Shehzad Charania joins JiC for this article reviewing his recent interview with the Prosecutor of the International Criminal Court, Fatou Bensouda. Shehzad is the Legal Advisor and Head of the International Law Team for the British Embassy in The Hague. You can follow him on Twitter here.
In my interview with Fatou Bensouda, I found the Chief Prosecutor to be open, frank and honest as she reflected on the challenges that she has faced in the three years since she assumed her role as well as some of the changes she has put in place since taking office. We also spoke of her hopes for the future.
Why She Took the Job
I began by asking her to look back over her career. The role of ICC Prosecutor is often billed as the hardest in the world. Why did she want the job? The Prosecutor was clear: this was about her conviction for justice and accountability for the most serious crimes, in particular for victims. Her passion for justice developed from a young age when as a child she would skip school to sit in the law courts in Gambia.
As she observed the proceedings, she couldn’t help but feel that the victims – in particular, women – were not getting the justice they deserved. She felt a calling. Years later, she would jump at the chance to move to Arusha and work at the International Criminal Tribunal for Rwanda, leaving behind a comfortable and well-paid job as a banker. Despite the huge challenges she and the Court face today, not a day passed that she has regretted her decision.
Challenges of the Job
I asked her about the challenges she referred to. Cooperation was clearly one of them. The Prosecutor praised the authorities of Niger and Mali for their efforts in the recent transfer and surrender of Ahmad Al Faqi Al Mahdi (Abu Tourab), in which she had personally intervened at the highest level: it was the fastest transfer in the Court’s history from the issuance of the arrest warrant. Cooperation among individual African States was for the most part very good. But, equally, she lamented the fact that it was not always forthcoming, as the non-arrest of President Bashir of Sudan indicates.
The ICC without cooperation is a “moot Court”: the institution needed the support of States – they were the governing body, the financiers and the executing arm. Without full and timely cooperation, the Rome Statute system would collapse. In this respect, Bensouda had a very personal role: she had intervened many times over the years with Heads of State, governments and ministers in order to persuade them to execute requests for information and warrants of arrest. She reiterated the need for the UN Security Council to follow up on its referrals, and to ensure that those referrals came with funding.
Another challenge was Kenya. The Prosecutor described it as a “huge challenge”, and one that the Court was still dealing with. She recalled that the charges in the Kenyatta case were confirmed at the pre-trial stage, which demonstrated that there had been a solid body of evidence at one point. But, over time, this had eroded because of interference with witnesses – individuals recanting or disappearing. It was her professional responsibility as a Prosecutor to withdraw the charges when it was clear by the deadline given by the Trial Chamber that she would not have the evidence to prove guilt beyond a reasonable doubt. At the point of withdrawal, she still had crime-based witnesses; but she had lost the key “linkage witnesses” – those who could testify directly to the guilt of the accused. Lessons had been learnt across her office’s cases, and these were now being implemented, including through the new Strategic Plan.
It was unfortunate, and personally very hurtful, that the victims of the post-election violence had been unable to receive the justice they were craving – yet. She added “yet”, because Kenyatta had not been acquitted; the case could be resuscitated if more evidence becomes available, even once she and Kenyatta had left their respective offices. It would, however, have been irresponsible to have continued with a case where she did not have sufficient evidence to continue to trial.
I asked the Prosecutor whether this case revealed something more fundamental about the Rome Statute system: that it would be impossible to obtain full cooperation from a government whose Head of State was being prosecuted at the ICC, and therefore it would never be possible to prosecute such a person. The Prosecutor vehemently disagreed. It would clearly be difficult: those in positions of power would make the process as tough as possible, and resist being held accountable. But States knew that this would be a problem when negotiating the Rome Statute. This was exactly why the institution was created: to deliver accountability where the State could not investigate and prosecute itself. She emphasised the importance of state cooperation.
The ICC and Africa
On the broader challenges facing the Court, I asked her about the criticism that the Court was targeting Africa. As an African, how did she react to this? Furthermore, how did she respond to accusations that, of all of the self-referrals and Article 12(3) declarations, the Court had only brought cases against the opposition side?
The Prosecutor began by stating the irrelevance of her nationality: what mattered, andwhat enabled her to do her job as ICC Prosecutor, was her independence and impartiality. While she was grateful to the African States for endorsing her nomination, she was the Prosecutor of the ICC for all the parties to the Rome Statute. She would go wherever her jurisdiction would take her, without fear or favour, whether in Africa or otherwise.
The Prosecutor was clear that her office, the Office of the Prosecutor (OTP), is only guided by the evidence, and did not only pursue those most responsible for atrocity crimes in opposition, pointing to the situation in Darfur where she had brought charges against government actors as well as the rebels. In Cote d’Ivoire, she was intensifying investigations with respect to alleged crimes committed by pro-Ouattara side of the 2010-211 conflict. In the Central African Republic, she had opened two parallel investigations: against the ex-Seleka and anti-Balaka. In Mali, she had been clear with the authorities when they had come to her with their self-referral that she would look into all sides. But it was also important to note that geographical or political considerations were not factors she took into account when deciding which situations and cases to pursue: she followed the evidence and the law – that was all that guided the efforts of her office.
The Future of the ICC
We moved on to talk about the Court more broadly. I asked her where she thought the Court needed to improve, and how she justified the level of resources the Court, including her office, was seeking this year. She replied that when she took office, one of her foremost concerns was how to make her office more efficient and effective, drawing lessons from the Court’s first ten years. The guiding document for these improvements was the 2012-2015 OTP Strategic Plan. She had focussed on the collection of alternative forms of evidence – moving away from such heavy reliance on witness testimony, being as trial-ready as possible at confirmation, focused training for staff to ensure joint working methods. The Prosecutor also focused her office with an emphasis on prosecuting sexual and gender based violence – which had been elevated to a strategic goal, a policy on children in or affected by armed conflict, which was currently under preparation, and a “Basic Size” model for her office. This was the OTP’s contribution to the broader aims of the Court.
With regards to resources, the Prosecutor underlined her belief in the importance of justice. Without the security and stability that justice brought, we would not be able to build a society where our children could grow up safely. The amount of money States spent on justice was a fraction of the money spent on conflict, yet the benefits of the former were significant. The ICC had been set up to provide justice where States were unwilling or unable to deliver it themselves. To do this work effectively, it had to be adequately resourced.
I asked the Prosecutor whether she thought the Court had a deterrent effect. She was equivocal that it did. While it was still difficult to point to statistically significant empirical data, there was some anecdotal evidence. The former SRSG for Child Soldiers in Armed Conflict had said that the Lubanga judgment had had an effect on the practice around child soldiers, even in Nepal, a non-State party. In her interaction with government representatives from the DRC, the impact of the same case in the country was also highlighted. To be sure, crimes were still being committed, but the actions of the Court, including her statements, are having an effect.
Finally, I asked the Prosecutor about her hopes for the future of the Court. The Prosecutor wanted above all to see increased support for the ICC, and a Court moving towards full universality. This would be achieved by demonstrating an effective and efficient institution, within which her independence must be maintained.