When the new prosecutor of the International Criminal Court (ICC) was asked to take a seat by the journalists who came to question her, she looked down and proclaimed, “The hot seat!” But the world’s next top prosecutor—Gambian lawyer Fatou Bensouda—doesn’t shy away from controversy.
by Lauren Comiteau, The Hague
Quite the opposite, the mother of two boys has a history of tackling injustice head on--from Gambian criminals to heads of state. She served as a prosecutor in her native country’s Ministry of Justice and also worked at the International Criminal Tribunal for Rwanda (ICTR) before coming to the ICC as outgoing prosecutor Luis Moreno-Ocampo’s deputy.
On Friday, she takes his place as the chief prosecutor of the world’s first permanent international criminal court. And her agenda is already full: she’ll be prosecuting the court’s first head of state, former Ivorian President Laurent Gbagbo, and overseeing seven cases and nine preliminary investigations.
Just days before her swearing-in for the nine-year post, she spoke with a group of foreign correspondents about her hopes, her obstacles and about shattering the glass ceiling.
What’s the difference between prosecuting criminal cases at national and international levels?
When you get to the international level, the scale is different. You’re talking about hundreds and thousands of victims and perpetrators, about many killings and rapes at the same time…. Also at the national level, prosecuting is not so difficult…. [If] you want people arrested, you give orders and people are detained. You have access to your witnesses and the challenges of witness protection are not so great.
But when you come to the international level, these become huge challenges. Most of the time at the ICC, you’re operating in situations of ongoing conflict. The security situation on the ground is sometimes impossible…and because the prosecutor is the office that deploys first to the field, there is this huge responsibility to ensure that those who we talk to are not exposed….
Isn’t it frustrating to see people like al-Bashir out there and the ICC can’t do anything?
I see the setting up of the ICC as a system in which member states resolved in 1998 to create this institution. But in making it effective, member states also have a big role to play and they undertook to play that role by signing and ratifying the Rome Statute. The ICC doesn’t have a police force. But the police of 121 member states are the police of the ICC. The armies of these countries are the armies of the ICC….
There is a sense of frustration of course when we see the likes of Joseph Kony and Omar al Bashir still out there…. But our duty under the Rome Statute has been done. We were supposed to investigate, prosecute, issue arrest warrants and present evidence. And in all these cases we have done it….
What are the main challenges to fighting impunity in the world?
The issue with the ICC is that we’re a judicial institution operating in a political environment. And this sometimes becomes a challenge. Because whatever move the ICC makes—whether we decide to move, whether we do not move, whether we charge someone below the line or very high up—there is always criticism.
So I think apart from seeking cooperation, one of the major challenges we face is that we have to continue to perform our functions strictly within the law…. I think if we do this and are very transparent about it, the credibility of the ICC will continue to grow.
Some people say this is an African court that now has an African prosecutor. What do you say?
I am an African and I am very proud of that…I’m not going to discount it or dismiss it. But I think it is not because I am an African that I was chosen for this position. I think my track record speaks for myself…. I have been endorsed by the African Union [AU], but I am a prosecutor for 121 states parties and this is what I intend to be until the end of my mandate….
Do you think some of that criticism will die down now that there’s an African prosecutor? And isn’t the AU at odds with the ICC, telling its members not to cooperate with the court?
The problem with the AU is not to not cooperate with the court generally, but not to cooperate with the court with regards to Bashir…. And we have to take note of what’s happening with individual African states.
Over 90 percent of our requests for assistance go to African states, and they come back positive. Africa continues to engage with the ICC. I think one of the best examples you can find, even though we’re having difficulties in that case, is the Kenya case. There are current presidential candidates who are coming before the ICC and appearing before judges voluntarily….
Whether this perception can change because there is an African prosecutor, I don’t know. But contrary to what is being said, that the ICC is targeting Africa, the ICC is working for and with the victims of Africa…. They are the ones who are suffering from all these very serious crimes….
What about criticisms that you’re destabilizing situations, like in Kenya, by supporting one side?
There is a track record on the continent that…the opposite is true. In Uganda, with Joseph Kony, even though we have not been able to arrest him, I think the intervention of the ICC has contributed immensely to bringing peace to Northern Uganda and to Uganda….
Likewise in Kenya. Our hope has always been that in the next elections, there wouldn’t t be post-electoral, or even pre-electoral, violence. And so far, this is going in the direction we hoped.
In the Cote d’Ivoire, I think the ICC’s intervention has played a big role…. Laurence Gbagbo is our first case. There will be others.
How as a young girl did you decide to take up law?
….I was very concerned about the domestic abuse that I saw happening that I could not do anything about. I thought if I were older, probably I would be able to do something. It wasn’t happening in my immediate family, but in Africa--in Gambia--you live in communities. And you see it…. And always there was this innate feeling in me saying this shouldn’t happen…. So for me, it was something I had to do.
Who were your greatest mentors?
My greatest mentor is my mum…. I regret she’s not around anymore to see all of this. But also I grew up looking up to certain people. I remember there was this lady lawyer always standing up…called Amie Bensouda, also Bensouda (you know these Bensouda men, they follow these lawyers!).
Also I have my elder sister, Warrage, my half-sister actually, but I always say that we don’t know who’s half, who’s full…. So it’s many people. The beauty in Africa is the community…. Everyone feels they have this protection they have to give to you…. I believe it makes you stronger.
It is important as an African to have girls see that there is a possibility that they can get to here. There’s always the belief that there’s only so much you can achieve coming from Africa and nothing more, like you’ve been given a handout and you should be happy.
My example shows that this is not true, that the sky is the limit. There’s no glass ceiling for Africans, for all women actually….