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Exclusive. Fatou Bensouda: “The threat of withdrawal from ICC is a regression for the continent” 0

Brussels – “What is really happening right now is a lot of misperception has been created around the International Criminal Court, that the ICC is unfairly targeting Africa, and therefore they need to withdraw from the Court”, says the ICC’s chief prosecutor, Fatou Bensouda. In this exclusive interview released to and African independent media, Bensouda is convinced that – “as an African” –  the Kenyan proposal to push for withdrawal from the ICC “is a regression for the continent. If we allow this to happen, this means we believe there should no longer be accountability – at least for certain people – for the crimes that they have committed on the continent”. The chief prosecutor also discusses other hot issues and cases that ICC is facing.

What made Bemba’s case so different from the others you’ve followed previously? What marked it out?

The Bemba case is the first time commanders have been held responsible by the Court for the actions of troops under his authority, and it is historic for that reason; for the Court itself; and for the specific victims who have been waiting to see justice done.

Once again, I would emphasise the fact that a commander has been held accountable and found guilty of not controlling his troops who were committing crimes, and his not making genuine attempts to prosecute them or to investigate them, and therefore ultimately being held accountable for those crimes. I think this a very significant and important development at the ICC and more generally for the cause of international criminal justice.

I also think this has sent a very strong signal to commanders that they have to be careful. It doesn’t mean that once they unleash their troops to go and fight on the ground, they have no more responsibility. On the contrary, the ICC is saying now that they have great responsibility about what their troops do on the ground. I think would-be perpetrators or other commanders who are looking at this will have a lesson to learn. Our hope is that this case will deter them from committing similar crimes.

Is the DRC a country to worry about, with this year being so important due to elections?

Our investigations in the DRC continue. We are still looking at information received, and assessing that information with regards to crimes that could be committed. Of course, we have nothing to do with the election: my mandate is not political. As far as the issue of crimes that fall within the jurisdiction of the Court is concerned, we are monitoring that very closely.

And you receive information regularly?

Yes, we do. We are reaching out to people, and asking for evidence and more information. People are also offering information to us with regards to certain incidents, and the process is ongoing and being monitored very closely. As you know, we have started the trial against Bosco Ntaganda. He surrendered himself to the Court, we have done a confirmation of charges, and now the trial has started. And our investigations in the DRC are still ongoing. We have an arrest warrant outstanding against Sylvestre Mudacumura, the alleged Supreme Commander of the Forces Démocratiques pour la Libération du Rwanda, for crimes committed in the Kivus; we urge the relevant actors to ensure accountability prevails by arresting and surrendering Mr Mudacumura to the Court.

When you speak of investigations, are there areas of the country you are more focused on?

Yes. We have started our work in the east of the DRC, and all the cases that we have brought so far – Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo and Bosco Ntaganda – are in respect to the incidents that were happening in that part of the country. As we have said previously, we have started there, but we are not ending there. We are also going to look into other incidents in other parts of the country.

In September 2014, you decided to open a second investigation in the Central African Republic (CAR), with respect to crimes allegedly committed since 2012. What point are you at with your investigation?

You will recall that when I started the investigations, I had indicated that I was going to do parallel investigations: so two investigations at the same time. One looking at the conduct of Séléka, and the other looking at the conduct of the anti-Balaka. This is because these were the groups that were seen as being involved in the conflict. As soon as my Office is satisfied that we have collected enough evidence to justify the request of arrest warrants, we will do so

At this stage, have you collected a lot of information?

I believe that we are headed in the right direction. We are trying to be as effective, careful and thorough as possible in the collection of this evidence, because we are talking to people who do not want to be exposed: people who have perhaps already suffered during the conflict. It is not a speedy process.

With regards to the Central African Republic, what sort of obstacles are you and your team encountering with witnesses?

In general, security for the witnesses is a major challenge for my investigations. Specifically in regard to CAR, there are also a lot of displaced people from the country. They have gone to neighbouring countries, and we have to reach out to them to get the information and evidence we need with regards to our investigation.

As Prosecutor, I have the obligation to make sure that every witness we interact with is protected from interference or intimidation. Witness protection takes time, because we investigate very complex cases that potentially involve many perpetrators, countless victims, and very serious mass crimes. In the meantime, you have to be able to present a solid case before the Judges of the ICC.

How can you ascertain that the witness statements are credible?

The process is very complex. First of all, you need to ensure that the person you are talking to is a witness who can give you valid information. This information then needs to be cross-checked: you have to look for corroborative materials to any information that you receive, as well as the veracity of the information, and how it ties in with the other information. These are techniques that facilitate investigators to ensure they have the right evidence, and the correct information that has been corroborated and tested fully for its validity before it is brought before the Judges of the ICC.

What are the political pressures your Office has to face?

We investigate in political environments. The test that we have to always pass as investigators and prosecutors is to always preserve our independence, impartiality and credibility. I know that as investigators and as prosecutors, this is one of the areas we stand firm, and we have to show that we are doing this to uncover the truth of what happened, and to bring justice to the victims of those crimes.

The CAR has elected a new head of state, Faustin-Archange Touadéra. What are you expecting from the new Central African authorities?

Firstly we have to talk about the interim government. You will recall that they asked for the ICC to step in, and they referred the situation to us. The interim President Catherine Samba-Panza has been very supportive, because she believes in justice and accountability. She has been very clear in saying that those who have committed crimes in the CAR must be held accountable, and she has worked hard to cooperate and facilitate the work of the Court. I am expecting the same from the new authorities of the CAR when they are sworn in.

Recently I fielded a visit to Chad, where I met with the President Idriss Déby. I was fortunate that during that visit, President-elect Faustin-Archange Touadéra was also visiting Chad. I reached out to him to have a short meeting, to explain our work in the CAR and to seek his support. He has assured me that he is also very committed to justice and accountability and that his government when it is formed will fully cooperate with the ICC in the field. I am very pleased about that, and this is what I am expecting from them.

What could Anti-Balaka leaders such as Patrice-Edouard Ngaissona, Joachim Kokaté, Romaric Vomitiadé or Alfred Yekatombé eventually be accused of?

As I said, we are collecting and analysing the evidence in order to come to a decision. When we go into any situation to investigate, we do not target any individual. If the evidence leads us to the person most responsible, then we go after them. However, we do not just sit and say “these are the leaders and we are going after the leaders.” That is not how our investigations work. We have to first collect evidence, and cross-check it, we have to see what crimes have been committed, and then we see who we believe is individually criminally responsible for the most serious crimes.

In March, the Pre-Trial Chamber I of ICC confirmed the charge of war crimes brought by your office against Ahmad Al Faqi Al Mahdi, and committed him to trial for attacking historic monuments and buildings dedicated to religion in Timbuktu between 30th June-10th July 2012, including the Grand Mosque Sidi Yaya of Timbuktu. What is the particularity of this case and what do you expect from this trial?

The destruction of historic monuments and buildings dedicated to religion is one of the very serious crimes we have under the Rome Statute, because you are talking of the destruction of the identity and the heritage of a people. The loss was not locally confined. The magnitude of the loss of such irreplaceable physical embodiment of history and culture was felt by the whole of humanity, and at the expense of future generations. Al-Mahdi was surrendered to the Court by the authorities in Niger – another State Party in collaboration with Mali itself. Mr Al Mahdi explicitly expressed before ICC Judges and in the presence of his lawyers his wish to plead guilty. This is the first time that a suspect has expressed his intention to plead guilty to criminal conduct for which he is being prosecuted by my Office on such charges. Such an admission of guilt, provided for in article 65 of the Rome Statute, will be a milestone in the history of the ICC. The case will shortly be referred to a Court’s Trial Chamber. It will be for the designated judges of that Chamber to decide how the case should proceed, in light of Al Mahdi’s stated intention to admit guilt.

How come you are limiting the trial to just the destruction of historical and religious buildings? Al Mahdi also ordered lapidations, and sexual crimes…

In the case of Al-Mahdi, the evidence that we have collected for the crimes he is alleged to have committed is very strong for the destruction of religious monuments and other religious sites. For this reason we have proceeded with this charge before the Judges. This will not stop us should we get sufficient evidence for other crimes that he is alleged to have committed, from bringing further charges forward. As I said, this crime impacts the identity of a people, which forms a very important part of the life of a community. We are not just talking about Timbuktu either, we are talking about a region. We have seen the reactions from Algeria, for example, lamenting the destruction of these historic buildings. These are UNESCO protected sites, so it is an inheritance for the whole world and humanity. We want to send the message that you cannot attack and destroy these important buildings dedicated to religion and history, and not be held accountable for it.

This is the first time a trial of this type has been brought before the ICC. How much has UNESCO been involved in your investigation?

The investigation into the war crimes committed in Mali is conducted by my Office in accordance with its mandate under the Rome Statute. In relation to deliberate destruction of historic monuments and buildings dedicated to religion, evidence has been collected from various sources. We have talked to experts, collected information regarding that, and it has informed the charges we have brought against Al Mahdi.

After the crimes of 2012, is there anyone else who will be charged?

This is not the only case that the Office will bring against those who committed crimes in Northern Mali. It is the first one, but not the last one. My investigation continues in relation to all crimes of the Rome Statute and, based on evidence, other cases may be brought before the Court.

More than 300 people suspected to be members of Islamic groups such as Ansar Dine, Al Qaeda in the Islamic Maghreb, ecc. are actually detained in the Maison d’Arret of Bamako. Their trials do not seem to be a high priority. What can the ICC do to prevent this situation of people languishing in prison awaiting their trials?

The court and my Office cannot be expected to try all the cases that arise from a conflict. The ICC was not meant to do that, and this is why one of the Office’s policies is as a rule to pursue those most responsible for the crimes. However, there must be attempts at the national level to also try others who are involved in the conflict, and who have been suspected of committing crimes. That is the only way we have of closing the impunity gap. The ICC will work with the cases involving more serious crimes, but the national jurisdiction should also make efforts to try those that the ICC cannot.

This is how the system is supposed to work: complementing each other. We can only encourage the Malian authorities to conduct their trials, and we have always said that we will share information, but there has to be a burden sharing.

Is it possible that for the most complex cases the Malian authorities can ask to transfer them to ICC, if the authorities cannot handle it themselves?

I must keep emphasizing that we do our own independent investigations. If it is someone that the ICC has already been looking at their conduct in the field, and we already have got evidence on our hands, then we can take the case on. But we cannot go solely based on the investigations of Mali or another jurisdiction.

In June 2015 you released an interview with Infos Grands Lacs, declaring at the time that you were ready to open a preliminary investigation if the violence continued in Burundi, following a number of international reports on violence, assassination attempts, etc. Now you have opened a preliminary examination. Do you not think you have sufficient information to open an investigation?

With respect to Burundi, I have been closely following the situation in Burundi after acts of violence broke out in April 2015, and repeatedly called on all involved in these incidents to refrain from violence. I warned that anyone alleged to be committing crimes which the International Criminal Court has the authority to deal with, could be held individually accountable.

During the crisis in Burundi, more than four hundred and thirty [430] persons were reportedly killed, at least three thousand four hundred [3,400] people were arrested and over two hundred and thirty thousand [230,000] Burundians were forced to seek refuge in neighbouring countries. My Office has reviewed communications and reports about killings, imprisonment, torture, rape and other forms of sexual violence, as well as cases of enforced disappearances. Because all these acts appear to fall within the jurisdiction of the ICC, I have decided to open a preliminary examination into the situation in Burundi since April 2015.

A preliminary examination is not an investigation. It is a process of analysing the information available to determine whether the applicable legal criteria have been met for the opening of an ICC investigation. According to the Rome Statute – the treaty which governs this Court – as Prosecutor I must consider issues of jurisdiction, admissibility and the interests of justice. We give due consideration to all submissions and views conveyed to the Office during a preliminary examination, strictly guided by the requirements of the Rome Statute. As with all our activities, we conduct this analysis independently and impartially.

On this case some experts are asking why did it take so long? And how soon will you decide whether to formally investigate?

I can understand that people are impatient. They want us to proceed overnight and take action, but as I always say, it is a very careful process we are engaged in. At the end of the day, you are talking about allegations of very serious crimes. There may be open source material, but that information needs to be thoroughly scrutinized, to make sure that you have what you need to make a determination. The pace is slow, but it has to be done that way to do a proper job.

There are no timelines provided in the Rome Statute for a decision on a preliminary examination. I will make my decision when there is a factual and legal basis to do so. If the legal criteria are met, I may request ICC Judges authorisation to open an investigation. Or, if there is no basis to proceed, I may decide not to open an investigation. My Office will also engage with the Burundian authorities to discuss and assess relevant investigations and prosecutions at the national level.

During the last AU Summit that took place in Addis Ababa in January, African leaders have backed a Kenyan proposal to push for withdrawal from the international criminal court, repeating claims that it unfairly targets the continent. Do you see this concretizing?

I hope it doesn’t concretize. What is really happening right now is a lot of misperception has been created around the ICC: that the ICC is unfairly targeting Africa, and therefore they need to withdraw from the Court. If you look at the reality however, this perception is not backed by the relevant facts on the ground. If you look at the cases we are working on today, they are the result of Africans referring these cases to the ICC, and asking the Court to step in. If you look at the individual support we are receiving from African countries – not the African Union as a bloc – wetime are receiving a lot of cooperation from African states. Even non-state parties are cooperating with the ICC. If you look at what the ICC has been established to do, and the values of the African Union Constitutive Act, we share the same values on the lack of impunity and for ensuring that mass atrocities that are committed against citizens are being addressed. What we should do as separate bodies respecting each other’s mandate, is to assist each other in eradicating these crimes on our continent. The way to do that is to stand together and to say that impunity will no longer be tolerated: the ICC will do its part, and so will the AU.

This threat of withdrawal – and here I speak as an African and not a prosecutor – is a regression for the continent. If we allow this to happen, this means we believe there should no longer be accountability – at least for certain people – for the crimes that they have committed on the continent.

We have played a big role as Africans in international criminal justice: Africa played a big role in establishing the ICC and ensuring that the Court started its work. That must not be forgotten. The African leadership has chosen the rule of law over conflict by referring situations to the ICC. This is the progress and trajectory that we should take, and not think about withdrawing from the ICC, especially on grounds that are really not valid ones.

But there is a sentiment amongst many Africans that the ICC is only convicting Africans…

It is necessary to look at the whole case docket. Of course our work has started in Africa, I will not deny it. We started in the Uganda and CAR and the DRC, because those were the ones that firstly chose to refer cases to the ICC.

Nevertheless, it must be remembered that the ICC is conducting work outside of Africa. In January, we received permission from the Court’s judges to start investigations in Georgia and preliminary examinations are ongoing, among others, in Afghanistan, Palestine and Iraq.

In Iraq we will be examining the conduct of UK forces, and especially looking at alleged detainee abuse there.

We will be examining all of these cases, and sooner or later they will come to a determination. I will not hesitate to take a decision if my jurisdiction parameters are met in any case. When I say that the accusation that the ICC is targeting Africa is not backed by the relevant facts, I really mean it, and I am giving you concrete examples that the Court is working outside of Africa.

In her recent book “Le joker des puissants”, the French journalist Stephanie Maupas shows how the ICC became a diplomatic tool of the powerful. What are your views on ICC’s relations with influent states?

I believe this to be an incorrect assessment. The diplomatic and international relations that the states have are not under our mandate, and we cannot do or say anything about that. What is important for us is that what we do here is strictly guided by the Rome statute that established us, and by the evidence. This is what the Court has always done, and this is what the Court will always do going forward.
As long as our jurisdiction and our legal parameters are met under the Statute, we will do what we have to do. If it means opening investigations, we will do that. If it means opening preliminary examinations then we will do that, but strictly guided by the Statute, the law, and the facts.

What politicians and states do does not concern us, and neither can they instrumentalize us, no matter what the critics may say. Of course, it is unfortunate that the critics and naysayers will always, no matter what the Court does, base it on some sort of political consideration, and they will attempt to politicize the Court. But if you look closely at what the Court is doing, you see that this institution cannot allow itself to be instrumentalized. We will not allow that.

You have asked the US for information on the torture of Afghans in American prisons, but so far you haven’t opened any investigations. Why?

We have been working in Afghanistan since 2008, on a preliminary examination phase to analyse whether it appears crimes under our jurisdiction may have been committed, as well as the issue of interest of justice. We also look at the gravity of those crimes, and also whether there are any ongoing national proceedings. We have had difficulty progressing in Afghanistan as fast as we have wanted to. Security has been a problem over the years.My Office has been working hard and hopefully very soon we will be able to come to a determination whether to proceed on these cases.

Since 2002 three judgments have been made. In your eyes, is this not a small number, considering the 14-15 years that the ICC has been in existence?

During the first few years, we were very busy in setting up the Office, employing people to do the work and drawing up strategies and policies not just in my Office, but across the Court. We also spent time litigating procedures like victim and witness protection.

From 2004, we started receiving referrals and requests to intervene in situations. First came Uganda, then the DRC. Yes, with the guilty verdict against Bemba in March there have been four judgments now, but we also so far have 23 cases that have been opened, and we have three trials that are ongoing, and we have two cases that have just been confirmed and going to trial, as well as eight ongoing preliminary examination situations. The Court is busy, and we are working.

These things don’t happen overnight; even at a national level you have cases that take a long time, which only involve one accused person. In the Court, we are looking at complex cases that include hundreds of thousands of victims, and a few hundred perpetrators. Then we are looking at who is most responsible amongst those perpetrators. Furthermore, investigations are often happening in ongoing conflict situations. This means that you are concerned with where you are conducting your investigations, how to go to the field, how to protect your witnesses, how to keep your staff safe, and so on. All of these things don’t happen at the national level. It takes a long time.

I have a very committed and dedicated staff that is doing difficult work and facing challenges like witness interference, and perception issues.

These are also things that the Court has to deal with. With regards to witness interference for example, I have had to bring cases involving five individuals in the Bemba case, and ask for arrest warrants for 3 individuals in the Kenya situation, which takes resources and time from our core business. We have to continue our work and support this independent, impartial institution in the hopes that it can deter and stop the commission of these very serious crimes.

You were elected to become Prosecutor in 2011. What have you been working on since then?

Efficiency and effectiveness are very important to me and the credibility of the Court. So for this purpose along with my Office I developed subsequent 3 year strategic plans from 2012-15 and 2016-2018 both of which benefited from the lessons we have learnt over the years, as well as what my predecessor was doing. We have made a significant change in investigative policy by moving away from focused investigations, and towards open-ended and in-depth investigations.

What is the difference?

In focused investigations, you focus on one crime or one incident and one or two individuals. You try as much as you can not to expose witnesses, because you run into protection issues. If you look at the Thomas Lubanga case, he was convicted of only one crime, which was enlisting and conscripting children into hostilities.

In an open-ended investigation, you maintain focus, but it is widened. Formerly, the strategy was to go straight to those directly responsible, but now we also consider building the case upwards by looking also at mid-level and notorious perpetrators.

We also try to be as trial-ready as possible, even by the time we engage the judicial process. Now even when we are asking for arrest warrants or asking for confirmation of charges, we try to be as trial ready as possible.

The strategic plan of 2016-18 is already out. If you look at the results that we are obtaining, we have had a 100% success rate in the cases we brought for confirmation of charges.

In 2014 I launched a policy on sexual and gender based crimes, in order to lend emphasis on this issue. I have made investigations and prosecutions of these crimes a priority in my Office, and I have elevated its strategic goal in the Office. We are looking at the best training of staff, and integrating a gender approach into all aspects of our work.

Currently I’ve started work on the children’s policy, because I thought it was important to emphasise the way conflict affects children. The policy is not just on those who have been abducted, but on children in and affected by armed conflict. This is much broader, and covers how conflict affects their education when schools are taken as military HQ, or when their parents are killed and they are displaced.

I am also beginning to work on a policy on protection of cultural heritage, and I believe that these are all important things to highlight.

I have also introduced a code of conduct for my staff. Everyone in my Office is bounded by this Code, starting with me. There are high expectations of everyone in my Office, and it is important that we maintain our very high standards.

What has been the biggest satisfaction and biggest frustration in the job so far?

I always believe that the raison d’être of this Court is the victims of these atrocity crimes. Whenever I see that this is not possible, because of reasons that are beyond the control of the Court -such as witness interference, lack of cooperation and deliberate attempts to undermine the work of the Court to the extent that we will not be able to give justice to the victims – all these obstacles frustrate me. Unfortunately we have seen that it is something that is happening more and more to the work of the Office: attempts to really prevent justice being done, and the truth being told.

With respect to my happiest moment, I still have not been able to move away from the decision the international community made to establish this Court. I was very happy, because I think it was a big moment for justice, for international criminal justice, for accountability and for the victims of these crimes. For me, when this Court was established and the Statute signed in 1998 in Rome, and when it came into existence in 2002, I felt like humanity had taken a big leap. Maybe there will be a big moment that will make me feel that way again, but so far that has been the happiest one.

By Joshua Massarenti 

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