Fatou Bensouda - IBA Annual Conference 2018

Speaking on the 20th anniversary of the Rome Statute, the Prosecutor of the International Criminal Court reflects on progress to tackle impunity for atrocity crimes. She talks to the IBA’s Director of Content, James Lewis, about her priorities, and how threats and pushback against the Court won’t detract from the drive to create a rules-based global order.

Watch full filmed interview here

James Lewis: You’ve received a great deal of attention and plaudits for your contribution to advancing the rule of law around the world, and rightly so. How would you assess progress?

Fatou Bensouda: Since I assumed office in 2012 to now, first and foremost I thought it was critically important to revisit the strategies and policies of the Office of the Prosecutor, because its effectiveness is important for the credibility of the International Criminal Court (ICC).

Since then, we’ve been seeing some concrete results in both trials and investigations.

The Office of the Prosecutor is the engine of the ICC – because we’re the ones who bring the cases forward, from recent successes like the Al Mahdi case, advancing our investigations in the Libya situation, to the conviction of Jean-Pierre Bemba, even though the Appeals Chamber later overturned it. There’s also the policy on sexual and gender-based crimes in times of conflict – an area we need to really put the spotlight on.

We’ve also tried as much as possible to reach out to, for instance, the African Union. There’s been pushback, with withdrawals and threats of withdrawals from the Court, because the ICC is doing its work. I always believe we need to have interaction and dialogue. There are common values that we share in trying to bring justice when atrocity crimes are committed, or to prevent them from being committed.

This year, the ICC celebrates 20 years since the Rome Statute that established it. There have been lots of successes, lots of achievements. There have also been some setbacks.

JL: Can you pick out some of the key highlights?

FB: Al Mahdi is the first time the ICC has brought a case on the destruction of cultural property and buildings dedicated to religion. Ahmad Al Faqi Al Mahdi has been convicted of these crimes for the destruction of the mausoleums in Timbuktu. It’s helped to shed some light on that crime and also refocused the world’s attention onto it. We have worked closely with partners like the United Nations Educational, Scientific and Cultural Organization (UNESCO). I’ve also opened a preliminary examination into the situation in Myanmar [of forced deportations of Rohingya people to Bangladesh], as well as into the situation of the Philippines and Venezuela. This institution is set up to do important work – and to do its work without bias.

JL: I know that sexual violence in conflict has been a particular priority for you. Would you put any particular significance on the Al Hassan case in Mali?

FB: Indeed, we are grateful that, after the warrants were issued, Mali cooperated and today Al Hassan is in custody in the ICC. The confirmation proceedings will start in a few months. One of the charges we’ve brought against Al Hassan is sexual enslavement and forced marriage, which is based on sexual and gender-based violence.

This institution is set up to do important work – and to do its work without bias

JL: As a woman in the role of Prosecutor of the ICC, do you feel an added pressure to show leadership on that specific issue?

FB: It’s incredibly important. What we’ve seen over the years is that sexual and gender-based crimes are always prominent in conflict. Women, girls, boys and men are subjected to these crimes. It continues to be used as a weapon of war. But one of the ways that we can counter this scourge is to use the law.

One of the first things I did as Prosecutor of the ICC was to launch a sexual and gender-based crimes policy, after a lot of consultation. It’s a document we really can be proud of; a document that can serve as a basis even for domestic jurisdictions. It also gives transparency on the work of my office and how we tackle this issue, including integrating a gender perspective into all areas of our work, from preliminary examinations all the way to appeals.

Al Hassan

Al Hassan listens to his duty counsel, Yasser Hassan, prior to his initial appearance on charges of war crimes and crimes against humanity at the ICC in The Hague, Netherlands, 4 April 2018.

I believe this is important to do, not only because I’m a woman, but also because it’s critically important to say ‘stop’. We have explained away these crimes for years. We have said they are an unavoidable incident of war, but they can be avoided.

JL: What would you pick out as particular challenges to the ICC?

FB: The nature of the work we do is such that it comes to us with challenges. In the first instance, this is because we’re holding people accountable for something they could perhaps easily get away with before. We’re saying ‘No more golden exiles. No more amnesties. You are to be held responsible for killing people, for orchestrating rape on a massive scale, for looting people’s property, for atrocity crimes.’

There’s bound to be pushback by those who feel they’re the ones being targeted. They try to discredit the Court in whatever way they can – for instance, by creating this issue of African bias, saying the ICC is only targeting African leaders. This is not correct.

Or there is politics: whatever the ICC does, whoever we charge or don’t charge, is always interpreted in some political way. It’s a problem for the Court in the sense that we have to constantly tell the right story, to explain the jurisdiction and limitations of the Court.

A big part of that is reaching out to the affected communities and talking to them.

I believe we’re on the right side of history. We’re pushing against this culture of impunity and trying to create a global law-based order

JL: You have absolute confidence in what you’re doing and the ICC project, which is still very young?

FB: I’m very, very confident in the work we’re doing. I believe we’re on the right side of history. We’re pushing against this culture of impunity by those who think they can commit crimes and get away with it. We are trying to create a global law-based order.

JL: You’ve also seen some very strong pushback from the United States National Security Advisor, John Bolton. How do you view that?

FB: We continue to do our work. And we do it strictly in accordance with the principles enshrined in the Rome Statute, without fear or favour. The pushback we receive depends on where we are focusing. A few years ago there was strong pushback from Africa because that’s where our work took us. Today, we are looking at new areas, including [whether to open an investigation of war crimes in] Afghanistan. And so we have these statements and threats from Mr Bolton against the Court.

JL: America is threatening ICC judges and prosecutors with sanctions, with potential criminal charges. How concerning is that for you?

Mike Pence

US Vice President Mike Pence speaks to US National Security Advisor John Bolton next to Russia’s President Vladimir Putin at the East Asia Summit in Singapore, November 2018.

FB: I would have been very concerned if these threats were made and then there was absolute silence. But people and states have stood up and spoken in support of the Court, and in support of a rules-based global order. This is important for the ICC, because we need the cooperation of states diplomatically, politically and financially. The states that created this Court will not allow the work we’re doing to fail.

At the moment, I cannot say much about whether we’ll investigate in Afghanistan because I have made the request to the ICC judges and it’s with them to authorise. But, as I’ve said, most investigations come with their challenges.

JL: You have a powerful position. You have discretion to open examinations of pretty much any situation, with certain constraints. What are the checks and balances?

FB: The states who negotiated the Rome Statute had all of this in mind. It was critically important to have checks and balances in the system, should you have a prosecutor who might want to abuse their powers. Under the Rome Statute, for instance, I have proprio motu powers as Prosecutor, which means in a situation where crimes are being committed that may fall under the Court’s jurisdiction, first I have to look at whether they are ICC crimes, and also see whether the state is doing anything to address the crimes.

Before I open an investigation, I have to go before the ICC judges and give the reasons why I feel I should intervene. Also, if my office investigates and wants to go to the next phase of charging a person, I cannot just charge them. I take the charges before the judges for judicial scrutiny and for warrants or summons to be issued. Then, of course, there’s 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’s subjected to the same international standards of proving the case beyond reasonable doubt.

So there are all those checks and balances to make sure there’s due process, and there is also full respect for the rights of defendants.

We’re saying “No more golden exiles. No more amnesties. You are to be held responsible”

JL: Moving on, how significant is the addition of the crime of aggression, which refers to an unjust or illegal war, to the ICC’s jurisdiction?

FB: I believe it’s very significant. States decided that from the very beginning actually, but we now have all the ratifications needed for the crime to be triggered in the ICC. If at any time there is a reason for us to charge this crime, we’ll do so in accordance with what the Statute tells us.

JL: Over 120 countries have ratified the Rome Statute. Some permanent members of the UN Security Council haven’t ratified, but what’s been less of a focus is that much of the Middle East hasn’t ratified either. Given the situations in Palestine, Syria and Yemen, could that be even more problematic?

FB: Ratification is a prerogative of states. It’s their right and it’s a determination. One of the things I’ve done as Prosecutor of the ICC is tried to reach out to the Middle East, to show the importance of them becoming part of the ICC. Given their rich history and culture, there is a lot that can be brought to the table. That conversation goes on, and we’re hopeful there will be more ratifications from this region and beyond.

At several levels within the Court, efforts are being made not only with regard to this region, but also on universality in general. This is because the presence of universality prevents a lot of problems – for instance, the issue of double standards.

The ICC is accused of double standards because our jurisdiction and where we can intervene is limited to territorial jurisdiction, or personal jurisdiction, or when the UN Security Council refers the situation to the Court. Otherwise, we’re not able to exercise jurisdiction in many areas.

There’s bound to be pushback by those who feel they’re being targeted

JL: Is universality the top priority for the Court?

FB: It’s definitely a priority, not just for the ICC but for those who support us. Universality can help us avoid a lot of other consequent problems we face and have to explain. Syria is a typical example. There have been a lot of calls for the ICC to intervene there, without actually knowing that Syria is not a State Party to the Rome Statute. We do not have territorial jurisdiction to be there. But when there’s universality and the law is applied, the ICC, the Statute, the rules are applied across the board in every country, that would help us avoid that kind of accusation. That’s the ideal.

JL: Let’s wrap up by looking at the specific situation in the Philippines, where you’re investigating killings related to the drug wars. There’s been pushback from President Duterte, who’s threatened to arrest you if you were to find yourself in the country. Are you continuing to investigate there?

FB: It’s preliminary examinations, not investigations. We’re continuing to collect information, analyse it and will then make a determination.

We had the same situation with Burundi. As soon as I announced that I was opening a preliminary examination into the situation in Burundi, the authorities decided to pull the country out of the ICC. When a notification is given that a state will withdraw from the Court, it takes one year. The Philippines is now doing the same. But it’s year has not yet passed, so the Philippines is effectively still part of the ICC. We have jurisprudence. It’s really not a question of the clock ticking in the case of Philippines, because they cannot stop the ICC from continuing with its work.