Fatou Bensouda, a Gambian lawyer, began her job as ICC’s Chief Prosecutor in June 2012, succeeding Luis Moreno Ocampo and becoming the second in that role since the Court’s inception in 2002. In this interview, Mrs. Bensouda discussed the relationship between the ICC and the UN Security Council. “We feel that the UN Security Council needs to do more to support the work of the court after having referred a case to it,” she said, adding that while one is a political body and the other is a judicial institution, both are working to address war crimes. “Because of this complex relationship, sometimes there are tensions.”For example, the Security Council referred the situation in Darfur, Sudan to the ICC in 2005, and in December 2012, seven years later, the ICC Chief Prosecutor will give his/her 16th report to the Security Council after its referral. The court has issued five arrest warrants in Sudan, including a warrant for its head of state, Omar al-Bashir. However, none of them have been arrested. Mrs. Bensouda called for more proactive engagement, not only from the Security Council, but also from the 121 states parties to the Rome Statute, the Court’s founding treaty. “The warrants, the orders, the rulings that the ICC makes should be implemented by the states. This is the system,” she added. On the continuing debate that frames peace and justice against each other, Mrs. Bensouda said, “I do not think that the excuse of saying, ‘Let’s leave out justice so that we can attain peace’ should hold.” Mrs. Bensouda gave the example of LRA warlord Joseph Kony, who threatened to continue killing until the ICC drops the warrant for his arrest. Mrs. Bensouda argued that Joseph Kony killed people before the warrant, and continued his actions regardless. “Joseph Kony held this world at ransom for a long time,” she said. When asked about justice in Syria, Mrs. Bensouda said that it is still possible for the ICC to investigate and prosecute war crimes there, but only if Syria or the Security Council grants the ICC jurisdiction to intervene.Mrs. Bensouda also shared her vision for the ICC and reflected on the challenges that the ICC faces. Since taking office, Mrs. Bensouda said she has worked on an operations manual, placed a renewed focus on the prosecution of gender crimes, improved office dynamics, and strengthened the ICC’s relationship with the African Union (AU). In November 2011, Mrs. Bensouda interviewed with the Global Observatory as then-Deputy Prosecutor of the International Criminal Court. The interview was conducted by Till Papenfuss, Policy Analyst at the International Peace Institute.
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Till Papenfuss: We are here today, and it is my great pleasure to welcome back the now prosecutor of the ICC (International Criminal Court), Mrs. Fatou Bensouda. About a year ago, we spoke here when you were still a candidate, and serving already for a long time as Deputy Prosecutor of the ICC. This was, indeed, just about six weeks prior to your election, and since then you have taken over the helm of the ICC. How has it been for you? What were the first steps you have taken since you took office, and did you change anything? How have these first months at the helm played out for you? Fatou Bensouda: Thank you very much for having me, and I’m happy to be with you. It’s been a busy couple of months since I took office. As you know, I was elected in December, but I only took office in June after I was sworn in as ICC prosecutor. I have always said that this time of the ICC, the office of the prosecutor’s existence, is a time of consolidation. A lot was planned when I was still the deputy prosecutor, including working on an operations manual, including having certain policies and strategies defined and in place. For me, it was time to really implement those, and give them some sort of urgency. At the moment, I have made it my priority, also, to look more closely into the investigations and prosecutions of gender crimes, and one of the first things that I have done was to appoint a special gender adviser to advise on this. Currently I am working on a gender policy. I’ve also seen that, working with the office, trying to see how we can also improve on the interactions of the office was important for me. So there is a special task force that is working on that, which I have also put in place. And also, I prioritized what to do in terms of our relationship with the African Union and African states, since most of our work is there now, and I have been making visits and meeting with different African heads of states to see how they can support the work of the court. So there are many different priorities. Cooperation is a huge thing for the court. I’m also working on that very closely with my office. TP: I will get back to the relationship with African states and your outreach to that part of the world a little bit later, but speaking of the office of the prosecutor and the relationships that you manage from within that office, the relationship of your office and the UN Security Council is extremely complex. Tell us more about how you view this relationship and how it could potentially be improved. From the side of the Security Council, what additional support do you need to carry out your mandate, or aspects of your mandate, if any? And really, what are the key challenges, what can be done, and maybe, what could you do proactively to also affect this dynamic?FB: According to the Rome State, the United Nations Security Council can refer cases to the ICC, and they can also, under Article 16, request the ICC to stop investigating or prosecuting, at least temporarily. In terms of referral, we have already received two referrals from the UN Security Council, mainly Darfur, Sudan, and Libya. The UN Security Council is the body that is responsible ultimately for peace and security. The ICC’s mandate, also, by investigating and prosecuting, is supposed to have a preventive mandate as well. So in that regard, we have a common goal, we share a common goal. But the relationship, as you have rightly said, is a complex one, because the UN Security Council is a political body, as you know, whereas the ICC is a judicial institution, and we are all attempting to do the same thing by preventing crimes, by addressing them, also. Because of this complex relationship, sometimes there are tensions. I will simply point out these two situations in which we have a referral from the UN Security Council. In the referral, it talks about the prosecutor of the ICC reporting about progress on these cases, and that is twice a year. But then nothing else happened, and as the office of the prosecutor, we feel that the UN Security Council needs to do more to support the work of the court after having referred a case to it. The referral itself should not be an end–it’s not an end in itself. There should be a follow-up, there should be support, there should be attempts by the UN Security Council to see how those who are eventually being indicted by the ICC could be arrested. What can they do? Can they impose sanctions? Can they do anything to ensure that these people at least are brought before the court? What can be done to marginalize them, for instance, politically–not have any essential contacts with them? These are things that the UN Security Council, especially the member states of the UN Security Council, should start thinking about: the relationship between the court and the council. TP: I want to talk a little bit more about the two cases that have been referred to the ICC by the Security Council. You have already outlined a fairly concrete list of things that could be done by the Security Council to assist with those. But I would just like to invite you to maybe briefly share with us in a few words an update on where you see these investigations, how things have progressed? I think the case of Libya, Resolution 1970, was really seen as a great breakthrough, but since then, as has already occurred in the Darfur case, which has already been referred to the ICC over seven years ago, there have been some challenges. What can you tell us about these two situations? What are your key concerns right now?FB: Let me start with Darfur. Darfur was referred to the court in 2005, and in December, it will be the 16th time that the prosecutor of the ICC will be reporting to the Security Council following that referral. The court itself has been doing a lot, because we now currently have about five; five arrest warrants have been issued against individuals in that conflict, including a head of state. We have continued our investigations over these years, but you will see that not one of them has been arrested, at least those against whom we issued warrants, because there are also others that we issued summonses to appear, which is the rebel case, as it is called–those have appeared voluntarily before the court. But those that we are seeking with warrants: nothing has happened. And you do not even see a strategy that has been developed, which I think should happen towards the arrest of these individuals, including President al-Bashir. I think it is for the UN Security Council to think about how we can move these cases forward. We have these individuals–they’re not arrested. Some of them, like Bashir, for instance, even sometimes defy the court and travel to member states and are received by member-states. So, apart from the obligation that we have from the member states themselves, I think the fact that the UN Security Council referred the case to the ICC should also follow-up with that situation and see what can be done to bring justice to the victims in that situation, and by bringing justice, is making sure that those who are wanted by the ICC are actually arrested and surrender to the ICC. TP: I would like us to broaden the perspective a little bit, both in terms of the cases–so far we spoke mostly about the cases which have been referred to the ICC by the Security Council, as well as the broader issue of cooperation, which clearly is an issue that requires more than just the Security Council members to deal with. What do you expect from states parties, and how, maybe somewhat aspirationally speaking, would you like the AU to engage with the ICC and to support its work?FB: You have to look at the way the ICC has been set up. The ICC was set up as a judicial institution. But the states are also part of the ICC system, in the sense that, the actions that the ICC takes, or the warrants, the orders, the rulings that the ICC makes should be implemented by the states. This is the system. Otherwise, you find one part of the system working and the other part not doing what it’s supposed to do, and in the end, the whole system will not work. So cooperation is a huge thing for the ICC. If you look at our statute, we have a whole part nine that is dealing with how states should cooperate with the ICC, and this is how the ICC can work. If it doesn’t have the cooperation, it will not work. And that cooperation should come from the states parties. Others, non-state parties also, but for the states parties, it’s an obligation. It’s an obligation for them to support the court and cooperate with the court in that way. By signing and ratifying the Rome Statute, that’s what the state party is saying, that I will implement the decisions of the Court. So if this is not forthcoming, this is a big problem for us, and even though the court can think about ways in which we cooperate, I think the states also should try to be more proactive. We do receive cooperation, I’m not saying that states have not been cooperating, I’m not saying that they’ve not been supportive. But I think that states need to start thinking about it in a very structured and maybe coordinated manner, if you please. So that it would not just be on an ad-hoc basis when the ICC requests, but see how they can be more proactive towards assisting the court. Even at the UN Security Council, as you said, it is not just about the UN Security Council. There are member states of the ICC who are at the UN Security Council, and I think these member states should also start thinking about how the relationship between the court and the council can be more effective so that both of us can do our respective mandates, but in a more effective way. TP: We had a very fruitful discussion upstairs already this morning, and something that struck me was something that I wanted to raise with you, and it refers to the issue of peace and justice, and this is an issue which has received so much attention, and has been arguably quite controversial, and a lot of this discussion is focused on the alleged role of judicial processes directly interfering with conflicts. Uganda and the LRA are the examples which used to be cited quite frequently, maybe less so today, and also this argument has been discredited to a large extent.But sometimes, the ICC is not even given the opportunity, so to speak, to interfere with a conflict. What I’m talking about is that sometimes amnesties are granted, for example as happened when the Security Council in Resolution 2014 affirmed the GCC Peace Initiative in Yemen, and sort of granted amnesty to the key political leaders in Yemen. And something similar is also sometimes being discussed with regards to the situation in Syria. It’s actually being viewed as a good example. Besides the fact that one might criticize amnesties being granted in what we like to call now the age of accountability, it could be argued that prosecutions could still take place at a later stage, even if an amnesty has been granted at an earlier stage. Is this something you consider possible? And do you consider it compatible with the Rome Statute? FB: You know, this debate of peace and justice will forever be with us. It’s not going to go away. It has been there ever since we tried to say that those who commit these crimes, instead of granting them amnesties, should be held accountable. The debate has been there, and as I said, it will continue. But you know, I think that by creating the ad-hoc tribunals–or let me go back to Nuremberg or the military tribunal–by creating that, a strong message was being sent, that there can be peace, but there should also be justice. More and more what we should be doing, or at least what was intended to be done, was to show that peace and justice can go hand in hand. We have to move away from trying to sequence them: peace first, justice later, or trying to say that justice is not relevant if you want to attain peace. This, we need to move away from, we should not go back to that debate. I think that with the establishment of a permanent International Criminal Court, this message was even louder, to say that perpetrators of these crimes will be held accountable. But it should also not prevent peace from being attained. I do not think that the excuse of saying “let’s leave out justice so that we can attain peace” should hold. Take two scenarios: in Libya, the UN Security Council acted swiftly, the whole international community acted swiftly, and included justice in the efforts to bring stability and peace in Libya, and in the end, we intervened, and the fighting stopped, more or less. Today, we are saying that in Syria, where of course we don’t have a mandate to intervene unless we have the UN Security Council referral, we are saying that the ICC should not come in–it would cause the conflict to go on. The ICC is not there, but the conflict is still on. So I don’t think that that excuse should be used, because mainly, I have said it already, the ICC’s purpose is also to prevent crimes to be committed, and it should be used to achieve that goal, not to use it as an argument that it is going to interrupt efforts in attaining peace. I think that those who perpetrate these crimes actually use this to blackmail the international community. It is like, “you hold me accountable, I continue to commit these crimes.” So we should not be buying that. You mentioned the example of Joseph Kony. Joseph Kony held this world at ransom for a long time, arguing that, “drop the warrants, or I continue to commit crimes.” That hasn’t happened, of course the warrants have not been dropped for that reason, but he commits crimes anyway, and he has been committing crimes even before the intervention of the ICC. So, I think peace and justice, it’s possible to use both–these are tools that, as an international community concerned with bringing security, peace, stability, we can use both to achieve it. TP: Maybe just a very quick follow-up: assuming that as has happened in the case of Yemen, or as might happen in the case of Syria, that both these countries, as sovereign nations, or the Security Council as a political body, takes the decision to not prosecute crimes, or even on paper grant an amnesty. Both these groups are sovereign in their own decisions and could reverse a decision at a later stage. Could the ICC then be called upon, or help as a court of last resort, to prosecute crimes, as a hypothetical case, but in principle would it be possible?FB: ICC is set up to try war crimes, crimes against humanity, and genocide where we have jurisdiction. If Syria decides, maybe at a later time, or the United Nations Security Council decides at a later time, that the ICC should intervene, it will be possible that we will investigate, and we can prosecute, if these crimes have been committed there. Because as you know, right now we do follow the news, we look at what is happening. But as far as we’re concerned, there are allegations. If we have to have an intervention of the ICC we will concretely investigate by ourselves and be able to prosecute once we have jurisdiction. TP: Madame Prosecutor, thank you so much for your impressions and for your insights. It was a great pleasure talking to you. FB: Thank you for having me.