Fatou Bensouda interview 2018
The International Criminal Court's Chief Prosecutor discusses topics including recent developments and cases at the ICC.
On the progress of the ICC and its highlights
Fatou Bensouda: Since I since I assumed office, from 2012 to now, first and foremost I thought it was critically important to revisit the strategies and policies of the office, because I believe that the effectiveness is important for the credibility of the institution.
So I decided to first of all look into the strategic plan of the office which I changed and turned around a few things. I also have been looking very closely at the policies in the office, the code of conduct for the office, and many of working internal working documents that will help operationally to make the office more more efficient. And I can say that since then we have been seeing some concrete results both in trials and in investigations for some of these changes that have taken place, within the context of, as I said, the policies and strategies.
Today, as you know the office of the prosecutor is the engine of the ICC because we are the ones who bring the cases forward. I believe that with recent successes like the al-Mahdi case... we are also advancing our investigations in the Libya situation... the conviction that we got in Bemba, even though we later had the appeals chamber overturning that. But I still believe that it was something that needed to be highlighted and what the office has done to bring that case to that level.
There has been, as I said, the policy on sexual and gender based crime. This is an area that I believe that we need to really put the spotlight on. And ensure that sexual and gender based crimes, in times of conflict especially, is addressed and that it is addressed in a very competent way. My office has been focusing on this. Since then, most of the cases that we have brought do involve the charging of sexual and gender based crimes where we have found the evidence. We have also tried as much as possible as a court to reach out to, for instance, the African Union. As you know there has been this pushback and these withdrawals and threats of withdrawals from the court, because the ICC is doing its work, but I always believe that we need to have interaction and dialogue.
So, myself and other members of the court have been reaching out to try and build that relationship, because I believe there are values that we share.
The al-Mahdi case (Mali) - destruction of cultural heritage
We have worked closely with partners like UNESCO, in fact they have been very supportive, today that person, al-Mahdi, has been convicted of these crimes for the destruction of the mausoleum in Timbuktu. He's serving a sentence. I think this is an important highlight for for the court.
Even though Myanmar is not a state party to the Rome Statute, but the fact that the crime of deportation completes... when the international border is crossed and it completes on the territory of a state party, Bangladesh, we have brought this issue before the judges to request for an interpretation of that limited jurisdictional issue which the judges have agreed with my office. And just recently I have opened a preliminary examination into the situation.
Recently I have also, apart from Myanmar, I have opened a situation in the Philippines as well as in Venezuela. So these are all things that the court is doing. And it's also really showing that this institution is set up to do important work. To do its work without bias.
The al-Hassan case (Mali) - sexual and gender-based violence
We were grateful that after the warrants were issued, Mali cooperated with us and today al-Hassan is in custody in the ICC. The confirmation proceedings will start in a few months, by next year. And one of the charges that we have brought against al-Hassan is the enslavement, sexual enslavement, and forced marriage. Al-Hassan... what we have seen is that he was... the allegations we have against him is that he was very instrumental in getting, for instance, women in Timbuktu to be forcibly married. And it's really based on sexual and gender. And this is what I wanted to highlight.
This is this is one of the features of the case. What we have seen over the years, and I'm sure I do not need to explain all that to you, but what we have seen is that sexual and gender based crimes are always prominent in conflict. Always. And we have seen women, girls, even boys and men, subjected to sexual and gender based crimes. And no matter how long efforts have been made to highlight this, that this is being used as a weapon of war, we see that whenever conflict happens. It continues to happen. And I believe that one of the ways that it can we can counter this scourge is to use the law. To use the law, especially if you look at the Rome Statute today, it has given me as prosecutor of the ICC, the opportunity to be able to put the spotlight on it, and to also do as much as possible to ensure that we stop those who are committing these crimes in conflict. And one of the first things that I did was to have a policy, ensure that there was a policy. I'm sure you know about the sexual and gender based policy that I launched in 2014. In fact just a year after I came into office. And this I did after a lot of consultation, with everybody: states parties, academia, everybody. And I got very good feedback and very good consultation. And today I believe it is a document that we really can be proud of, it is a document that can serve as a basis even for domestic jurisdictions.
And a document which I felt was also giving transparency on the work of my office and how we were lending importance to this very issue and how we were going to tackle it, including training my staff and also integrating gender perspective into all areas of our work. You know, from preliminary examination all the way to appeals. Hugely important. I believe this is important to do, especially in this office, not only because I am a woman. But also because it is critically important to say 'stop'. I mean, we have explained it away for several years. We have said is an incident of war. We have said it cannot be avoided, but it can be avoided. And it is not an incident of war. So it needs to be stopped. And it can only be stopped by showing the adverse effect that this has. And by also holding those who perpetrate it to account, it can serve as a deterrent to others.
So this is why it was critically important for me that I put the spotlight on it. You know, the work... the nature of the work that we do is such that it comes to us with several challenges. In the first instance, I always say because we are holding people accountable for maybe something that before they could easily get away with, we're saying no, no more golden exiles. No more amnesties. You are to be held responsible for killing people - sometimes it's their own people. You are to be responsible for orchestrating rape on a massive scale. You are supposed to be responsible for looting people's property, pillaging, atrocity crimes.
Criticism of the Court
People will not just take it. There is bound to be pushback. And people will push back, those who feel that they're the ones targeted, they will push back in whatever way they can. And one of those ways, we have come to find, over the years, is that... to try to discredit the court in whatever way, by saying that... for instance they create this issue of African bias, that ICC is only targeting African leaders, which is not correct. Or they would say that the ICC is too expensive. Or that the officials of the court... Various ways. So there is this push back. This is a major challenge. Or they use politics. Whatever the court does, whatever my office does. Whoever we charge, or not charge, is always interpreted in some political... that it is because of this political reason it is done or because of that other political reasons. And in the long run it's a problem for the court in the sense that we have to be constantly there also, to give the right story. To talk about what this court is doing: What is the jurisdiction of this court? What are the limitations of this court?
So a big part of that of course is outreach. And reaching out to the affected communities and talking to them.
I cannot get tired of explaining that this is the true story of the ICC. It is not what are you thinking. It is not what you are advancing. This Is the reality. I'm very, very confident in the work that we are doing. I believe that we are on the right side of history. We are pushing against those who think that they can just commit crimes and get away with it. We are pushing against this culture of impunity. We are trying to create a global law based order. That's what we are doing.
Assessing the US current approach and comments on the ICC, and refusal to sign Rome Statute
I look at it in the sense that we continue to do our work. This is what we are about from the time this court was created until now. And we will continue to do that work strictly in accordance with the principles enshrined in the Rome Statute and without fear or favour. But the pushback that we will receive depends on where we are. A few years ago as you know... there is still pushback, but there was a strong strong push back from Africa. That is because that's where we were, that is where our work was taking us. And some people as I said felt targeted and decided to have this big propaganda against the court. Many many critical and adverse things were said about the court which were not true.
Today we are looking at new areas. We are facing new challenges. And again you will see that, because of this request again in Afghanistan, as you know, which my jurisdiction has taken me to, Afghanistan being a state party to the Rome Statute. You see that we are also having these statements from Mr Bolton.
I think I would have been very very concerned if these threats were made and then there was absolute silence. But one unintended consequence, I call it, of what has happened recently is the overwhelming support. That he's really galvanized the support, and people and states stood up and spoke in support of the court. And in support of a rule-based global order. This is important for the court, because I mean I've said it during the interview. The court was set up in the way that... we will do our work but then we need the support of states. We need the cooperation of states both diplomatically, politically, we cannot do politics ourselves. We cannot talk about politics, but states themselves can politically and diplomatically, financially, in every way they can, support the work of the court. And what we have seen, within the margins of the UN General Assembly, as you know, was this overwhelming support for the court, this speaking out for the court. And this is important. This shows that the work that we are doing will not be allowed, by states who've created this court, to fail. That they will support the court, that they will help the work of the court, and for us as officials, we will continue undeterred.
Over time, there was need for support to the court even from the US. I cannot disregard that. I cannot disregard that. But this was during the the Obama era. Right now, I guess we just have to see where all this goes.
In the meantime as we have said, we have to continue with our work, this is what the court was set up to do, and we will continue to call on the states that created the court to continue to support the court, to stand up for the court, to speak for the court, and to continue this push to have this law-based rule-based global order. This is what we need to do. I said once that the ICC cannot be allowed to falter. It is too important.
Is there a way of investigating the Afghanistan situation without conflict with the US?
It's maybe too early to start talking about investigations when the judges have not yet authorized me to start investigations. But you know as I said most investigations come with their challenges. Come with different challenges and we have experienced this through the various situations that we've been dealing with, and we have to anticipate and try to find a way in which to deal with it when it's coming, and plan for it and see what is the best way of handling it. But as I said I really don't want to start talking about investigations when the matter is where it is now, with the judges.
Is there a distinction to be drawn between crimes in Afghanistan by US and Taliban forces?
I have identified, potentially, the conduct of actors that I will look at in that situation. I do not think it is necessary to make a hierarchy of... because the alleged crimes are very serious crimes. All of them are very serious crimes. So this is a matter that I have come to a determination that it really has a need to be looked into further. Because that is the purpose of requesting for investigations. Everything that I could not really look at directly during the course of a preliminary examination, at least if an investigation is open I can look deeper, I can look further, and be able to concretely say that this, according to the Rome Statute and the evidence we've gathered, these are crimes that fall within the jurisdiction of the court
US stance on Israel and Palestine - potential impact on ICC investigations
Palestine is under preliminary examination, has been since 2015, and we are working on that situation. We are collecting, we are analyzing the situation. I have said quite a few times now that I will do my my work without fear or favour.
I cannot base my work on political considerations or attempts to please one side or please the other. I have to be strictly guided, strictly guided by the law and the evidence.
How do the ICC's checks and balances work?
I believe that those who negotiated the statute, the states, had all these things in mind because I think it was also critically important that there would be checks and balances in the system, such that you may have a prosecutor who probably would want to maybe abuse the powers that are given to him or her. The statute if we look at it tries to create those checks and balances. For instance, now under the statute I have proprio motu powers as prosecutor of the ICC which means in a situation where ICC crimes are being committed, first and foremost I have to look at whether they are ICC crimes.
Once that is done... but also to see whether that state is doing anything to address the crimes. If the state is not, as prosecutor, I can actually use the proprio motu powers under the statute to open a preliminary examination, like was done in in Kenya. But before I can even do that, I have to go before the judges of the ICC and present the situation to them and give them the reasons why I feel that this situation is right for me to intervene. It will go to before the judges of a pre-trial chamber. Three judges will make that determination on whether I can open an investigation in a particular situation. Also, once the court, once my office investigates in any situation, and we want to go to the next phase of charging any person, I cannot just charge that person. I take it before the judges as well, because I want the judges to confirm, have the judicial scrutiny that warrants can issue against a particular individual who has been identified during the course of the investigations to be responsible, most responsible for the crimes. So I will request the judges to issue arrest warrants or summons to appear and the judges will, based on the evidence that is before them, make a decision.
There have been...also in the case of confirmation of charges. Once the person appears before the court, the case does not just start. We have to confirm the charges again before three pre-trial chamber judges, and the pre-trial chamber can decide to confirm the charges but they can also decide not to confirm the charges, or they can request me as prosecutor to say bring further evidence for us to... So there are those checks and then of course the trial. It is not that I just take evidence before the judges and say 'convict this person'. I have to prove the case. It is subjected to the same standards, international standards, of proving the case beyond reasonable doubt. I have to do that.
And then, the defence, also they have their day in court. They have to defend the case in court and then the judges will eventually determine whether this person should be convicted or not convicted. So there are all those checks and balances that are in the system that have been created to make sure that there is due process, but there is also full respect for the rights of defendants. Again, you know, the ICC is the first international court in which victims can actually participate in the proceedings and express their views and concerns. So this is a process that you did not have before in other international courts. But we have it in the ICC and they are not sitting there, victims, as part of the prosecution's case, or as just witnesses. They participate in their own right as victims.
So I think it is a system that has been put in place... and this is an amalgamation of different legal systems around the world. And this is what those who negotiated the statute tried to create, this court in which each and every legal system can actually see its process in it.
Even with preliminary examination... because I know that sometimes there is a attempt to... People sometimes confuse preliminary examinations and investigations. And I think this all also lends to the fact that the crimes that we charge, the crimes that are in the ICC Rome Statute are very very serious crimes. You do not just charge individuals of these crimes without really being almost 100 percent sure that this is the right individual. So this is why subjecting it to this process of preliminary examination, where in the first instance you have to see whether ICC crimes have actually been committed, you also have to look at the issue of the gravity. Which is mainly [?] admissibility, admissibility, complementarity and gravity. You also look into the issue of interest of justice. Is this against the interest of justice that this case should be before the ICC? So all these issues are carefully looked at and even at that time it's also not an investigation, it is really just collecting information and analyzing that information to see whether this criteria has been met.
And it is at the end of that when the criteria is met that a prosecutor can actually say I'm opening investigations if it is a referral or I am going before the judges to request for authorization to open investigation. So it's a very careful process, a very prudent process that has been put in place. That is why this issue of ICC targeting one person does not arise. It has to be clear that when we start a case we are not saying, oh we are going after Mr X No, we examine the situation. We look at the evidence, we collect the evidence, we analyze it, then we come to conclusions. We say that definitely this evidence is leading to Mr X. And this person bears the responsibility burden.
How significant is the addition of the crime of aggression as an ICC-level crime?
Well I believe it is very significant.
Again it is something that states have decided. As an office of the prosecutor of course we have treat the crime as we treat the other serious crimes that are before the court. There has been a little awareness raising in the court because when this process was going on and the ratifications etc., we felt it was a state party matter. And we tried to give the states that space to deal with the issue, to negotiate it, and so we did. But at the same time we were also aware that eventually if this crystallizes it has to be dealt with by the court.
So we had organized some seminars, we had organized some discussions in which we've invited persons from outside to come and talk to staff and explain what this means for the court, and just prepare ourselves in that regard. A lot of effort has gone into it. As you remember since Kampala in 2010, the process was ongoing until eventually it came to a state where it then needed the number of ratifications to be... and this has happened, the number of ratifications it needed has happened. As I said, there are some who still are not... don't particularly agree
What is your view on the lack of signatories to the ICC in the Middle East?
Ratification is a prerogative of states.
It's their right and it is a determination... It is their sovereignty, to decide to ratify or not to ratify and be part of the ICC. Indeed, one of the areas that we have had least ratification is the Middle East. And one of the things that I have done as prosecutor is, as contributing to universality, I have from the time that I assumed office, tried to have some kind of outreach, to reach out to this region, to show the importance of them becoming part of the ICC. And because I also feel that given the rich history and culture there is a lot that can be brought to the table. And this I have done in fact, I have a special adviser on the MENA region, Middle East and North African states, Mohammed Ayat from Morocco, who has also been advising me on reaching out and interacting.
We are hopeful that there will be more ratifications. And I also know that at the level of the Coalition for the International Criminal Court, efforts are being made; at the level of the presidency of the court, there are also efforts that are being made; the PGA - Parliamentarians for Global Actions, there are several efforts that are being made, to not only this region, but also on universality in general, because I believe that if there is universality it will prevent a lot of problems. For instance the issue of double standards. The court is accused of double standards because our jurisdiction and where to intervene is just limited to territorial jurisdictional, or personal jurisdiction or when the UN Security Council would refer the situation to the ICC.
The importance of universality
If there is universality it can avoid a lot of other consequent problems that we face, and having to explain... Syria is a typical example, in which there have been a lot of calls [asking] why the ICC is not intervening in Syria, without actually knowing that Syria is not a state party. If a state is not a party to the Rome Statute, first and foremost we do not have territorial jurisdiction to be there. And then we we look for other ways in which we can contribute to the situation in a very positive way. But I believe that when there is universality and the law is applied, the ICC, the ICC statute, the rules are applied across the board in every country if possible, this would avoid that accusation. That's the ideal. That is the ideal.
What is the status of preliminary investigations in the Philippines?
It's preliminary examinations, it's not investigations, it's preliminary examinations, but it's continuing. We are continuing to collect the information that is necessary, to analyse it and to make a determination at the end of this process. You will recall that we had the same situation with Burundi. Burundi, as soon as I announced that I was opening preliminary examination into the situation, again Burundi is a state party like Philippines is, I can only do that as you know in states parties. So when I announced that, Burundi authorities decided to pull Burundi out of the ICC. And when a notification is given that a state will withdraw from the ICC, it will take one year, just like in the Philippines now, that one year has not yet...
So Philippines is effectively still part of the ICC. So this is the same process we went through with Burundi, because until that withdrawal crystallized, it was still part of the ICC and I continued with my preliminary examinations and I requested from the judges to open investigations even before the one year came into effect. Well now with the Philippines we are really not in that same situation because the judges have said, during the Burundi decision, very helpful decision, they have said that even after the withdrawal takes effect, the acts that were committed during the time that Burundi was a state party to the Rome Statute could still be looked at by my office. So we have that jurisprudence now.
What is the status of preliminary examinations in Venezuela?
My preliminary examination is taking its normal course. It's going on when the referral came from these countries. And as a general rule what can happen is when I come to the end of my preliminary examinations, which as I say will continue, will take its normal course...
When I come to the end of that and make a determination, say that all the criteria have been met for investigations to open, I will not go before the judges, because of the referral, as a general rule I don't have to go before the judges of the ICC to have that judicial scrutiny. I can open investigations without doing that so, in a way, and this is not just Venezuela, it's generally, this is what happens when there is a referral.