Africa states still taking cases to ICC— Bensouda

Posted  Sunday, December 14, 2014

In this final instalment of the interview ICC Prosecutor Fatou Bensouda had with Kwamchetsi

International Criminal Court (ICC) Chief Prosecutor Fatou Bensouda speaking to a journalist after arriving at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, on November 4, 2014. PHOTO | AFP

Your office has been accused of doing a shoddy job. What is your response?
That is not correct. People will just talk about these things, for their own interest, without looking at the history of the case and the facts. We went before the judges for the charges to be confirmed. If the job was shoddy and we did not have the information we needed for the charges to confirmed, you can believe me, the judges would have said, sorry.

They have done it before, even when the evidence was not shoddy. If we do not have sufficient evidence to even ask for summonses to appear and to subsequently confirm a charge, the judges of the ICC will not.

There are several examples for all to see. [Callixte] Mbarushimana is one of them, Abu Garda is another one, we have been to the judges with the evidence and they said no, ‘No, we are not confirming the charges’, even after an arrest warrant was issued. If, in this case, we did not present evidence before the judges for the charges to be confirmed, the judges could not have confirmed them.

They did it because we presented sufficient evidence. But as you know, once charges are confirmed we have to proceed to trial, like what is happening in the Ruto/Sang case.

Our intention also was to proceed to trial [in the Kenyatta/Muthaura case] but we have had several disappointments and several challenges in this particular case. In both cases we have had difficulties.

Some critical witnesses —those who had said that we saw him, we saw him give money, we saw him doing this, we saw him encouraging people to commit the crimes -- are the ones who decided not to come any more. Those ones we have lost, in additional to others. Those witnesses are critical for the case to move forward.

Sexual and gender-based violence crimes in Naivasha and Nakuru were not confirmed. What steps did you take?

Sexual and gender-based violence was a crime that we prioritised. It was not just the crime of rape against women and girls but also against boys and men because, as you know, in the post-election violence, there were allegations of forcible circumcision of grown men.

And I believe one cannot just ignore this because they were just boys and men. There was a serious case of lack of under-reporting or non-reporting. You know we have the difficulties we have in investigating and prosecuting gender-based violence.

It is a crime that many people would not want to talk about for fear of stigmatisation, especially men, especially African men. They are afraid to talk about what was done to them. So we had that problem of under-reporting and non-reporting and we made several attempts.

I had a team that included forensic doctors, psycho-social experts, investigators and cooperation advisers to put together the docket on sexual violence in Nakuru and Naivasha. Unfortunately, there was this wall of silence that resulted in under-reporting and non-reporting.

Over and over again, the team approached and spoke survivors of sexual violence as well as experts who had worked with them during post-election crisis, who might have been able to serve as ‘overview witnesses’. When we have somebody who has worked with multiple victims, then it saves the office by not re-traumatising them again by requiring them to come forward to tell their story.

We approached several individuals; we read their reports that they had provided medical services, medical advice to a number of survivors but case after case after case, in the end, they said: ‘I am sorry because I have concerns about my security and the impact on my family I am not willing to be a witness in the case. The conditions were not right for investigations. This particular phenomenon, more than anything else, illustrates that.

Rape is crisis in conflict situations, hence the labelling of Congo as the rape capital of the world. Yet, you do not seem to be having much success with that crime at the ICC. Why?
It is not for want of charging. It is the judges either not confirming or not convicting. In Bemba, we had a problem of non-confirmation. In Katanga, it went all the way [to trial] but the judges would not hold him liable, even though they recognised that rape took place.

Katanga was not held responsible for those rapes even though it was recognised that they took place. In all our charging, 17 individuals have been charged with sexual and gender-based crimes. This translates to 70 per cent of our cases where we have sexual and gender-based crimes. If it is not happening yet, it is not for want of charging it is at the judge’s level where we are having these difficulties.

How will the Sexual and Gender-Based Violence policy you launched this week respond to these challenges?

Firstly, I wanted to make sure that OTP is very clear and transparent on how we are prioritising the investigation and prosecution of these crimes. Apart from the challenges when investigating mass crimes, there are specific challenges we face when investigating sexual and gender-based crimes. It comes with its own problems in addition to the other crimes.

I want to ensure that the policy itself will serve the office, the staff dealing with sexual and gender-based crimes in terms of we are planning the training. We have an interdivisional committee that will look at the implementation of this policy. You can have the best policy but if you cannot implement that policy, it is no use.

We are working with other partners in civil society with the aim of integrating a gender perspective in all our work -- starting from the preliminary examination moving all the way even to reparations.

We are concentrating on gender analysis -- looking at the underlying factors that affect the different roles for males and females, their differences and inequalities.

Where do you think the ICC is in regard to Africa and the world?

We are in Africa by invitation of individual states, except in the two cases referred to the ICC by the UN Security Council. This ASP (Assembly of State Parties) is a very good example for you to see the region as a whole.

We have very staunch critics on the continent, for obvious reasons. And unfortunately, I have to say because of the Kenya cases. First it was the Bashir case, now it is because of the Kenya cases.

We have unfortunately seen how Kenya has tried to mobilise the African Union to make declarations against the court and its blanket refusal to cooperate with for certain reasons. But the reality of the situation is that individual African states are demonstrating why they need the court.

If you look at [Central African Republic President] Catherine Samba-Panza’s statement, it was clear for everybody to see. She was saying, ‘We cannot do it, we need the ICC. That is why we have gone to the ICC for the second time to request them to come to our territory to exercise their jurisdiction. We see ICC as an extension of our jurisdiction.’

You have seen the Minister of Justice in Guinea say the same thing ... You have heard also from other African states — apart from Kenya— in the ASP saying the same things. The picture is very clear.

We all know the propaganda behind this. When I said the [Kenyatta/Muthaura] case was facing challenges and problems, it was a long time ago. What I have said is not that today I am saying it. When I said the case was receiving challenges and problems was a long time ago.

The first case was during the Muthaura case. I was honest enough and professional enough to go before the judges and say this is what is happening. I have lost some witnesses, some important witnesses. It did not stop there, it continued it was a trend that it made the case not to go forward and the judges called me to my election.

Do you have the resources to do you work?

We have to realise that if this institution is not adequately funded to be able to take up all these cases that it should, it will make it ineffective … and expectations that affected communities have will be disappointed.

It can lead to lack of credibility of the court...0 Sometimes, I have to reduce that number and take them to another case…because that a case has become a priority and I do not have people to staff it. This leads to questions about why you are investigating this side and not this side.