After the deluge of criticisms against the International Criminal Court’s apparent bias or selective prosecutions against Africans, it is now the turn of the Court to talk back. And who better to do it than Fatou Bensouda, the first African to be appointed as chief prosecutor of the Court, who took office in mid-June. She denies the Court has unfairly focused on Africa, and that “what offends [her] the most when [she] hear[s] criticisms about this so-called ‘Africa bias’ is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes”.
Our associate editor Mercy Eze interviewed Bensouda, a former Gambian Minister of Justice, and the lady was not for turning:
“No one,” she declared, “will divert me from the course of justice”. Here are excerpts.
Q: I have had the opportunity to interview you in the past, and can still recall the debate generated by your appointment as the attorney general and justice minister of The Gambia. Pundits attested to your down-to-earth and no-nonsense nature at the time; they said either you “get sacked” or you “quit” on principle if some executive order attempted to undermine your belief in justice. Truly, you did not forget your principles and so you were ousted. How far, as the ICC’s chief prosecutor, can you implement such a policy during your tenure?
A: I don’t think that the 121 States Parties that formed the ICC had done that only to turn round and formulate policies that would run contrary to its mandate. Justice is not a pick and choose system! To be effective, to be just, and to be a real deterrent, the activities and decisions of the Office of the Prosecutor (OTP) will continue to be based solely on the law and the evidence.
In turn, the OTP’s decisions and those of the Court in general must be respected and implemented. This is the only way to sustain and strengthen the system of international criminal justice created by the ICC’s Rome Statute. It requires the efforts of all to act within the system.
Q: The ICC celebrated its 10th anniversary on 1 July. Tiina Intelman, president of the Assembly of ICC’s State Parties, saw the occasion as a time for stock taking. How do you appraise the achievements and shortcomings of the last 10 years?
A: I can say that the ICC has achieved a lot, when you look at where it is coming from and where it is today. To date, the Court has opened investigations into seven situations: DRCongo, Uganda, Central African Republic, Kenya, Libya, Côte d’Ivoire, and Darfur in Sudan. Of these seven, three were referred to the Court by the States Parties (Uganda, DRCongo and Central African Republic), two were referred by the UN Security Council (Darfur and Libya), and two (Kenya and Côte d’Ivoire) were begun proprio motu by the former prosecutor [Luis Moreno-Ocampo].
Q: Critics say that it took the ICC 10 years to prosecute one person since coming into being. Will it take another 10 years to bring other indictees to justice?
A: It is important to know that the ICC was created in 2001. Regarding the case of DRCongo’s Thomas Lubanga Dyilo which you probably referred to in your question, it was only in 2009 that the ICC opened the case against him, based on the request made to us. The case lasted for three years. Already, there are two cases in the pipeline.
The Court has publicly indicted 28 people, and proceedings against 22 of them are ongoing. The ICC has issued arrest warrants for 19 individuals and summonses to nine others. Five individuals are in custody, one of them has been found guilty (with an appeal possible) while four of them are being tried. Nine individuals remain at large as fugitives (although one is reported to have died).
Additionally, two individuals have been arrested by national authorities, but have not yet been transferred to the Court. Proceedings against six individuals have finished following the death of two of them and the dismissal of charges against the other four. In addition to this, the OTP is currently conducting preliminary examinations in a number of situations, including Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea, and Nigeria.
We have become a crucial actor in the international arena. Obviously, yes, there are things to be learned. There is still a lot to be done – arrest warrants still pending, crimes continuing. There is need for full and consistent cooperation with the Court to maximize its mandate.
Q: The ICC, under your predecessor Luis Moreno Ocampo, was severely criticised by many Africans, and other people, who are angry at what they see as “a culture of selective prosecutions” against mainly Africans, while other likely “indictees” like the former US president George Bush and the former British prime minister Tony Blair are spared prosecution for what they did in Iraq. What is your take on this?
A: This is an unfair accusation of my office and of the ICC as a whole. We have been working for millions of victims of crimes, in Uganda, DRCongo, Central African Republic, Darfur, Kenya, Libya and Côte d’Ivoire. We have done it with the strong cooperation of African States Parties, and we have benefited from the commitment and support of our partners within the African civil society.
However, this is unfortunately not the story relayed by the media. Again and again, we hear criticisms about our so-called “focus on Africa” and about the Court being an “African court”. Anti-ICC elements have been working very hard to discredit the Court and lobby for non-support; and they are doing this with complete disregard for legal arguments.
What offends me the most when I hear criticisms about this so-called “Africa bias” is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes.
Indeed, the greatest affront to victims of these brutal, unimaginable crimes – women and young girls raped, families brutalised, robbed of everything, entire communities terrorised and shattered – is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a “pro-Western, anti-African” court.
Our focus is on individual criminal behavior against innocent victims. My focus is on Joseph Kony, Bosco Ntaganda, Ahmed Harun, and Omar Al-Bashir. The Office of the Prosecutor will go where the victims need us. No one will divert me from the course of justice! As I mentioned earlier, there is a lesson to be learned.
Q: Is it true – as the former British foreign secretary, Robin Cook, once said – that the ICC is not a court set up to try British prime ministers or American presidents?
A: I have never heard that; and I will be surprised if such a comment was ever made! The ICC you are hearing of today has been signed and ratified by the legal authorities. We have a mandate! As I explained to you earlier, our job is not to violate the due processes of law or to pick on individuals, as to who to prosecute or who not to prosecute. The office of the prosecutor is there for all the 121 States Parties, acting in full independence and impartiality.
Q: But the ICC is now perceived by many people as a tool being used by the major powers for their own selfish ends. What do you say to this?
A: Our 121 States Parties come from the three regions that have taken the lead in terms of international justice efforts: Africa, Europe and South America. Their decision to promote the international rule of law is not just a matter of principle: it is a matter of realism. These regions have suffered from massive crimes and have eventually learned that a nation acting alone cannot protect its citizens from these crimes. Genocide, crimes against humanity, war crimes – these are massive crimes that cross borders.
Europe has seen how massive crimes spilled over during the Nazi regime and the Balkan conflicts, whereas South America and Africa witnessed similar atrocities throughout the Cold War. Africa also suffered the Rwandan genocide which resulted in the death of almost one million people and outflows of refugees into Tanzania and Congo. This exodus was the root of the Congo wars, which killed four million people, and even today sexual violence in DRCongo has reached unspeakable levels.
Today, avoiding a repetition of these experiences is a strategic priority of states within these regions. Indeed, international justice gives power of leadership to small and medium countries, to principled states, those who are determined to use the power of the law, not the power of arms, to protect their citizens and their territories.
Political leaders can lead efforts for international justice in the global arena by supporting the ICC. Senegal was the first country to ratify the Rome Statute in 2002, after the then president of Senegal, Abdou Diouf, had facilitated meetings in Dakar in 1998 which led to the Rome Conference establishing the ICC.
South Africa refused to invite [Sudan’s] President Omar Al Bashir to the inauguration of President Zuma in 2009. Botswana and President Ian Khama have consistently expressed their strong support for the work of the Court. Just recently, the foreign affairs minister of Zambia stated that President Al Bashir would “regret the day he was born” if he tried to go to Zambia. These countries, these leaders, are showing leadership.
The ICC sets a very clear and basic limit: violence cannot be used to gain or retain power. These leaders have understood this, and factored it into their relations with others. The cases in Kenya and Côte d’Ivoire are sounding a warning.
Q: But many people are asking why the ICC indicted Muammar Al Gathafi even in the middle of the hot war then going on in Libya. Was it fair that NATO was raining bombs on Gathafi, and yet the ICC found it safe to indict him for crimes against humanity, and left the opposition forces attacking him free, with all the record civilian casualties?
A: As you know, on 26 February 2011, the UN Security Council by consensus adopted Resolution 1970, referring the situation in Libya since 15 February 2011 to the ICC prosecutor, stressing the need to hold accountable those responsible for attacks on civilians.
On 16 May 2011, the Office of the Prosecutor [OTP] requested arrest warrants for Muammar Gathafi; Saif Al‐Islam Gathafi – his son, acting as the Libyan de facto prime minister – and Abdullah Al‐Senussi, a colonel in the Libyan armed forces and head of the Military Intelligence, charging them with crimes against humanity (murder and persecution) committed in the first few days of the uprising. On 27 June 2011, the ICC’s Pre‐Trial Chamber issued warrants for the three individuals, regarding the crimes committed against civilians in Tripoli and other areas under the control of Gathafi.
The OTP continues to collect evidence in relation to a second case in Libya of gender crimes committed against both men and women. Findings by a UN Commission of Inquiry confirmed the commission of these crimes. The OTP is mindful of the sensitivity surrounding rape in Libya, and has adopted a strategy to limit exposure of victims by focusing on obtaining evidence from doctors and soldiers.
In his address to the UN Security Council in May 2012, Libya’s deputy permanent representative to the United Nations, Ambassador Ibrahim Dabbashi, noted that justice was among the new government’s top priorities, and that the government had therefore undertaken the necessary judicial reforms to re-establish the independence of the judiciary. He noted as well that the government had decided to follow the provisions of the OTP’s policy paper, which stipulates that the Office addresses those with the greatest responsibility for the most serious crimes.
As for other cases, Ambassador Dabbashi said that “they will be dealt with through an integrated plan for transitional justice in a manner that will ensure that justice is served, impunity ended, and national reconciliation, stability, and social peace established”.
Ambassador Dabbashi further commended the Court’s intervention in Libya at the height of the conflict. He noted that these efforts had strengthened the Libyan people’s resolve to put an end to the crimes committed by the former regime, and had also served as an important step towards upholding the right to protection by combating impunity.
Q: Doesn’t the indictment of Gathafi and the non-indictment, so far, of President Basshar al-Assad of Syria give credence to questions raised by critics who say the ICC has now become a tool in the hands of the major powers?
A: First of all, let me clarify that it is not for the ICC to decide. The UN and Arab League special envoy to Syria, Kofi Annan, and other parties involved have been working tirelessly, holding meetings in various places as part of a peace plan for Syria. We cannot bypass these ongoing processes in place. All the cases involving the ICC were placed on our table, like the case of DRCongo’s Thomas Lubanga Dyilo. Already, there are two cases in the pipeline.
Q: Critics of the ICC, including its former dissident staff members during Ocampo’s tenure, have accused the Court of not committing enough time and resources to do thorough research before prosecuting some of its cases. Can your leadership improve on this area?
A: The States Parties will not take all the resources to areas outside the ICC’s jurisdiction. The heart of the issue is in moving forward and consolidating current practices. The Office of the Prosecutor will continue to forge ahead with its investigations and prosecutions.
It will, in particular, also continue to look for innovative methods for the collection of evidence to bring further gender crimes and crimes against children to the Court to ensure effective prosecution of these crimes while respecting and protecting their victims.
Preliminary examinations will remain a key element of the Office’s activities and the Office will continue to ensure clarity, transparency and predictability in its decisions. Based on the lessons learned, and on the exercises it has been conducting internally and externally, the Office will build on its experiences, identify best practices, and continue to improve its efficiency.
Q: Recent decades have seen the emergence of women as heads of state, including in Africa. I, personally, wouldn’t be happy to see any of them handcuffed and bundled to The Hague for trial for war crimes and crimes against humanity. As a woman occupying the highest position at the ICC, do you have any cautionary words for women leaders?
A: My office strongly believes in women empowerment! I admire the good work that President Ellen Johnson Sirleaf is doing in Liberia, and also the Malawi president, Joyce Banda. However, my message to women leaders is the same to all leaders. Leaders are leaders, there is no gender difference in accountability! You cannot commit massive crimes to gain or retain power.
Q: The position of the Court consistently puts it in the public eye, and this is relayed by the media. Is it the ICC misunderstanding the media or the media and public opinion misunderstanding the Court? How can you improve the ICC-media relations?
A: I respect the media as the “fourth estate” and a powerful tool for any development agenda. But I want to encourage the media to try and understand the ICC’s area of jurisdiction, the area we have been working, the strategies being put in place to overcome the challenges faced by the Court and its States Parties.
It falls out of place when the media misrepresent the facts or spread wrong information about the ICC’s role, like the criticism about the so-called “focus on Africa”. I really get angry when incorrect information is put out there, ignoring the great number of victims of brutality, when we forget about the millions of anonymous people that suffer from the crimes of the perpetrators.
Q: The Gambia, your country, hosts two strategic international institutions dealing with democracy and human rights: the African Centre for Democracy and Human Rights Studies (ACDHRS); and the African Commission for Peoples and Human Rights (ACPHR). With Africa as the largest ICC constituency, don’t you think that co-operating with these institutions can ease the workload of your office?
A: You are right! But you have to understand that these institutions have their own specific areas of operations; which are different from our line of activities. We have different mandates. Perhaps it is in the area of research that we can look at in the future to see whether we can collaborate and exchange ideas, in relation to complimentarity. As you know, we have already in place a number of existing sub-regional units working in this direction.
Q: What assurances can you give the world, and particularly Africa, that the ICC, under your tenure, will be fair to all comers?
A: I am humbled by the privilege, responsibility, and vote of confidence bestowed upon me by the Assembly of States Parties and the wider international community. I am particularly thankful for the confidence the African Union had in me and its support for my candidature. This is yet another clear demonstration of the continent’s commitment to international justice and the fight against impunity. The one thing that I can assure every one of you is that I will be the prosecutor for all the 121 States Parties, acting in full independence and impartiality.
The world is increasingly understanding the role of the Court; Africa understood it right from the start. As Africans, we know that impunity is not an academic or abstract notion. This African commitment to ending impunity is a reality, and we have to find a way to focus our attention on it.
Q: With your long standing experience in the justice system, including as former attorney-general and justice minister of The Gambia, what legacy will you want to leave at the end of your nine-year term?
A: A sound functioning office, one that will be well respected.