Kata Kata’s Exclusive Interview With the ICC Chief Prosecutor Dr. Fatou Bensouda ( Part 3 )

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Discusses amongst other issues:
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 

Kata Kata: Some years ago, President  Omar al-Bashir of Sudan, a War Crime suspect was to be arrested in South Africa and handed over to the ICC. However, the South African government, a member of the ICC state refused the ICC request to arrest and hand over President Omar al-Bashir to the ICC. What is your reaction to this and are there ways to punish or sanction South Africa for such a bold decision?

Bensouda: I was deeply disappointed by the event you mentioned, which took place last June 2015, and my greatest empathy is reserved for the victims of the unimaginable atrocities committed in Darfur. Hundreds of thousands of people have died and more than two million people remain displaced. It is their lament which echoes the loudest.

Still, there are positive signs. Domestic legal proceedings in South Africa inspired some hope: the swift decision in High Court of South Africa required the authorities to take all reasonable steps to detain Mr. Bashir and ruled that the Government’s failure to do so was unconstitutional. South Africa is a member of the ICC. Under that Rome Statute, the legal obligations of all States Parties are clear: if an arrest warrant has been issued by the Court, then they are underan obligation to detain and arrest that person.

The High Court’s decision highlighted that separation of powers and the independence of the judiciary are alive and well in South Africa.  

It further underlined the growing recognition by domestic courts of the state’s obligation to uphold their commitments under international law. The judgment also clarified South Africa’s clear legal obligations towards the ICC and, by analogy, those of other ICC member states. That much, at least, was a victory for the rule of law and one that I hope provides guidance to other countries. 

I was also encouraged by the breadth of media coverage the situation has received. Social and news media erupted with expressions of global support for the ICC proceedings and impatience as news of Mr. Bashir’s escape spread.

Kata Kata: What concrete steps must the Security Council take in cases where its member states fail to abide by its own resolutions?

Bensouda: This is a good question – but one perhaps better addressed to the United Nations  Security Council itself. A finding of non-compliance and a report of that finding sent to the ICC’s Assembly of States Parties or to the United Nations Security Council has happened on several occasions already. In 2011, for instance, the Chamber found that both Malawi and Chad had not met their legal obligations to arrest Sudan’s President Bashir and surrender him to the ICC when he visited each of those countries. After non-compliance is reported, it is then up to each of those bodies to decide whether and how to respond. It goes without saying that meaningful follow-up action on behalf of these bodies is crucial to ensure compliance.

Kata Kata: If some countries are not signatories of the ICC, does it not encourage countries to act with impunity? How can other countries be encouraged to be members of the ICC club?

Bensouda: I stress the importance of more countries from around the world joining the court, to lead on accountability, rule of law and justice. Today, there are 123 States Parties, or members, of the International Criminal Court. These include 34 of the 54 African States, all of South America, and all of Western Europe. More states need to become States Parties, in particular from the Middle East and the rest of the Asian continent. The Court will continue to build on its credibility through its work. It is a gradual process, but membership of the Court continues to grow, worldwide. 

Let me also state that the Court’s jurisdiction works in such a manner where potentially countries which are not States Parties can also be caught by the arm of international criminal justice. The ICC can have jurisdiction over nationals of non-state parties if they commit atrocity crimes in the territory of States Parties.  This jurisdictional reality is a form of protection for those States Parties that have ratified the Rome Statute.

Kata Kata: The alleged use of so-called “enhanced investigation tactics  “or torture by the USA military in Afghanistan, has been a subject of discussion. The USA might not be a signatory of the Rome Statute that established the ICC, but Afghanistan is. Is Afghan’s signatory enough legal backing to investigate or persecute the American military personnel?

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

Bensouda: Afghanistan is a party to the Rome Statute and as such, the ICC has jurisdiction over any war crimes, crimes against humanity or genocide committed on the territory of Afghanistan, irrespective of the nationality of the perpetrator.  My Office is impartially examining all allegations of war crimes committed in Afghanistan, by any party to the conflict, including international forces.

Kata Kata: Some analysts have argued that for the ICC to be respected and not be accused of being weak and biased,it  must prosecute individuals from big and powerful countries like the USA, China and Russia. Do you agree? Does the ICC have both the legal and political will to take the prosecution battle to the powerful countries?

Bensouda: We should guard against politicising the Court’s proceedings.  The ICC’s only target is achieving justice for all victims of atrocity crimes, where we have jurisdiction and when national courts are not upholding their primary responsibility to investigate and prosecute. Justice is not a pick and choose system in the way you characterise it in your question. The ICC cannot investigate crimes anywhere anytime. It is not based on geographical representation. No matter how dire the situation, the Court and its Prosecutor are empowered yet also restricted by the Court’s governing law, and my Office acts strictly within the four corners of that law, nothing more and nothing less.  Any other suggestion of why, when or where we must act – when politically convenient, for example -would be to ask us to ignore the law. I would say one of the Court’s biggest challenges is the issue of misperceptions and misunderstanding of the ICC’s judicial function.  Again, states, civil society, academia, and indeed the press, all have a role to play to help demystify and correct the misperceptions about the Court.      

Kata Kata: Interestingly, while accusing the ICC of being biased, the majority of the African referrals have come from Africa – not from the Security Council. Based on the available evidence, your organisation has pursued those cases. Would that not be an irony for those Africans accusing the ICC of targeting Africans? Secondly, would that not be a reason for you to indict or investigates other atrocities without necessarily dancing to the United Nations Security Council’s politics?

Bensouda: This is true. Self-referrals have come from the Central African Republic, (on two separate occasions), Mali, the Democratic Republic of the Congo, Uganda, and Cote d’Ivoire. The self-referral of Mali and the second self-referral by the Central African Republic in May 2014 are yet more recent examples of how African states ultimately value the ICC and engage with it to address mass crimes. The other two cases, Libya and Darfur, were referrals by the UN Security Council. As I mentioned already, we are not bound to automatically open investigations following a referral by the UN Security Council.  We can either refuse to do so, or proceed –either way, the decision is my Office’s to make independently and impartially based on its own assessment and analysis guided by the applicable legal criteria. It is only with respect to Kenya that investigations were opened proprio motu (after Kenya failed to investigate and prosecute those responsible for the crimes arising from the PEV after being given ample opportunity to do so).

Kata Kata: You have won many international awards and been recently voted by the Time magazine as one of the 100 most powerful and influential persons in the world. Looking at your African background and gender, what advice can you give to women out there, whose dreams and aspirations are damped by the men’s subordination ideologies?

Bensouda: Traditionally, the law has been a male-dominated profession. Slowly but surely that imbalance is being corrected. In many countries, women now make up, on average, about half of all enrollments in law school and gender diversity in the legal sector is slowly shifting to incorporate the greater participation of women in positions of responsibility. I believe this trend will have a positive impact on the development of jurisprudence that is more gender sensitive and responsive.  I am particularly pleased to be part of an international organization that is taking the lead in its fieldto promote gender equality in the workplace. Still, we at the ICC are but araindrop in an ocean of challenges for gender equality.

Perhaps nowhere are those challenges more profoundly apparent than in war. While the suffering of war is felt by entire communities, prevailing inequalities intensify the consequences for women and girls. Conflict escalates their vulnerability to poverty as women endure inadequate access to health services and welfare, fewer economic opportunities as well as diminished political participation.

In my role as ICC Prosecutor how African I see the empowerment of women in communities affected by war as a key stepping stone on the path towards tempering war and conflict. Greater inclusion of women in positions of responsibility within government, local communities mass crimes and civil society, gives a voice to a group intensely affected by war but rarely participant in the decisions that lead to it.

Kata Kata: You have been a huge inspiration to many and you have brought hope to the hopeless Africans and minorities. We wish you all the best in your challenging job.

Bensouda: I thank you for the opportunity to answer your questions.

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