INTERVIEW: The International Criminal Court Fends Off 'Ferocious' Attack, Prosecutor Says

The International Criminal Court's chief prosecutor – Fatou Bensouda – was busy in New York this week, rallying support for the court on the sidelines of the 68th United Nations General Assembly annual debate.

The Gambia native, who succeeded Luis Moreno-Ocampo, an Argentine, to head the prosecutor's office, talked exclusively to PassBlue about her work during a critical time for the court. Kenya recently voted on plans to withdraw its membership from the Rome Statute, the court's governing treaty, and the African Union criticized the tribunal, based in The Hague, for its “misuse of indictments against African leaders,” even though, as Bensouda emphasized in the interview, most of the court's investigations in the continent were based on requests from African countries.

Bensouda, 52, who was sworn in as chief prosecutor for a nine-year term in June 2012, also talked about the court's possible jurisdiction over the recent Westgate Mall assault in Nairobi, for crimes against humanity; her efforts to increase protection of numerous witnesses in the Kenyan trial of William Ruto, deputy president, accused of crimes against humanity committed during post-election violence in 2007; and the unlikelihood of the UN Security Council referring Syria to the ICC for investigation of mass atrocities. Despite efforts by some of the court's member states, led by Switzerland, calling for such a referral, the proposal has little support in the council.

A potential ad hoc tribunal for Syria has also been discussed during this week's meetings at the UN – highlighting the court's limits to prosecute nonmember states without the often-political intervention of the Security Council. It's a limit that has contributed to the perception that the ICC holds double standards.

Bensouda also discussed the court's outstanding arrest warrant for Sudan's president, Omar al-Bashir – a no-show at the UN this week, despite rumors that he would appear at the General Assembly to speak.

In addition, the prosecutor participated in panels at the UN, including one with William Hague, Britain's foreign secretary, focusing on fighting impunity of sexual violence in conflict, a cause close to her heart. While Bensouda was in New York, judges in The Hague denied Ruto's request for a longer adjournment of his trial because of the Westgate and other recent attacks in Nairobi. And it refused to allow him to be excused from the hearings indefinitely, so the trial of Ruto (with Joshua Arap Sang, a Kenyan radio announcer also accused of mass murder), will resume Oct. 1. The court's other case in Kenya is against President Uhuru Kenyatta, who faces charges of war crimes also committed in the 2007 post-election violence, in which 1,200 people died. His case is to begin in November. (Kenya's possible withdraw from the Rome Statute would have no legal consequence on the trial.)

Despite the enormous challenges and setbacks, Bensouda appeared serene during the interview at her hotel in Midtown, saying she was confident that the court has been an important deterrent against war crimes and other atrocities, pointing to several nonviolent elections held in recent months, including those in Kenya, as a sign of the court's impact.

She also said that the low numbers of women leaders worldwide should not deter women from making their voices heard and explained why she was drawn to law.

Here is a transcript of PassBlue's conversation with Bensouda, held on Sept. 26, edited for length.

Q. How has your week been in New York during the UN General Assembly opening session?

A. It has been a very hectic week; I've had several bilateral meetings, mainly with African heads of state, and also formal events that I'm attending. This morning, I had the informal ministerial network that came up with a declaration in support of the ICC.

Q. Are the bilateral meetings with leaders aimed at containing damage from Kenya's announcement that it intends to withdraw from the Rome Statute?

A. Partly it is that. But mainly it is also to talk to the state parties to the ICC and to try to sensitize them about this political attack on the court that Kenya is launching, and to show and to explain to them that the factual bases that they are using really are not what is actually happening. They need to be aware of all of these and reinforce their support for the court. It's a court that they created. The state parties created this court and they should resist with all force any attack to delegitimize or to discredit the court in what it is doing.

Q. Have you been successful with the efforts so far to maintain support for the court?

A. I have had very good meetings. Of course, we have to discuss the issues in detail so that we can allay any of this rhetoric that is trying to put the court in a negative light, even coming from nonstate parties like Ethiopia. I have to remind them of the commitment that we have made about creating the court and the way that Africa had stood against impunity, in support of the court. We need to remind ourselves of that.

Q. You've said that you're not an African prosecutor, that you're a prosecutor for all 122 ICC member states. But do you feel that it was time for the court to have an African prosecutor and does being African help to redeem the court, if it needs redeeming, and improve relationships?

A. I think it is important to know why I am elected as a prosecutor: because the state parties have confidence that I will be able to deliver on the mandate that I am given. I was endorsed by the African Union as the sole candidate to stand for this election, but from the very beginning, I was very clear in saying that I am an African, I have been endorsed, but I am a prosecutor for 122 states. I think the fact that I am from Africa, I wouldn't discount it. I think it helps to some extent, even though the attack is against the institution and not against me personally. But I am just wondering, if we had a prosecutor from elsewhere, at this time, when the attack is very ferocious against the court, what would have been the situation? I don't know, maybe it would not have made any difference. But definitely, I continue to emphasize that coming from Africa does not mean that if atrocities are being committed on that continent the court will not address it.

Q. Before we leave the continent, let's talk about the latest developments in Kenya. The court said that you were possibly interested in investigating the attack on the Westgate Mall, which occurred on Sept. 21 and killed 72 people, for crimes against humanity charges. Can that happen, considering Kenya's intent to withdraw from the Rome Statute?

A. I am not saying that the ICC is going to investigate this case. I have been very clear in the statement to say that the primacy of jurisdiction remains with Kenya, of course. And I believe that Kenya is going to take steps to address those who have committed this atrocity. But you have to remember that until now, Kenya is a state party to the Rome Statute. It has not withdrawn, in fact. The withdrawal that they have voted for is not yet in effect. So until maybe a minimum of one year or more, Kenya is still a state party to the Rome statute. And as a state party, they have obligations towards the court, but also the court as an institution has to protect its members. We have a duty and obligation to protect its member states.

Q. So you would have to be invited by Kenya or asked by the UN Security Council to investigate the Westgate Mall crime?

A. As I said, Kenya has primacy, so they should do it, and we are not forcing ourselves to go and do it. And always, it has to be remembered that the ICC's jurisdiction complements the national system. We don't replace it. It is only when nothing is being done or nothing is being genuinely done that I have propiro motu powers; I can use them to intervene, if it is necessary.

Q. Has the Kenyan government responded to your statement that you might have jurisdiction over the attack on the Westgate Mall?

A. I have not seen any response to the statement.

Q. Have you seen any Kenyan delegates in New York this week?

A. No, not really. Because it was not my intention to see any of them anyway. We did not make any appointments to see them.

Q. Is this offer to assist Kenya helping your image as you try to talk with other leaders of African countries and remind them that the ICC is there for them?

A. The reaction that I'm getting from almost all of these heads of state that I've met is support for the court. Of course, we discuss issues that maybe they've had difficulties with, and also the stance that the African Union is taking, and their being members of the African Union – for them it's also a difficult position to be in. They reassure me that they fully stand ready to work with the court, to support the court.

Q. Moving to Syria: since it is not a member of the International Criminal Court, you need a Security Council referral, which is unlikely to happen, to investigate crimes there. Media reports say the United States is opposed to such a referral. Yet the US, also not a member of the court, supported the referral of Omar al-Bashir, Sudan's president, to the court for genocide and other crimes. What is the difference?

A. I don't know. I don't want to also speak for the US.

Q. Can you lobby the Security Council to refer a case to the ICC?

A. We don't lobby for referral, member states do. Member states have been lobbying for referral. [There was] an initiative from Switzerland, at the beginning of this year, in which they were able to get 57 states to sign this statement requesting a referral from the UN Security Council. And I think that various member states in one way or another have been trying to make a request to urge the UN Security Council to refer it, but the ICC as an institution, we have not done that, and we don't do that. We wait, we receive, we assess whether it's something that we should take and then we go.

Q. Omar al-Bashir did not show up in New York to speak at the UN, after saying he was coming. Did you expect him to show up?

A. I don't know. I think that one thing that we have seen so far with President Bashir is that he pushes the envelope. He's been trying to do that. And that is why he has been visiting member states in defiance of the court. I see this as another attempt to see how far it will go. That's why he was requesting a visa to come to the UN.

Q. Is that why you're also in New York, to see if Bashir showed up?

A. [Laughs] I'm glad it hasn't happened, but definitely it's one of those attempts again to push the envelope.

Q. You're not just African but you're also a woman, and something that has been highly noticeable at the UN this week is that there's still a large number of leaders that are men, both at the state and institutional level. Why do you think that's the case?

A. We all know that women are constantly fighting for rights: the rights of women, the rights of women to be leaders. We are constantly fighting for that, it hasn't gone away. The fact that it's pretty much a patriarchal society in most countries is well known. But I think women should not give up. I believe that there is sense in having women leaders, to also give women space, to sit at the table where negotiations are being made in everything, not just women's rights, in everything. People say, Give women a voice, but I think that women should take a voice. We need to continue this fight, we need to continue to push. In any society, you have women and you have men. Sometimes you have more women than you have men. If you decide to marginalize the women, it means that you are not listening to the voice of over half of your population. This is not a good thing. So that's why as much as men have to be sensitized about this, women also need to know that they have a role to play in society, and they can play that role very well. It's not going to be handed over to us on a silver platter; it's not. We also need to play our part in ensuring that we take that role.

Q. Did you experience challenges in your job as prosecutor of the court as a woman? In your long career in law, do you feel that there has been cultural resistance to your authority? Or did being a woman and a mother help you?

A. Sometimes you ignore it, but it does happen. Because you're a woman, maybe sometimes the treatment can be different. This happens, I will not pretend that it doesn't happen. Maybe it's not as frequent, because more and more people are getting sensitive to this issue, but yeah . . . it does happen.

Q. Do you feel that being a woman helps you connect or empathize more with victims of atrocity crimes, and not just victims of gender-based violence?

A. Yes, absolutely. I think as a woman there is an added advantage. One thing that I always say is that it helps me to relate more, and that it also helps me to understand the complex issues that we deal with every day, including a subject that is very close to my heart, which is sexual and gender violence. If you see even at the very beginning of my career, what has inspired me [was] being a clerk and sitting in court and listening to women victims and thinking there and then that look, I could have handled this maybe better.

Q. What inspired you to get into law?

A. Sitting there, you have these victims who are represented, but I was always thinking to myself that if I were to handle this case, I would handle it differently. And I think that this is one of the things – not the only thing – but one of the things that inspired me to study law. I think the story is well known about a relative of mine who was subjected to abuse by her husband, which I took as a personal crusade because I was just saying, how come this is happening? How come this person cannot get recourse to any form of justice, whether it is at home, where the parents and other people will intervene, or whether it is at the state level, where the police will say stop this or hold the man to account for what he was doing? Maybe then I didn't speak up, I couldn't speak up, but I think that's over. One of the ways that I could be able to do something about it is to equip myself.

Q. There have been numerous cases in the last few months, especially in the Kenyan trial, of witnesses dropping out and refusing to testify or being threatened. How is the court addressing this?

A. Firstly, I just want to appreciate and admire the courage of these witnesses. They are under siege, actually. They are in very difficult circumstances in which everything is being done to turn them, whether it's by bribery, whether it's intimidation, whether it is pressure from the community or from their parents, threats; everything is being done to intimidate the witnesses, to stop them from testifying at trial. And this is wrong. This is wrong and this is a crime. And I've said it consistently that this is a crime, under the Rome Statute, Article 70; you cannot interfere with justice by intimidating witnesses and making them pull out. But having said that, the court, the office, has not just stood by to watch this happen. We have also been doing our independent investigations to get to the bottom of this.

Q. Can you protect witnesses and continue to protect them after trials are over?

A. Yes. We have a witness protection system, which is in place at the court and, depending on the level of protection that the witness needs, the assessment is done by the WU [witness unit] after we refer the witness to them. Then the appropriate steps are taken to protect the witnesses. It's a very difficult circumstance in which the victims and witnesses units have to work.

Q. Does the prosecutor's office have enough resources to protect witnesses?

A. We need more resources because when those instances are happening, these cases of witness interference, you have to pull out sometimes investigators from the main case to investigate those cases as well, so it pulls the resources off the main case. This morning, I was able to meet with quite a good group of foreign ministers representing various state parties, and this is one of the issues that I raised with them, the need of the office of the prosecutor, the need of the court to have adequate resources to deal with this mandate that we have been given. Because I put a lot of emphasis on the quality of the investigations. It has to be of good quality to be effective. But if you don't have the resources to do it. . . .

Q. Your predecessor, Luis Moreno-Ocampo, was criticized on many counts for his work. How was your working relationship with him, and what are you doing that is different?

A. I always say that for the first 10 years of the ICC's mandate, we perhaps needed an Ocampo to pull the court, to put it on the map, to set up the office. And it's unfortunate that the criticism is not looking at the good things that Ocampo has done, because I think that he has really done well for the court. Having said that, I think we are now in a different decade of the court. We have done 10 years, 10 difficult years, but marked with some successes. But I think now we have to look at things that we did not have to look at in the first 10 years. An example is this attack on the court, it's something different. We need an adjustment of the office's strategy and we are doing that.

Q. What are some cases or issues that are most pressing for you?

A. Every case in the ICC that the office is handling is important. In these cases, you are talking about very serious crimes. All of them. If it's not war crimes, it's crimes against humanity; if it's not crimes against humanity, it's genocide. You are talking about millions sometimes, or at least several hundreds, several thousands of people who have died, taking all the cases together. You are talking about sexual violence at a level that really is unprecedented. You are talking about pillaging. All these serious crimes. This is what we are dealing with in all of these situations. I have to say that all these cases are very dear to my heart. Of course, at some time, depending on where the case is, there is a greater focus on one than on the other. For instance, now the office and the court are very busy with the [Jean-Pierre] Bemba trial [a former vice president of the Democratic Republic of the Congo accused of war crimes in Central African Republic]. That requires my focus a lot, and we've been giving our focus, even though, unfortunately, it is not so much out in the news. You also have the [Germain] Katanga case [a Congolese accused of war crimes, including sexual slavery and use of child soldiers], which is also ongoing; then there is the Sudan case, and, of course, Kenya.

Q. As a prosecutor, you are constantly hearing horrifying testimonies. Does any story stick out?

A. Yes, yes absolutely. All the stories in these cases are horrific. But when it concerns children, when it concerns women, it does affect me at a very personal level.

Q. How do you go home every day hopeful there's progress for human rights?

A. I think that having all these cases, these situations happening, and feeling that you are doing nothing about it is for me unacceptable. But every day, we are working on these cases. My staff are doing their utmost to collect the evidence, in difficult circumstances. My staff are trying to be out there to get the necessary information, interacting with state parties, interacting with NGOs to get the information out. That alone, every day, demonstrates this commitment that people have towards ending impunity. These are some of the things that keep you going.

Q. Do you feel that the court's deterring function is working?

A. There is no doubt this is working. You just have to take the example of Kenya, and history will judge us, I always say that – this is a country that for the past maybe 21 years, every election is marred by violence. Maybe in the 2007-2008 elections, it went to a scale that was unprecedented, but the intervention of the ICC in Kenya, I believe, has helped a lot in the last elections in Kenya for violence not to happen. And those Kenyans, those reasonable Kenyans who have seen the work of the ICC and the interference of the ICC, are saying that that interference saved the country.

Q. Does the court have a deterring effect on countries that are not members of the ICC?

A. I believe that the ICC is having a deterring effect. I will also mention post-election violence. I think that our intervention in Kenya, our intervention in Côte d'Ivoire, has had an impact on other potentially explosive situations that have happened on the continent. I think that last year alone, or this year, we had about 20 elections on the continent, and the issue of post-election violence was a huge thing. We have had countries requesting from us, before elections, to make a statement of prevention, that the ICC is watching. These are countries where we have not intervened; we have not looked to their situation, but because of the impact, they're requesting the ICC to make a statement.

Q. What other avenues can deter countries that absolutely do not want any ICC involvement – not only Syria but also North Korea and others?

A. We have never made any comments on countries where we don't have jurisdiction. Because we have to realize that the ICC is not a human rights court. It addresses crimes and specific crimes that were given under the statute that we are mandated to handle: war crimes, crimes against humanity and genocide. We cannot intervene where we don't have jurisdiction. In the case of Syria, Syria is not a state party to the Rome Statute, and as you know, the only way we would have had jurisdiction was maybe a UN Security Council referral. The Security Council has not done that, so it will be very wrong for the ICC to even be heard to say any comments about Syria.

Q. Do you think it's a problem that a Security Council role is built into the language of the court's jurisdiction?

A. The only problem is that you have to recall that the UN Security Council is a political body and they are making political decisions. Several countries negotiated that and agreed that this should happen: the Security Council can refer cases to the ICC. And I think this was done in good faith. This article [13b of the Rome Statute] was an attempt to make sure that those countries are not completely out of the reach of the ICC. Of course, it creates problems for the ICC at times. Because if the UN Security Council decides to refer one situation to the ICC and not refer another situation, the ICC is blamed for not taking that situation.

Q. You're confident you can overcome the current existential “attack” on the court, as you called it?

A. Challenges come every day, and this is not the first time that the court is under attack. It is always based on nonfactual issues, really. The court will come out of this because we remain a judicial institution.Our credibility will depend on that, and this is what we will continue to do. And I think that this deliberate attack on the court, this twisting of words, saying the ICC is attacking African leaders when it is the African leaders who are referring situations to the ICC, I strongly believe that it will come to pass.