13 January 2012

Gambia: Face-to-Face With the New ICC Chief Prosecutor-Elect

Photo: IRFJ
International Criminal Court Chief Prosecutor, Fatou Bensouda.


Barely a month after being unanimously elected at a meeting of the legislative body of the International Criminal Court, (ICC), the Assembly of States Parties (ASP), in New York on Monday, December 12 as the new chief prosecutor of the ICC, the Bantaba of the Daily Observer has the exclusive honour to present to its wider readership Gambian-born Fatou Bom Bensouda, who is apparently the new face of international criminal justice.

Born on 31st January 1961, Bensouda, 50, is a Gambian lawyer, former government civil servant, international criminal law prosecutor and legal adviser who has been a Deputy Prosecutor of the International Criminal Court (ICC) since 2004. In December 2011, she became the consensus choice to serve as the next Prosecutor of the ICC.

Born in Banjul, Fatou Bom as fondly called by some people attended primary and secondary school in the Gambia before leaving for Nigeria where she graduated from the University of IFE with a Bachelor of Laws (Hons) degree. She then obtained her Barrister-at-Law (BL) professional qualification from the Nigeria Law School. After acquiring a Master of Laws from the International Maritime Law Institute in Malta, she became the Gambia's first expert in international maritime law and the law of the sea.

Nationally, Bensouda has had a long and distinguished national career in the Gambia in both private and public law. Between 1987 and 1993, she was successively public prosecutor, senior state counsel, and principal state counsel. Between 1993 and 1997, she served as deputy director of public prosecutions whilst also working as lead counsel to the Commission of Inquiry into the Financial Activities of Public Corporations: Presidential Commission of Enquiry 1994 (1994-1997).

Subsequently, Bensouda was appointed as solicitor-general and legal secretary of the Gambia (April 1997 to July 1998) before her appointment as Attorney-General and Secretary of State for Justice of the Gambia (1998-2000). From March 2000 to January 2002, she was a private legal practitioner at Ya Sadi, Bensouda and Co. Chambers in Banjul. She was also the general manager of the International Bank for Commerce (Gambia) Limited (January to May 2002).

Bensouda's international career as a non-government civil servant formally began at the International Criminal Tribunal for Rwanda, where she worked as a Legal Adviser and Trial Attorney before rising to the position of Senior Legal Advisor and Head of the Legal Advisory Unit (May 2002 to August 2004).

On 8 August 2004, she was elected as Deputy Prosecutor (Prosecutions) with an overwhelming majority of votes by the Assembly of State Parties of the International Criminal Court. On 1 November 2004, Bensouda was sworn into Office as Deputy Prosecutor (Prosecutions). On 1 December 2011 the Assembly of States Parties of the ICC announced that an informal agreement had been reached to make Bensouda the consensus choice to succeed Luis Moreno-Ocampo as Prosecutor of the ICC.

She was formally elected by consensus on 12 December 2011, thus paving the way for her to officially begin her term as chief Prosecutor of the ICC in June 2012 when the Argentine-born tough-talking Luis Moreno Ocampo will kiss the Hague-based international judicial institution a good bye after a successful nine-year spell.

A woman highly praised for her strong determination, professionalism, and the face that the ICC desperately need as it's strive to prove its mandate more, Bensouda has been the recipient of various awards, most notably, the distinguished ICJ International Jurists Award (2009), which was presented by the president of India for her contributions to criminal law both at the national and International level.

She has also been awarded the 2011 World Peace Through Law Award presented by the Whitney Harris World Law Institute, Washington University, which recognized her work in considerably advancing the rule of law and thereby contributing to world peace. Among her other achievements is the fact that she has been named by the leading African Magazine, Jeune Afrique, as the 4th most Influential Personality in Africa in the Civil Society Category, and one of the 100 most Influential African Personalities.

Bellow we reproduce the full interview this columnist had with her at her Kanifing South residence during her recent trip to The Gambia to attend the first-ever Gambia government Diaspora consultative meeting. Please enjoy the exclusive interview in which Bensouda in her capacity as the new chief prosecutor spoke at length on the cross-cutting issues regarding the operations of the International Criminal Court.

Thank you so much Fatou Bensouda for accepting to be interviewed. First, let me use this opportunity as a fellow countryman to congratulate you on your unanimous election as the new chief prosecutor of the International Criminal Court.

Thank you so much for congratulating me and also thank you for the interest for this interview

Well you have been unanimously elected at a meeting of the legislative body of the ICC, the Assembly of States Parties (ASP), in New York on Monday, December 12 as the new chief prosecutor of the International Criminal Court. This is indeed a pride for not just The Gambia, but the African continent at large in that you are the first woman and African for that matter to hold such a highly prestigious international legal position. What is your reaction to this huge trust and confidence reposed on you in the quest of delivering international justice to end impunity?

Indeed it is an incredible vote of confidence that I have received from the Assembly of States Parties which comprises of 120 states. As you have rightly said the election was by consensus and obviously that meant that all of the states parties have agreed that I should occupy the position of chief prosecutor of the ICC for the coming nine years. It is an honour which I accepted with humility and which I think that I have to do my best to ensure that that trust and confidence that has been given to me that I execute my mandate to the best of my ability; and to ensure that I do not disappoint.

You beat the last three contestants [Andrew Cayley, the British co-prosecutor at the Khmer Rouge Tribunal in Cambodia; Tanzania's chief justice Mohamed Chande Othman; and Canadian war crimes specialist Robert Petit] who were shortlisted along with you before a consensus decision was reached on you as the only candidate. Was it too obvious for you during the selection process that you would eventually become the new face of international criminal justice at the Hague given your years of experience at the ICC?

Well I don't think that it will be fair to say it was obvious that I should be the one. As you can see all the last four candidates [including her] are all qualified; they have been choosing to compete in the last four because of the qualifications and their experiences. If you look at the background also of the other three candidates, they all have shown record which could qualify them to be the next prosecutor of the ICC.

But I think that the edge that I have over them is the fact that I have been there working as the deputy prosecutor of the ICC for the past seven years. The ICC is an institution of international criminal justice - it is similar to other adhoc-tribunals but at the same time there are many differences in the ICC which I think that by being an insider, it gave me the privilege of knowing and also working especially experiencing those differences. And I think this has also come to assist me in becoming the final choice of the Assembly of States Parties.

How would you describe your this achievement? Is it the dream or goal you have been working so hard to achieve during your long spell in the dispensation of international criminal justice?

Look I think I have to say that nobody goes to school or studies law to become the chief prosecutor of the ICC. What is important is that one has to be committed to the cause. And this I can say that I have all the commitments to the cause. I have not always done international criminal justice or international criminal prosecution, but I have my basis as a prosecutor in the Gambia. If you look at my career in the Gambia that is what I have always done, I have done so many things but that has been my main passion of prosecuting.

And this has been the drive that has always been with me - pushing me forward - ensuring that there is accountability for crimes, ensuring that the victims of these crimes also receive justice. So this continues to drive me and when I left the Gambia and I joined the International Criminal Tribunal for Rwanda, I have to say it was not my dream even from there to become the chief prosecutor of the ICC because when I joined I think even then the ICC was not fully functional.

But it was this drive of contributing what I could to international criminal justice in Rwanda. Even I can reveal to you it was not my intention to stay all these years in Rwanda [then] but this is a field that I have come to discover that once you started you always want to go on; you always want to give it your best and you always want to bring your experience to the table.

So this kept me going in ICTR and once the ICC court was fully operational, I applied for the position as deputy prosecutor bringing to the table my international experience and my national experience as well as my love for what I was doing and the passion that I have for it. Eventually this is why I was elected as chief prosecutor of the ICC."

What are your priorities for the ICC as chief prosecutor in the coming years?

You see the mandate of the ICC chief prosecutor is very clear, and this mandate is defined in the Rome statute. The legal mandate under the Rome Statute is that as chief prosecutor, I investigate and prosecute crimes against humanity - war crimes and genocides where the ICC has jurisdiction and by that I mean in the State Parties to the Rome Statute or where the United Nations Security Council refers a situation to them. This is the legal mandate.

So the priorities are to ensure that - we have already started to put in place a very efficient office that can deploy as soon as possible to work in these areas; but also to ensure that there is effective and efficient investigations and prosecutions of these crimes in a manner that is totally independent and impartial. I always say that I have been in the office and we have been trying to set our priorities in order.

We have come out with strategies that are very transparent which we feel that we can work with in the next coming years. By trying to put an efficient office in place, we have also put in place the operational manual which we just concluded in which staffs can as soon as they into the office they will know what to do. So an efficient office is quite important in ensuring that we have the efficiency that we need in investigating and prosecuting crimes. So this is an area where I would really like to concentrate and to ensure that our contribution to conducting efficient prosecution in the office is there.

Madam the African Union was instrumental and had lobbied intensely for your candidature. But the same AU had accused the ICC of what they called selective justice by only investigating atrocities in Africa. They argued on several occasions that the ICC that is beset by controversy since its formation in 2002, "is more or less a neo-colonialist institution" bent on targeting mostly African politicians and leaders." Now that an African is the chief prosecutor, how would you change this perception towards the court?

I am glad that you are calling it a perception because this is not the reality on the ground that ICC is targeting Africans. I think that I have been quite vocal in the past years in explaining why ICC is in Africa in the way that it is in. I have always tried to explain that Africa has been taking leadership in international criminal justice and that this is what it should be recognized for because not only that Africa played a big role in establishing the ICC, but also the first cases of the ICC were at the invitations of the African states. This has to be cleared - it's a fact on the ground and I keep repeating it.

Three African countries took their own initiative to request the ICC to intervene in cases that were happening which they could not do themselves and that is the jurisdiction of the ICC. Then you have the referrals by the UN Security Council also requesting the ICC. You see even after all these attempts to create this perception about the ICC, Africa has still not relented - you see recently, Ivory Coast has requested the ICC to intervene.

As you know Ivory Coast is not a member of the ICC but they made a declaration accepting the jurisdiction of the ICC and requesting the ICC to intervene as to the post-electoral violence. And this is just one reason. Even when the ICC did not have jurisdiction in two countries, which were the United Nations Security Council referrals - Sudan and Libya, there were African countries who were sitting at the United Nations Security Council when the vote was being made and they voted agreeing for ICC's intervention.

So what is being said and the reality on the ground is completely different. Also in spite of all that, I have always said that we are receiving the most cooperation from African states, not as a bloc, but individual African states continue to cooperate with the ICC and continue to assist the ICC in our investigations. So these are the positive aspects.

Coming to my endorsement by the African Union, I think this has to be looked at a very positive light. It is showing that the African Union is still interested in the leadership of the ICC - not that it has to be obligatory an African candidate. They could have abstained and say look we don't care about who leads the ICC, it is not our business; but they haven't done that and they have gone ahead to endorse a candidate in support of the next prosecutor of the ICC.

I think all of these for me I look it in the positive way and not negatively. And I look forward really to working with the African Union very closely. You asked me before about my priorities, maybe this also one thing I should have mentioned because I think that the relationship between the ICC and the AU is something that we can have a lot of discourse about it. We have different mandates - the AU's mandate is different ICC mandate but we can only effectively assist this continent by engaging and talking and trying to see what is the best way that we both can execute our mandate without interfering with the other's mandate.

In recent interviews, you have vowed to continue championing the cause of African victims. You in fact stated that you are working for the victims of Africa, and that it is Africa where you got your inspiration. So must African politicians [AU] who strongly backed your candidature see your election as the ICC chief prosecutor an opportunity to herald a dawn of mass atrocities on the continent and yet expect immunity?

Look I have explained even if you go back to my acceptance speech that I am not a prosecutor for Africa, but I am a prosecutor for the world if I may use this in the sense that the countries that have signed and ratified the statute are all over the world - 120 countries - I am a prosecutor for that. My mandate I keep on saying is clear. These crimes that fall within the jurisdiction of the ICC are very serious crimes - very serious crimes that really concern the international community so much that we decided to come together and create the ICC.

And when we created the ICC is to address these crimes. So I cannot start selecting whether I should prosecute here or prosecute there for other reasons. My only reasons that I need to have to move as the prosecutor of the ICC are these legal reasons. Whether these crimes have been committed and whether they are of such gravity that we need to intervene. This is going to be my driving force.

If I have to now think of geographical considerations, political considerations then I am losing my mandate - then I will not be doing the right thing and I will not be working within my mandate. So I will definitely work within my mandate. So if these crimes do happen in Africa, I hope it doesn't, but if they continue to happen in Africa and they are of such gravity that we will intervene, we will intervene whether I am an African or not.

In fact I keep on saying that I am very concerned because I identified with the victims of Africa - they deserve justice, they deserve stability; there has to be someone who is speaking for the victims. We cannot just be looking at the perpetrators of these victims and these crimes and looking for ways of protecting them. It is not right! Then there is no need to set up this institution [the ICC] to address these crimes if we continue to want to protect these perpetrators. I will continue to work with and for the victims of Africa.

The ICC has so far investigated conflicts in seven countries - all in Africa -Sudan ; Libya; Ivory Coast; Kenya; Uganda; the Democratic Republic of Congo; and the Central African Republic. But what is your commitment to ensuring that the dispensation of international justice is all inclusive to investigate war crimes committed elsewhere outside the African continent?

You know I think this is a mistake that many people are making that our focus is only on these seven countries. No there are a lot of other situations outside of the African continent that the ICC is also either collecting information or analyzing the information or looking at what are the next steps to be taken.

I think I have cited already Afghanistan - we are on the preliminary investigation in Afghanistan, in Georgia. Recently, Palestine has accepted the jurisdiction of the ICC - we are saying the next move we need to make regarding the crimes that have been committed there. Korea is another country.

So there are situations that are outside of the African continent and what you have to realize is that we move in phases - we don't just get up and start a case. The statutory mandate [is] that you have to look at the information and check whether crimes have been committed, whether those crimes fall within the jurisdiction of the court; whether those crimes are of such gravity that warrants the intervention of the ICC; whether that country is doing anything to address these crimes and if all of these questions are answered in various ways, then you take the next steps of perhaps start opening an investigation. So these are the things we need to understand - that is how the ICC works. And as I said there are these other situations that are outside of the African continent that we are already looking into.

Most of the people, diplomats notably who participated in your selection process praised your independence, determination and qualifications, whilst some analysts concluded that you are perhaps, exactly what the ICC needs as it strives to protect its credibility and to prove its original mandate to end impunity for the most heinous of crimes across the world. How do you feel with this sea of compliments and how encouraging are they as you set to begin a difficult task?

Well as I said I am very grateful for the confidence and I think some people have even gone out to give opinions on why they think that I should be the next ICC prosecutor. My take is that in the past couple of years that I have worked with the ICC, I have together with the current prosecutor always try to stay strictly within our legal mandate - I think this is important for the position and I have just said that in my previous answer - that the considerations that one has to take should not be otherwise than legal considerations.

This is absolutely important for me. It does not mean that I will be insensitive to other things because we are a judicial institution but we operate in a political environment. So it does not mean that I will be completely insensitive that I don't care - I just have to do my legal work, no! My intention is always, while respecting my legal limits also respects the mandate of others and see what is the best way we could try and compliment each other without interfering with the work of each other. I think that is the most professional way that one can handle your work. I have always throughout my career try to maintain my professionalism. I think this is expected and I think this is what I should do.

Bensouda how about your would-be predecessor Luis Moreno Ocampo who will hand over to you in June 2012 after nine years at the helm of affairs of the Office of The Prosecution at the ICC? What is your impression of him?

Mr. Moreno Ocampo is a person that I have had excellent working relationship with and I also have a very great admiration for him because I worked with him on a day to day basis. This is a man who throughout his career you have to respect him for that - has always said that "I have to stay within my legal limits" and this exactly what he has done. This is a man who has total and absolute commitment to his work and has always strived to abide by the principles that he has set in executing the mandate.

I think that his contribution has placed the ICC on a pedestal on where we are today. He has contributed greatly to bring ICC office to be recognized; to bring credibility to our work; and to also put ICC as an institution that has become relevant for conflict resolution. This is something that he has done. Of course he could not do it alone - we have all been working with him and we have all contributed in some ways but I think that his leadership has been instrumental in bringing the ICC to where it is today.

Some people have also been critising the slow pace of the court in handling the various cases. What is your office's commitment in this regard, especially in ensuring that justice is expedited?

You see Hatab justice especially international criminal justice can very complex. Many people always looked at the fact many be ICC cases are taking more than one year or two years to be completed. But there are so many aspects of conducting a trial and bringing it to a conclusion that many people don't take into account when making those kinds of accusations against the ICC.

Even if you take national systems we know that there are certain cases and I can give examples not only in one country but several countries in which cases have taken sometimes more than nine years to be completed and this is a system where you have your judges but where you also have your police in place; where you can make orders immediately and say arrest this person and they can do it.

This is not what is happening at the ICC because we don't have that - we don't have a police; we don't have an army. We rely on the police and army of individual countries that have signed and ratified the Rome Statute. Sometimes is experience for those countries to arrest and sometimes it is not for many reasons; and you cannot even start a trial without having a person before you.

So all of these are things that contribute to sometimes the slowness - bringing a person before the ICC to even start a case. And also I was just saying that we are always operating mostly in situations of ongoing conflicts. So there are huge challenges including challenges of trying to protect people who will give you evidence because we have an obligation to do that. There are challenges of the kind of cooperation you need to even go to the fields.

All of these is what people have to take into account - that it has to be in place before you can start your trial and continue because even as you start your trial, you are still needing people who will come and give you evidence; you are still needing how to protect people; and you are dealing with various issues. So these take time but if you look at the record of the ICC, really in all fairness you compare it to these national systems or to even some adhoc tribunals, I think that we have moved actually in a very expeditious way.

It can better sure and one has to start thinking of what are the ways we can use to make it better; but if you look at our record; if you look at the Lubanga trial, it started in 2009 - there were some issues that we had to deal with - but after the Lubanga trial; if you look at the Katanga case, we presented our evidence in a very short period of time. Currently with the Bemba case, by the turn of the year in a few weeks [at the time of the interview] the prosecution will also conclude our case etc.

But you also have to know that it is not only the prosecution that is conducting case; the defense has to bring their case as well and they also need time to prepare. So these are the things that one has to think about when you are thinking of expeditious trial. I am really not defending the ICC but saying it as it is. I think the record we have set so far is not a bad one .

As a Gambian and former Justice Minister under the Jammeh Administration, we cannot end this interview without gauging your personal opinion about the support of the Gambia government to your candidature and the citizens in general who are currently rejoicing your this huge success. What is your reaction to their support?

I am very much grateful - it's very gratifying to know that you start a process - maybe some people have started with you but others got to know whilst the process was on and since then I have received just overwhelming unconditional support for this process. First to fold I start with the government itself - the government of the Gambia under the leadership of the president has given me full unstinting support for this and whatever was to be done by a government in supporting a candidate has been done.

Fortunately it was not a process where we have to actively campaign or go round campaigning for my candidature as you know it was by consensus in the end. But it warranted a lot of coordination that had to be done and it had to be done at the highest level. Under the leadership of His Excellency [President Jammeh] through the Ministry of Foreign Affairs, Dr Tangara was coordinating the whole process together with Ambassador Wafo Ogo at the UN mission in New York, Ambassador Sarjo Jallow as permanent representative in Addis Ababa, and Ambassador Mamoud Jagne representing the Gambia in Benelux.

They made a fantastic coordination of what was supposed to be done. There was a lot of consultations that had to take place and they have done this in the most professional way for this to happen. I think this is really something that is worth mentioning and it is worth being grateful for and it is showing that the government of the Gambia has given me as an individual and also as a Gambian the full support that I had needed. I am definitely very grateful for that. But also for the people of the Gambia - whether they are within this country or whether they are outside of this country, they have encouraged, they have supported me and they have been praying for me.

I think you know that at some point there were certain mosques and churches that had been praying especially for me and after I was elected, they have also continue to pray for me that the challenges that lie ahead that work ahead I will execute it in the best possible ways. This I have to be grateful for the people of the Gambia. I want to use this medium because may be I will not have this opportunity to thank the people of the Gambia, the well wishers, my friends, my family for the support that they have given me standing by me and I know that I will continue to rely on their support.

You also once served in the Jammeh administration as Attorney General and minister of Justice. How was it like?

Well I have worked with President Jammeh as you have rightly stated and it was not only as Attorney General and minister of Justice; even before that when this government came to power I was already at the Ministry of Justice as a principal state counsel and deputy director of public prosecution. But what I have always done throughout my career is to be very professional in what I was doing. I believed in what I was doing and I believed that I was given the opportunity while I was there to do it. I had never been influence or ask to do anything that was not within my mandate not just as Attorney General or even before that.

So I had all the room to perform my functions and perform it as best as I could. So the relationship even after I left the country with the president and also with other ministers has always been a good relationship. And wherever I am in a position to offer my advice even when I was outside of the government, I have continued to do that because I always say that at the end of the day this is our country. I love my country as many of us do and I think we should always try to make our contributions whether within or outside the country.

Well that does it for this interview Fatou. It has been a long one, but before taking leave of you, what would be your final words vis-à-vis the administration of international criminal justice and the need to end impunity in the world?

Bensouda: You see Hatab international criminal justice is something that is going one of the areas today that is growing very fast. If you just take a step back, you will recall that after the Second World War, it was the first time that we tried to use the law to bring accountability. And then there was a momentum that built up about international criminal justice but unfortunately; and at that time, the Nuremberg Trials, the world said "never again will these happen" the atrocities that took place.

But it had to take over 50 years again after the former Yugoslavia conflict that the United Nations created again the International Criminal Tribunal for Yugoslavia. And still we said never again then Rwanda happened and up to a million people had to die from these atrocities before we created the International Criminal Court for Rwanda. Then you have the special court for Sierra Leone because of atrocities again. And finally the International Criminal Court was created in 2002 which is different in the sense that it is permanent and not an adhoc tribunal.

But of all these is in reaction to atrocities. You see this is something that we have to take very seriously. One cannot continue to commit all these crimes against people - most of the time your own people - they are killed, they are raped, they are pillaged and a lot of horrendous atrocities take place and when we say never again may be it happens again and again. It has to stop. This has to stop and I always say that it is not only the duty of institutions that have been set up; it is the duty of each and every individual; everybody has to say that this cannot happen.

And this is what will give us the impetus of supporting institutions like the ICC which have been established to make sure that we stop it. We cannot continue to kill people, to rape and commit these atrocities and nothing happen. For me this is the bottom line and I hope that now that we you have the ICC which has been in existence for the past years, it is an institution that we should all identify with. We should see ourselves in it because we created it - 120 countries created it. So we need to make sure that it has the support that it needs to be able to perform the mandate. And what is that mandate - is to stop the crimes, bring accountability and protect the victims. This is very important.

Finally, that does it for this edition and we want to thank you so much for shelving other busy moments for this marathon interview.

Thank you so much too for having me and also thank you for taking time to do this; I think it is important also.

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