Fatou Bensouda - Prosecutor, International Criminal Court HARDtalk

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Now on BBC News, it is time for HARDtalk.

Welcome to HARDTalk with me, Zeinab Badawi.

The recent release of Saif Al-Islam Gaddafi

by the Bolivian group holding him has led

to the International Criminal Court in The Hague, the ICC,

demanding his arrest.

He's been indicted by the court for alleged crimes against humanity,

murder and persecution.

The ICC was set up in 2002 as a court of last resort to try

such individuals, but it's met a barrage of criticisms,

principally that it has an anti-African bias,

because only Africans have been convicted and nearly all the cases

before it are from the continent.

My guest is the prosecutor of the ICC, Fatou Bensouda,

a lawyer from Gambia.

What does she say in the court's defence?

Fatou Bensouda, welcome to HARDTalk.

Thank you for having me.

You were born in Gambia to a Muslim family.

You studied law in Nigeria.

Then you returned to Gambia in 1987 to work as a public prosecutor.

Why did you want to go into law?

I believe it is this, you know, sense of right and wrong,

and justice, that something which is just in me.

And the fact that I also grew up in a community where you really see

that there are some people, maybe the vulnerable in society,

women, children, who actually do not receive the protective embrace

of the law.

And I was exposed in a community where I have seen this,

where I have seen especially women undergo domestic violence.

The parents always tell them that it is the right

of the husband, for instance.

If you go to the police they will say it's a civil matter

and that they cannot interfere.

And I had the opportunity also to serve as a clerk of court

in the High Court of the Gambia, and this exposed me to some

of the horrors that befell these women, domestic violence.

And I made up my mind at a very early age that this is something

I want to contribute to.

Somebody who has known you since schooldays,

Amie Bensouda - no relative - says of you, the area of law that

Fatou is most comfortable with is prosecution.

Why not defence?

Defending somebody is also a very honourable tradition, isn't it?

Indeed, it's very honourable, and I always say that the prosecutor

will only be as good as the defence.

And it's very important that anybody, everybody should be

defended before the courts.

But also so should the victims.

Prosecuting, in a way, is standing up for the victims.

OK, another thing about the International Criminal Court,

it's not really worthy of the name international, is it?

It's not international.

It is international.

If you look at the idea of the international community

in setting up the court, an International Criminal Court,

for a long time, it culminated in 1998, when the Rome Statute

was actually signed.

This is the idea that the international community...

I tell you why I said that, though.

Some of the most significant members of the international community -

China, Russia, the United States - three of the five permanent members

of the UN Security Council are not part of the ICC.

Big countries, India, Pakistan, Indonesia,

also not members.

Indeed, but there is also a large majority of the world community that

are now enjoying the protection of international criminal justice

and the International Criminal Court.

If you look at today, the International Criminal Court

enjoys 124 states that are parties to the Rome Statute and part

of the ICC.

Also, potentially, the ICC could have a universal reach,

in the sense that we as a court can intervene in situations

where the crimes are committed on the territory of a state party,

by whomsoever commits the crime, whether you are a state party

or not, and the nationals of states where they commit crimes,

wherever they also go to commit this crime,

we have jurisdiction.

So the remit of the ICC could potentially be universal,

in the sense that we are looking at crime even in states that are not

parties to the Rome Statute, because there are allegations

of these crimes.

But the fact of the matter is that your reach seems to have

only gone as far as Africa, because of the 11 situations

in varying degrees of progress.

Whether they are the six cases before you or preliminary

investigations, all but one, Georgia, are African.

This is true.

I know you have heard this criticism before but,

as an African, you have to have a reasonable answer.

This criticism unfortunately is misplaced, and it is not backed

by relevant facts.

I'm saying this because, if you look at the situations

that we are investigating now in Africa, a majority of those

situations have been at the request of the African states themselves,

who have requested the ICC to intervene because they are state

parties.

The system that the ICC has set up is that, in the event that these

crimes, war crimes, crimes against humanity and genocide,

are committed on the territory of a state party, the state party

can actually request.

So that's one answer you are giving, that the African countries

themselves said, ICC, we want you to look at this case.

But it seems however, prosecutor, that some of them are having buyer's

remorse, these state members.

I give you one example.

members, the leaders of the Lord's Resistance Army,

Joseph Kony and all the other people who have been taking part in these

awful atrocities in Uganda, to go through the ICC.

What does Yoweri Museveni say last October?

Even though he brought the case, he says, the ICC is useless,

a politicisation of justice and nothing more than a western tool

designed to humiliate African nations.

Again, I come to the same response.

This is not backed by the relevant facts.

If you look at Uganda, for instance, the fact that Uganda was one

of the first countries to refer a situation to the ICC,

and we started our investigations and one of our first investigations

was in Uganda.

Five people have been charged in this situation in Uganda.

We have been working until now.

Most recently, the case of Dominic Ongwen has been started

at the ICC, because Dominic Ongwen has surrendered.

From the Democratic Republic of Congo.

Dominic Ongwen is one of the commanders of

the Lord's Resistance Army, and he has been tried from the very

beginning with the commission of these crimes.

He now faces trial at the ICC.

He's from Uganda.

Of course, this requires that we need a lot of

cooperation from Uganda.

You mention Dominic Ongwen, and I'll just bring this up,

that he was taken as a child soldier at the age of ten,

so therefore is it really right to try somebody who has

obviously suffered himself?

He is a victim.

Can he now be the perpetrator of evil?

We obviously recognise that.

We recognise the fact that, as the defence claims also,

Dominic Ongwen was abducted when he was below the age,

and we recognise that.

If you look at our charges to date that we have brought before

Dominic Ongwen, it is those charges which he committed as an adult.

Under the ICC, any crime committed by a person below the age of 18

cannot be tried before the ICC.

All the crimes that we've charged Dominic Ongwen,

that he is alleged to have committed...

Only as an adult.

With all respect to you though, prosecutor, Dominic Ongwen,

yes, I've heard of him, a lot of people have and he's before

you, but people say, what about the household names

we all know about who are allegedly carrying out these terrible

injustices and crimes against humanity -

the so-called Islamic State, President Bashar al-Assad of Syria?

We know that there was a terrible civil war going on in Sri Lanka.

And then you find somebody like Dominic Ongwen and you say,

we've got him, but what about these other names that

everybody's heard of?

Why aren't they before you?

In the first instance, Dominic Ongwen maybe today is not

a household name, because we are talking about crimes that have been

committed over ten years ago, but it's all also a matter

of jurisdiction, where we have jurisdiction, where the ICC can

intervene and where it cannot.

If we talk about Syria today, Syria is not a state party

to the Rome Statute.

It doesn't matter.

You've got countries where they are not members,

like the Sudan and the president of Sudan, Omar al-Bashir,

has been indicted.

I say Syria, because people are saying that there

is selective justice.

In 2014, 65 nations called for the Syrian conflict to be

referred to the court and it was vetoed.

Let me just come back to the fact that the UN Security Council

referred the Sudan case to the ICC.

Can you deal with first of all why we don't have Bashar al-Assad,

for example, indicted?

To clarify the fact, indeed, Sudan is not a state party

to the Rome Statute, and ordinarily we don't have

territorial jurisdiction, but Sudan was referred to the ICC

in one of the ways that can be done, through the Security Council.

But why wasn't Bashar al-Assad, when 65 nations called

for the Syrian conflict to be referred to the court,

it was vetoed, wasn't it, by China and Russia?

This is a question that I think would ideally be asked of the UN

Security Council.

But it just shows you that there is selective justice,

and you are part of that framework.

Were you upset that Syria wasn't referred?

I beg to differ that we are part of that process.

The fact of the matter is, even though the UN Security Council,

under the Rome Statute, can refer cases to the ICC,

when these cases come, we subject them to the same test

as we do, by making sure that crimes have been committed,

there are allegations about crimes and that all the legal requirements

are met for us to open an investigation.

Are you suggesting that President Bashar al-Assad's forces

have not been guilty of atrocities?

This is far from what I'm saying.

What I'm saying is, even if a case is referred by the UN

Security Council, as Sudan has been done, and Libya,

we subject them to the same tests and see that legal requirements

under the Rome Statute are met.

In the case of Bashar al-Assad, let me be clear.

We do not go to the UN Security Council to request for any

case to be referred to the ICC.

It is the UN Security Council that has been mandated under

the Rome Statute, and also acting under Chapter Seven,

that can take the decision.

But you have a say, you can present a case to the Security Council.

You can present evidence or you can say, yes,

we approve of this or not.

Have you done that?

No, because, under the Rome Statute, this is not my mandate.

I can only, when a case has already been referred to the ICC,

then I can make periodical reports to update the UN Security Council

on where we are.

What about allegations of torture by US personnel at Bagram

airbase in Afghanistan?

Afghanistan is one of the signatory states to the Rome Statute,

and it is member of the ICC.

Would you open formal investigations, for instance?

To be clear, Afghanistan is a state party to the Rome Statute,

as signed and ratified, and Afghanistan is one of those

situations that have been under preliminary examination for some

time now before my office.

Including allegations against US personnel.

And we are looking at allegations of all parties who form part

of all the warring factions that are in Afghanistan.

Professor Kevin Heller from London University's School

of Oriental and African Studies says, the reason this hasn't been

opened about US personnel as a formal investigation is that

Fatou Bensouda cannot antagonise the United States.

Is there any truth in that?

I just want to be clear.

My mandate requires me to be impartial and independent,

and all of the situations that I am looking at,

I have to demonstrate, and I do demonstrate that I'm acting

with the utmost impartiality and independence.

I'm following the evidence and the law and what my mandate

requires me to do.

In the case of Afghanistan, as I mentioned to you last year,

I took out an activities report, which is something that I'd take out

every year, to update people on situations that are under

preliminary investigation, and I did say in that report

there was reasonable basis to believe that the warring factions

in Afghanistan including the Taliban, including the Afghan

forces as well as the US forces, there are allegations of commission

of war crimes and crimes against humanity, and that my office

is continuing to look into this situation.

We are at a situation where we have not completed.

We are currently looking at issues of admissibility,

and this is a requirement that I have to go through as prosecutor,

and that's where I am.

To say that Fatou Bensouda will not do that or will not do another

because of political considerations does not arrive for me.

What about Saif Al-Islam Gaddafi?

You've asked the Libyan government, the authorities

to hand him over to you.

What have they said?

Saif Al-Islam Gaddafi is one of those that we have already,

that has been indicted by the ICC on the request of the prosecutor,

and there have been difficulties of getting into the ICC.

He's at large but in hiding.

Yes, we have received information recently that he has been released,

and I have made a statement requesting for Saif Al-Islam Gaddafi

to be surrendered to the ICC.

I have also recently met and I'm making various efforts, including

meeting with the Prime Minister of Libya, Prime Minister Sarraj,

to request for cooperation and to ask that Saif Al-Islam Gaddafi be

surrendered to the court to face justice.

What promises did he make about Saif Al-Islam Gaddafi?

When might he had him over?

He has to be apprehended, because he's not in the custody

of the Libyan government at the moment, at least

the recognised government.

What Prime Minister Sarraj has promised is that there

will be cooperation, a very good level of cooperation

on the Libya situation generally, broadly speaking, and of course

efforts will be made to look specifically into this transfer

and surrender of Saif Al-Islam Gaddafi.

As I said, he is one of the cases that you are looking at, Libya,

obviously in Africa, and I have to put it

to you that the African Union, as you know, said not so long ago

that the International Criminal Court is basically

an instrument of race hunting.

Does it distress you as an African that you hear

this kind of criticism?

It's very unfortunate, really.

This is a court that has enjoyed African support

from the very beginning.

The establishment of the ICC, really, Africa has played a big

role, and those who negotiated the treaty will tell you this.

Secondly, even if you look at in 2010, for instance,

when we were looking at the ICC statute itself again,

and looking at whether there is a need to replace

anything or to renew, it was in Uganda that we had that.

Secondly, the president, the current president of the ICC

Assembly of States Parties, Sidiki Kaba, is a minister

of justice in Senegal.

Senegal was the first state to have ratified the Rome Statute.

Today, the largest block of states in any region is the African bloc.

But Senegal also tried Hissene Habre, the former president

of Chad, and that regional justice, that somebody should be tried

in the continent where they actually committed the atrocities and victims

and witnesses can all be brought, instead of hauling them

all the way over to the Hague.

This is good.

Just to have a trial, I believe this is good.

And I think it should be known firstly that ICC does not even have

jurisdiction over the Habre case, because it occurred before the ICC

came into existence.

But even there, we have applauded the efforts that have been made

at the level of Senegal, but also at the level

of the African Union that a head of state who has committed these

atrocities over his people should no longer go.

So you see that case of Hissene Habre, the former

president of Chad, is a good one.

Indeed.

Because you are the court of last resort, you always make that clear.

Nevertheless, I put to you that Mark Malloch Brown, who was deputy

Secretary General under Kofi Annan, said a year ago, the ICC has put

itself on the wrong side of a PR and political campaign in Africa.

You do accept that it's a bit of a PR disaster for you.

You see, one of the first things that I've always said,

one of the problems that I see that the ICC is confronting

with all this pushback is a question of really understanding the court,

knowing what the court can do and what it can't do.

What is the jurisdiction of the court where it can intervene

and where it cannot intervene?

Unfortunately, we do have our core business to conduct,

which is to investigate and prosecute, but also we have made

efforts to explain to the court, whether it's in seminars

or bilaterals, various efforts to explain what the court is about.

But there are critics of the court.

There is pushback against the court.

And these have a whole machinery that they use

to discredit the court.

But it's not just about discrediting.

Isn't that unfair to your critics?

For example, Laurent Gbagbo, the former president of Ivory Coast,

who is one of the cases before you, and you are being urged

by lots of influential people on the continent,

former African presidents and so on, to say, look, drop the case

against Laurent Gbagbo because, if found guilty, the country

could reignite and civil war could return to Ivory Coast.

Basically, there's an argument there which is saying, please,

don't necessarily put justice above everything else.

Peace and stability is important.

I believe we are very sensitive to that, and we have demonstrated it

time and time again, to show that it's this debate

of peace and justice.

Let's sequence justice.

Let's do peace and then we do justice.

I think we should bring back ourselves to a position

where we know that peace and justice are not mutually exclusive.

They can actually work together.

This has been tested.

I tell you what Thabo Mbeki, former president of South Africa,

says about the Gbagbo case and Omar al-Bashir and so on,

"The challenge that arises is when someone says "that the issue

of justice trumps the issue of peace.

"While not dismissing the need to tackle impunity,

"temporary immunity should be granted for key actors in order "to

secure their engagement in peace."

Again, I come back to this...

Do you see the point?

I definitely see the point that he is trying to make.

But I also think it is important for those who are negotiating

for peace to also understand that justice is equally important.

We have seen time and time again when we have tried to put justice

away and only deal with peace, just to find out that

there is a recurrence.

There is a cycle of violence and it comes again.

I think it was Kofi Annan who said that there is no

peace without justice.

Justice is important.

It's important.

Have you achieved that with the ICC?

I know you've only been in position since 2012 but,

in 15 years of the ICC's existence, it has cost $1 billion and there

have been four convictions.

That's very expensive, slow justice.

First of all, I want to say that, when you compare justice,

as you call it, being expensive, when you compare that

to the suffering of victims, and you compare that to conflicts,

you compare that to the budget that is given, for instance,

for defence, I think that justice is very small, when you

compare all of these.

That's not even the issue.

The issue here is the impact that the court has had so far.

What is the shadow of the court?

What has the court been able to do?

I want to ask you that, the final question,

because you are very interested in women and children

and the terrible things they have to go through in conflict,

rape as a tool of war and so on.

Have you made them any safer?

Have the ICC made them any safer?

I believe the ICC have made it safer by, first and foremost,

highlighting the issue of the vulnerability of both women

and children during conflict.

We do know, and conflict has shown us time and time over,

we know that they are the most vulnerable in a time of conflict,

and we have seen horrible crimes, sexual and gender-based crimes,

being made against women, against girls, against

boys and against men.

So what I did, one of the first priorities I set for my office

was to say that I'm going to highlight this crime.

I'm going to lend significance to this crime, and also to make sure

that I have a clear and a very transparent policy on how

we are going to investigate these crimes, how we are going to lend

focus to it, how we are going to integrate it

in all aspects of our work.

And also, perhaps, be able to get states themselves at the national,

domestic level to take example of what we have done.

This policy, of course, is now out.

I think it's something that we can be very proud of.

Also, talking about children, I've made a policy on children,

not only those forced to carry arms, not only those children,

but those who are also affected by conflict.

So that policy is also out there.

Fatou Bensouda, thank you very much indeed for coming on HARDTalk.

Thank you for having me.