17 June 2012

Kenya: Fatou Bensouda - We Hope There Will Be No Poll Chaos in Kenya


The Gambian lawyer, born January 31, 1961, is the new chief prosecutor of the International Criminal Court at the Hague. She took over the position on Friday from Argentinian Luis Moreno Ocampo. Bensouda was interviewed by a small group of foreign correspondents in Holland.

What are your challenges as prosecutor? What's the difference between working at a national level and investigating in an international framework?

The scale is different. You are talking about hundreds and thousands of victims and perpetrators. You are talking about investigating killings, many killings at the same time. All these serious offenses may be at the scale of one in your national level but is in the hundreds of thousands at the international level... because the situations that you deal with at international levels are just serious massive situations. So this is the challenge. At a national level prosecuting is not so difficult, you have the police at your disposal, you give orders, you want people to be arrested, people are arrested, they are detained, you have access to them, you have access to your witnesses... the challenges of witness protection is not so great at the national level, but when you come to the international level these become huge challenges. Most of the time at the ICC, you are operating in situations of ongoing conflict. The security situation on the ground is sometimes impossible for you to do anything without exposing the witnesses. If you look at the Rome Statute, there's a huge obligation on the prosecution to ensure that those whom we talk to are not exposed... they still have their security and they are protected. So in a situation of conflict this becomes a big challenge.

Your predecessor, the Argentinian Luis Moreno Ocampo, has been criticised for his leadership style and for being 'authoritarian'. Senior staff members have even left the ICC, like the former head of the Darfur investigations.

We have to know that we are talking about different people. Luis Moreno Ocampo is his own person and Fatou Bensouda is her own person. So we have different styles and obviously we have different approaches to doing things . But I want to say that you have to recall that I have been in this office for about eight years now... so for eight years I have been working together with Moreno Ocampo on the policies, on the strategies, on operations manual... We have been trying to set this office to be able to tackle the work that we have in our hands. So I cannot say that I'm not part of the regime that we have created, and I see it as my responsibility to ensure that we now consolidate on what we have been building on. There's a difference which I think we all should appreciate: Moreno Ocampo took over an office, or started an office, with less than five people and he, together with his team, including myself, we had to build this office, we had to recruit people, we had to take time to build strategies, to make policies... that we have been renewing almost every three years since then.

What I'm inheriting today is about 300 staff members, so I think it is my duty to build up on those years and on the achievements that we have realised over the years. Also to look into what we have not done so well... my advantage is that I have been there when all of these is happening and I think I can build up on the strong ...and I can also try to improve things that haven't worked well. This obviously is going to be different; I think it is time to implement the policies that have been adopted. This does not mean that they are cast in stone. The circumstances of our investigations, our prosecutions, will continue to evolve and we'll definitely need adjustments as time goes on. I'm ready and prepared to make those adjustments when the need arises. This is an office that is moving. It's moving and we are moving ahead with the office.

Regarding Luis's (Moreno Ocampo) style and senior staff leaving the office, I do not think that it is a fair statement to say that it is because of Luis that senior staff left the office. Having been present and having been here, I think some staff decided to move on for other reasons. I think that as a prosecutor the final decision has always rested with him and I'm convinced over the years that he has taken all the steps, all the stands he's taken to make sure that the mandate that he has been given as a prosecutor is executed. I have never seen any other reason that he has put forward other than wanting to achieve his mandate in the best way that he can. He may use his own style, which probably is not suitable or maybe not acceptable to others, but the end goal has always been to achieve the mandate, to be more efficient and to ensure that the office of the prosecutor is doing what it's supposed to do.

What should be improved at the ICC to make it more effective?

We have had setbacks. I'm talking about the Lubanga case, as an example. We have had issues of article 54 3E disclosures, this was a big problem. It resulted in the trial being stopped. The issues of intermediaries...I think that already if you look at the trend, between Lubanga and the other cases, you will see that the office of the prosecutor has already learned from those lessons. We have developed new policies. We have learnt from that...we have an SOP (Standard Operating Procedures) on intermediaries and how to tackle them, taken on from the Lubanga case. The issue of disclosure, apart from the Lubanga case, has not been a problem in any of the other cases and I know that It would not be a problem for us anymore. These are just examples that the office is moving and it's evolving; it is learning from our experiences and it is looking to improve those areas.

Aren't you frustrated by the lack of co-operation from some member states? Omar al Bashir has been charged by the ICC in 2009 for crimes in Darfur but he is still at large.

I always see the setting up of the ICC as a system; it is a system in which members states came up and resolved in 1998 to create this institution. But in making this institution effective, the members states have a big part to play, a big role to play, and they undertook to play that role by signing and ratifying the Rome statute. I always say that ICC does not have an intervention force, it does not have a police force but the police of 120 member states are the police of the ICC. The armies of these countries are the armies of the ICC. This is the obligation that has been undertaken. I think we should all the time remind ourselves of this obligation to be able to ensure that when the ICC issues decisions and rulings, members states execute those decisions. There's a sense of frustration of course when we see the likes of Joseph Kony, when we see the likes of Omar al Bashir still not arrested. The member states should remind themselves of the resolve they took in executing the decisions of the ICC because it is only then that the effectiveness of the ICC can be manifest.

What are the main goals in fighting impunity?

We are a judicial institution, we are a legal entity, but we are operating in a political environment. This sometimes becomes a challenge, because whatever move the ICC makes whether we decide to move, whether not to move, whether we charge someone below the line whether we charge some very high up, there's always criticism of the steps that ICC have taken. So, apart from seeking co-operation (of the member states), one of the major challenges that we face as an institution is that we have to continue to be legal, we have to continue to perform our functions strictly within the law... applying the law strictly within the Rome statute, our judicial mandate. I think if we do this and be very transparent about it, very predictable, I believe that the credibility of the ICC will continue.

Do you feel political pressures from member states that limit your independence?

It depends on a case by case basis and on the situations as they present themselves. If you take the example of the referral from the UN Security Council in Darfur, there's the argument always that the UN Security Council has members that are not part of the ICC and therefore cannot refer cases to the ICC. When they do, the ICC is heavily criticised for those actions, yet they are not our actions. It is said that the ICC is being used as a political tool by states to punish other states. This is some form of pressure and sometimes you have to take time to explain that we continue to act within the statute. The Statute requires or at least provides that the UN Security Council, acting on chapter 7, can refer cases. They can also defer cases, only in the name of peace and security. This was the agreement, this is what is in the statute, but today the ICC continues to be criticised for this and everybody sees it as political pressure and is part of our problems. Again, if you look at those situations that are also in conflict and have not been referred to the ICC, again the ICC is being blamed. Syria is a case in point. Syria is not part of the Rome statute, is not a member of the ICC and we therefore do not have jurisdiction over Syria, unless the UN Security Council refers the case to us. The fact that the UN Security Council has not done that, ICC has been blamed for this.

Would you see a role for you as prosecutor to lobby for referrals in the Syria situation?

This would be outside of my mandate to lobby for referrals. The statute is clear. It has been agreed upon by 121 state parties to date. Where the prosecutor can go and can't go is very clear under the statute and I think it would be outside of my mandate if I start going outside of the statute and do things like request for referrals from the UN Security Council. This is not my duty, this is not my role.

If the Security Council were to refer Syria case to you, how long would it take for the ICC to start investigations?

Even though we are observing what is going on, what is in the public domain, requesting for an arrest warrant or going before the court requires much more that what you find in the media. So we have to do some work to be able to determine whether we seek for warrants or not. It depends. I just want to be clear that at the moment we do not have jurisdiction; we are concentrating in the areas where we have jurisdiction.

Some people say this is an 'African institution' and now it has an African prosecutor. Is that compatible with impartiality?

First of all I want to say that yes, I am an African and I'm very proud of that. But I think it is not because I'm an African that I was chosen for this position. I think already my experience, my track record is speaking for me. I have served in this institution for the past seven years...so being an African I think is not the main focus here. If you recall, when I was making my acceptance speech I said that I'm an African, I have been endorsed by the African Union but I'm a prosecutor for 121 state parties. This is what I am and what I intend to be and what I will continue to be until the end of my mandate. I think the fact that I am an African though, I'm not going to discount it or dismiss it, I think the fact that African Union took interest in the leadership of the ICC by endorsing a sole candidate shows the interest, that contrary to what you see everyday in the media, by African states, by African Union, in the ICC and also specially in the leadership of the ICC. This continues to show how Africa, how African states have started this court of... by referring cases to the ICC and they still continue with that same leadership in international criminal justice.

What about the lack of co-operation from the African Union member states?

The problem with the AU is not to co-operate with the court generally. I think we need to be clear about that. It is not to co-operate with the court with regard to the arrest of (Omar) Bashir. We know that there was the refusal or at least the deferral of opening a liaison office in Addis Ababa by the AU, when the ICC requested it but I always say that we have to take note of what is happening with individual African states and their co-operation and their commitment to the ICC. Today I can say that over 90 per cent of our requests for assistance go to African states and African governments and they come back positive. Africa continues to engage with the ICC. One of the best examples that you can find even though we are having difficulties is the Kenya case. There are presidential candidates currently who are coming before the ICC and appearing before the ICC judges voluntarily. They have not been issued with arrest warrants, they are coming by themselves. This in itself shows the recognition by individual African states of the ICC. One thing that I intend to continue to work on is to show that contrary to what is being said, that ICC is targeting Africans, I want to continue to demonstrate that ICC, specially to build up on what we have been doing already, is also working for and with the victims of Africa. This is something that we always either trivialise or don't pay much attention to. Because all the victims in all these situations are African victims. And they are the ones who are suffering all these very serious crimes on them. The fact that in the (Thomas) Lubanga case you saw victims come, you saw witnesses come...and they were able to voice out, for most of them for the first time, what has happened to them, I think it is very important to show that ICC is working with and for the victims in Africa.

Is the ICC destabilizing the political situation in some countries like Uganda by investigating crimes?

In Uganda, even though we have not been able to arrest Joseph Kony, I think the intervention of ICC has contributed immensely to bringing peace to northern Uganda , and to Uganda. Contrary to what was being said, that you (the ICC) are spoiling the peace process, you are interfering... the record does not show that. Likewise in Kenya, I think we have been working in Kenya... our hope has always been that in the next elections there would no be post-electoral violence or even pre-electoral violence, and I think that - so far - this is going in the direction that we hope. In Cote D'Ivoire (Ivory Coast), I think that ICC's intervention has played a big role. But also you have to say that ICC has always been very transparent, very clear in how we are going to operate, the office of the prosecutor has been very clear in that. From the very beginning and supported openly by President (Alassane) Ouattara, we have said that we are going to investigate, we are looking at both sides of the conflict, and this was echoed by President Ouattara. We have started our work there. (Former president) Laurent Gbagbo is our first case, there will be others.

A budget of $108 million per year for the ICC, is it not too expensive in times of crisis, compared, for example, with the Special Tribunal for Lebanon, with a budget of almost $50 million per year?

I think ICC has been - and is - as efficient as it can be. We have seven situations ongoing, we have almost nine situations on the preliminary examinations and we are operating on a budget that is just twice of the Special Tribunal for Lebanon. I don't think ICC should be criticised as being too expensive. On the contrary we are trying as much as we can within the available finances to be as efficient as possible, and I think we have been over the years. What we have been doing is to maximise as much as possible the resources that we have.

Why did you decide, as a young girl, to study law and not something else?

I believe law and justice is a medium which I can use to be able to help wherever I can those who I feel cannot help themselves. For me it has not only just been like as soon as I finished school I said, 'I want to study law'. I think it has been with me at a very young age, it's a passion that I have had...I have never thought of anything else. I know that it was either something that I can be, to be in a position to stand up for injustice, to stand up for victims who couldn't speak for themselves. I was very very concerned about domestic abuse, domestic abuse that I saw happening which I could not do anything about it, and I thought if I were older, in a position to help, probably I would be able to do something about it. It wasn't happening in my immediate family, but, you know, in Africa you live in communities, in Gambia you live in communities, and you see it, you can not avoid it, you cannot shut your eyes and say. 'I have nothing to do with this'... always there is this innate feeling in me, is really in me...that is saying that this shouldn't happen, this shouldn't happen...what can you do to stop this. This has driven me all the time, all the time.

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