#100Women: One on one with Fatou Bensouda, prosecutor at the ICC

Fatou Bensouda’s quest for justice began early. As a young girl in Gambia, she was disturbed by the plight of a female relative who suffered domestic abuse.

She joined the International Criminal Court – the world’s only permanent war crimes court - in 2004 as a Deputy Prosecutor and has served as Prosecutor since 2012. As Prosecutor, she has prioritised crimes against women and children but that has not silenced critics who accuse the Court of being slow, expensive and only targeting African suspects.

As part of the BBC’s 100 Women season Fatou Bensouda, Prosecutor, International Criminal Court, talks to BBC Zeinab Badawi about the allegations of racism and selective justice and whether her gender has been a help or hindrance.

On prosecuting sexual violence being a strategic goal and what the ICC can do about it in Syria:

Zeinab Badawi: Later on when you became part of the prosecution team in the international criminal tribunal on Rwanda, after the unspeakable genocide there in the mid-1990’s, you became very aware of how sexual violence is perpetrated against women, particularly in conflict and that you’ve kind of made it a strategic goal for yourself ever since.

Fatou Bensouda: Indeed, even before going to Rwanda, whilst I was in the Gambia and serving first as the deputy director of public prosecutions and also as a solicitor general later, I had been doing a lot of prosecution in this area as well and there are a few cases that I have done which have really marked me a lot.  I have done the rape of a school girl by the teacher, in the school toilets, and really from the very beginning I just felt that this should not be happening. We need to really do everything that we can to ensure that those who perpetrate these kinds of crimes are held to account.

ZB: Did you get the school teacher?

FB: I did, I did, I did, I got him. I prosecuted that case and ended up, he was sentenced.

ZB: That must have given you a lot of satisfaction?

FB: It did, it did give me a lot of satisfaction. And going to Rwanda also, you find that really the weight, the massiveness of the crimes that happened in Rwanda was also something else that really pushed me. And I just realised that at the international level, during conflicts, it’s even more profound.

ZB: And you must be so frustrated Prosecutor Bensouda when you see today the kind of violence, sexual violence, that is being perpetrated against women across countries, and I’m thinking in particular of the young Yazidi women and girls who are being sold literally into sexual slavery by the extremists in Iraq, what’s going on in Syria and you can’t do anything about that.

FB: But you know this is why we should not capitulate, this is why we have to continue, to ensure that we are drawing a line under these kinds of crimes - others prefer to put a veil on it.

ZB: But you are not doing anything about it?

FB: We are not able to do anything about it because we do not have territorial jurisdiction but I just wanted to say that even before the office was approached or people started talking about it – I requested that my office looks into the crimes that are being committed by ISIS especially the nationals of state parties because we may not have territorial jurisdiction in this case but we could potentially have personal jurisdiction over the foreign fighters, nationals who are nationals of states parties and are committing these crimes within the context of the conflict in Syria.

On all of the ICC’s cases being African:

ZB: You’ve heard this criticism before but isn’t it a valid one - all your cases have been African, in 12 years, 2 successful prosecutions, people behind bars, both of them Africans from the DRC (Democratic Republic of Congo) Katanga and Lubanga.

FB: Zeinab, this criticism I always say, is unfortunately very unfair to the court. It is true that our cases have started in Africa. But we should also look at how did those cases get there, it is not the ICC that is going out just to take cases in Africa. In fact, it is the fact that African states themselves are calling on the ICC, are inviting the ICC to exercise jurisdiction – this is why mainly we are in Africa.

ZB: That is one way you that can deal with cases, when countries that have signed up to the ICC - and that’s 34 of the 54 African countries – do that, but there’s also another route for you - I mean a country that has not signed up could also voluntarily declare itself subject to your jurisdiction - but you can go down the Security Council route for countries that are not signatories. You’ve done that twice, with President Omar al-Bashir of Sudan over the Darfur conflict and also Saif al-Islam Gaddafi, the son of the late Colonel Gaddafi in Libya. Why can’t you go down that route for other situations?

FB: It will be important to understand the Security Council referral; ICC, my office, does not play any role in getting a referral from the UN Security Council. It is the UN Security Council acting under Chapter 7 of the UN Charter and also by virtue of the Rome Statute that they actually request the ICC to intervene, they request the office of the prosecutor to exercise jurisdiction in certain situations.

ZB: And they’ve only done that, again, with Africa.

FB: Indeed, they have done that with Libya and they have done that with Sudan.

ZB: Chatham House think tank report in 2013 said ‘these two situations support the suggestion there is an anti-African bias.’ What do you say to that? Fair point?

FB: I do not think it is also a fair point, as I said; we do not solicit for the UN Security Council to refer cases to the ICC, first. Secondly also, before we intervene, even though it is a UN Security Council referral it has to be clear that it is not automatic that the ICC would intervene in that situation. We have to ensure first that our jurisdictional requirements are met, that the temporal jurisdiction is satisfied, that the crimes that the ICC has been set up to investigate and prosecute have been committed before we, and also to see whether there are any ongoing national proceedings before we …

ZB: Yes we know you are the court of last resort and that’s why these cases were brought by the Security Council; I understand that you cannot say to the Security Council ‘I want to investigate President Omar al-Bashir over Darfur or Saif al-Islam Gaddafi.’ But it’s not so much the cases that you have pursued that are the subject of the criticism, it’s what you have not pursued or that you have before you, and they’re all African.

FB: Indeed Zeinab, we need to remind ourselves that we work based on our jurisdictional limitations. In certain instances we are able to intervene and exercise jurisdiction, where for instance we have territorial jurisdiction - where it is the state itself has ratified the Rome Statute and we have this territorial jurisdiction that I am talking about. But in certain other cases where, for instance, we get accused ‘why are you not intervening in Syria’ it is because Syria is not part of the ICC.

On China, Russia and the United States not being a part of the ICC undermining their credibility:

ZB: Another worrying aspect of the Court’s activities is the fact that 3 of the 5 permanent members of the Security Council; China, Russia and the United States, have not either signed or ratified the ICC and that, again, makes people wonder if there is a double standard at play there - I mean I know 123 countries out of nearly 200 countries have signed up but these 3 examples, very powerful countries that haven’t, undermines your credibility to say that you are an international institution.

FB: Indeed that is the case but we look at the UN Security Council as a body. As a body that has been set up responsible ultimately for security in the whole world, or in all member states of the UN - United Nations, having the power, or having the mandate to be able to create a court for instance like they did for the ICTR (International Criminal Tribunal for Rwanda) also for the ICTY (International Criminal Tribunal for the former Yugoslavia). Having that same power to be able to instead of creating a court and refer this situation to the ICC which is a court which is permanent, it’s already existing, and can exercise jurisdiction immediately.

On calls for African countries to leave the ICC:

ZB: Now in Africa you’ve got quite a widespread feeling amongst people and government’s that they should perhaps leave the ICC en masse - as President Yoweri Museveni of Uganda has suggested -and the AU has said ‘this is an instrument of race hunting’ – well you know all the background – are you concerned behind the scenes that Africans or a lot of the key countries could withdraw?

FB: Well it will be very unfortunate if that were to happen because I think Africa has already shown, for the creation of the ICC, they have already shown leadership in international criminal justice by joining the court in such a huge number – 34 out of the 54 African states – but also, by referring cases to the ICC. I will not say that if the court would start work, it would not have started so early if it had not been for the referral that came from African states.

ZB: So you feel that they should be commended for their actions…

FB: I feel that they should be praised for their actions…

On President al-Bashir’s trip to South Africa:

ZB: Well look at South Africa when President al-Bashir recently attended a summit there and he was allowed to come and go, and that’s the case in several African countries so…

FB: Again, as I said, it’s unfortunate that that happened…

ZB: You think he should have been detained?

FB: In fact, because this is the legal obligation that South Africa has by being part of the ICC.

On peace, justice and how much the ICC has cost:

ZB: Apart from your operations, looking at the whole notion of bringing people to trial, as you said it’s important that there isn’t impunity, but how far does that serve peace and conflict resolution in a country; so for example Laurent Gbagbo, former president of Ivory Coast, on trial at the ICC, William Ruto, Vice President of Kenya, on trial at the ICC - but there is a very, very genuine concern that if either of these men are found guilty, these two countries, Ivory Coast and Kenya would just set alight and terrible violence would ensue.

FB: We’ve said that before – this is really the issue of peace and justice, peace vs justice. We should not look for justice when people are negotiating for peace. And I think this is really a blackmail that we have seen and faced for a long time, peace and justice should not be seen as mutually exclusive. And we also need to remember that there cannot be peace, really without justice. We have to have justice otherwise there is…

ZB: But what kind of justice prosecutor? Is it retributive justice or restorative justice? Because you could argue that restorative justice whereby the more than 1 billion dollars that has been spent in the 12 years of the ICC pursuing so far just 2 successful convictions, that money could have gone for reparations, compensation for the victims of the terrible violence, the people in Sierra Leone who had their hands cut off and so on and so forth, women traumatised by sexual violence. You could give them something to rebuild their lives and encourage the kind of system that Rwanda had whereby you have your own kind of tribal system of justice that’s restorative that builds peace at community level not just going for the top guys.

FB: First of all I believe that accountability is important. People who perpetrate these heinous crimes, killings on mass, rapes, pillaging, all sorts of heinous crimes being committed – I believe that those who are responsible for it, should be held accountable for that. But having said that I also want to draw your attention to the fact that, there is before the ICC, victims not only participating in the proceedings - which is the first time at international level – participating, but also being able to ask for reparation, it is their right.

There is the trust fund for victims, which has been set up when the ICC was set up to ensure that when these victims who have had these crimes committed, who have suffered from these crimes, are able  to go to the court and ask that they get reparation.

ZB: My point is that one billion dollars has been spent by you so far that would have gone a very long way to addressing the reparation costs…

FB: Indeed, but also I don’t think that what it is being used to address is not flimsy, it is quite important to have justice. If you compare what is being spent on wars, on conflict, on defence – justice is a fraction.

On ICC processes being slow or insufficient:

ZB: Another big criticism is that your process is very slow, apart from being expensive and that there isn’t sufficient witness protection, there is witness intimidation going on, you can’t always get into a country to investigate the crimes first hand - Darfur for instance in Sudan, you’re hardly going to be welcomed by President Bashir – and so you rely on second hands reports or interviewing people outside of the country who may have an agenda.

FB: What is important is to get the evidence that we need to bring the cases before the judges. You have to also remember that we are investigating in very complex cases, very complex situations. As you know, we are able to investigate when we have co-operation but where we don’t we have to find other ways in which we will be able to investigate and these are the several challenges that we come.

For instance, with respect to Darfur, we have investigated Darfur without going to Darfur but that is because we have been able to find people, we have been able to find witnesses who knew the situation but have found themselves outside.

On how her gender plays a role in how she operates as the main prosecutor at the ICC:

ZB: So you will continue to strive for prosecutions at the highest levels - does your gender, does the fact that you’re a woman and you’re the main prosecutor here at the ICC make a difference to the way you operate?

FB: With respect to my work I really hardly think about my gender I must say, but I believe also that as a woman and putting emphasis on certain crimes like sexual and gender based crimes, I believe it has helped me, my gender has helped me, to ensure that I draw a line under this, raise it to a very strategic level - one of the strategic goals of my office - and to put a lot of emphasis on that.

I am sure perhaps, even if I were a man, or if a man were sitting here, he would probably do the same thing but really as a woman I believe that it is very, very important that I highlight those kinds of crimes, and also crimes against children is something that is a priority for my office. I am trying to also put out a policy paper on children, as you know I have already done on sexual and gender based crimes. So these crimes are important for me and I believe that my gender has a lot to do with that.

• Catch the interview on BBC World News, DStv Channel 400 Friday 27 Nov, at 21h30