Interview with Fatou Bensouda, Deputy Prosecutor, International Criminal Court

Before becoming Deputy Prosecutor (Prosecutions) of the International Criminal Court in 2004, Fatou Bensouda served as the Head of the Legal Advisory Unit and Trial Attorney at the International Criminal Tribunal for Rwanda (ICTR). During her distinguished career, she has held senior positions in the private sector and in the Gambian government.

[Update – Ms. Bensouda was elected to be the Chief Prosecutor on December 12, 2011]

In this interview, Mrs. Bensouda surveyed the current state of the International Criminal Court (ICC); commented on ongoing investigations; responded to criticisms of the Court; and discussed the Court’s priorities for the future.

Mrs. Bensouda pointed to witness participation in international trials as one of the key innovations of the ICC. She also discussed the risks. “We are faced with huge challenges of witness protection, of cooperation, and all that comes with international prosecution,” she said.

She dismissed the contestation that ICC investigations in situations of ongoing conflict are detrimental to reaching peace. “It is high time we stopped thinking about the warrants of the ICC, or the intervention of the ICC as being the obstacle to peace,” she said. “It is the lack of enforcement of the decisions of the ICC that really is the problem.”

With regard to the dynamically developing situation in Libya, Mrs. Bensouda confirmed that investigations are continuing and that communications have been established with one of the indicted Libyan suspects. “At the moment, we are, through intermediaries, trying to talk to Saif al-Islam,” she said.

The interview was conducted on October 31, 2011 by Till Papenfuss, Policy Analyst, International Peace Institute.

Listen to interview (or download mp3):

Interview Transcript

Till Papenfuss (TP): Madame Deputy Prosecutor, thank you for speaking with the Global Observatory today.

The ICC has been in operation for ten years. At the Review Conference in Kampala last year, there was wide agreement that the Rome Statute needs almost no amendments and that the Court is working well. What is your view of the current state of the ICC and of the role of international justice more broadly?

Fatou Bensouda (FB): I am one of those that supports the idea that there was really no need for an amendment of the statute, as we are now. You will recall that at the Kampala conference last year, the ICC had not even yet gone through a full cycle of a case. As you know, we have just completed the [Thomas] Lubanga case, which is the first ICC case this year, and we are still expecting the decision in that case.

I think one of the strongest arguments to make about not amending or changing anything is, at least let the court go into full cycle, let it try and test all the parts of the statute that we will be dealing with, before you want to amend it. I have to say that, over these few years that we have had trials going on, pretty much this has been happening. The new areas that, perhaps the other ad-hoc tribunals did not have, such as victim participation and so on, we have gone through it. You have seen what has happened in the Lubanga trial. You have seen, also in [Germain] Katanga and it is going to be likewise in Bemba, and all the trials that are ongoing, the full participation of victims, happening for the first time. I think, pretty much, the chambers now have worked out very well, the modalities of participation, which was a challenge maybe at the beginning of our proceedings. But all of this is coming through, and I think that what we really need to do, as was decided last year, is let us run through a course, let us run through these areas, and then decide whether we really need to go back and look at the statute again and change it. Let’s try and see what works, and what has not really worked very well.

TP: Speaking of the full cycle of court proceedings, some critics pointed to the length of time required to conclude trials. Do you foresee faster prosecutions in the future?

FB: I think, with respect to the length of trials, if you really look, so far, the trials that are ongoing at the ICC, I do not think that it is a fair criticism to talk about the length of trials. We have seen the Lubanga case, and you can effectively say that the case only really started in 2009. Today, it is about two years, and if you look at the way the prosecution has presented its evidence, we tried as much as we can to stick to our promise that we are going to be focused both, in our investigations and our prosecutions. I think it took us from January to July to present our case.

Of course, then came other issues, the challenge was made by the defense of abuse of process and those other things, which are really relatively out of the prosecution’s hands, but which, I am happy, that the court has dealt with it in the way that it has dealt with it. I think that has gone a long way to show the credibility of the Court, and that the chambers are concerned with ensuring that justice and fair trials happen at the ICC. So, I think it was bound to happen maybe, it has happened, and it has happened in a fair way.

But again, if compare, even the case of Katanga and [Mathieu] Gujolo, or you take Bemba, we have completed, under one year, the presentation of our evidence, and the defense has even started. Almost complete also, in Katanga. In Bemba, also, we have progressed very fast, and I think before the end of this year, or early next year, we would also have concluded our presentation of evidence. If you take this and compare it to other ad-hoc tribunals, or other international tribunals, you will see that we have actually been proceeding very fast. And, you have to take this in the backdrop of the fact that this is an international criminal court, it is investigating and prosecuting in situations of ongoing conflicts, we are faced with huge challenges of witness protection, of cooperation, and all that comes with international prosecution. If you really, really look at this in context, not out of context, you will see that, definitely, the length of trials, with respect to the ICC, I think we have been doing pretty well.

TP: The ICC is, almost by default, involved in situations of ongoing conflict. There has been a longstanding debate ever since the ICC came into being about a possible tension between the aims of peace and justice. In your work as the Deputy Prosecutor of the ICC, have you observed such tensions, and if so, how do you reconcile them?

FB: I think the issue of peace and justice has always been there, not just with the creation of the ICC. If you look at the history of international criminal justice, peace and justice has always been there, and I don’t think it is going to go away. The ICC’s mandate is just a piece in the global solutions that are being found to resolve some of these conflicts, or to bring stability to some of these situations. So, peace and justice is there. You have seen it happening in our Darfur situation; you have seen it happening in Uganda; it did arise, even in those situations that are under preliminary examinations, such as Guinea; you have seen it come up again, even in Kenya. So, it will be there in all the situations that we are investigating or prosecuting, the issue of peace and justice will come. Even in the most recent one – Libya. Some are saying that maybe we should not have issued the warrants, then perhaps the conflict would have ended. But I want to say that, it is really high time we stopped thinking about the warrants of the ICC, or the intervention of the ICC as being the obstacle to peace. Because it is not. It is the lack of enforcement of the decisions of the ICC that really is the problem. This is how we need to refocus our attention on that.

If the international community, or those who are concerned with bringing back stability and security to these regions, if we start to think that peace and justice can actually work together, that they are not mutually exclusive, then I think half the battle is won. But once we still think that we need to sequence before we think about accountability, or that we need to forget about it for the time being and see whether there is a possibility later on once we achieve peace, if we continue on this path, what we end up having is neither peace nor justice. And that is unfortunate.

TP: Sometimes international criminal prosecutions are criticized for focusing mostly on a delegitimized losing side in a conflict. With the exception of Kenya, where individuals from all involved parties have been indicted, all current ICC prosecutions seem to fit this pattern. How do you respond to this criticism?

FB: I think we should stop, also, looking at geographical balance, looking at one side therefore you look at the other side, as a criteria for our investigations, because it is not.

The mandate of the Office of the Prosecutor, and of the ICC is very clear. You go after those who bear the greatest responsibility for the crimes that fall within our jurisdiction, and I think we should strictly be guided by these considerations, which is what the Statute says.

Once we start to think about ‘because I have prosecuted one side, I need to prosecute the other side’, ‘because I am in Africa, I need to go out of Africa’, if we are guided by these things, we politicize the mandate that we have been given. And this is very dangerous for the Court. And really, we all need to focus our attention on that, because people just seem to think that ‘oh, you have tried this one, you should try from the other side’. Maybe that is why they are so happy from the Kenya investigations, and the request for warrants. But there, we were not going at one political side, then the other political side. That was not what guided our investigations. We realized that both sides were involved in the conflict.

One thing that we have always said, at the very beginning, that what concerns us is the evidence. What is the evidence, and where is the evidence leading you? It is because of this policy, of collecting the evidence, going after those most responsible, that we have opened the investigations that we have opened. Whether it is in Uganda, whether it is DRC, whether it is Central African Republic, it is not other considerations, like political or ‘go after this group, then go after the next’. As I said, if you really use that criteria, it is going to compromise our work a great deal, and at the end of day, it is going to be very harmful for the credibility of the Court.

TP: Another criticism levied at international criminal tribunals relates to their high costs. How can we best explain these expenses and what is the ICC doing to assist victim communities?

FB: I think firstly, I want to say, if you compare what is being spent on justice with what is being spent in war, I think it is not even one percent of that. Statistics have proven that. So, that is there.

You should also take note that the ICC is the first international criminal court created that also took into account victim participation. Most of it was as a result of what happened in the ad-hoc tribunals and how the victims felt so helpless, that they are just passive subjects, they are used as witnesses but when it comes to them participating, having their views and concerns, and at the end of the day seeking reparations, it did not happen. It is happening at the ICC. Again, I give examples of the trials that have taken place so far and how the victims have been very active subjects in those trials.

I think the idea of setting up a trust fund for victims has been great. I still believe the issue of reparations, compensation, rehabilitation, is a very tricky one and needs careful thought. It is not, as I said, one size fits all. You need to look at all of the situations and see what is the best approach that you have to take. It is not the work of the Office of the Prosecutor, of course, to deal with reparations. It is the judges, and they will decide how they want to decide, and the trust fund for victims will take it up from there. But what we have been doing at the level of the Office of the Prosecutor is see how we can connect situations that can help each other. I’ll give you the example of Colombia, which is taking a leading role, and is willing, at the moment, to share its experiences with the reconciliation committee in Kenya. These are two countries, in two different continents, maybe have gone through similar experiences, and they are willing to share. Even from the very beginning, we are thinking of this, not just to wait until there is a decision by the Court that we start thinking about reparations. I think, from the very beginning, through development efforts and so on, we can already start thinking of how to address victim issues and reparations.

TP: I would also like to briefly touch upon one of the situations before the ICC. How do you see the role of the ICC in Libya’s post-conflict transition? Can you comment on the progress of the ICC’s investigations in Libya and is there a chance or a likelihood that more indictments will be issued?

FB: As you know, Libya, under resolution 1970, was referred to the ICC. The historic aspect of that resolution was that it was a unanimous decision, having both state parties and non-state parties supporting the statute voting to have the situation referred to in Libya. I think that was a classic example of a consensus by the international community over an issue.

Libya is one of those cases that we can put on record, where the Office of the Prosecutor has reacted in a very fast and efficient manner. Within three months, we were able to make a request for arrest warrants to issue. Our investigations in Libya have not stopped; we have not stopped. Even with the demise of Qaddafi, we are still investigating. At the moment, we are, through intermediaries, trying to talk to Saif al-Islam, whom you know, arrest warrants have been issued against him, as well as [Abdullah] al-Sanussi. It is a very sensitive situation, as you know. One needs to be very careful, in how you make these contacts, to be able to achieve a good result.

The fact that these arrest warrants have been issued against free people does not mean that if our investigations generate other targets, that we would not. The situation in Libya, as you know, is very fluid, it is changing rapidly everyday. We are in constant contact with the transition government, and we believe that we would continue our investigations and see how the situation unfolds. But it is very, very difficult to predict, given the circumstances on the ground.

TP: Finally, I would like to speak with you about the future of the ICC. How do you see the Court evolve over the next years? In your view, what should the priorities be – better outreach to victims, expanding the Court’s work beyond Africa, concluding more trials?

FB: It is a long list that, I think, if you start to prioritize one after another, it probably would not be as efficient as you want it to be, because one thing with the court is that everything is happening almost at the same time. You have mentioned outreach – that is crucially important because the work of the Court has to be known, has to be out there, not only in the situation countries but, as much as we can, what the ICC does. The mandate of the ICC increasingly has to be understood. I think that is crucial, because once it is understood, people will be able to know what to expect of the court. If it is not, of course expectations remain high, the ICC will be conceived as, let’s say, targeting Africans and not others. I think all of that is a result of not understanding the mandate of the Court.

Again, the issue of victims is very, very important. The issue of reparations is very important. Conducting efficient investigations and trials – at least, that is where, the Office of the Prosecutor, has come to learn over the years that it is crucially important to have focused investigations and also be able to contribute to having focused trials.

I think that all of these areas that you have mentioned, we need to move in parallel. They are all inter-related, and all of them are crucially important for the existence of the Court and for the future of the Court.

Another area that, I think, we need to also focus on, and devise as much as possible, ways in which we can improve it, is cooperation. The Court is set up in a way that, it is a criminal justice system. We will do the judicial part; the judges will issue the decisions, whether to arrest or to sentence. They will issue the decisions, but those decisions have to be executed by others, and that is the state parties. Cooperation, for us to start investigations, for us to deploy to the field, for us to receive people at the Court, for us to go through trials, it is crucially important. So, it is an area which I think that we also need to focus.

I will not, of course, forget the staff. It is crucially important that we take into consideration qualified, experienced staff for the Court because I think this is important. At the same time, to also bear in mind, the welfare of those whom we already have on board.

All of these things are together. You have to have a holistic approach to dealing with them. If you say that ‘I am only concerned with this, and not with that’, in the end you will run into trouble. So, I think these are the priority areas for the Court, and one should bear in mind all of them.

TP: Madame Deputy Prosecutor, it has been a great pleasure speaking with you, and thank you so much for speaking with the Global Observatory today.

FB: Thank you very much and thank you also for your work.

Photo credit: Preston Merchant