Kata Kata’s Exclusive Interview With the ICC Chief Prosecutor Dr. Fatou Bensouda ( Part 2 )

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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 ……..

Kata Kata: The withdrawal of the case against President Kenyatta of Kenya, must have been a big setback for you and your organsation as a whole. How do you feel about this setback?

Bensouda: On 5 December 2014, I withdrew charges against Mr. Kenyatta. Given the state of the evidence in the case, at that juncture, I had no alternative but to do so.  By the time we reached trial, our evidence linking Mr. Kenyatta to the crimes in question had eroded. As a responsible Prosecutor, under the circumstances, I withdrew the charges without prejudice to the possibility of bringing a new case, should additional evidence become available. In other words, the withdrawal of the charges does not mean that the case has been permanently terminated. Kenyatta has not been acquitted, and the case can be re-opened, or brought in a different form if new evidence establishing the crimes and his responsibility for them is discovered.

It was a painful moment for the men, women, and children who have suffered tremendously from the horrors of the post-election violence, and who have waited, patiently, for almost seven years to see justice done.

I decided to withdraw the charges against Kenyatta after carefully considering all the evidence available to me at this time. I based this decision on the specific facts of this case, not on any other consideration. As Prosecutors, our actions and decisions have always been guided by the law and the evidence.

Despite persistent efforts by my Office to advance the course of justice in Kenya, in this instance, those who have sought to obstruct the path of justice have, for now, deprived the people of Kenya of the accountability they deserve.

Kata Kata: Your organization (ICC) has been praised for pursuing some of the world’s most heinous crimes, especially in countries where justice is a dream. You have shown that no one is above the law – or at least that is supposed to be the idea. But the most recent collapse of the case against Kenya’s President Uhuru Kenyatta has been a huge setback for the ICC. Some have asked brutally: “Should the ICC continue to exist?” How can you assure the world of the effectiveness and relevancy of the ICC in view of the collapse of the Kenyatta case?

Bensouda: I will not tie my answer to the case of Mr Kenyatta, but will respond to your question in general terms: that the Court was established, among other things, to try persons accused of mass crimes in situations where their own national jurisdictions are neither willing nor genuinely able to do so, for example, because of the powerful positions the alleged perpetrators occupy.

Is it a fair criticism to state that the Court is ineffective because certain individuals who we believe to be criminally responsible are difficult to investigate and prosecute because of their positions of influence? The difficulties are there mainly because those who normally commit such crimes and against whom the Court has evidence – often heads of militia or heads of state – usually benefit from protection; militias by the army; heads of state by the state apparatus.

No one said that establishing the international rule of law was going to be easy.  Seldom have major advances in human progress travelled the path of least resistance.

The ICC and the international criminal justice system will persevere and thrive. They will do so not because of hopeful aspirations of their supporters or faltering by their detractors. But because of what they stand for as powerful ideas; because they meet vital needs for humanity’s progress in the modern era; because without them, we’ll regress into an even more turbulent world where chaos, volatility and violence are seen as inevitable norms.

Kata Kata: Some critics have accused the ICC of minimal accomplishments of convictions in a dozen years, which they argue, do not justify the high costs of running it. How do you react to this?

Bensouda: The ICC was established to complement criminal proceedings in national courts, not usurp them. It was never envisaged that the Court would replace domestic courts to be a global one-stop-shop for criminal justice. On the contrary, its role is to encourage local, national judicial systems undertake this work. In accordance with this mandate, then, it is only when the national judicial system cannot or will not take action that the ICC steps in. In this way, the ICC was designed as a court of last resort.

Criminal justice is not a numbers game. It is about following the evidence, to prosecute perpetrators when the evidence supports the charges, for the defence to present a robust defence, and in this process for the truth to be established. Uncovering the truth is rarely a speedy process. The pursuit of justice will sometimes mean that a person is acquitted and other times that a person is found guilty. It is the evidence alone that will lead the Court to this conclusion. That is how real justice works.

The success of the Court should therefore not be judged by the number of cases in its docket or number of convictions. The shadow of the Court, its deterrent impact, and its ability to trigger national proceedings are all crucial in gauging its effectiveness.

Lastly, in my humble view, you cannot put a value on international criminal justice.  In any event, the Court’s annual overall costs are nominal considering the complexity of its mandate.

Kata Kata: From the accusation of intimidation, murder, withdrawing, and withholding of critical evidence, the case against the President of Kenya (Kenyatta) has been a frustrating experience, some legal analysts claim. How can you prevent such ugly realities in the future and help the ICC achieve its aims?

Bensouda: The severe challenges my Office had faced in the investigation of Kenyatta include the fact that several people who may have provided important evidence regarding Kenyatta’s actions, have died, while others were too terrified to testify for the Prosecution; key witnesses who provided evidence in this case later withdrew or changed their accounts, in particular, witnesses who subsequently alleged that they had lied to my Office about having been personally present at crucial meetings, and finally, the Kenyan Government’s lack of full cooperation compromised our ability to thoroughly investigate the charges.

My Office will continue to receive and consider information which may shed light on those who are responsible for the 2007-2008 post-election violence. My Office remains equally committed to playing its part, within its mandate and means, to preserve the integrity of the Court’s proceedings by investigating and bringing to account those who commit offences against the administration of justice through intimidating or intimidating with witnesses.

Finally, let me state that I have taken measures to ensure that the Office of the Prosecutor is a learning institution, always striving to enhance its effectiveness and efficiency through the experiences gained.  You will note that in the new strategic plans of the Office, measures are now in place which will assist us in better confronting the challenges we may face, for instance through the diversification of the forms of evidence we rely upon, more in-field presence, and being as trial ready as early as possible in the judicial proceedings.

 Kata Kata: Credible witnesses are vital to proving your cases beyond a reasonable doubt, yet some of these witnesses might be unwilling or afraid to testify because they feel their lives are in danger. How can you guarantee the lives of or protect these potential witnesses, who are critical in achieving your legal victory?

 Bensouda: Again, as I have indicated, Kenya cases have seen unprecedented levels of witness interference, intimidation, and obstructionism. This is a major issue for the Office, the Court, and international criminal justice generally.  We cannot afford to allow witnesses to be harmed, intimidated and the likes.  Witness testimony is crucial to ICC proceedings, and witnesses at the Court who often have dual status also as victims deserve to be protected and should feel free to give testimony without fear or intimidation.  Therefore, witness protection remains one of the Court’s highest priorities. The Office is working tirelessly with the Victims and Witnesses Unit in the Registry to address the well-being of witnesses. My Office will also continue to seek authorisation from the Judges for additional protective measures as needed.  Witnesses are courageous individuals who have come forward to tell their account. This is critical to the trier of fact.  We must not allow individuals to derail the course justice at the ICC through witness interference and intimidation.

Kata Kata: Ironically, many Africans complain about the corruption, disrespect for the rule of law and other undemocratic impunities of their leaders, yet the same Africans complain when their corrupt African leaders are invited by the ICC to give an account of their inglorious leadership – something African masses cannot do themselves. How can you convince Africans that the ICC is more a partner than a victimizer?

Bensouda: When properly understood, the ICC is an extension of African States judicial systems. In this way, the ICC is very much a court of international criminal justice for African states and all other states which have ratified the Rome Statute.  That said, the Rome Statute system which underpins the ICC is based on what we call ‘complementarity’. This means that the ICC is a Court of last resort. States themselves have the primary responsibility to bring to justice those who commit atrocity crimes. Only if national authorities don’t have the capacity or the will to genuinely investigate and prosecute, will the ICC step in and exercise jurisdiction.  In this way, the ICC encourages all genuine efforts to do justice for victims, respecting the highest standards.

The Office strives to encourage genuine national proceedings. In the first instance, states themselves must address these crimes. This is why we have been active, for example, in Guinea, and it is encouraging to note the significant and positive developments in the national investigations there. Based on the information available, the national authorities have decided to investigate those responsible for the crimes of 28 September 2009.  Such efforts are encouraging and must continue.   In many ways, the success of the international criminal justice system as a whole can be measured by the commitment of states in upholding their primary responsibility to investigate and prosecute atrocity crimes.   The ICC will do its part, independently and impartially, but it falls to the states, first and foremost, to do so.

Let me also offer the following: we must acknowledge that fighting impunity for atrocity crimes and cultivating the rule of law are fundamental preconditions to the rise of a more peaceful and prosperous African Continent.                                                                          How can societies plagued by recurring conflict in Africa or elsewhere prosper, attract investment or facilitate an environment conducive to economic growth and productivity?

 I strongly believe that establishing the rule of law and a healthy, well-functioning judicial system is a fundamental pre-requisites to political stability and economic growth in any country.

While in times of conflict, war economies may thrive, the net result is damage to the infrastructure, overall economy, development and investment in the country.  Therefore, to the extent that investigating and prosecuting mass atrocities will deter war-making and the commission of such destabilizing crimes, certainly then, criminal justice at the national or international level at the ICC can also play an important role in Africa’s economic growth and development.

Kata Kata: How do you react to the accusations in some quarters, that the ICC indictment of African leaders is the cause of the refusal of these leaders to relinquish power after their terms in office because they fear they might be brought to justice by the ICC?

Bensouda: Usually this question is raised as part of a wider discussion on peace vs. justice and it can be helpful to address this topic. It is a mistake to think, if you are negotiating peace or if you are going through any form of a reconciliation process, that you must forget justice and accountability completely.

We need to move away from that perception. These virtues – peace and justice – are not mutually exclusive; they can actually work together. Take the example of the Lord’s Resistance Army (LRA). The Office charged the top commanders of the LRA and identified five people (following the death of two of them, now three). At the time, Uganda was running an amnesty program encouraging people to leave the bush and take advantage of the amnesty. The then Prosecutor had publicly stated whom the Office is interested in for their role in committing mass crimes in the country. And that all remaining LRA members wanting to take advantage of the amnesty were free to do so. This is an example which demonstrates that the ICC is not against peace and reconciliation.

On the contrary, justice and peace can be complementary. Ours is not a peace mandate. We’re a court of law. While peace considerations are not a legal consideration for the Office, under art. 16 of the Rome Statute, the UNSC, acting under Chapter VII of the UN Charter, can bar or defer an investigation or prosecution for a period of 12 months; this can be renewed by the Council under the same conditions.

While peace processes or considerations are not a consideration in our assessment, I should stress that it would nevertheless defeat the object and purpose of the Rome Statute if our intervention would aggravate the plight and situations of victims on the ground.  While as a rule, our position is that access to justice is in the interest of victims, their diverging views do factor into our assessment of whether or not to proceed with an investigation as foreseen in Article 53 of the Rome Statute.

As to the fact that some leaders do not want to relinquish power, that is the reason why the complementarity mechanism was introduced as a legal tool in the Rome Statute allowing the Court to step in when national authorities do not uphold their primary responsibility to investigate and prosecute those responsible for atrocity crimes committed in their own countries.


Coming up (Part 3) : The President  Omar al-Bashir of Sudan case, refusal of South Africa to hand over President  Omar al-Bashir,  steps the Security Council must take in cases where the ICC member states fail to abide by its own resolutions, the alleged use of so-called “enhanced investigation tactics” or torture by the USA military in Afghanistan, prosecution of individuals from big and powerful countries like the USA, China, and Russia. Etc 

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/

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