Kata Kata’s Exclusive Interview With the ICC Chief Prosecutor Dr. Fatou Bensouda (Part 1)

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Recently, our research has shown that the International Criminal Court (ICC) is perceived negatively in many quarters. More worrisome still, almost 80% of our respondents do, in fact, not know clearly what the organization stands for or its legal boundary. It is a common belief amongst many that the ICC is not only an aggressor, but it is also equally regarded as the imperialistic tool of the West. That is not all. The International Criminal Court hinders political and economic growth, some have strongly argued…. The count goes on and on. There is nowhere this negative belief is so strong than in Africa and amongst Africans. What could have nurtured such foggy perception of the criminal court? Are there good reasons why many stubbornly hang on to their pessimistic views about the ICC? Could the court have given its critics enough ground for their gloomy perception? Has the organisation done enough to address, correct or erase the unfavourable attitude towards it, which obviously casts a negative shadow on its name? It does not help that most of the war crime suspects on the ICC list are Africans. Doesn’t the statistics give room to the current disenchantment?

Armed with the above raw statistics we sought an interview with the ICC. The rare, exclusive and detailed interview with the Chief Prosecutor of the ICC Dr. Fatou Bensouda, addresses many issues such as the jurisdiction of the criminal court, the Omar al-Bashir, Ruto, Kenyatta saga. Not all. Do African countries represent the largest regional member states of the ICC, if yes, why are they ironically anti ICC? What of the refusal of South Africa to arrest and hand over Bashir to the court? Why have Africans topped the list of the ICC wanted crime suspects? Are there possible war crimes in Afghanistan, Honduras, Iraq, Palestine, Colombia, Georgia? Can the USA and British troops be arrested for possible war crimes in Iraq or  Afghanistan – even though the USA is not a member of the ICC? Why are African leaders, once the staunchest advocates for the Criminal Court, now its greatest critics? Is the ICC ironically needed for the political stability and economic growth in the world? These and so many other sensitive and explosive issues are all discussed in the interview. It is a rare and exclusive interview you dare not miss!!

Get ready for the exclusive and detailed interview. First a brief introduction of Dr. Fatou Bensouda.

Mrs. Fatou Bensouda is the Prosecutor of the International Criminal Court (ICC), having assumed office in 2012. In 2011, she was elected by consensus by the Assembly of States Parties to serve in this capacity. Mrs. Bensouda was nominated and supported as the sole African candidate for election to the post by the African Union.  Between 1987 and 2000, Mrs. Bensouda was successively Senior State Counsel, Principal State Counsel, Deputy Director of Public Prosecutions, Solicitor General and Legal Secretary of the Republic, and Attorney General and Minister of Justice, in which capacity she served as Chief Legal Advisor to the President and Cabinet of The Republic of The Gambia. Her international career as a non-government civil servant formally began at the UN International Criminal Tribunal for Rwanda, where she worked as a Legal Adviser and Trial Attorney before rising to the position of Senior Legal Advisor and Head of the Legal Advisory Unit (2002 to 2004), after which she joined the ICC as the Court’s first Deputy Prosecutor. Mrs. Bensouda has served as a delegate of The Gambia to, inter alia, the meetings of the Preparatory Commission for the ICC.

She is the recipient of numerous awards, including the distinguished ICJ International Jurists Award (2009), presented by the then President of India P. D. Patil; the 2011 World Peace Through Law Award presented by the Whitney Harris World Law Institute, the American Society of International Law’s Honorary Membership Award (2014), and the XXXV Peace Prize by the United Nations Association of Spain (2015). In addition to receiving several honorary doctorates, Mrs. Bensouda has been listed by Time magazine as one of the 100 most influential people in the world (2012); by the New African magazine as one of the “Most Influential Africans;” by Foreign Policy as one of the “Leading Global Thinkers” (2013), and by Jeune Afrique as one of 50 African women who, by their actions and initiatives in their respective roles, advance the African continent (2014 & 2015).

L-R: Romolo Pusceddu, director of Kata Kata International Business Development: Kimberley Wolff (Marketing): Dr. Bensouda (Chief Prosecutor, ICC): Ogo Ubabukoh (Publisher, Kata Kata)

 Kata Kata: It is a great privilege for us to interview one of the greatest legal juggernauts in the world, a force to recon with, and the biggest African name in the legal circle. Thank you Dr. Fatou Bensouda, the Chief Prosecutor of the Internation Criminal Court (ICC) based in Den Haag, The Netherlands, for granting us this interview.

Bensouda: I thank you warmly for the chance to answer questions about the work of my Office in our efforts to bring an end to impunity for the world’s worst crimes and a measure of justice for the victims.

Kata Kata: As a top lawyer from Africa and the Chief Prosecutor of the Internation Criminal Court (ICC), the first African to occupy such a prestigious and sensitive post, how do you feel?

Bensouda: It is an honour and a privilege to serve as the Court’s Prosecutor. With that privilege of course also comes great responsibility. I am committed to holding to account those most responsible for the world’s worst crimes, namely, genocide, war crimes, and crimes against humanity.  We are doing everything we can, to do just that, notwithstanding the challenges present.

As a proud African who hails from a continent that has regrettably experienced and continues, in many instances, to experience atrocity crimes, I consider it my duty to do what I can to address such unspeakable crimes whether committed in Africa or elsewhere my jurisdiction allows me to act. The victims of such crimes deserve justice. Moreover, atrocity crimes have a debilitating impact on society as a whole and stunt its potential.  These heinous and destructive crimes must be addressed, and I feel enormously privileged to have the opportunity to do my part.

Kata Kata: What message do you have for African women who are still under the shackle of conservative ideologies?

Bensouda: As a woman and an African, I add my voice to the chorus of others who champion women’s rights in the pursuit of peace and stability. There are many ways to strive for and ordain peaceful change. Mine is the language of law. In my role as ICC Prosecutor, I am reminded daily of the consequences of armed conflict on the lives of women and girls. In the courage and dignity of victims and survivors, I have seen human nature at its best.  And reflected in the sheer brutality of crimes against them, I have seen it at its very worst. Sexual and gender-based violence is sadly characteristic of so many conflicts, often in circumstances where violence against women is already entrenched.

I am acutely aware that for women and girls, especially, the cost of armed conflict is more than the already weighty burden of physical and psychological scars. While the suffering of war is felt by entire communities, prevailing inequalities exacerbate the consequences for women and girls.

Greater inclusion of women in positions of responsibility gives a voice to a group intensely affected by war but rarely a participant in the decisions that lead to it. It is long overdue for women the world over to finally and fully participate in all spheres of social, cultural, economic and political life, and for men to fulfill the honourable role of standing strong with women in promoting equality.

Women leadership at all levels will provide a platform for women and girls who have been traditionally marginalised to speak up, to stand tall, and to hold their oppressors to account.

Kata Kata: Today in many African countries, the name, ICC is received with some degree of scepticism. What do you think is the reason behind this negative perception amongst Africans?

Bensouda: The root of such critiques can be traced mainly to one of the challenges facing the ICC: misperceptions about the Court’s mandate and the limits and potentials of its jurisdiction – in other words, a lack of full understanding of where the Court can and cannot legally act and why, and how the ICC was seized by the situations and cases currently before it.  Within the limits of its resources and means, the Court does its best to counter such misperceptions, but it needs the assistance of its supporters.  The Court’s member states, civil society, academia and indeed, the media can play a crucial supportive role in this regard to demystify the ICC.

Kata Kata: Looking at the statistics of individuals indicted by the ICC, Africans top the list; yet around the world, we see a lot of atrocities being committed in many non-African countries, and the perpetrators of these gruesome acts are not subjected to the ICC legal hammer. How do you justify your indictment list, in view of this social reality?   

Bensouda: If we consider statistics, then let us never forget the victims: more than five million African victims displaced, more than 40,000 African victims killed, thousands of African children recruited to fight wars and transformed into killers, and thousands of African victims raped.  Atrocity crimes have been committed in a number of African states under the Court’s jurisdiction, and those most responsible for such crimes must be held accountable.

Of course, there is no doubt that crimes of terrifying cruelty have or are being committed against women, men and children in countries where no one is held responsible. It’s important to understand that my mandate is subject to a number of legal limitations. A critical restriction for my discretion to act as Prosecutor is that the country where atrocity crimes are committed has to be a member of the ICC or that the perpetrator must be a national of a member state of the ICC.

Wherever the law gives us the power to act, and victims need us, we will not let them down. In Africa, no less than six times, it is African governments themselves who asked the ICC to exercise its jurisdiction.  Africa represents the largest regional grouping of states, which has embraced the ICC by joining the Court.

An important fact which is often neglected is that my Office is already conducting important work outside of Africa, where atrocity crimes are alleged to have been committed in the context of major conflicts around the globe. Indeed, from Iraq to Colombia, from Afghanistan to Georgia, from Honduras to Palestine, my Office is already conducting preliminary examinations, analysing whether the legal criteria under our founding treaty – the Rome Statute – are met to open an investigation.  As I have already stated publicly, I will not hesitate to open an investigation with respect to any of these situations where my legal mandate requires me to do so.

When properly understood, it is not about focusing on Africa or targeting Africa; it is a question of jurisdiction and working for the victims. In this sense, we are working with and for Africa, and we will not hesitate to do the same in other parts of the world where our jurisdiction permits us to act.

Kata Kata: Many Africans have accused your organsation of being an extension of the Western neo-colonialism, achieved through the use of the Chief Prosecutor Ms. Fatou Bensouda, an African. How do you react to this accusation? 

Bensouda: The answers I have provided to your other questions should already demonstrate that this accusation is utterly false and without merit. I will nevertheless add the following: The idea we are in any way ‘politicised’ is to obscure the truth and distort the public understanding of what we do. The fact is that the ICC undertakes its work in full independence and impartiality.

When the Conference that founded the International Criminal Court started, some 21 years ago, the eyes of the world were on its delegates to herald a new era in accountability for atrocity crimes. African leaders were among the staunchest advocates for the Court. As mentioned, African countries represent the largest regional bloc of states to have joined the ICC.

African leaders should be commended for the continued leadership they have shown in supporting the ICC’s work. Their faith in the Court is exhibited in their ongoing interaction with it.  Cooperation is crucial for the ICC. The collection of evidence, witness protection, arrest and surrender of suspects as well as the enforcement of sentences are all carried out through the commitment of the Court’s member states. They are the enforcement arm without which the Court cannot properly function.  Most of my Office’s requests for cooperation to date have been sent to African states and we benefit from great support and cooperation from individual African states. Civil society, the legal profession and grassroots support in Africa is also strong.

As I mentioned, I have received more formal requests for assistance from African countries than any others. Mali, DRC, Uganda, Côte d’Ivoire and CAR (twice) have all asked my Office to investigate allegations of atrocities committed on their territories. As you are aware, the UN Security Council asked us to examine situations in Darfur and Libya.  We proceed and opened investigations in these two situations only after we independently came to the conclusion that the necessary legal criteria were met.  In other words, a referral from the United Nations Security Council does not automatically trigger ICC jurisdiction.  It will always be an independent assessment and a decision by the Office whether or not to proceed to an investigation following a referral by the Council. Again, we need to demystify the ICC and demonstrate how it really works.  The potentials of the Court as an independent and impartial judicial institution to advance the international rule of law are immense and we must all support its crucial work.

 Kata Kata: What merits a case as a war crime, genocide or crime against humanity?

Bensouda: These crimes are clearly defined in the founding treaty of the Court, known as the Rome Statute and the elements of crimes.

Kata Kata: Would you define the USA intervention in Iraq under President George Bush, which was termed “illegal” by the UNO, and atrocities committed in that country by the USA military officers, as a war crime, genocide or crime against humanity? If yes/no why?

Bensouda: As you may be aware, I re-opened the preliminary examination of the situation in Iraq (previously closed in 2006) on the basis of new information received in 2014. My Office is examining alleged detainee abuse by UK forces in Iraq between 2003-2008. My  Office does not have jurisdiction over the alleged US or Iraqi crimes in Iraq, because those states are not parties to the Rome Statute. Our jurisdiction, in this case, is based on the UK’s status as a State Party to the Rome Statute, in other words, as a member of the Court.  Because the UK is a State Party, we have jurisdiction over the alleged conduct of the country’s nationals in Iraq.

War crimes, crimes against humanity or genocide are atrocity crimes under ICC jurisdiction. These crimes are distinct from the illegal use of force. As mentioned, the US and Iraq are not States Parties to the ICC, and in any event, to date, the Court’s jurisdiction over the illegal use of force/crime of aggression has not yet been triggered.

In addition to Iraq, my Office is also conducting preliminary examinations with respect to Afghanistan, which is a State Party of the ICC.  In that situation, we’re looking at alleged atrocity crimes committed by all sides to the conflict, including international forces.

More about this exclusive interview and other Kata Kata magazines, click on: https://www.magzter.com/NL/Kata-Kata-Cartoon-Magazine/Kata-Kata-Cartoon-Magazine/Comics/157123  /   https://katakata.org/magazines/


Coming up ( Part 2 ): Discusses amongst other issues, the President Uhuru Kenyatta saga, ICC alleged minimal accomplishments, intentional frustrations of the ICC’s investigations, protection of the ICC potential witnesses, ICC as a partner/victimizer, Is fear of the ICC indictment discouraging dictators from leaving power? Etc ……..

Get ready for Part 2!!!