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June 29, 2021

The International Criminal Court

Change at the Top

Only one day after Judge Garland was confirmed as Attorney General of the US, Judge Piotr Hofmański was elected.

Only one day after Judge Garland was confirmed as Attorney General of the US, Judge Piotr Hofmański was elected.

The eyes of the American legal community this spring have been focused on the changes at our nation’s top law enforcement agency, the U.S. Department of Justice (DOJ). We have a new Attorney General and new leaders of the various divisions of DOJ responsible for prosecuting cases to enforce federal statutes.

Across the Atlantic, changes at the top are also occurring at the International Criminal Court (ICC) in The Hague. Only one day after Judge Garland was confirmed as Attorney General of the United States in March, Judge Piotr Hofmański was elected by his fellow judges as President of the ICC. President Hofmański replaced President Chile Eboe-Osuji, who had forged a close relationship with the ABA and the ICC Project, which is jointly sponsored by the Center for Human Rights and the Criminal Justice Section.

And in mid-June, Mr. Karim Asad Ahmad Khan, Queens Counsel and UK national, was sworn in as the new ICC Prosecutor, following the departure after a nine-year term of Ms. Fatou Bensouda of Gambia.

Ms. Bensouda’s tenure at the ICC saw both successes and challenges. Among those successes was the conviction in 2019 of the warlord Bosco Ntaganda on 18 counts of war crimes and crimes against humanity in the Democratic Republic of the Congo; he was sentenced to 30 years in prison, the longest sentence in the Court’s history. In 2016, Ahmad al-Faqi al-Mahdi was convicted for his role in destroying religious and historic buildings in Timbuktu, Mali – the first time the Court had confronted cultural destruction as a war crime. And earlier this year, former Commander of the Lord’s Resistance Army Dominic Ongwen was sentenced to 25 years for war crimes and crimes against humanity committed in Uganda.

A number of high-profile acquittals marred Bensouda’s time as Prosecutor. For example, Congolese warlord Jean-Pierre Bemba was acquitted by the ICC’s Appeals Chamber in June 2018 of charges of war crimes and crimes against humanity committed in the Central African Republic between 2002 and 2003. In March of this year, former Ivory Coast President Laurent Gbagbo and Charles Blé Goudé were acquitted of committing crimes against humanity there in 2010 and 2011.

One of Bensouda’s challenges was centered right here in the United States. Last year she obtained authorization from the Court to initiate an investigation of atrocities arising out of the conflict in Afghanistan that included allegations of torture committed by U.S. military and intelligence operatives in Afghanistan and at black sites in other ICC State Parties. The U.S. government responded with announcement by then-Secretary of State Pompeo of sanctions against Bensouda and another senior ICC staff member, which brought harsh rebuke from ABA President Refo who stated that “sanctioning legal professionals for their investigating and prosecuting allegations of atrocity crimes on behalf of an independent judicial institution is an act of intimidation and attack on the rule of law.” In April of this year, Secretary Blinken ended sanctions and visa restrictions against ICC personnel, a move welcomed in a statement released by President Refo.

Ms. Bensouda expanded the ICC’s caseload through more globally diverse investigations, prosecuted difficult and underrecognized crimes such as gender-based crimes, and increased transparency from the prosecutor’s office by publishing policies on many processes like cultural heritage, case selection, and situation completion.

The ICC is currently undergoing a review process following an extensive independent expert report, with the Assembly of States Parties expected to adopt a comprehensive action plan this summer to outline priorities. The ABA was a proponent for establishing the ICC and has been a regular participant in stakeholder presentations to the Assembly. No doubt change will be in the wind for the ICC and its new President and Prosecutor under this action plan.

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