The International Criminal Court on Trial

The quest for a permanent global court to try perpetrators of the world’s worst crimes began as early as 1872. But it was only in 2002 that the International Criminal Court, a standing tribunal now backed by 124 states, finally came into being. Ten years later, in 2012, Fatou Bensouda was sworn in as the ICC’s second chief prosecutor. A former deputy prosecutor at the court, Bensouda had also served as minister of justice in her home country of Gambia and worked at the International Criminal Tribunal for Rwanda. In November, she spoke with Foreign Affairs’ deputy managing editor Stuart Reid in New York.

Seven decades after Nuremberg, how far has the world really come in terms of prosecuting crimes against humanity?

Very far. After those trials, you’ve seen the establishment of the ad hoc tribunals of Rwanda, the former Yugoslavia, Sierra Leone, and East Timor to try atrocity crimes. But one of humanity’s proudest moments should be the creation of the ICC. It is not an ad hoc tribunal. It’s a permanent international judicial institution with the mandate to try war crimes, crimes against humanity, and genocide. This really shows the resolve of the international community to say that accountability matters, that those who commit these crimes should be held to account.

The ICC is also the first permanent institution at the international level looking towards the victims. This is the promise of the icc: that the victims of atrocity crimes will see that justice is done.

What are the ICC’s greatest accomplishments?

First, the existence of the court itself as an independent and impartial institution is an important achievement. But also, just recently, [the Malian jihadist Ahmad al-Faqi] al-Mahdi was tried for the destruction of cultural property in Timbuktu. He has pled guilty and been sentenced. This is the first time that any permanent institution has been able to do this.

A lot of work is also being done at the court with regard to sexual and gender-based crimes. In most of the cases that are before the ICC judges now, we have brought charges for sexual and gender-based crimes. My office wanted to lend emphasis to this very serious crime. In the coming weeks or so, I’m going to launch another policy, on children affected by armed conflict. All atrocity crimes are serious. But for some, we need to show that wherever they occur and we have jurisdiction, we will highlight them.

Also, just recently, Jean-Pierre Bemba, a former vice president of the Democratic Republic of Congo, has been charged as a military commander for the crimes committed by his troops [in the Central African Republic in 2002–3]. The judges found him guilty. It sends a very strong message that commanders can be held liable for failing to give the right orders to their troops and allowing these crimes to happen, even if they are not [on the battlefield] themselves.

What are the biggest disappointments?

First, the court is still in its infancy. But perhaps one of the things that I regret about the court—and I don’t even know whether I want to call it a regret—is the various challenges that it is being subjected to with respect to cooperation, witness interference, and attempts to politicize the court. Also, there is the issue of not having the resources we need. My office, which is the engine of the court, has had to stay some cases and deprioritize some cases.

Côte d’Ivoire is an example I like to give. I have wanted to start the case on the other side of the investigation. [In investigating the post-election violence that the country experienced in 2010–11, the ICC has brought charges against the former president, Laurent Gbagbo, and his allies but not against supporters of the incumbent president, Alassane Ouattara.] But mainly because of resources, I have had to put it on the back burner. We’ve of course started our investigation into the other side, but it could have happened earlier.

Some have put the amount of money that the court has spent since its creation at $1 billion. Why is it so expensive? And is there anything that can be done to make it more efficient?

When investing in justice, nothing is too expensive. The court has been set up to investigate very complex situations. It has even sometimes investigated ongoing conflicts, which requires us to take extra precautions and ensure that the investigation is done in a fair, impartial, and effective way. I don’t agree that the court is an expensive venture. We’re just investing as much resources as are needed to do the work we have been set up to do.

The ICC has indicted 32 people for genocide, crimes against humanity, or war crimes but secured just four convictions. Why the low success rate?

I would not call it low. Given the length of time the court has existed, the results it has produced so far are fair. We have had our setbacks. We have had our challenges in prosecuting these cases. Consider the very complex nature of the investigations. Even proceedings at trial take time. Still, we have been investing a lot in how to make the proceedings more efficient. Sometimes, it’s completely beyond our control. For instance, in the Kenya cases [concerning post-election violence in 2007–8], there are issues of interfering with witnesses, issues of cooperation, issues of obstructionism, in particular.

How serious a problem is witness tampering, and what can be done about it?

In almost all the cases that we’re handling now, we see this phenomenon rearing its ugly head. We have been taking steps to ensure that it doesn’t happen. We have been able to secure the conviction of five people in the Bemba case for witness tampering.

In the Kenya cases, three people have already been indicted for interfering with witnesses. Arrest warrants have been issued against them. But Kenya, which has the obligation to surrender them, is not doing that. In the Kenya situation, what we have seen was really unprecedented. The level of witness tampering and obstructing the court has resulted in either having to withdraw the case, as I did in the Kenyatta case [against Kenya’s president, Uhuru Kenyatta], or one of the judges declaring a mistrial, as in the Ruto case [against Kenya’s deputy president, William Ruto].

We are doing what we can. We have been able to bring these [witness-tampering] charges. But for that, you need extra resources, because the resources we have are really to do our core business: investigate and prosecute.

One criticism of the ICC is that it relies heavily on the cooperation of states. As a result, incumbent politicians who commit crimes have little chance of facing justice if they stay in power, creating a sense of victor’s justice and giving incentives for leaders to cling to power. Is this a legitimate problem? Can it be overcome?

States have decided to create this independent institution to stand for accountability and to push back against impunity for atrocity crimes. It is a voluntary act. This institution is a court. But it’s also a system that we have decided to create. The institution does the judicial work, but each of the states that have ratified the Rome Statute has given an obligation to cooperate with the court.

This institution was created without an army or police. But the army and the police of all the states parties to the Rome Statute have the obligation to assist the court. This demonstrates the resolve of the international community, because giving this institution the mandate to investigate and prosecute is almost like giving up part of your sovereignty. Some people argue that the ICC should have a police force. But even if we created an international force, it could not just go into any sovereign state and say, “I’m arresting this person.”

Syria is one of the world’s most tragic human rights disasters at the moment, but the ICC seems unable to touch it because the permanent members of the UN Security Council will never agree to refer the case to the court. Is there anything the ICC can do in Syria?

To understand the jurisdiction of the ICC, know that we investigate when these crimes happen on the territory of a state party or are committed by a national of a state party. In the case of Syria, we don’t have territorial jurisdiction because Syria is not a state party.

What I have been looking at closely are nationals of states parties who are among the ranks of ISIS [also called the Islamic State] and are involved in the commission of these crimes. I have been requesting more information from states whose nationals are part of ISIS. I’m asking whether they are investigating, whether they are prosecuting, and what information can be shared with us so we can take the next steps. This is pretty much the only way in which the ICC can look at Syria. What we have seen so far, though, is that among the top echelons of ISIS, it’s nationals of Syria or Iraq, and both states are not parties to the Rome Statute.

Because a UN Security Council referral requires all five permanent members to vote in favor, doesn’t that mean that the court will inevitably focus on smaller cases and countries, undermining both its scope and its legitimacy?

First, under the Rome Statute, there is a provision that the UN Security Council can refer cases to the ICC, but a referral does not automatically mean that the ICC will take the case. In all situations where we’re intervening, I do an independent assessment as prosecutor of whether or not to move forward with the case. And the same criteria that we apply to those situations also apply to a referral from the UN Security Council.

Recall the reason why the UN Security Council has this power under the Rome Statute. I believe that the wise negotiators of the Rome Statute wanted to allow referrals in situations where a particular state is not a party to the Rome Statute and these crimes are taking place. Even though a state is not a party, the UN Security Council can, in the interest of peace and justice under Chapter VII of the UN Charter, refer this situation to the ICC. With respect to [the fact that a referral from the UN Security Council requires the support of the five permanent members], the ICC’s net can be cast much wider than just among its state party members. In instances where crimes have been committed on the territory of a state party by nationals of non-ICC-member states, we do have jurisdiction. A case in point is Georgia [where the ICC has opened investigations into the 2008 war with Russia, which has withdrawn its signature from the Rome Statute]. I’ve already said that we’re going to look at the conduct of all the parties who were involved in that conflict. Likewise, in Afghanistan, we can look at the conduct of the Taliban and the national government, but also of the international forces. So this net can be cast much wider than just among states that have ratified the Rome Statute.

So far, however, the ICC has cast its net exclusively in Africa. Can and should the ICC do more to seek out non-African cases? Are you worried about the perception of an Africa bias among African people and governments?

This accusation is not backed by the relevant facts. Much time and money has been spent to have that rhetoric all over that the ICC is only concentrated on Africa. This is not correct. We have been conducting preliminary examinations outside of Africa for some time now, in Afghanistan, in Colombia, in Palestine, in Ukraine.

You also have to look at how the cases in Africa got to the ICC. In most cases, it is African states that have sought out the ICC to get it to investigate atrocity crimes that they claim they are not able to. It has not been the prosecutor using proprio motu powers [to investigate on his or her own volition]. In fact, last month, we had a referral from Gabon. So the narrative that the ICC is biased against Africa is not matched by what is actually happening on the ground.

Unfortunately, this narrative is gaining traction because some people are very much interested in it, and they have spent time and money to ensure that it looks like the ICC is only going after African leaders. But I bring it back to the victims. In the situations where we are investigating and prosecuting in Africa, the victims are African. They deserve justice.

One of the people making arguments about the ICC’s supposed Africa bias is Yahya Jammeh, the authoritarian president of Gambia. You served as his justice minister. Do you regret your time in his government?

Not at all. It was a call to duty from my state, and I rose to the challenge. I don’t have any regrets that I served my people first and foremost. My record is clear. I tried to give it my best, to contribute to the rule of law and justice in my country, and I think I did.

But his government is highly repressive, and by the time you served, he had already taken power in an illegal coup. Did none of that give you pause?

Well, look, I remember that when President Jammeh took power, the military government was allowed after two years to become a civilian government and go through elections. We elected a constitutional government, and I served in that government. I also served in the previous government—maybe not in that high a position, but I served.

Along with Gambia, Burundi and South Africa have announced their intention to withdraw from the court. Why are they doing this? Do you fear more defections?

When I speak about this, I like to talk about it as an African—as an African who, like many other Africans, cares about justice and accountability. Something like this is setting the continent back.

We have seen the role that the African continent played in establishing the ICC. African states were also the first to refer cases to the ICC. Those acts were demonstrations of leadership by Africa. At this moment, when the continent is so plagued with conflicts and wars, we should be looking for ways to strengthen our stance on the rule of law, on justice, on accountability. To not do anything, that is taking away from that strong position that Africa has always had.

Despite these withdrawals, I continue to maintain that we are receiving a lot of support and commitment from African states. I really welcome the statements from some African leaders saying they’re renewing their commitment to the ICC. It demonstrates that there are still many countries on the continent that are committed to the rule of law.

Do you think there’s anything that you or the court can do to stop the exodus?

Definitely. I believe we need to talk to one another, have a dialogue. But we also have to realize that the court is not all about the prosecutor. It is states that have created this institution, and it is states that should step up to ensure that the court is supported.

How important is it that the United States ratify the Rome Statute and join the ICC? Do you think that will ever happen?

I think that every state should be part of the ICC. I believe that we should increasingly aim for universality. States that are already in should try to bring more and more states to join the Rome Statute, because this idea of a double standard would be much reduced if the ICC had more members. Notwithstanding, I believe the court is working and will continue to work.

What’s your hope for what the court will look like, say, 15 years from now?

I envisage that the ICC will have demonstrated a strong, independent, and impartial court system. I envisage an institution that is very well respected in all corners of the globe. I envisage an institution that the victims can look at with hope, as an institution that will stand by us, that will ensure that we have justice and accountability when we suffer.