Hello, we're in front of the premises of the International Criminal Court and about to enter for an interview with Prosecutor Bensouda. Let's go inside. Welcome, we're inside the premises of the International Criminal Court and we're about to experience international criminal law in action through an interview with prosecutor Bensouda. Madame prosecutor, thank you very much for receiving us here at the ICC, and for offering our participants an insight into the ICC. As a first question, an opening question to this interview, I would like to refer to the general subject of our course, which is on international courts in. And I would like to ask you how you view the relationship between two of the most prominent international courts, which are the ICJ and the ICC. Now as you know, the ICJ is sometimes referred to as the World Court. And my question is, do you still think that this is adequate? Or would you say that in the 21st century, that we now live in, it is in fact the ICC that occupies a central place? And by way of illustration, I would like to refer to Syria as one of the main crises of today. And what we see is that in policy circles and in media, they all turn to the ICC for a response much more than to the ICJ perhaps. So how do you view the relationship between those courts and their respective importance in present-day international society? >> Firstly, I would like to say that both courts are important. And that both courts perform different perform functions, but very important functions. I do not think it's a matter of competition between the courts, because as I said, we're doing different things. As you know, with respect to the ICJ it is the judicial arm of the United Nations. And it deals with disputes between states, whereas the ICC is an international criminal court for individual criminal responsibility. So both these functions of the court as you know are very, very important, and they're very, very crucial. As in domestic courts also, criminal cases, tend to attract more attention of the media than other kinds of cases. And this is the same thing that is happening also at the international level, because criminal cases attracts a lot of attention. Maybe much more than what the ICJ is doing. But you will even see that, with respect to the two courts, ICJ and ICC, they both recognize the relevance of each other. The relevance is mutually recognized. If you look at Article 192 of the Rome Statute, which talks about the settlement of disputes between states with respect to the interpretation of the Rome Statute. You also find that in the different decisions that the ICU has taken so far, with for example arrest warrants. It also recognizes the relevance and the importance that the ICC also plays. So they're both very important. And I do not think that the media or the policy attention should be an indicator of importance of the court. It is just the way it is, I believe. As I said, both at the domestic and also international level. And this situation also is highly volatile, it can change. It can change depending on the circumstances, but I think they are two very important institutions that are playing very important roles and functions in the international legal order. >> So in a way, we should look at those two courts more as being one of the same family rather than being in competition? >> Indeed, indeed. >> Now, in our course, more generally we spoke about international court and as having one common feature, which is that it all lacks enforcement powers. And in a way, this is particularly problematic, we could say, for an international prosecutor. So, could you inform us, to what extent is lack of enforcement and the lack of an own police force has impacted on your prosecutorial strategies and your investigation potential? And what strategies have you developed to overcome those limitations? >> The mandate of the International Criminal Court, according to the Rome Statute is to investigate and prosecute where we have jurisdiction. War crimes, crimes against humanity and genocide. The court itself, as you have rightly said, does not have an enforcement as such. We do not have police. We do not have an army. But this was set up to function in that way. The ICC is a treaty-based organization, where states have ratified the Rome Statute and also have obligations arising as a result of that ratification. Today we have 123 states that are to the Rome Statute. By ratifying the Rome Statute, what we are doing now, is we have set up a system. I always say that the ICC is not a court. It's a system, system in the sense that you have the court itself performing its prosecutorial and judicial functions. And you have the states, the states also enforcing the decisions that have been taken by the judges or requests that are made by the prosecutor or the registrar. And this is how the court was setup. This system was setup for the court to function effectively. So cooperation for the court is key. It's very, very important that states cooperate with the ICC, with the court in the performance. For the court to be effective, that cooperation has to be there. If you look at part nine of the Rome Statute it sets out the ways in which this responsibility of cooperation, how it is shared between the court and the states. It's a shared responsibility. And each one of us have to also perform our relevant necessary functions to make sure that that corporation works, and that the court itself works effectively as it was set out to do. And that corporation, we always say from the states should be effective, it should be timely, it should be efficient. It is very important that you have that, because we have had examples in which the lack of timely or effective corporation has also effected the functioning of the court. And especially the functioning of my office. So it is important that we have that and it's important that we really look very carefully into what part nine says. And also, depending on the circumstances, and see how the states can effectively support the court. Because without that, it's really not going to work without that cooperation. So that is why I keep saying that it is a system in which both parts of the system, these are central, the national systems and also the court. Both parts have to perform effectively for the court to work as we all intended it to work. And this corporation also is both internal and also external. For the internal, it means With respect to my office in particular. It means that we have to have proper, enhanced systems in place for us to be able to, for example, make very clear and concise requests for assistance so that we do not confuse the recipient of our request. We have to make that. We're also to ensure also that the teams for instance have the advice that they need, because we have the integrated team system in which there is in each team there is a corporation advisor that will help the teams to be able to also make timely and very clear requests and support in that regard, also advise them. And, but others, for instance, external. This is what the National assistance, for example, need to do. They need to also respond to our request timely, and it will assist them if we provide them with very clear. Request. We are also building on having a good network of focal points, in which we know that our request will go to a particular individual, who has the experience or the focal point. It can be more than one individual. Who has the experience, who's able to deal with the request that my office is making. So some of it depends on us, but some of it, unfortunately is outside. But you need to see how you can enhance that for us to able to work efficiently. Coming back to this lack of arrest the powers to arrest, therefore it is really when the system is working very, very well that ICC and the requests that we make, the requests for arrest, whether it's for arrest and surrender, whether it's for anything else, that it can really work very well. And it is also for States. To take that responsibility very, very seriously. And show that they are part of a system, in which if they do not perform their part it will also affect us. But I have to say also that the challenges are many, indeed. But also we have had success, good corporation from States in terms of arrests. You can take the example of just recent, it happened at the last quarter of last year about Ahmadi, who was a Malian national. Within the contexts of our investigations, we issued a warrant against him. He was in Niger, and we made the request, and there was excellent cooperation between Mali and Niger. And in fact, it is one of the fastest surrenders that the court has received. So that is a good example that one can give. And what that indicates was that, both the court and this states parties, the two states parties have taken their obligations very seriously and have acted to ensure that this individual is surrendered to the court. Within my own office, of course I have to also review. What we have done in the past, how can we improve it? How can we enhance it? Within the context of the new strategic plan, for instance, of 2016 to 2018, we have addressed these issues, such as how we investigate. How can we standardize our procedures? How can we look for alternative ways of getting collecting evidence? Instead of just witness statements. And all of this is coming out of the experience we have had in the past. Also with respect to, even the issuance of arrest warrants, whether we request for a sealed arrest warrant or open arrest warrant, all issues that we're looking into very, very closely. And the strategic plan is addressing our investigative methods for instance, to just give you an example, we used to have focused investigations in the past. But now I'm looking into open-ended in-depth investigations. We also used to just focus very much at the very highest level. But now where the circumstances permit, we may go lower and mid-level perpetrators working our way towards the top. These are all new things that we are introducing in our investigative methods. Also, when I talk about alternative forms of evidence, I talk about forensic evidence, for instance. Of cyber evidence. These are all issues that we are looking at and these are the strategies that we are putting in place just to make sure that we, at least, assist those who will eventually enforce the decisions. That they have at least a more efficient and better way of dealing with it. >> So rather than seeing this as a lack of enforcement, we should actually look at it as a shared responsibility between the court and the States. Then actually maybe return to one of the greatest critiques of the ICC. And this concerns selectivity. And more specifically it's African folks or African bias that some people say, now, in a way we could say that selectivity has always been around in International Criminal Law. And if we think back to Nuremberg as an important precedent of the ICC, we also know that the greatest critique was that it constituted the victor's justice. So would you say that selectiveness, in a way, is inherent in International Criminal Law? And that the critiques leveled against the ICC in this respect are unjustified or how else would you respond to this often heard statement that the ICC is overly focusing on African perpetrators? >> I find this criticism, firstly, I find it very unfortunate. That it is being leveled against the court. And unfortunately, because it's not backed by relevant facts. If you look at how the cases came to the court, of course there is no way that you can say that's its because of bias or focusing on African that the cases are being pursued at the ICC. I believe, and I think that we should really pay very close attention to that. I've said it several times that Africa has played a very key role, in the development and in the establishment, and also in the functioning of the International Criminal Court. And I can go back in the history of the Court and the role the Africa played in establishing the court, the last gratifications for the court to come into existence. I can also recall. That in the last diplomatic conference before Rome, was organized in Senegal. And we also know that the first state ever to become part of the ICC is an African state, Senegal. They ratified their own standard first, before any other country. So these are major contributions that Africa is making. We see today that the largest block in any continent, the largest group of States to ratify the Rome Statute is in Africa. You have, I believe, 34 States out of the 54 that have ratified the Rome Statute and are part of the ICC. We've also seen that for the Cour du Stat it's work. Africa has again played a major role. And maybe this will bring me to the bias that they are talking about, in the sense that Africa engaged the court before anybody else did, before any other country did. The first referral we received were from African states. In fact, all the referrals that we received in the first ten years of the existence of the court is from African states. And I will not hesitate to mention that Uganda, Democratic Republic of Congo, Central African Republic on two occasions, Mali and Cote d'Ivoire. They all referred situations to the ICC, inviting the court to investigate and prosecute because they are unable to do that and that is why the court was set up. If states' parties are unable or are unwilling to investigate and prosecute these very serious crimes, then the ICC steps in where we have jurisdiction. We step in and investigate the crimes under the Rome Statute and Africa has taken the lead in that. We have taken the lead in requesting the ICC to start its work. So, this is why, I played emphasis on the fact that Africa is really playing a leading role in international criminal justice and it should be recognized. We should not turn that on its head and say that ICC is concentrating on Africa. We are working, we are working for justice, justice for these very serious crimes, and in all the situations that we have made a assessment already and decide to exercise jurisdiction, is fully supported under the Rome Statute. We do not act outside of the Rome Statute. Our jurisdiction, as given under the local statutes, it's always very much respected, we never go outside of that. And having said that, you will of course say that we do have other cases in Africa that have not been referred to the court by the African states. And that is in Darfur, Sudan, and also Libya and Kenya. And let me just talk about them individually. With respect to Libya and Darfur, this was a referral by the UN Security Council, which, as you know, under the Rome Statute, the UN Security Council can request the ICC to exercise jurisdiction in situation where, the Rome Statute crimes have been committed. Whether it is a state party, or it is not a state party, the UN Security Council can do that. But I just wanted to emphasize the fact that the UN Security Council seizing the ICC to exercise jurisdiction, and for ICC, that is not automatic. In all of the two referrals that have been given to us by the UN Security Council, we do our initial assessment, like we do in every other situation. We ensure that the Rome Statute crimes have been committed, we look into the temporal jurisdiction, we look into all the interests of justice for instance. We look into all of that complementarity before we decide to take that case. And this is what we did in the UN Security Council referral, and we'll always do, even if it's a UN Security Council referral. We will act strictly under the Rome Statute. We will look that mandated legal requirements have been met before we exercise jurisdiction. With respect to Kenya, for instance. Kenya is a state party to the Rome Statute. It has not referred this situation to the ICC, but there are a set of events that happened, which is very interesting with respect to how we eventually came to exercise a mandate, as I said, always under the Rome Statute. Kenya, being a state party, has the primary responsibility and obligation to try cases. This case is to exercise its mandate and investigate and prosecute when these crimes take place on its soil. We all know what happened in 2007, 2008, the post election violence that took place in Kenya and obviously those crimes, crimes against humanity, were committed at a very large scale. Many people died. And as I said, the obligation for Kenya to try the cases is always less. We don't have the power to take that away because we do not replace national jurisdiction. We don't. We complement national jurisdiction. And Kenya's attempt or various attempts to organize, set up courts to try this case is failed, even at the highest level at Parliament. They fail. They failed to take that responsibility. And because they did not take that responsibility is why the ICC prosecutor steps in to investigate and prosecute those crimes. Because, as I said, this is the system that we've set in place. This is what they Rome Statute says. You are a state party, if these crimes unfortunately take place on your soil, crimes within the jurisdiction of the ICC, if they take place on your soil, you have the responsibility as a state party to investigate and prosecute it. But if you do not, then the ICC would step in. So, with respect to all those cases, this is what happened. You cannot take these facts and then say that the ICC is biased towards Africa. And these are the facts. This is nothing else. Unfortunately it has been wrongly presented or has been, there has been so much propaganda against the court for Africa that they do not really take into account how these cases got there. And I want to emphasize again as prosecutor, that I will always be guided by my mandate, by the Rome Statute, strictly in accordance with the Rome Statute, wherever I intervene. And that wherever, can be anywhere, where the legal requirements, the jurisdiction issues are met, I will go. It does not matter on what continent. I will exercise that mandate without fear or favor and this has to be clear. Once our legal, my jurisdictional requirements are met, I will exercise my mandate without fear or favor, wherever that may be. And I have not exercised my jurisdiction elsewhere because of the facts and circumstances I have just mentioned to you. It has to be strictly in accordance with the Rome Statute. Again, I wanted to also, with respect to the Africa bias, we always forget that we are conducting preliminary examinations in a number of situations which is outside of the African continent. If you take the example of Afghanistan, we have been conducting preliminary examinations there. If you look at Palestine, I just opened that in the last year, at the beginning of last year. I've opened preliminary examinations in Afghanistan. We have also been conducting preliminary examinations in Colombia. And recently last year, I have requested the judges, after a couple of years of preliminary examinations, I request that the judges of the ICC for authorization to open investigations into the situation in Georgia. Over the 2008 conflict. So these are all matters that are outside of the African continent that the ICC is dealing with. But, unfortunately, when those who were criticizing the court, talking about this Africa bias, they always forget to mention that we are also working outside of Africa. >> Yeah, so it's interesting that the selectivity criticism is very selective in itself. >> Indeed, indeed. Yes. >> So in a more general sense, can you share with us what the specific focus is that you would like to develop as the second prosecutor of the ICC? And what policies and strategies you think of that should mark your term? >> In the first place, I have had the opportunity to serve this institution since 2004. And especially in the office of the prosecutor, I have had the opportunity to also see how we were working, how we were doing things. And it has provided me with the opportunity to not only build on the successes that we have had, but also to look for ways to do things differently, to learn from experience, lessons learned, and do things differently. And all in the name of efficiency. I believe that this office, Office of the Prosecutor, has to be a very efficient office, and that the work we do to be as effective as possible. This is what was intended, and this is what I believe we should do. So I've been looking at the strategies of the office. I put in place already the strategic plan for first 2012, 2015 but now strategic plan for 2016 to 2018. And for these 3 years we will be guided in our work by that strategic plan. I mentioned it briefly before with respect to looking more into the ways of effectively investigating the cases. Because this are very complex cases and any investigator or prosecutor, even at a national level, will tell you how complex it is to uncover the truth, for example. And for us, we have to do it at a very massive scale. The cases that we deal with involves hundreds of thousands of victims. It was multitude number of perpetrators for those crimes. So the cases themselves are complex, and I can say that we need to sharpen the way that we do things in order to be as effective as possible. This is important. So if you look at the strategy plan, I have said it before. For instance, with respect to investigations I mentioned the fact that we are looking for alternative ways to collect evidence. This is already one of the strategies we have put in place. We are also broadening investigations instead of focusing on one or two crimes or one or two perpetrators. We are doing an open ended and in-depth way of investigating. Of course, the focus will remain but we are broadening it more than before. Also we are looking at notorious perpetrators. We're looking at mid-level, and we are trying to work our way upwards to build the cases. So, these are some of the things that are in the strategic plan I could go and explain. But just to tell you that we focus very much in looking for new and improved ways of investigating these crimes. I believe that it is also very important. We are also looking to working as much as possible with other partners. Also at the national level, we are focusing on that to see how best we can close the impunity gap. Because as you know, these crimes, they involve not only our crimes, they involve other crimes, which we don't have jurisdiction over. But also, they involve many perpetrators that our court was not meant to try all the perpetrators. So there will be others that national systems, either the domestic label or some [INAUDIBLE] form of a hybrid court, can be made to look into those matters and how best we can work with them. An example I can give you is with respect Central African Republic currently, they are establishing the special criminal court, in which they're also working with us closely. Of course they're not going after our own targets if I may call it that. They're looking at those who the ICC has not charged and they will also investigate the cases regarding those ones. So these are ways in which I believe is important for us to look into. See how we can make it more effective, how we can make it more efficient in really addressing the issue of accountability and justice at the international level. With respect to other policies that really has become a priority for my office, it's with respect to sexual and gender based crimes. In 2014, I was able to launch a policy paper on sexual and gender based crimes. And it is a priority for my office. It is one that I have elevated to a strategic goal for the office as well, because we see what is happening in these countries. We see the number of sexual and gender-based crime, mostly targeting women and girls. Also men and boys, but mostly targeting women and girls. And I believe that as an office, my contribution is to set a very clear message that we will investigate these crimes and we will investigate it as thoroughly as we can, wherever we have jurisdiction to do that. And that those who perpetuate these crimes should get the message that they will be investigated. The policy is out. At the moment my office is engaged in training of staff because it's nice to have a policy. But the implementation of the policy is also very important. And we're now doing the training, different people who will deal with these crimes will undergoing the training. In fact, I think it is almost done with respect to the different groups, because I want to have an integrated approach of investigations of sexual and gender-based crimes. This is what I want to see the office, so it is both starting from the preliminary examination level to the investigations level, to prosecutions level, to appeals, even to reparation. This is really a priority for my office, that the office is working very well at the moment. I'm looking also to bring out other policies in accordance with the priorities of my office and that is in respect to the children's policy, for example. The children's policy, I think that we should We should not only be concerned with children who are in the armies, for example, in the conflict groups that are being used as soldiers and other roles that they play, but I also think that we should look at children who are affected by conflict. So they are not necessarily in the army, but maybe their parents have been killed. Maybe the schools that they have been attended have been invaded and they are used as army bases. Maybe they are not able to have a playground. Many ways they get affected by conflict. So we are looking at that. And my aim is to have a comprehensive policy on children and also to give clarity to everyone, also our partners on how the office intends to deal with that. There are other policies I'm still thinking about which is in respect to cultural property destruction. We know that this is happening a lot. And I want to say that even before we see what is happening today, in the past two years with respect to ISIS and all the conflict in Mali for instance, what we have seen. It has been something that I was thinking of already that we need to also focus on that, and give attention to it. And this is why, if you look at my investigations in Mali, I have decided to also concentrate on that aspect of the crimes that were committed. If you look at the case that we have currently which is about to start, it is under destruction of cultural heritage in Mali that Al-Mahdi has been charged with these crimes. So these are just the various things that my office is doing. I have recently issued a code of conduct for the office which I think that as international prosecutors and investigations. These are standards that we have to hold our self by. So, my whole office has been trained of me to be familiar with the code of conduct, including myself and my deputy. As I said, we have to hold ourselves in the highest of standards, to us international prosecutors. As international investigators and corporation advisers. We need to do that. That is another aspect I delegated some time to. And this is how training has been done. And I sincerely hope that my office, the whole of my office will hold ourselves to these standards in the investigation and prosecution. Because it is important that the office shows the highest standards. The office is efficient, the office is effective. On my part, I believe that personally, I have to live by the example. I have to hold myself by that standard. And I will also do my level best to ensure the effectiveness and the efficiency of this office. Because this is what is expected of us. This is why this court was established. This office was also established, and this is how, this is how I believe we can earn the trust and respect of the international community. >> So, in a way of multifaceted and multidimensional policy perhaps? There are two notions that you refer to in this answer and earlier in the interview that I would like to pursue, which are effectiveness and success, and perhaps also the question to what extent they are interrelated. And how would you say, when is the ICC effective and how should we measure success? Or more concretely, what is your benchmark for success? And as you know, your predecessor, Professor Moreno Ocampo once said that the absence of trials at the ICC would signify major success. And my question is, is this also your benchmark or would you like to develop your own benchmark? Do you have a different benchmark? >> I've mentioned it during the course of this interview. With respect to the complimentary nature of the ICC, which means the aim is that national jurisdictions should take up this responsibly seriously, to investigate and prosecute by themselves. And it is only in the absence of that, that the ICC as a court, would naturally exercise jurisdiction where we have it. So that complementarity is important and also encouraging national systems to take up that responsibility is also very important. But I believe that the ICC should not be judged by the number of convictions. It should not be judged by the number of convictions, and I think it should be judged by the impact that the court is having in the international legal order. This is very, very important. I think this is what we need to look at. And that impact is not only to concentrate on the cases in court or the convictions that we have, but also the preventive aspect of our work. Because this is also part of the mandate that we have. How can we even influence, how can we even encourage violence not to escalate to the level in which crimes against humanity or all crimes are being committed. And this is why you see sometimes when we fear that this is going to happen in any country where we have jurisdiction, which is a state party, I come out with those preventive statements, declarations reminding them that they can exercise, for example, their political and civil rights, it's their right. But that they should avoid committing crimes. And I think in a number of situations, this has contributed to calming down things. Not always of course, but it has contributed in calming down. So this is the kind of impact that we should be looking at that the court has had, or is having. Another example with respect to child soldiers, and the demobilization of child soldiers, which is very, very important. The court started its work with the first case of Thomas Lubanga Dyilo. And it was the first time that any international court has charged a perpetrator with only the crime of enlisting and conscripting without any other charge. And it was deliberate I can say. Because the intention was to send this message that this is a serious crime where the international criminal court has jurisdiction and which it will hold people accountable. Before the end of that case, even before the conviction, I remember then SRSU for children and armed conflict. SRSU for children and armed conflict. She in fact told the court that she has used the Lubanga case to help demobilized children, many children, in the thousands in countries such as Srilanka and Nepal. And this is to say that they are not even straight party to the wrong statute I think is quite an impact that the court has had. This is what the famously called the shadow of the court. This is what the court is doing. The way it is reacting is helping to have an impact on the various conflicts that are taking place and the crimes that are taking place. So we should look at the court in that light. Because I believe that this is what was meant to be. This is how it was meant to contribute to the prevention of crimes, to contribute accountability that the court was settled and I think this is what we are doing. And we should look at the impact of the court and not the number of convictions, for example, that the court has. >> So Prosecutor Bensouda, we've come to the end of this interview and I would like to thank you for sharing with us your vision on international criminal justice and perhaps, also particularly this idea of looking at the ICC not only as a court but more as a system. And to look at the relations that it has with other international and domestic courts as the ICC as being part of a family of courts. And perhaps mostly, I would like to thank you for being such an inspiring woman now in charge of the prosecutions at the ICC at a very moment, important moment of the life of the ICC. And I would like to thank you all, our participants of MOOC for watching this interview. Thank you.
