Fatou Bensouda - Prosecutor, International Criminal Court The 100 Women Interviews

The International Criminal Court in The Hague is

-- has courted controversy since it was established in 2002, because so

far all its cases have been African. The ICC's chief prosecutor

Fatou Bensouda is a lawyer from Gambia. She talks to me, Zeinab

Badawi, as part of the BBC's 100 Women series about justice, gender,

and Africa. These are all the pictures of all

the judges, are they? No, these are the ones who have served in the

past. OK. And then you have the current judges. The current ones.

Yes. Prosecutor Fatou Bensouda, welcome to the BBC's 100 Women

series. Wonderful to have you with us. Thank you very much, thank you

for having me. So when you are growing up in the capital of Gambia,

the small country in West Africa, a couple of million people and so on,

did you think you would end up being the prosecutor of the International

Criminal Court? Well, definitely I was not thinking about ending up

here. But what was very clear for me, all the time, was that I wanted

to contribute to the field of justice, or even social welfare. I

wanted to serve. I wanted something to do with women, how can I help,

how can I contribute? So I think this is an opportune moment, really

a privilege, to be in this position, and to be able to serve as I thought

about it, when I was growing up. Some people talk about formative

experiences that helped shape what they did in later life. You had a

relative who was experiencing very extreme domestic abuse and violence

from her husband. And tell us the story, you went along with her to

report a case to the police. Indeed. You were very unhappy. Indeed, I was

very unhappy. And if you look at it in context, it is really... May be

hers was one that really inspired me to say I want to do something. But

it is something growing up that you saw around. Unfortunately, women

would not be given the justice that they deserved. And in these domestic

abuse cases, they would always... One would always say that 1's

husband has a right to bid up the woman. This was the general thought

that people had. But I had always thought that this is wrong. This

should not happen. And I remember, even as a young child, even as a

young girl, I remember very much getting involved in it. And also, as

you have said just now, when it was to go to a police station to report

to the matter, I would go along. Your father was a civil servant. My

father was a civil servant, yes. Obviously most of Gambia is Muslim,

and he had to make wise, so you had more than a dozen siblings. So it is

quite a crowd you grow up with. Backdrop of the family, it was a big

family. But he died when you were young. So you were raised in that

community. I was still in school when he died. I had just started

high school, actually, when he died. But as I said, I grew up with

my siblings, and fortunately it was a happy family to grow up in. We

supported each other. We loved each other. And this was important, I

believe it divided the support that you need, growing up in that

society. So then you decided to study law, you went to Nigeria, in

Lagos, that was where you became a lawyer, and then in 1987 he went

back to Gambia and joined the office of the Public prosecutor, as head of

prosecutions. Indeed, I joined the attorney general 's office, and

because then I had not yet got my bar, which I had to go back to Lagos

to do, I could serve as a public prosecutor, which means you take the

minor offences, traffic offences, but you start going to court anyway.

Later on, when you became part of the prosecution team in

international criminal tribunal on Rwanda, after the unspeakable

genocide there in the mid-19 90s, you became very aware of how sexual

violence perpetrated against women, particularly in conflict, and that,

you have kind of May a strategic goal for yourself ever since.

Indeed, even before going to Rwanda, once I was in Gambia and serving,

first as a deputy Director of Public Prosecutions, and also as Solicitor

General later, I have been doing a lot of prosecutions in this area as

well. And there are a few cases that I have done that really were very,

very... Affected me a lot. I have done the rape of a schoolgirl by the

teacher in the school toilet, and this was... 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. Did you get the school

teacher? I did, I did, I did. I got him. I prosecutor that case, and

ended up... He was sentenced. That must have given you a lot of

satisfaction. It did, it did give me a lot of satisfaction. And going to

Rwanda, also, you find that really the rate, massiveness of the crimes

happened in Rwanda was also something else that really pushed

me. And I just realised that at the international level, during

conflicts, it is even more profound. But you must be so frustrated,

prosecutor Fatou Bensouda, when you see today the kind of violence,

sexual violence, that is being perpetrated against women across

countries. And I am thinking in particular of the young Yazidi women

and girls who are being sold literally into sexual slavery by the

extremists in Iraq, what is going on in Syria, and you can't do anything

about that. But you know what, this is why we should not capitulate.

This is why we should continue to ensure that we are drawing a line

under these kind of crimes. Others prefer to put a veil on it. You are

not doing anything about it. 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 had requested that my office looks into the crimes that

are being committed by ISIS, especially the National and State

parties. Because we may not have territorial jurisdiction in this

case, but we could potentially have personal jurisdiction of the foreign

fighters, nationals who are nationals of these parties and are

committing these crimes within the context of the conflict in Syria.

Oath when you were deputy prosecutor here, from 2004 until 2012, when you

became to protect, and up until last year,, a key ally for you in trying

to reach these goals with the UN Human Rights Commissioner, the South

African lawyer, the first nonwhite woman to become a High Court judge

in South Africa. You have nominated her as your most admired woman.

Why? I have always looked at Navi, a dear friend and colleague, I have

looked at are always as a principled woman with integrity. A woman who

has done a lot in her own native country of South Africa. She worked

very hard for Justice during the apartheid days. She became the first

nonwhite woman to be nominated by President Nelson Mandela as a High

Court judge. She has served at the ICT, the International Criminal

Court in or four Rwanda, she has also served as a judge at the ICC.

Someone who knows you very well, Bensouda, who is related to you by

marriage, has said you have tried different careers in professional

life, but Fatou is most comfortable with being a prosecutor. Why is

that? That is correct. Zeinab, I have always wanted to serve in the

field of justice, bringing accountability for perpetrators,

people who commit these crimes. And ensuring that the victims have

justice. It is something that is, as long as I

something that is in me. But you know

refer to you as the chief prosecutor of the ICC,

them that this is a court, and if it is worthy of the name

should also be achieved defender, or a defender of the court,

for defence, which is also a part of the court. Obviously it is... Maybe

it is not getting as high profile as the prosecutor of the court, but we

do have... But it is a fair criticism, you have Luis Moreno

Ocampo, your predecessor, the first chief prosecutor, as it were, and

was offered in the headlines, and you yourself, and people look at the

court, you have the prosecution and defence and there is parity. But

there isn't in this case. You know, this is a prosecuting office.

office of the prosecutor, as part the court, as an organ of the court,

the court was set up to bring to account those who commit these

egregious crimes, to ensure that the perpetrators of these crimes faced

justice. So they are kind of guilty before they have even been tried.

Not really, because if you look at the process itself, they are

defended. Every person, if you look at the statute, it is very, very

prominent there that people who are charged with

are entitled to be defended fully. This is very much respected before

the African. In 12 years, two

prosecutions, successful, people behind bars, both from Africa, the

Congo and elsewhere. What this criticism is unfortunately unfair to

the court. These cases have started in Africa. It is not the ICC that is

going out to 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. All

right, but that is one way that you can deal with cases, when countries

that have signed up to the ICC, and that is 34 of the 54 African

countries, do that. But there is also another route for you, I mean,

a country that has not signed up can also voluntarily declare itself

subject to your jurisdiction. But you can go down the Security Council

route. Indeed. For countries that are not signatories. You have done

this twice, for the President of Sudan over the Darfur conflicts, and

also the son of the late Colonel Gaddafi in Libya. Why can't you go

down that route for other situations? 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 seven of the UN Charter, and

also by virtue of the Rome Statute that can actually

also by virtue of the Rome Statute that can the ICC to intervene, they

request the office of the prosecutor to exercise jurisdiction in certain

situations. And they have only done that, again, with Africa. Indeed,

they had done at Libya, as you know, and Saddam. OK, Chatham house

tank report in 2013 said these two situations support the suggestion

there is an anti- African Bias. What do you say to that? That point? I do

not think it is also the point. As I said, we do not solicit for the

Security Council to refer cases to the ICC. First. Second, also, for we

intervene, even though it is the 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...

I understand that you cannot say to the Security Council you want to

investigate the president over Darfur. It is not so much the cases

that you have pursued that are the subject of criticism, it is what you

have not pursued at all. They are all African. Indeed. We need to

remind ourselves that we work based on our jurisdiction and limitations.

In certain instances we are able to intervene and exercise jurisdiction.

We have territorial jurisdiction, for instance, where the state itself

has ratified the Rome Statute. But in certain other cases where we get

accused, why aren't you intervening in Syria, that is because it is not

part of the ICC. Another aspect that is worrying of the activities of the

court is that three of the five permanent members of the Security

Council have not signed or ratified the ICC. That, again, makes people

wonder if there is a double standard at play. I know 133 countries have

signed a. But these three powerful countries that haven't undermined

the credibility to say you are international. -- up. That is the

case. We look at the UN Security Council as a body... As a body that

has been settled, responsible, ultimately for security in the whole

world and all member states of the UN, the United Nations, having the

power, or having the mandate, to be able to create a court, for

instance, like they did for the ICTR... Having that same power to be

able to, instead of creating, according to further situations of

the ICC, a permanent court that is already existing and can exercise

jurisdiction immediately... In Africa, you have got quite a

widespread feeling among people and governments that they should perhaps

leave the ICC en masse, as the president of Uganda has suggested

and AU has said, this is an instant of race hunting... Are you concerned

that behind the scenes, Africans or many key countries, could withdraw?

It would be very unfortunate if that happens. 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 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... They... You feel they should be

commended for their actions. Praised for their actions. Look at South

Africa when the Basheer recently attended a summit there. --

president Bashar al-Assad. As I said, it is unfortunate that

happen. In fact, this is the legal obligation that Africa has by being

part of the ICC. So, other from your... Apart from the bringing of

people to trial, because you have an importance of impunity, how does

that serve peace and conflict resolution in a country? The

president of the Ivory Coast is on trial at the. And the vice president

of Kenya on trial at the ICC. -- ICC. But there is concern that

either of them are found guilty terrible violence would ensue. We

have said that before. This is really the issue of peace and

justice, peace versus justice, we should not look for justice when the

people are negotiating for peace. And I think this is really

blackmail. 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. What kind of justice? Retributive justice,

restorative justice? You could argue that restoring justice whereby the

order of $1 billion spent in 12 years by the ICC pursuing two

successful cases, that could have gone to the people in Sierra Leone

who have had their hands cut off, women traumatised by sexual

violence, you could even something to rebuild their lives and encourage

the kind of system that rule and had where you had a tribal system of

justice that is restorative and builds peace at a community level,

not just going for the top guys. -- Rwanda. First of all, accountability

is important, I believe. People who perpetrate these heinous crimes.

Killings, pillaging, rape, all kinds of heinous crimes being committed, I

believe those responsible should be held accountable for that. But,

having that, I also wanted 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 an international level,

participating, but also being able to ask for reparation. It is their

right. It is the trust fund for victims that has been set up along

with the ICC to ensure that when these victim and... Who have had

these crimes committed, who suffer from these crimes, it would go to

the court and ask that they get reparation... My point was $1

billion has been spent by you so far. That would have gone a long way

to addressing the reparation... Also, I don't think that what is

being used to address is not flimsy. It is quite important to

have justice. If you compare what is being spent on wars and conflicts,

on defence, it is... Justice is a fracture. Briefly, a criticism is

that your process is slow, apart from being expensive, and there is

not sufficient witness protection, there is intimidation going on, you

cannot always get investigate the crimes firsthand,

Darfur and sedan, you will hardly be welcomed by Bashar al-Assad. --

Sudan. You are criticised that you may have an agenda. What is

important is the evidence we may bring before the judges. You have to

also remember we are investigating very complex cases. Very complex

situations. As you know, we are able to investigate when we have

cooperation. But where we don't we need to be able to find other ways

to investigate. There are several challenges.

respect to Darfur, we have investigated without going there.

That is because we have in able to find

the situation but found themselves outside... So you will continue to

strive for prosecutions at the highest level? Does your gender, the

fact you are a woman and the man prosecuted here at the ICC, make a

difference to the way you operate? -- the main prosecutor. I rarely

think about my I put... I put a line under this. To

put a lot of emphasis on that. If I were a man or a man was sitting

here, he would probably do the same thing is that be but as a woman I

think it is very important that I highlight those crimes. -- thing..

But I am trying to put out a policy paper on children as well. You know

I have already done that on sexual and gender based crime. This is

important for me. I believe my gender has a lot to do with that.

Prosecutor Fatou Bensouda, thank you for being one of our 100 Women on

the BBC. Thank you very much for having me.

There's not much sign of the weather taking a breather.