out prejudice. The idea of justice conflates the ideas of equity and fairness. A simply and equitable society is one which prioritises, amongst different issues, equal entry to schooling, zero tolerance for discrimination towards ladies and women, non-discriminatory legal guidelines and insurance policies, and schooling on human rights.
My main agenda as Chief Prosecutor was to make sure that victims of worldwide crimes got entry to justice. I used to be definitely met with adamant resistance; unnecessary to recall all the main points. The reluctance and rejection of the ICC jurisdiction additionally contributes to the denial of justice, particularly the place nationwide programs are unwilling and unable to dispense justice. It is a software politicians and governments use to prosper their very own agenda, even when allegedly committing atrocity crimes.
Accessibility to types of redress is a vital side of sustainable improvement relating to justice. Throughout my time on the ICC, one of many major challenges the Courtroom confronted, and should proceed to face, is dissemination of information concerning the Courtroom’s jurisdictional parameters and performance.
The ICC is a court docket of final resort. It’s an extension of nationwide judicial programs within the battle to finish impunity. The Workplace of the Prosecutor liaises with home programs by encouraging and supporting, within the context of its core actions, real nationwide proceedings, and dialogue with States.
The ICC will not be designed to switch nationwide programs, neither is it designed to take over what’s primarily their accountability to analyze and prosecute critical crimes of worldwide concern. It’s subsequently necessary that on the nationwide and regional ranges, consciousness is raised about how sturdy establishments working in collaboration can produce higher outcomes within the battle towards injustice.
Varied campaigns labelled the ICC as a “white man’s court docket” on the false premise that the Courtroom targets African international locations and leaders, however not their world counterparts. This fallacious and unjustifiable declare pushed some African States to try to withdraw from the Rome Statute. Nonetheless, it have to be stated that there can by no means be an excuse for impunity. Victims ought to by no means be re-victimised.
What stunned me essentially the most concerning the above occasions was the shortage of dialogue round justice for victims of those alleged crimes. The failure to centre victims when in search of justice, can deter this essential debate from the important.
Your excellencies, women and gents, expensive buddies, let me CONCLUDE.
There’s extra work to be performed. We MUST pursue peace by upholding the rule of regulation by sturdy establishments, and try in the direction of a extra simply world.
I bear in mind listening to tales of how Madiba reacted to maltreatment by jail personnel, saying:
“Common, I need to say one factor to you, you’re a basic on the opposite facet whereas I’m a commander on this facet. When now we have fought it out and lowered our nation to ashes, it will nonetheless be obligatory for one to just accept the give up from the opposite – whoever wins or whoever loses, however how we might behave at that second of give up can be decided by how now we have handled one another now …”
Solely somebody with such integrity and foresight may maintain Madiba’s state of mind. He understood that burning bridges, whereas all the time an choice, was not a viable different within the given circumstance. Preserving these ideologies, as effectuated by the work of the Nelson Mandela Basis, defines how we recount historical past on our personal phrases, and form younger minds of in the present day for tomorrow.
So, I implore us to ponder the larger image and embrace the objective of peace, justice and sustainable improvement inside the framework of sturdy establishments.
Let me finish by asking, what’s YOUR contribution to sustainable improvement?
We should bear in mind and uphold our collective and particular person roles and obligations as lively residents of the globe. How we select to come back collectively in solidarity, to construct programs of accountability that try in the direction of peace and justice, can really forge transgenerational affect and sustainable change. Once more I quote Mandela as he stated, this nice rock of QUNU: “It’s in your fingers to make a distinction.”
That’s what he stated. And for us, women and gents, I do acknowledge that a lot work has been performed, however there are miles to go nonetheless, earlier than we sleep.
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