Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, at first arria-formula meeting on UNSC-ICC relations

Mr Chair,
Esteemed Members of the United Nations Security Council,
And Representatives of the wider United Nations membership,
President of the Assembly of States Parties, and other distinguished co-briefers,
Ladies and Gentlemen,

Introduction

Allow me at the outset to express my gratitude to the Permanent Mission of the Kingdom of the Netherlands and the co-sponsoring States Parties of the International Criminal Court ("ICC" or the "Court") on the United Nations Security Council ("UNSC" or the "Council") for convening this important meeting, and all States and civil society representatives present here this morning.

Today's Arria–formula meeting is convened on the eve of the 20th anniversary of the adoption of the Rome Statute establishing the ICC. As this milestone is reached, it offers a unique and unprecedented opportunity for reflection on the important relationship between my Office, and more broadly, the Court and the UNSC.

The drafters of the Rome Statute, and the States that brought this treaty so crucial to the fight against impunity to life, recognised the importance of this relationship in the preamble when they underlined that atrocity crimes constitute a threat to "the peace, security and well-being of the world." They further entrenched this relationship by endowing the Council with referral and deferral powers, respectively under articles 13(b) and 16 of the Statute. Indeed, in codifying this nexus between the UNSC and the Court, States, including participating permanent members of this august body, saw in the Council an important mechanism through which, the Court's jurisdictional reach could be further extended, where the aims of Chapter VII of the Charter of the United Nations and the Rome Statute so require, so as to avoid an impunity gap.

The respective independent yet complementary mandates of the two bodies - the ICC's pursuit of individual criminal accountability, with a view to contribute to the prevention of the most heinous crimes experienced by humanity in times of war and conflict, and the Council's pursuit of international peace and security - are at the heart of this relationship. 

More interaction between the Court and the Council where these mutually reinforcing mandates converge is therefore not only conceptually consistent but necessary. Yet, referrals by the Council to the Court on their own are not enough to achieve the much-needed twin results of accountability and sustainable peace. More robust and tangible support to the ICC is needed from the Council, and we can assure such by identifying synergies between our respective mandates and developing and streamlining working methods to better realise both institutions' shared goal of preventing atrocity crimes which threaten international peace and security.

The concept note circulated in preparation for this meeting helpfully articulates some key points for today's discussion. I hope this will be the first of more regular interactions between the ICC and the Council, beyond my biannual briefings in relation to my Office's investigations in the situations referred by the Council – namely, Darfur, and Libya.

We gather here today with the hope of reenergising constructive debate on ICC-Council relations broadly and to engage in frank and open discussions over and above specific issues arising from referrals.

Today is not about pointing fingers or scoring political points. It is about how the Council and the ICC, as two critical institutions, can meaningfully cooperate in the exercise of their respective different but reinforcing mandates.

Victims of atrocity crimes embroiled in devastating conflicts all over the world, in communities where peace has for far too long been elusive, are looking to us with hope. Hope that the cold calculus of international politics does not abandon them, or worse, undermine humanity's shared values and common yearning for peace, stability and the protective embrace of the law from the world's gravest crimes. My own personal hope is that we shall not disappoint them.

Situations and themes of common interest

Since the last open debate in October of 2012, my Office has significantly expanded its core activities of preliminary examinations, investigations and prosecution. Several of these activities are being conducted in countries that are currently experiencing armed conflicts, many of which are also on the Council's agenda.

Issues of mutual concern for both the ICC and the Council in many of these situations include, but are not limited to, mass killings, rape and other forms of sexual and gender-based crimes; the use, indeed abuse, of children in armed conflict; attacks against peacekeepers; as well as attacks against cultural property. The absence of the rule of law provides fertile breeding ground for impunity. The adverse impact of unbridled and lawless armed conflict on society, infrastructure and development of nations is also well recognised. Two decades into this new century, and the world has already been marred with intractable conflicts where the law is absent from the equation and where atrocity crimes continue to leave behind a trail of death, misery and wanton destruction – on our watch. Now, more than ever, robust coordinated efforts between the ICC and the Council are necessary to effectively address these real challenges of our times.

On my part, in an effort to address some of these challenges, since assuming office as Prosecutor, I have adopted strategies and promulgated policies, which are now being implemented with varying but overall growing degree of success. Moreover, strategic changes to our investigative and prosecutorial approaches now allow my Office to perform in-depth investigations and gather reliable evidence from a variety of sources. A number of public policy papers, such as on sexual and gender-based crimes and on children have been adopted and are being implemented. These policies are a testament to my Office's commitment to address these serious crimes through the Rome Statute legal framework, and seek to provide clarity on how we undertake this work. Our hope is that they also incentivise and are of assistance to national authorities in their own efforts to deal with these crimes. Various stakeholders, including from the United Nations ("UN"), have contributed to the development of these policies – a collaboration that must continue as we implement the policies in practice.

The ICC more broadly – through its trial and appeal proceedings – is also developing important case-law in some of these areas. ICC Chambers have ruled, for example, on the criminal responsibility of those involved in attacks against buildings dedicated to religion and historical monuments, such as in the Al Mahdi case in the Mali situation, or those conscripting or enlisting children as soldiers to participate actively in hostilities, such as in the Lubanga case in the situation of the Democratic Republic of the Congo. This work is having an impact on the ground, and cultivating norms. Reverberations of such work are also felt beyond the jurisdictional limits of the ICC, where the shadow of the Court, is ever-present. The demobilisation of countless children in Nepal on the heels of the Lubanga case is just one such example.

The jurisprudence and judicial rulings being developed may be relevant to other actors, notably from the UN system, including those on the ground, who work on issues such as conflict management, or UN mandate holders focused on areas of mutual interest and concern.

Indeed, I encourage the Council to invite Court representatives to participate in sessions where relevant discussions are taking place on the thematic issues I have outlined above, or on other matters deemed appropriate, where the Court's expertise and experience, as well as a greater awareness of its activities, may bring added value to the discussions and complex matters before the Council.

General cooperation and complementarity

Under the umbrella of the UN-ICC Relationship Agreement, my Office regularly seeks cooperation from UN entities, including through the signing of specific memoranda of understanding with field missions or peacekeeping operations, for the purposes of, inter alia, exchanging information of a contextual or crime-related nature, and for logistical assistance.

We have established working relations, and share expertise and lessons learned also with the UN ad hoc tribunals and specialised courts such as, most recently, the Special Criminal Court in the Central African Republic. The concurrent functioning of a national mechanism with my Office's investigations should be recognised, commended and supported by the Council. The ICC, based on its experiences and expertise and by virtue of its core-mandated activities, can contribute to closing the impunity gap through collaborative international and regional efforts and networks. Where appropriate and possible, these efforts can also help strengthen the national and regional capacities to deal with atrocity crimes.

My Office's preliminary examinations work may serve as a catalyst for States to fulfil their primary obligations under the Rome Statute, while also serving to identify gaps, obstacles, and constraints hampering domestic proceedings. In situations like Guinea, for instance, preliminary examination activities combined with the strong efforts of the UN and other actors, have enabled a national response to address the mass crimes allegedly committed during the events of 28 September 2009 in Conakry.

Even in those situations where the Court is required under the Statute to exercise its jurisdiction, my Office contributes to ensuring greater harmonisation and more collaborative efforts to close the impunity gap, in conjunction with networks of specialised organisations and national law enforcement agencies. 

A case in point is our engagement with law enforcement authorities from a number of countries concerning crimes relating to human trafficking in Libya, which has facilitated a collaborative effort to gather and analyse information and helps identify which of the judicial actors is in the best position to investigate or prosecute alleged crimes, thus fostering a symbiotic relationship.

In all these areas, more can be done with the Council's assistance and collaboration.

Mr Chair,

With your indulgence, I would like to now present some reflections of principle concerning situations referred by the Council to my Office, and offer some ideas how to advance the necessary collaboration between our institutions in this regard. Some of these very central issues to the ICC-UNSC relations may not be new to you.

Position of the Office of the Prosecutor regards referrals and avenues to enhance cooperation

To be sure, the decision to refer a situation to my Office or not, is a matter entirely in the hands of the Council. As Prosecutor, and the Court more broadly, we are not involved or take any position on the matter, and will simply apply the legal framework prescribed by the Rome Statute from the moment a referral is received. Indeed, the Rome Statute provides for a legal process, starting with a preliminary examination by my Office, during which situations may be rejected if they fail to satisfy statutory legal criteria for opening an investigation. Decisions taken by my Office on whether or not to proceed in any given situation are independent and are never influenced by political and/or other considerations including from the Council or any of its members.

Sustainable peace and effective tangible justice can only be achieved if States accept that UNSC resolutions impose binding legal obligations under international law, of which the Rome Statute now stands as a crucial pillar in the realm of international criminal justice. The failure of States to implement ICC Chambers' decisions taken pursuant to Council referrals tarnishes the image and credibility of both institutions by emboldening others to continue on their path of committing atrocities and threating peace and security.

Against this backdrop, as a first suggestion, I wish to recall the guidelines issued by the UN Secretary-General in April 2013 on contacts with persons who are the subject of arrest warrants or summonses issued by the ICC. These guidelines can serve as a basis for a more comprehensive and consistent approach by ICC States Parties and the Council.
Secondly, the Council could consider the possibility of harmonising the designation criteria of sanctions mechanisms for the identification and freezing of assets. Consideration could be given to enabling the automatic listing of persons sought by the Court once a warrant for their arrest has been issued by the Court.

Thirdly, I recall the need for concrete follow-up in response to official communications and findings of non-compliance by the Court, in accordance with the proposal originally formulated by New Zealand, in December 2015. The Council's lack of response and failure to take concrete action on official ICC communications relating to matters of States' non-compliance needs to be addressed. I reiterate that the referral of such findings of non-compliance to the Council is codified in the Rome Statute. The reasonable consequence of such referrals is some form of remedial action by the Council. The Council is encouraged to develop guidelines to help it deal with non-compliance based on the arsenal of measures in the Council's tool kit for dealing with such issues in analogous situations. 

Fourthly, under article 115(b) of the Rome Statute, funds of the Court may be provided by the UN, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Council. I urge the Council to demonstrate its support and facilitate funding from the UN in relation to the two referrals it has already made to my Office, and to give this matter serious consideration in any future referral to Court.

Fifthly and finally, I wish to recall the suggestion to designate a focal point – or permanent mechanism – for interaction between the Council and the ICC outside the biannual reporting on referred situations. I see this as a low-hanging fruit which can be of great practical assistance and yield many benefits, including ensuring a more systematic follow-up to the Council's resolutions referring situations to my Office.

Mr Chair,

In conclusion, the inter-institutional relationship between the Court and the Council is not only codified in the Rome Statute, but a practical reality. It is hence imperative that we give more reflection to how we can jointly work to hone the working methods of the Council and generate pragmatic ideas to effectively respond to issues arising from its referrals to the Court. More generally, our independent yet reinforcing mandates are better fulfilled where synergies are identified and explored in the service of humanity.

I thank you once again, Mr Chair, and all co-sponsors for affording me, and my Office, this unique opportunity, and indeed, I am grateful to all present today for your time and interest.

I look forward to the ensuing discussions.

I thank you.