Mrs. Fatou Bensouda:

With respect to the different courts, in the early 1990s after the conflict in the former Yugoslavia, the United Nations, acting under Chapter VII of the United Nations Charter, decided to establish the International Criminal Tribunal for the former Yugoslavia in The Hague. Shortly after the genocide in 1994 in Rwanda, the United Nations felt it necessary to create the International Criminal Tribunal for Rwanda under the same chapter. These are ad hoc tribunals created by the United Nations. The Special Court for Sierra Leone was set up by agreement with the Government of Sierra Leone and the United Nations to examine the troubles in that country. These ad hoc courts are now closing their doors as they were established to deal specifically with one issue.

The difference with the International Criminal Court is that it is not a UN court but treaty-based in respect of which 122 governments and states have voluntarily ratified and signed the 1998 Rome Statute of the International Criminal Court. The court’s remit covers not just one situation but its jurisdiction in these 122 states. It is a permanent court which is here to stay. That does not mean, however, that it should have many cases. The international community intended it as a court of last resort to encourage national systems to function. If they do function, the International Criminal Court will have fewer cases, accordingly.

Members referred to the accusation of an African bias on the part of the International Criminal Court in that all of the cases before it involve African states. The arguments used to accuse the court of this bias are not based on fact. If one takes away that argument, one takes away the accusation. There are eight cases involving African situations, five of which were self-referrals. These were African governments which requested the court’s intervention. The other two were referred to the court by the UN Security Council. The only case in which the International Criminal Court has moved an indictment is Kenya because it was not seen to be addressing alleged crimes.

If a state joins the International Criminal Court, it is making a declaration that it has joined the institution in order that if crimes happen in its territory, it will address them because it has the sovereign right and primary responsibility to do so. If it does not address them, the International Criminal Court can do so. That is why the court was able to move in the case of Kenya. The then leadership in Kenya pledged its support to investigate and prosecute the alleged crimes. Unfortunately, when the charges were confirmed against the individuals in question, they were not the President or Deputy President anymore. They have used the claim, to a large extent, that the International Criminal Court is an imperial and neocolonial institution that is manipulated by the West to target Africans to gain the resonance of the Kenyan people. This claim is not true. One cannot have an institution ratified by 34 African states and still claim it is imperialist. The fact that there are requests from African states to the International Criminal Court is ignored. It is claimed the court is running all the time to take cases against African states when it is the other way around. After all of these claims, there was the case last year - one month after I was sworn into office - of Mali requesting an intervention by the International Criminal Court to investigate war crimes in its conflict. There is also the case of the Comoros Islands, another African state, requesting ICC intervention with regard to the Israeli intervention against the Gaza flotilla. Therefore, the facts do not support the accusation of an ICC bias against African states. It is convenient for those with an interest to claim the court is targeting Africa. I will never tire of pointing out that the crimes committed were against African victims. They, too, deserve justice.