"Africa & International Law" @ Albany Law

(I would like to express my thanks for becoming part of the IntLawGrrls community by contributing this introductory post)

Last weekend, Albany Law School hosted Africa and International Law: Taking Stock and Moving Forward. The objective of this conference was to engage in a broad ranging conversation among scholars, practitioners and policy-makers to examine and evaluate how the international and regional regimes and institutions in Africa are producing new narratives of justice and how best they can make a real difference in responding to the challenges facing African peoples and governments.
Previous incarnations of these forums have – to paraphrase language from the closing luncheon address – discussed Africans, discussed what Africans thought, and even told Africans what to think. For this particular conference, however, Professor James T. Gathii, Associate Dean for Research and Scholarship and Governor George E. Pataki Professor of International Commercial Law at Albany Law School, invited an impressive array of African dignitaries, judges, scholars, professionals and experts.
One such distinguished guest was Deputy Prosecutor and Prosecutor-Elect of the International Criminal Court, Fatou Bensouda (above left), who delivered the Justice Jackson Keynote Address. Bensouda listed evidence of positive African engagement with the Court and discounted any imputation of an African bias, based on the Court’s prosecutorial policy and procedure. She dismissed questions implying that politics affected the workings of the Court, including her election, stating that the Court is an apolitical body and her election was merit-based, as "you don’t just pick up an African and elect her," which elicited chuckles from the audience. She imparted the message that, with the Lubanga decision on the books, the Court was now "truly in motion" and impunity was not merely "an academic, abstract notion."
After Friday’s breakfast, the blare of a vuvuzela called attendees to the keynote address given by Dr. Willy Mutunga, the Chief Justice and President of the Supreme Court of Kenya. Dr. Mutunga spoke with measured optimism of changes the 2010 Kenyan Constitution will bring and expressed his hope that the new Kenyan courts will become a source of "competent and indigenous jurisprudence."
Other keynote speakers included:
► Adama Dieng, Registrar of the International Criminal Court for Rwanda and Assistant UN General, who spoke of the legacy of the International Criminal Tribunal for Rwanda as an African contribution to international humanitarian law;
► Abdul Koroma, who has just completed two terms as a Judge at the International Court of Justice, and who asked whether modern international law was truly reflective of universal concerns; and
► Dr. Makau Wa Matua, Dean, SUNY Distinguished Professor, and the Floyd H. and Hilda L. Hurst Faculty Scholar at University at Buffalo Law School, who pressed for greater African leverage within the international community.
Friday and Saturday each consisted of two to three concurrent panels throughout the day, making it impossible to attend every one.
Friday afternoon featured a student panel, moderated by IntLawGrrls contributor Alexandra Harrington, Visiting Assistant Professor at Albany Law School. I presented my paper, "Africa's 'Others': Pygmy Indigenous Rights," in which I discuss the legal challenges faced by a unique indigenous group with spiritual ties to the rainforest, who generally do not possess modern land rights and who may not even be regarded as indigenous, yet are often singled out for special discrimination.

IntLawGrrls contributor in Time's top 100

A leader in international criminal justice is on the 2012 list of "The 100 Most Influential People in the World," just released by Time magazine.
Listed just below the incoming President of China is the incoming Prosecutor of the International Criminal Court, Fatou Bensouda, who last December contributed her speech to the Assembly of States Parties as an IntLawGrrls post.
(Other noteworthy women on the list include Elinor Ostrom, Samira Ibrahim, Maryam Durani, Anjali Gopalan, Ai-jen Poo, Sharmeen Obaid-Chinoy, Christine Lagarde (prior posts), Portia Simpson Miller (prior posts), Mamata Banerjee, Dilma Rousseff (prior posts), Angela Merkel (prior posts), and Hillary Clinton (prior posts)).
Time includes a brief profile essay of Bensouda by Human Rights Watch Executive Director Kenneth Roth. Noting Bensouda's "many years of experience" at the ICC, at the International Criminal Tribunal for Rwanda, and in the government of her native Gambia, Roth calls Bensouda "[t]houghtful, soft-spoken, yet determined and forceful" -- qualities he rightfully indicates that she'll need as she takes on the "daunting challenges" facing the 10-year-old court.

(photo of Bensouda by Michael Anderson, made in February 2012 at this conference, courtesy of the University of New South Wales)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'These claims seriously shock me, especially when they're by respected human rights activists. Why are they saying that? Because I'm a woman? Because I'm African? They surely wouldn't say that if I were a man or a Westerner. It's pure discrimination. If I was easily influenced or not too inclined on prosecuting those who commit crimes, I would have never set my sights on this position. Rest assured I will be an impartial and independent Chief Prosecutor. Those who don't believe it are seriously mistaken.'

-- International Criminal Court Prosecutor-Elect Fatou Bensouda (above), in an interview we just ran across. It was published soon after her election in The Africa Report, a Paris-based monthly magazine. (photo credit) The comments by Bensouda (who recently honored IntLawGrrls by publishing her election-day address to the ICC Assembly of States Parties) came in response to this assertion by the interviewer: "Certain leaders on the continent [Europe] seem convinced that you'll be less likely to go after crimes committed by Africans..."

IntLawGrrls turns 5

Today we IntLawGrrls celebrate our 5th birthday.
On this day in 2007 we launched this blog.
Once again, on this 'Grrls Day we've much cause to celebrate!
We:
► Began 2012 with a makeover.
► Featured many new IntLawGrrls contributors, among them Fatou Bensouda, who contributed the speech she gave to the to the Assembly of States Parties on the occasion of her December 12, 2011, election as Prosecutor of the International Criminal Court. As listed in full on our contributors page and depicted below, writing our more than 5,300 posts to date have been more than 250 women from dozens of countries.
► Welcomed a few new IntLawChildren to our world.
► Published "Women and International Criminal Law," a special issue of the International Criminal Law Review that featured essays written in honor Judge Patricia M. Wald, herself an IntLawGrrls contributor. Among the authors were U.S. Supreme Court Justice Ruth Bader Ginsburg and Harvard Law Dean Martha Minow. (Some synopses of essays, many of which were presented at a 2010 roundtable held at the American Society of International Law, were posted on this blog.)
► Cosponsored the International Humanitarian Law Dialogs at Chautauqua, New York, for the 3d year in a row, and assumed responsibility for that conference's annual Katherine B. Fite Lecture.
► Gathered for a photo 'round the statue of Eleanor Roosevelt for a photo (left) made during the 2011 ASIL annual meeting. We continue to draw inspiration from ER and scores of other transnational foremothers.
► Also at the 2011 ASIL meeting, applauded IntLawGrrls contributors – Gay McDougall as she won the Goler T. Butcher Medal, and Lucy Reed as she received the Prominent Woman in International Law award during the WILIG luncheon. We're honored that later this month the 2012 award will go to another of our distinguished contributors, Collège de France Professor Mireille Delmas-Marty.
► Moved to new positions (here, here, here, here, and here), and continued to speak at conferences, to publish, to teach, and otherwise to make heard our voices on international law, policy, practice.
► Watched our readership continue to grow along with us. Last year we were consistently ranked among the fastest-growing and most-read law prof blogs. We've reached nearly 30,000 cities around the world, and have welcomed more than 1.059 million page views since our founding.
To our contributors and readers alike, heartfelt thanks, and best wishes for another wonderful year!

The ICC and Gender Justice

SYDNEY – Many insightful commentaries marked the excellent “Justice for All?” conference organized by the University of New South Wales this week. The conference, dedicated to examining the first decade of the work of the International Criminal Court, had a strong focus on exploring the Court’s record in the investigation and prosecution of sexual and gender-based violence.
I blogged Wednesday about the vision of gender justice outlined by Fatou Bensouda, the International Criminal Court’s Prosecutor-elect, in her February 14 speech.
Apart from Bensouda’s announcements, notable commentaries were delivered by:
► IntLawGrrl contributor Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice. (photo by Michael Anderson of conference panel featuring, from right, Bensouda, Inder, and yours truly, Valerie Oosterveld, courtesy of UNSW)
Inder highlighted the disturbing statistic that, while sexual violence has been charged in 8 out of 15 ICC cases, over 50% of those charges fail when tested at the confirmation of charges stage. This worrisome failure rate is due, she said, to three factors:

1. Insufficient evidence being put forward (namely, over-reliance on open-source materials over direct evidence);
2. Lack of quality evidence; and
3. Inadequate framing of the charges.

Inder argued that the ICC Office of the Prosecutor must boost its institutional capacity to address gender issues.
► Helen Brady (right), Senior Appeals Counsel at the International Criminal Tribunal for the Former Yugoslavia.
She discussed ways in which groundbreaking ICTY jurisprudence on gender issues can and should assist the ICC.
► Dr Kiran Grewal (left), Lecturer in the Department of Sociology and Social Policy at the University of Sydney.
Grewal began with the thought-provoking question “Do more prosecutions of rape by the ICC equal gender justice?”. The ICC’s definition of rape does not include an element of non-consent. She argued that we need to think carefully about whether this creates a binary, under which rape in war is somehow viewed as fundamentally different and worse than rape in peace, even though both forms of sexual violence grow from the same root: discrimination.
► Tina Dolgopol (left), Associate Professor of Law at Flinders University, Adelaide, Australia. (photo credit)
She urged the audience not to view ratification of the Rome Statute of the ICC as the end goal in an advocacy campaign. Rather, domestic law reform must accompany ratification, especially reform of laws that are discriminatory to women and girls. As she noted,

'Our desire to obtain universal ratification of the Rome Statute should not blind us to the physical, mental and sexual brutality that women face in their day-to-day lives'.

In other words, gender justice is necessarily a comprehensive package and is not only about ICC crimes.
► Amrita Kapur (right), an International Legal Advisor with the Women’s Justice Unit in the Judicial System Monitoring Programme of Timor Leste.

Bensouda’s Vision for Gender Justice

SYDNEY – “Justice for All? The International Criminal Court” was the title of a conference earlier this week at the University of New South Wales in this Australian capital.
As posted here and here, the conference focused on a ten-year review of the International Criminal Court, with speakers including: the President of the ICC, Judge Sang-Hyun Song, whose lecture is profiled here; the Prosecutor-elect, Fatou Bensouda (left); the Registrar, Silvana Arbia; and the President of the Assembly of States Parties, Ambassador Tiina Intelmann. (credit for 2008 photo)
Three main themes were explored throughout this very interesting conference:
► A look back at the last decade of ICC activity;
► The place of the ICC in the Asia-Pacific region (prior post); and
► The Court’s record on gender justice.
This post will focus on the very interesting comments provided by Prosecutor-Elect Bensouda, who spoke on a panel dedicated to examining the final theme. Completing this panel were two additional IntLawGrrls contributors – yours truly, Valerie Oosterveld, and Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice, a nongovernmental organization based at The Hague, Netherlands.
Bensouda, who is also the Office of the Prosecutor’s (OTP) Focal Point on Gender Issues, outlined the gender-sensitive aspects of the Rome Statute, and described how these have been implemented by the OTP. She also explained how sexual violence was a specific instrument in each conflict under examination by the OTP.
Most importantly, Bensouda outlined her vision as incoming Prosecutor. She intends to:
► Pursue gender-based crimes set out in the Statute and give victims a voice. “By setting an example, we will transform the public response to sexual violence,” she said.
► Strengthen cooperation between the OTP and civil society groups, including the both Women’s Initiatives for Gender Justice and local groups in situation countries that provide the only form of support to women shunned by their communities.
► Periodically and consistently revisit the OTP’s policies on sexual and gender-based crimes to ensure that the OTP’s approach is effective and always improving.
► Adjust staff training in accordance with new strategies developed to pursue these crimes;
► Look for innovative methods for the collection of evidence to ensure effective prosecution of these crimes.
► Finalize an OTP Gender Policy paper. It is already in an advanced stage of development. Bensouda said that she will open the draft paper for external comment, adding that she intends that this policy paper will provide transparency and predictability to the OTP’s work on sexual and gender-based crimes.
These are very exciting plans. I, for one, look forward to seeing the draft policy paper and welcome these commitments.

(Saturday's post, which will detail other speakers' presentations on the ICC and Gender Justice , is here.)

Go On! ICC @ 10 in Sydney

(Go On! is an occasional item on symposia and other events of interest)

From IntLawGrrls reader Rosemary Grey comes news of "Justice For All: 10 Years of the ICC," a conference she and others are organizing this month at the University of New South Wales, Sydney, Australia. Cosponsors are the university's Faculties of Arts and Social Sciences and Law, along with the Australian Human Rights Centre.
Rosemary writes:

The conference is intended as an opportunity to reflect on the successes and challenges of the ICC in its first decade of operation, focussing particularly on the two themes of gender justice and ratification in the Asia-Pacific region.

The preconference kickoff will be February 12, when the playwright-activist-feminist, Eve Ensler, will deliver the Australian Human Rights Centre Annual Lecture.
One February 14, Judge Sang-Hyun Song of Korea, President of the International Criminal Court, will deliver the Wallace Wurth Memorial Lecture, entitled "From punishment to prevention: reflections on the future of international criminal justice."
The conference itself runs February 14 and 15. As set forth in detail in the conference program, there's a stunning lineup of speakers. Click here for the full list.
Pleased to see that among those scheduled to present are a number of IntLawGrrls contributors: Fatou Bensouda (left), ICC Prosecutor-Elect (photo credit); Brigid Inder, Executive Director, Women's Initiatives for Gender Justice; and Professor Valerie Oosterveld of the University of Western Ontario.
Others among the many women on the panel include: ICC Registrar Silvana Arbia; Ambassador Tiina Intelmann (right), President of the ICC Assembly of States Parties (photo credit); Helen Brady, Senior Appeals Counsel at the International Criminal Tribunal for the former Yugoslavia; Amrita Kapur, International Legal Advisor, Women's Justice Unit, Judicial System Monitoring Programme, Timor Leste; and Loretta Rosales, Chair of the Commission on Human Rights of the Philippines.
The day after the conference, February 16, UN Women will host an ICC anniversary dinner.
Details and registration here.

ICC undercurrents in AU impasse

A South African politician's bid to become the 1st woman to lead the African Union Commission ended today -- but her male opponent wasn't re-elected, either.
Mounting the challenge was Dr. Nkosazana Dlamini Zuma (right), the South African Home Affairs Minister and the country's "first woman minister of Foreign Affairs," who was once married to the country's President, Jacob Zuma. (photo credit) A physician who earned her medical degree at Britain's University of Bristol, she served as Minister of Health during the tenure of President Nelson Mandela.
Dlamini Zuma had run for the top AU spot on a platform with planks that included "'ensur[ing] the emancipation of women," and "'consolidating democracy and good governance.'" She'd promised to "'buil[d] on the rich Pan-African tradition of consultation and consensus-building."
But in a closed-door meeting today, she failed to garner enough votes to defeat Jean Ping (left) of Gabon, who's held the chair since 2008. (photo credit)
Even after Dlamini Zuma withdrew according to AU rules, Ping failed to obtain the 2/3 vote required for re-election. Looks as if there'll be a new round of elections, in July in Malawi.
It's reported that the challenge to and non-re-election of Ping reflected "immense criticism from African leaders for the way in which he responded to the Libyan crisis."
For what, specifically?
Presumably, the report refers to Ping's condemnation of the International Criminal Court as "discriminatory" on the July 2011 day he presided over the African Union vote that refused to cooperate with the ICC arrest warrant of Muammar Gaddafi, then the leader of Libya.
That this performance provoked an African Union challenge – at a summit where Ban Ki-moon, the U.N. Secretary-General, earlier had "introduced" Fatou Bensouda of Gambia, incoming ICC Prosecutor – adds to other evidence (here and here) of what seems to be a thawing of long-chilly relations between African states and the ICC.

Mapping better ICC-Africa relations

'The appointment of African officials to senior offices at the ICC reflects the important role that individual Africans are playing in contributing to the success of the court and is of great significance to promoting mutual understanding and strengthening cooperation between the ICC and the AU. Our organizations hope that African states and the AU will lend their support to the newly elected ICC prosecutor, while fully respecting her independence.'

So stated the "Letter to Foreign Ministers of African States Parties to the ICC" signed by nearly 3 dozen nongovernmental organizations based in 19 different African countries. Released Thursday, the letter seeks to prod leaders of African countries that have joined the International Criminal Court to discuss improvement of ICC-Africa relations during the 19th Ordinary Session of the Assembly of the African Union, which will take place Sunday and Monday in Addis Ababa, the Ethiopian capital that's home to the African Union's Secretariat. (Prior IntLawGrrls posts on Africa and the ICC available here.) (credit for map showing ICC states parties in green, signatories in yellow, and states that have neither joined nor signed the ICC treaty in grey)
The incoming senior officials to which the passage refers are Fatou Bensouda of Gambia, elected the ICC Prosecutor effective mid-2012, and Chile Eboe Osuji of Nigeria, who has been serving as Legal Advisor to the Office of the U.N. High Commissioner of Human Rights and was elected an ICC judge in December.
Improvements recommended include:
► More meetings and "exchange of views" between officials of the African Union and the ICC;
► Establishment by the African Union of an ICC liaison office in Addis Ababa; and
► Fulfillment by states parties of their obligations under the ICC treaty to implement warrants and decisions of the court.
The letter urged further development of national justice systems so that they might pursue persons accused of the core crimes that ICC now prosecutes – genocide, crimes against humanity, and war crimes – domestically, as envisaged by the ICC Statute's complementarity principle.
At the same time, the letter expressed concern about proposals to shift the ICC's Africa docket to a regional tribunal by simple expansion of the competence of the African Court of Justice and Human Rights, an entity in the process of being established, pursuant to a 2008 agreement, by merger of 2 pre-existing regional courts. The NGOs wrote:

'Notably, the African Court already faces serious challenges implementing its current mandate and giving it jurisdiction over a distinct type of offenses (crimes under international law committed by individuals, as opposed to human rights violations by states) would require significant time to establish new expertise and a vast overhaul in the way the court is currently set-up.'

2011 ICC Gender Report Card

(Delighted to welcome back alumnae Brigid Inder and Kate Orlovsky, who contribute this guest post)

On 13 December 2011, the Women's Initiatives for Gender Justice launched the Gender Report Card on the International Criminal Court 2011. The launch took place during the tenth session of the International Criminal Court Assembly of States Parties in New York, which IntLawGrrls covered in posts available here.
The Women’s Initiatives for Gender Justice, for which we work, is an international women's human rights organisation that advocates for gender justice through the ICC and through domestic mechanisms; for example, through peace negotiations and justice processes, and through working with women most affected by the conflict situations under investigation by the ICC.
We have programmes in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan. With offices in Cairo, Egypt, in Kampala and Kitgum, Uganda, and in The Hague, Netherlands, the Women’s Initiatives is leveraging progress at the international level to advance domestic accountability for gender-based crimes.
The Gender Report launch was attended by representatives of ICC states parties, by officials of the ICC and the United Nations, and by academics, the media, and other members of civil society. Speakers during the event included: ICC Prosecutor-Elect Fatou Bensouda, U.N. Special Representative for Children and Armed Conflict Radhika Coomaraswamy and one of us, the Women’s Initiatives’ Executive Director, Brigid Inder.
Here are some highlights (also see here):
► Bensouda's gave first public address since her 12 December election as next Chief Prosecutor of the ICC ( she published the statement she made on her election day as an IntLawGrrls guest post). In her launch address, which earned notice by the Washington Post, Bensouda pledged to prosecute sexual and gender crimes, saying:

'This office, under my tenure, will continue and will make sure that these crimes that they have suffered will be punished — their perpetrators being arrested and prevented from committing additional crimes … This is a commitment that I make to all of you today.'

Bensouda also stated that in the past the Office of the Prosecutor had not done as well as it could have in working with women’s organisations, and that as Prosecutor she will ensure that her office works more closely with these groups, including local women’s rights organisations in conflict countries, which are often the only ones assisting women victims.
► Coomaraswamy spoke from her experience both as the former Special Rapporteur on Violence against Women and as the current U.N. Special Representative for Children and Armed Conflict. (See posts on our Twitter feed here.) She recalled:

'What frustrated most of us in the 1990s is that the international legal framework had nothing to say about sexual and gender-based crimes. When we think of the ICC, we think of the broad definition of sexual violence, which was unthinkable before the Rome Statute. But, let’s not forget the struggle that went into creating this framework.'

► In her speech, Brigid spoke to the purpose of the Gender Report Card 2011, or GRC, available in pdf here. Brigid stressed:

'Monitoring and critiquing the ICC and production of the GRC is one of our strategies to advocate for gender-inclusive justice and to promote the capacity of the court to address gender issues within the global legal system. It is also one of our strategies for the inclusion and participation of women in shaping international criminal law as law-makers, practitioners, decision-makers, participants and beneficiaries of the justice process.'

This is the seventh annual report card produced by the Women’s Initiatives for Gender Justice. (Previous post; prior editions available here.) This Gender Report Card 2011, which soon will be available at our website, analyses the institutional developments of the ICC throughout 2011, as well the Court’s substantive work and jurisprudence. It also examines the Court’s internal policies, its recruitment and personnel statistics, its institutional development, and the work of its independent bodies, such as the Trust Fund for Victims and the Office of the Public Counsel for Victims. The Gender Report Card 2011 contains detailed recommendations both to the Court and to the ICC Assembly of States Parties. In short, it provides the most comprehensive gender analysis of the ICC currently available.

Intervention at ICC ASP

NEW YORK – In my capacity as Senior Legal Officer for the Open Society Justice Initiative, I spoke yesterday to the Assembly of States Parties to the Rome Statute of the International Criminal Court that is now holding its tenth annual meeting at U.N. headquarters. (photo credit)
IntLawGrrls have covered the meeting in posts available here -- among them, a guest post by ICC Prosecutor-Elect Fatou Bensouda.
My own remarks to the Assembly are here:

As noted by others here, huge changes are coming to the ICC within the next few months alone. The Court will soon be led by an experienced prosecutor from Africa, six new judges will be sworn in and correspondingly, six judges who have rendered key decisions on issues such as intermediaries, proofing witnesses, victim participation and witness protection, and the confirmation of charges, will be leaving the court; the leadership in the Assembly of States Parties is changing; the Court’s first Trial Chamber Judgment will be issued in the Lubanga case; and the court will begin proceedings against its first former head of state. These significant changes could potentially result in the court heading in far different directions than the course that’s been charted over the past ten years.
The Open Society Justice Initiative has been working on the ICC since its inception, and in these brief remarks, I’ll simply highlight two areas we’ve been engaged with intensely for several years: intermediaries and complementarity.

Intermediaries
Intermediaries are critical to the Courts operations and in fulfilling its mandate, and these individuals or organizations assist various organs of the court. The Justice Initiative began working with and as intermediaries in the Democratic Republic of Congo in 2003. Since that time, particularly as the Lubanga trial unfolded, we have focused considerable attention on the need for guidelines in dealing with intermediaries. To this end, we urge:
► The ASP President to appoint an intermediaries facilitator through The Hague Working Group to assist in finalizing the ICC Intermediaries Guidelines and monitor their implementation to make suggestions for improvement where necessary;
► The ASP to give due consideration to the ICC Intermediaries Guidelines and adopt the Guidelines at the earliest opportunity;
► The ICC to utilize the ICC Intermediaries Guidelines to inform their interactions with intermediaries at least during 2012 pending adoption at a forthcoming ASP and to ensure the Guidelines are subject to an on-going monitoring process, involving both the Court, intermediaries and external experts to ensure the Guidelines are effective achieving their aims in managing the partnership with intermediaries.
Next month, the importance of intermediaries and dealing appropriately with them is expected to be a very fundamental issue in the Lubanga Judgment.

Complementarity
Turning to complementarity, it too is a topic that is critical to the success of the Court and for ending impunity for mass crimes. In 2008, the Open Society Justice Initiative first began working in concrete terms on assisting domestic jurisdictions in their willingness and ability to prosecute atrocity crimes. As I've posted, we began the process of designing and implementing a mobile gender justice court in eastern DRC, to provide some measure of justice to the tens of thousands of women and girls victimized by war and impunity. (See too this post.) Since then, the Justice Initiative has been analyzing complementarity options in other places, such as Kenya and Uganda.
On Monday, we launched a handbook on complementarity, titled International Crimes, Local Justice, which represents an attempt to bridge the gap between international justice and rule of law communities and to demonstrate how complementarity can be implemented once decisions are made to prioritize it.
To this end, it is important that the ASP educate development agencies, embassies on the ground, national governments, and civil society about the importance of local justice systems holding fair trials for international crimes. It can convene the relevant actors needed to address complementarity effectively, and its secretariat can promote the exchange of information between those on the ground who can best identify complementarity needs with those in capitals most familiar with knowledge of available expertise and resources.

Guest Blogger: Fatou Bensouda

It is IntLawGrrls' immense honor to welcome Fatou Bensouda (left) as today's very special guest blogger.
Fatou is the Prosecutor-Elect of the International Criminal Court, by vote this past Monday of the ICC Assembly of States Parties, meeting through new week at U.N. headquarters in New York. (AFP photo credit)
As readers of our prior posts well know, Fatou's served as the ICC's Deputy Prosecutor since 2004. There she's led investigations and field missions, and has been in the courtroom and on the briefs of the Office of the Prosecutor. And, as posted, she's widely spoken and published on the work of that office.
She's a native of Gambia, where she practiced as a maritime law expert and as general manager of a major bank before entering national public service. Positions included Solicitor General and Minister of Justice of Gambia, and Gambian delegate at U.N. crime prevention conferences, at African regional meetings, and, in the early days of the ICC, at meetings of its Preparatory Commission. She served as a prosecutor at the International Criminal Tribunal for Rwanda before moving to the ICC.
Fatou contributes as her IntLawGrrls guest post below the text of the speech she gave Monday to the Assembly. It begins by addressing: that body's newly elected Madam President, Tiina Intelmann of Estonia; President Seretse Khama of Botswana, who spoke of his country's strong support for the ICC in a speech on the same day; the assembled Excellencies; and, finally, the Assembly as a whole. Fatou delivered a portion of her address in French; for the benefit of our non-francophone readers, we've published our own, unofficial translation of that passage in a post further below.

All of us IntLawGrrls are proud to extend our Heartfelt welcome, Fatou!

A global mandate to end impunity & effect justice

(My thanks to IntLawGrrls for this opportunity to contribute this guest post, the text of the speech I gave this Monday at U.N. headquarters in New York to the Assembly of States Parties on the occasion of my election as Prosecutor of the International Criminal Court)

Madam President of the Assembly,
Mr. President Khama,
Excellencies,
Ladies and Gentlemen,
Kindly allow me to say a few words of thanks following my election as Prosecutor of the International Criminal Court.
Let me start by thanking all States Parties present here today for your confidence and trust in me, as well as for the ownership taken over this election process. It is humbling to have received this truly great honour and I gladly accept the role as your Prosecutor.
Permettez-moi maintenant de m’adresser à vous en français.[*]
Je suis particulièrement fière du fait que ma région m'ait soutenue de manière si proactive depuis le début. Le continent africain a encore une fois démontré son soutien et son engagement en faveur de la justice internationale et de la Cour. Mais laissez-moi également insister sur ceci: je serai le Procureur de tous les États Parties, de manière indépendante et impartiale. Je suis forte du consensus exprimé aujourd’hui dans cette salle, et je compte sur votre soutien continu dans les années à venir.
Depuis que j'ai commencé à travailler, alors que j’étais encore adolescente, en tant que stagiaire dans un tribunal local en Gambie, j'ai consacré ma carrière à la poursuite de la justice. En tant que Procureur général et ministre de la Justice de la Gambie, au Tribunal pénal international pour le Rwanda, et en tant que Procureur adjoint à la Cour pénale internationale, j'ai toujours plaidé en faveur de la primauté du droit, de la protection des citoyens et de leurs droits.
Suite à mon élection aujourd'hui, et dès le début de mon mandat en tant que Procureur en juin 2012, je compte poursuivre cette ambition.
Allow me now to continue in English.
It is an honour to work for this Court, a truly unique institution.
In Rome in 1998, representatives from civil society and from States with different legal traditions debated the creation of the Rome Statute from different perspectives, but all knew that the new legal design would profoundly impact the way international relations are governed. It is impacting other institutions and indeed, as Prosecutor Moreno-Ocampo said, changing international relations forever.
As the next Prosecutor, I hope to contribute to solidifying this change, remaining committed to the goals of the Court and the legal mandate entrusted to the Prosecutor to end impunity for those responsible for the gravest offenses, bringing justice to their victims, and preventing future crimes.
The Office of the Prosecutor is a key component of the Rome system. It is the trigger of the Court and the driving force behind the cases brought forward for prosecution. Yet, the Office is not, and cannot be, an isolated organ, divorced from the other components of the system. On the contrary, the Office must, in a manner respectful of the divisions of functions and responsibilities established by the Statute, and in accordance with its independent mandate, have a fluid relationship with the other organs of the Court, under the one Court principle, and with the Assembly of States Parties.
This is what we have operationalized in the last eight years, and I will continue to work towards an integrated Court, based on inter-organ dialog, coordination and support. Communication with States Parties and our civil society partners is also key to ensuring that their views and concerns are listened to, but also that our positions are adequately presented and explained.
I will also build on what has been accomplished so far in terms of institutional development of the Office, with a view to continuing to ensure the consistency, predictability and transparency of our work.
I thank the current Prosecutor, Luis Moreno-Ocampo, for his inspiration and his total commitment to the mandate of the Court, allowing me to start my tenure as Prosecutor of a global judicial institution that he has greatly contributed to transforming into a key actor in international relations. This Court is where it is today thanks to his dedication and tireless efforts.
I am proud to inherit a well respected and sound functioning Office with high calibre dedicated staff, and organised policies and practices. This solid basis will be the starting point of my work, and any adjustment will be well considered. I will continue efforts to uphold the highest standards in Court.
Madam President of the Assembly,
Mr. President Khama,
Excellencies,
Ladies and Gentlemen,
I look forward to our future cooperation and to implementing this important mandate, which you have bestowed on me.
Thank you.
Merci.

_________________________

* For the benefit of our non-francophone readers, IntLawGrrls provides our own, unofficial translation of this French passage in the post below.

'indépendante et impartiale': translation

(For the benefit of our non-francophone readers, IntLawGrrls here provides our own, unofficial translation of the French-language passage in the guest post above by our very special guest blogger, International Criminal Court Prosecutor-Elect Fatou Bensouda)

...
Permit me now to address you in French.
I am particularly proud of the fact that, from the start, my region has supported me in such a proactive manner. The African continent has shown yet again its support and its engagement in favor of the international justice of the Court. But let me as well insist on this: I will be the Prosecutor of all the States Parties, in an independent and impartial manner. I am strengthened by the consensus expressed today in this room, and I count on your continued support in the years to come.
From the time that I started to work, when I was still an adolescent interning at a local court in Gambia, I dedicated my career to the pursuit of justice. As the Solicitor General and Minister of Justice of Gambia, at the International Criminal Tribunal for Rwanda, and as the Deputy Prosecutor of the International Criminal Court, I have always worked to achieve the rule of law and the protection of citizens and their rights.
Following my election today, and from the beginning of my mandate as Prosecutor in June 2012, I will continue to pursue this goal.
...

ASP Updates Through the Grapevine

I am heading to the annual meeting of the Assembly of States Parties tomorrow, but some early results from today's voting.
As we've discussed (see here, here, here, here, and here), the ASP memebrs were charged with electing a new Chief Prosecutor and six judges. There is confirmation today that Fatou Bensouda (left), who emerged as a consensus candidate, has been elected as the new Chief prosecutor, as we predicted.
In terms of the first rounds of judicial elections, at the end of the day, an informal tally suggests the following results. Two judges received the necessary 70 votes:

1. Miriam Defensor-Santiago, 79, from the Philippines (List B) (right)
2. Anthony Thomas Aquinas Carmona, 72 (GRULAC, List A), from Trinidad & Tobago.

The other candidates fared as follows:

Czech Republic: Fremr, 62 votes

United Kingdom: Morrison, 51

Poland: Czapliński, 46

Domincan Republic: Herrera Carbuccia, 44

France: Cathala, 40

Costa Rica: Urbina Ortega, 36

Colombia: Cifuentes Muñoz, 35

Nigeria: Eboe-Osuji, 34

Mexico: Laynez Potisek, 33

Cyprus: Serghides, 28

Mauritius: Boolell, 27

Democratic Republic of Congo: Mindua, 12

Burkina Faso: Kam, 10

Niger: Nouhou, 7

Sierra Leone: Bankole Thompson, 3

Central African Republic: Bria, 1

The remaining slots must go to one individual representating the Group of Latin American and Carribean States (GRULAC) and one from Eastern Europe. We also need two individuals from List A, who manifest criminal law experience, as opposed to List B, which covers individuals with IHL and human rights experience. Finally, there is a slot for one more male candidate. If you recall, the Independent Panel on ICC Judicial Elections found the Mexican, Cypriot, and Costa Rican candidates to be unqualified under either list.

Elections continue tomorrow...

ICC Prosecutor Fatou Bensouda

Fatou Bensouda will be the next Prosecutor of the International Criminal Court.
A flurry of items confirmed this news overnight. As reported by Edith Lederer of the Associated Press, Ambassador Christian Wenaweser, President of the Assembly of States Parties,

said that at an informal meeting of the 119 countries on Thursday, he will ask that Bensouda be formally elected by the Assembly when it opens its annual meeting at U.N. headquarters on Dec. 12. She would become the second chief prosecutor and the first woman to hold one of the world's top legal posts.

As detailed in our prior posts and in this entry, Bensouda has served as the ICC's Deputy Prosecutor since 2004, having earlier been a prosecutor at the International Criminal Tribunal for Rwanda. (credit for above left photo)
Born in Banjul, Gambia, on January 31, 1961, she practiced law as a maritime expert (she holds a master's in International Maritime Law and the Law of the Sea, as well as a law degree earned in Nigeria) and as general manager of a major bank. From 1987 to 2000, she held a number of national posts, including Solicitor General and Minister of Justice of Gambia. Bensouda served as a delegate at U.N. crime prevention conferences, at human rights meetings of the precursor to the African Union, and at meetings of the ICC Preparatory Commission.
And she helped to negotiate founding charters of ECOWAS, the 15-member Economic Community of West African States. That experience no doubt has informed missions she's led for the Office of the Prosecutor -- including ones in the West African states of Guinea, which the ICC prosecutor's office is monitoring, and of Côte d'Ivoire (June 2011 video below), whose former President just spent his 1st full night in an ICC jail.



Bensouda's background also gives special weight to her standard response, on behalf of the ICC, to the oft-voiced contention that the court should lay off Africa:

'We say that ICC is targeting Africans, but all of the victims in our cases in Africa are African victims. They are not from another continent. And they're the ones who are suffering these crimes.
'Now if you are telling me that, if we have those referrals from these states, we should say 'we won't go there because they are African states', I am sorry, we will not do that.
'Why don't we look at the positive side? Why don't we look at the fact that African leaders are taking leadership in international criminal justice?'

(In similar vein, see here.)
Bensouda's spoken frequently on issues related to international criminal law. Her publications include "Gender and Sexual Violence Under the Rome Statute," in From Human Rights to International Criminal Law: Studies in Honour of an African Jurist, the Late Judge Laïty Kama (2007); "International Criminal Law in an African Context," co-authored with Hassan Jallow, in The African Guide to International Criminal Justice (2008); "Challenges Related to Investigations and Prosecutions at the International Criminal Court," in International Criminal Justice: Law and Practice from The Rome Statute to Its Review (2010); and "The ICC Statute -- An Insider's Perspective on a Sui Generis System for Global Justice," North Carolina Journal of International Law & Commercial Regulation (2011).
Looking forward to her tenure as leader of the ICC Office of the Prosecutor.

And now there are 2

The contest for the next Prosecutor of the International Criminal Court is down to 2.
According to an ICC Assembly of States Parties statement released this morning:

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

Have never met Chief Justice Othman (above right), who, like Bensouda (above left) (credit), hails from Africa (a circumstance explored here.) But we 'Grrls have frequently posted about Bensouda. Yours truly has been honored to have hosted her visit to my former institution, California-Davis, to have participated in Chautaqua Dialogs with her, and to have engaged in a public Q&A with her at annual meeting of the American Society of International Law this past spring. Bensouda's intelligence, acumen, passion, and wit are evident. And her understanding of the panoply of challenges facing the ICC in the next decade is unrivaled.
If consensus continues to prove elusive even after this latest trimming of what was a short list of 4, the election context could play out openly on December 12.
That's the date set for election of the Prosecutor, part of the Assembly's 9-day session at U.N. Headquarters in New York. The draft program for that session is here; preparatory documents available here.
Also on the agenda: the election of 6 new ICC judges; debate on budget, ICC headquarters (source of some controversy, as this article indicates), and other matters; and side events, among them the December 13 launch of the Gender Report Card on the International Criminal Court 2011, by Women's Initiatives for Gender Justice, an organization some of whose leaders are IntLawGrrls guest alumnae, as well a December 20 session on "Challenges for the Next Prosecutor," hosted by Human Rights Watch.

ICC consensus this week?

In a week that promises to require considerable diplomacy by officials of the International Criminal Court, states parties may reach consensus on who will become the ICC's next Prosecutor.
The special need for a deft hand comes from the news that, yet again, an ICC-accused Gaddafi has fallen into custody.
It was reported yesterday that Saif al-Islam Gaddafi is being held by the transitional government of Libya, which took power after a NATO-supported rebellion toppled the 4-decades-long regime of Saif's father, Muammar Gaddafi, killed exactly a month ago. Reports are that ICC Prosecutor Luis Moreno-Ocampo will travel to Libya to try to negotiate transfer of Saif to the Hague-based ICC (above right), pursuant to an international arrest warrant. (Same holds for his co-accused, captured today.) But the new Libyan leadership reiterated its preference for domestic prosecution -- for alleged crimes that, in Libya but not in the ICC, are punishable by death. (photo credit)
Meanwhile, in New York, Christian Wenaweser, Liechtenstein Ambassador and President of the ICC Assembly of States Parties, said in a statement:

'I look forward to the continued cooperation of the Libyan authorities with the International Criminal Court, pursuant to their obligation under Security Council resolution 1970. ... It must be ensured that Saif Al-Islam is tried in a court of law and in accordance with international standards. Should the Libyan authorities wish to try him in Libya, they can make the case before the Court that their national judicial system is willing and able to do so in an independent and impartial manner.'

(Prior IntLawGrrls posts on the potential for a complementarity contest available here.)
Even as it looks toward Libya, the ICC Assembly continues also to look toward the person who will succeed the current Prosecutor upon election in December.
Who that is may become clear before week's end.
According to documents posted at the Assembly's Election of Prosecutor webpage, members of the Assembly's New York Working Group (along with officials from Botswana, Timor-Leste, Estonia, Costa Rica, and the Netherlands, representing five regional "focal points") have met at U.N. headquarters with the 4 finalists (prior post) for the position: on November 2 with current ICC Deputy Prosecutor Fatou Bensouda; on November 9 with Robert Petit, Counsel in the Crimes Against Humanity and the War Crimes Section of Justice Canada; on November 11 with Andrew Cayley, International Co-Prosecutor at the Extraordinary Chambers for the Courts of Cambodia; and last Monday, November 14, with Mohamed Chande Othman, the Chief Justice of Tanzania. (credit for photo at right of U.N. headquarters)
Wenaweser indicated in an October 28 letter that he was working "with a view to assessing the feasibility of a consensus by the Thanksgiving weekend." The week will tell if yesterday's news of Gaddafi's arrest alters that aim.

Consensus bound

And now there are 4.

Vying to become the Prosecutor of the International Criminal Court are 1 woman and 3 men chosen from among the 52 in the initial pool and the 8 who were interviewed. As detailed in this just-released report (see p. 7 and CVs beginning at p. 39), they are:
► Fatou Bensouda of Gambia (left) (prior posts), the ICC's Deputy Prosecutor since 2004, and before that, a prosecutor at the International Criminal Tribunal for Rwanda, and Gambia's Minister of Justice and Solicitor General (photo credit);
► Andrew T. Cayley of Britain (left) (prior posts), since 2009 the International Co-Prosecutor at the Extraordinary Chambers for the Courts of Cambodia, and formerly a defense lawyer at the Special Court for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia, Senior Prosecuting Counsel at the ICC and at the ICTY (photo credit);
► Mohamed Chande Othman (right), since December the Chief Justice of Tanzania and formerly a chief prosecutor at ICTR and a prosecutor in East Timor’s U.N. administration (photo credit); and
► Robert Petit of Canada (left) (prior posts), Counsel in the Crimes Against Humanity and the War Crimes Section of Justice Canada who preceded Cayley as the ECCC International Co-Prosecutor (2006-09), and has also served as a prosecutor at ICTR and in the Serious Crimes Unit of the United Nations' East Timor mission, and as a Senior Trial Attorney for the Special Court for Sierra Leone. (photo credit)
Election's set for the December session of the 119-member ICC Assembly of States Parties.
By then, the ICC search committee hopes, there'll be no contest.
The 5-man committee -- a geographically diverse group coordinated by Prince Zeid Ra’ad Zeid Al-Hussein of Jordan and also comprising Baso Sangqu of South Africa, Joel Hernández of Mexico, Daniel Bethlehem of Britain, and Miloš Koterec of Slovakia -- has made clear its desire to put forward a single candidate whom the Assembly will then approve by consensus.
In its effort to attain this goal, the committee continues to extend the formal deadline for nominations; by dint of the 4th and most recent extension, that date is now this Friday, October 28.
Pleased to see a number of prosecutors whom we've come to respect not only on account of their courtroom accomplishments, but also through their participation in events like the annual International Humanitarian Law Dialogs. Looking forward to further developments.

...& African Union endorses Bensouda

Among many International Criminal Court-related developments deserving note: following an Executive Council meeting this summer in Malabo, Equatorial Guinea, the African Union made public its support for Fatou Bensouda (left) to be the ICC's Prosecutor.
The Assembly of States Parties is slated to elect a successor to the court's 1st Prosecutor this December, as we've posted, and Gambia-born Bensouda is among the candidates under consideration by an Assembly search committee.
Since the Assembly elected her Deputy Prosecutor in 2004, Bensouda (prior IntLawGrrls posts) has been in charge of the Prosecution Division of the Office of the Prosecutor. Previously, she'd served been a private-sector and government attorney; positions included Solicitor General and Legal Secretary, as well as Attorney General and Minister of Justice, for the Republic of The Gambia. She'd also practiced at the International Criminal Tribunal for Rwanda, where she was Senior Legal Advisor and Head of The Legal Advisory Unit.
At midsummer, the Executive Council of the African Union announced (p. 29) that it

APPROVES the following candidatures:
Ms. Fatou Bomm Bensouda of The Gambia as the sole African candidate for election to the post of Prosecutor at the International Criminal Court (ICC) ...

The endorsement came "in conformity with African Union procedures for consideration and determination of African candidatures within the international system," the notice continued. Then followed endorsements for other posts, among them Justice Vinod Boolell of Mauritius, a jurist with considerable human rights and humanitarian law experience, for an ICC judgeship.
ICC-watchers await more election news.