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Oh, Ye of Little Faith, You Are Right to be Skeptical About an ICC Prosecution of Guinea Massacre Perpetrators – Fatou Bensouda Interview

May 23, 2011

Fatou Bensouda – ICC Crime Monitor

Published on : 22 May 2011 – 2:00pm | By International Justice Tribune (RNW)

While all eyes are on Gaddafi, the International Criminal Court monitors 15 countries around the globe. She is working on 6 ‘situations’ and a dozen cases. But in the meantime, Deputy Prosecutor Fatou Bensouda also monitors crimes in West Africa.

By Thijs Bouwknegt & Richard Walker

What are you doing in West Africa?

We are mainly in the preliminary stages of our investigations. Following the events in 2009 in Guinea, the prosecutor, Luis Moreno Ocampo and I made it quite clear to the authorities in Guinea that crimes within the jurisdiction of the court have potentially taken place and that we are urging the Guinean authorities to look into them. The first priority of investigating and prosecuting always rests with the state. As a result of all our declarations and visits to Guinea we realise that the Guinean authorities are also doing something towards addressing those crimes. A panel of judges has been put in place and they have been investigating and interviewing witnesses. I think our concern in Guinea has been made quite public.

They have also established a truth commission, which is helpful to the Guineans. It is a way of trying to devise ways and means of addressing the crimes. As a nation they should be able to do so.

Of course we are not a commission. We investigate and prosecute crimes. But if a country decides to look for a way of addressing these crimes that occured under their jurisdiction, the ICC will not interfere with that. We do not know where the Guinean commission will lead, but the ICC will monitor what is going on. It will be part of the preliminary analysis. We continue to work with them. One thing that we always insist on is that the crimes cannot go unpunished – and truth and justice of course. And all of this of course we take into account when analyzing what is happening with regard to addressing these crimes, where they occur.

Do you expect Laurent Gbagbo here in The Hague any time soon?

Ivory Coast is not a state party, but it has by Laurent Gbagbo himself, made a declaration accepting the jurisdiction of the ICC in 2003. Also the current president, Allasane Ouattara in December 2010 made a declaration accepting the jurisdiction of the ICC. What this means is that the ICC is able to investigate and prosecute if Ivory Coast itself is not doing so.

And we know that they are currently also trying to set up their own ways of dealing with this situation. But the current president had already mentioned that they would engage the ICC in addressing the problems in Ivory Coast. So we are poised to receive.

What about the rest of West Africa?

We are also looking into crimes in Nigeria concerning the post-electoral violence there. The ICC prosecutor reacted immediately to that situation. We made a statement on the electoral violence in Nigeria calling on the authorities and also respecting the fact that the authorities in Nigeria themselves had called on people to exercise restraint. In the statement the prosecutor commended the authorities themselves for immediately jumping on the issue and asked that restraint should be exercised in making political expressions.

Do you think it is an important extension of your job to send out messages to governments that are committing crimes, saying “we’re watching”? Do you think it is helpful?

The prosecutor has a preventive mandate under the Statute. It’s not only to investigate and prosecute, but also look for ways in which crimes can be prevented and we have taken that role also very seriously. And if you look at what has happened in Côte d’Ivoire, in Guinea, in Nigeria, I think it’s already beginning to have an impact. For instance, the prosecutor can call on a state and say: “look, you are a state party, you are committing these crimes, they could potentially fall within the jurisdiction of the ICC – people will be held accountable so take care.”

Do you think that that message will only really become powerful when you have a conviction, because the ICC is yet to have anybody behind bars?

I don’t think so. I will be bold enough to say that I think this message is already having an impact even without a conviction. Because the message being sent is that you will be held accountable, you can be brought to the ICC, you will be tried for those offences and you could be convicted. These are the possibilities you face in committing these crimes. And I think in Ivory Coast it has had an impact. Definitely in Guinea it has had an impact, even while the ICC has not yet completed its first case.

When is a crime big enough for the ICC to step in?

One of the thresholds is gravity. It is not always numbers. It is also about the nature and the impact of the crimes. What is the effect of the crimes? We put this all in a box and assess it and see if this meets the gravity thresholds of the ICC.

For instance, look at the Democratic Republic of Congo and the Central African Republic. To a large extent numbers have to do with it. But you also see the widespread systematic rapes and sexual violence. The number of allegations of sexual violence outnumbers killings.

The ICC has a set budget of around 100 million euros a year, but your caseload keeps expanding and your budget does not. At what point do you reach overstretch?

One particular practice we have at the ICC is use of the contingency fund, which is intended to take care of unforeseen situations.

As late as December or even early January, we didn’t know we were going to have Libya, that the UN Security Council would refer the situation in Libya to the ICC without any budget from the UN Security Council.

But with the contingency fund that has been set up by the ICC we are able to make an application to tap into that fund to be able to get at least the additional resources that we need. Also, to ensure that maybe by the next year we can formalize that in the budget.
But this is how we work. Like in Libya currently we have already requested to go to the contingency fund and to look for additional resources.

But the contingency fund is finite. There will be a point where the contingency fund does not cover what you need to do if you keep expanding at the rate you currently are?

Perhaps this can happen, perhaps this is possible but I think that as we go through our cases, as we progress I am sure we can find reasons and means to take account of what is happening and how fast we are getting these cases, but so far we are fine.

Many people would say that the ICC’s success lies in convictions. What would for you be the best success for the ICC? Would it be prevention or what is your ideal situation?

I think definitely convictions, but also I think the ICC’s ability to be able to deter others not to commit those crimes is also a success for the ICC. The ICC’s ability to prevent the crimes from even taking place is I think a level of success for us. And I always like to cite the example of the Lubanga trial which is not yet completed, but already this issue of enlisting and conscripting children and using them to participate in hostilities is a focus of public attention.

Such prominence has been brought to the nature of the crime and you find out about countries that are non-state parties like Nepal demobilizing 3000 children at one go. The Special Representative for Children in Armed Conflict has publicly said that she believes this is due to the public attention given to the conscription of children. So I think that you do not have to wait for the ICC to have a conviction before you say that the ICC is successful, is working. We need to be able to make impact as we go along and we need to maximize that impact.

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