Fatou Bensouda on the International Criminal Court and Gender-Based Crimes

Thursday, December 11, 2014
Fatou Bensouda

Prosecutor, International Criminal Court


Secretary-General's Special Expert on UN Assistance to the Khmer Rouge Trials, United Nations; Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law

Fatou Bensouda, prosecutor at the International Criminal Court (ICC), joins David J. Scheffer, the secretary-general's special expert on UN assistance to the Khmer Rouge trials at the United Nations, to discuss the ICC’s policy and protocol in investigating and prosecuting sexual and gender-based crimes. Bensouda provides an overview of the court’s current relevant cases, and addresses the challenges of underreporting, witness protection, and stigmatization that can accompany such crimes.

This meeting is cosponsored with the American Bar Association's International Criminal Court (ABA-ICC) Project.

SCHEFFER: Welcome, everyone, to the Council on Foreign Relations here in New York. We have a very special evening tonight, with Madam Prosecutor Fatou Bensouda of the International Criminal Court, for a session that's entitled 'Prosecuting Sexual and Gender-Based Violence; New Directions in International Criminal Justice'. We have a web—this is live—a webcast. So we're not under the normal Chatham House rules here. And we are being broadcast on the Internet for the next hour.

I'm David Scheffer. I'm a professor at Northwestern University school of law and a former U.S. ambassador at large for war crimes issues during the 1990s, when I led the U.S. delegation in the U.N. talks concerning the International Criminal Court. This Council on Foreign Relations meeting is cosponsored with the American Bar Association's International Criminal Court project. And before I introduce Prosecutor Bensouda, I just want to mention something about that project. The ABA's International Criminal Court project is an independent initiative of the ABA to support the ICC and U.S.-ICC relations through advocacy, education and practical legal assistance.

Since 1978, the ABA and its nearly 400,000 members have supported the concept of a permanent international criminal tribunal for international atrocity crimes; participated in the creation of the Rome Statute; and urged the U.S. government to become a member of the ICC and support its casework robustly. The project implements the ABA's policies in this field, as well as the principles that the International Criminal Justice is integral to a just rule of law and international peace and security.

Now, you have before you in the audience the biographical information about Prosecutor Bensouda. For our Web audience, let me just briefly say that she has been "the" prosecutor of the International Criminal Court since June of 2012. And prior to that, she was the deputy prosecutor of the International Criminal Court since 2004. Prior to that work, she was a senior legal adviser, plus some earlier positions, at the International Criminal Tribunal for Rwanda. She's held many senior legal positions in the government of the Republic of the Gambia, which is her country—and which I will not list, but they are very long senior positions. Anyone in Washington would be envious of such a long list if they were in the U.S. government.

And she's also been involved in many regional U.N. treaty ventures, including the Rome Statute of the International Criminal Court itself. I've known Madam Prosecutor Bensouda for many, many years, and I can tell you she has a mind and a soul, and no one—particularly perpetrators of atrocity crimes—should underestimate her for one moment. Now, I—I want to launch into about twenty-five minutes of Q&A with Prosecutor Bensouda, then we're going to open it up for thirty minutes of questions from the audience. And I will be very disciplined in getting to you for thirty minutes of questions because there are a lot of interesting issues about the ICC that I know you probably want to inquire about.

We are focused in this opening discussion on the launch of her path-breaking policy paper, namely Policy in Sexual and Gender-Based Crimes of the Office of the Prosecutor. This policy paper, launched this week, is available to the public on the International Criminal Court website, and also is on the Council's website in connection with this event. It has been a very busy December for you already, Madam Prosecutor, and I will seek, later in our discussion, your thoughts about the appeals chamber upholding the conviction of Thomas Lubanga Dyilo of the Democratic Republican of the Congo, and your own decision last week to withdraw charges against Kenyan president Kenyatta.

But first, please help us understand why you believe it is so important to develop the Policy on Sexual and Gender-Based Crimes, a document that presents a sort of protocol for how your office will investigate and prosecute such crimes. What exactly are these crimes, and are they so prevalent in the commission of atrocity crimes writ large that you concluded it is essential to single them out in this way? Has your exposure to these crimes in the field influenced you in this respect?

BENSOUDA: Thank you, David, and good evening to all of you. The launch of the policy at this time is not a coincidence. One of the first priorities that I have made for myself and for the office, a priority that I'm most committed to, is on the sexual and gender-based policy for—for the office of the prosecutor. I think several of—of us in this room and elsewhere are quite aware that this is a—these crimes must be given the recognition that they deserve. And we have seen that through history, you have—if you look at the earlier tribunals, even the ad hoc tribunals for former Yugoslavia, for Rwanda—we saw that maybe for the first time in history the judges are giving more attention to these crimes.

And here, I have in mind the groundbreaking case of Akayesu, when the judge, Navi Pillay, the—insisted on these crimes to be charged. But the—the—the issue here is that the world needs to sit up and take note of the prevalence of this crime during conflict; mostly whether it's international conflict or non-international conflict. We have seen that war crimes—rape and other—and sexual- and gender-based crimes—are used—is used as weapons of war. It is used as weapons to repress, to humiliate, to destroy the social fabric in society. And I think it is high time that we give it the attention that it deserves. And this is why I thought that it is crucially important that for my office we have a policy that provides transparency, that provides clarity on what we intend to do.

I also hope that the policy people will prove—will be—will serve as a guidance to national systems. Because I only—I thought that it is only in the—in the policy that we can really flesh out and show what we intend to do. How we strategically intend to approach the investigation and prosecution of the crimes. My intention was—is that we should integrate, again, the perspective in all aspects of our work, starting from a preliminary examination to investigations, to prosecutions, and even to the appellate level. This is—I believe this is important to do. And in so doing, to ensure that the staff of the office are also trained. Every staff that has to do with the investigation and prosecution of this crime will be trained adequately in this—in—in—in the investigation and prosecution of—of these crimes.

I also thought that it is important for the—the staff to—to have a gender perspective in the—in the—in the work that we do, the investigation and prosecution of these massive crimes, very serious crimes. I believe this is the only way, you know, as a—as an office of the prosecutor of the International Criminal Court I believe that this is the only way that we can lend importance to this aspect. And we can show, by example, concretely, that these crimes are very serious crimes and that they will be investigated in the—in a—in the way that it should be investigated effectively. And that the perpetrators of these crimes are warned that if they commit these crimes they will be held accountable where we have jurisdiction.

SCHEFFER: Now, I thought it would be interesting for our audience—those of you who don't spend your whole day digging into the arcane work of the International Criminal Court—for you to actually explain to them a—a—a part of the paper which is quite profound. Which is that you are developing a—a protocol here that is not only going to look at how to prosecute the standalone crimes of sexual violence which are listed in the statute itself, but also how you relate them to the larger crimes of genocide, persecution as a crime against humanity, war crimes. That this is an interesting sort of feature of your work, which it might be worthwhile for you to—to just explain to the audience why that's so important.

That you're—you're not just looking at—at sexual assault or rape directly as a—as an explicit crime, but also how that relates to the larger crimes of persecution and genocide, et cetera.

BENSOUDA: I mean, I think the Rome Statute, which created and established the International Criminal Court, is a very innovative tool with respect to sexual and gender-based crimes in the sense that the—it provides us with a legal framework. It is there, unlike perhaps the ad hoc tribunals. And if you go through the statute—you look at article seven, sexual and gender-based crimes can constitute crimes against humanity. You go to article eight, war crimes. It—it constitutes war crime, and also as acts of genocide. So in the broader context it is already there. It's a framework that we can use. Not only in standalone crimes, but in broader context as war crimes, crimes against humanity, and also as—as genocide.

So I believe this is—this also, again, goes to show the seriousness of these crimes. I believe that sexual and gender-based crimes are one of the gravest crimes under the Rome Statute. And it should be treated not as requiring additional evidence, additional elements to prove—to prove them like currently has been the trend. If one is to provide evidence and information on—on—on murders and on killings and on—on—on other crimes, they—the—the—the attempt to prove war crimes and the attempt to prove sexual and gender-based crimes always seem to require extra elements than—than—than the war crimes.

I think we've seen it recently happen in the case of Katanga.


BENSOUDA: So I—I think that this should not be the case. I—I believe this is—this is the wrong approach. And for my office to—to—to get together, for me to get together—get together with my office and my team, and say that let us look at—let us revisit these crimes again. Let us see what the act, the Rome Statute, is giving us. Let us use that. Let us show that this crime is equally important. And let us not put all these obstacles and hurdles and what have you just to prove sexual and gender-based crime which we do not require to do when it is another crime. So this is, I think, what the policy will—will do, I hope, is to—is to show this crime for really what it is. That it is a heinous crime that has to be investigated properly and has to be prosecuted properly.

And that I believe I hope national systems will take guidance from it. But also those who judge these crimes will take them for what—how serious they are.

SCHEFFER: Now, the Islamic State has reportedly been committing a wide range of sexual and gender-based crimes during the last year as it swept up territory in Syria—swept up territory in cities in Syria and Iraq. You said, Sunday night, at the United Nations, quote, "Since time immemorial, rape and other forms of sexual violence were considered trophies to be won in war. This antediluvian custom must be exposed the world over for what it really is: a heinous crime," close quote. How is your office remaining informed about developments regarding ISIS' assault on women and girls in particular, and are you prepared to open a preliminary investigation if the votes are finally secured in the Security Council to refer the situation in Syria, and perhaps now Iraq, to the ICC?

BENSOUDA: Let me just perhaps talk a little bit about our jurisdiction or lack of it, both with regards to Syria or—and Iraq. I think I've been very clear in saying that—how our jurisdiction is. And I believe many of us in this room know—know that. That we can only intervene or exercise jurisdiction where the Rome Statute crimes take place on the territory of a state party or are committed by the national of a state party. In the absence of that, it is a by way of Article 12-3, when a state makes a declaration accepting jurisdiction of the ICC, or where the U.N. Security Council makes a referral to the ICC asking for intervention, as was—was done in both Sudan and—and—and in Libya.

I do not think, maybe starting in—in—with Syria—as we know, Syria is not a state party. We have not had any declaration accepting ICC jurisdiction. Likewise, there is no U.N. Security Council referral. And I—I do not—I don't think whether these scenarios are likely to happen, but—but I don't know. With respect to Iraq, I—I just want to take the two together—with respect to Iraq, the same thing applies. But, of course, with respect to our jurisdiction over crimes that were committed in Iraq from 2003 to 2008 during the conflict, normally we don't have territorial jurisdiction. But recently—I think it was in—earlier this year, I don't remember the month exactly—recently, I have had to reopen preliminary examinations in Iraq over the action or conduct of the U.S.—U.N. defense forces, U.K. defense forces, United Kingdom, forces in Iraq.

I've opened preliminary—in fact, I've reopened it. Because you will recall that in 2006 my predecessor had closed the preliminary examination over the U.K. forces in—in—in Iraq because there were not sufficient, first, the gravity threshold. We were talking about less than perhaps twenty people killed, according to the information we received. And I think a few incidents that really did not reach the gravity—gravity threshold to warrant the intervention of the ICC. And in that regard, my predecessor decided to close the preliminary examination. But recently, I have received information from the PIL and also the European Center for Human Rights giving us much more information regarding the crimes, or alleged crimes, that were—that had taken place. And—and—and also, which were attributed to the conduct of the U.K. forces.

Having analyzed that, I decided to reopen the examination. But I—I just want to be clear that that reexamine—this preliminary examination is just focusing on the action of the U.K. forces over the detention—detention and abuse of detainees, alleged abuse of detainees, that took place. And it's in that context that I've opened a preliminary examination. But coming back to the ISIS question—and having said that our intervention or our exercise of jurisdiction is over nationals of states' parties can be—is over nationals of states' parties and over territory in—in territories of state parties, we do know, and we've received information, that there are several nationals of states' parties within the ranks of the ISIS that are allegedly committing crimes presently, within—within the conflict.

Therefore, my office has been looking at this very closely. Of course, no decision has been taken yet to open preliminary examination, but we are looking at information closely. Because we—we have information, first, that nationals of, for example, Jordan—which is a state party, Tunisia is a state party—and other Western and European countries. There—there—you can—you find their nationals within the ranks of the—the ISIS. And given a new strategic plan of not only going after the most responsible but, perhaps, in certain instances starting from mid-level to—and low-level perpetrators, notorious perpetrators, and moving up, there is a possibility, of course, in that instance that we should be able to look at the action of conduct of those nationals of states' parties who are involved in the conflict.

But also, if they are most responsible—or they're found to be most responsible—we will also be taking a very close look. As I said, no decision has been taken to open preliminary examination. But certainly I am very concerned with what is going on, especially concerning the nationals of states' parties. Recently, the Lebanese minister of justice came to the office to—minister of foreign affairs, I believe—came to the office to bring information on the ISIS. But even before he came, I mean, at excomm—the executive committee of the office—we have discussed these issues. And we are asking even those nationals, those states' parties, whose nationals are alleged to have—to involved in it to provide the office with information, if they have.

Of course, if it concerns sexual and gender-based crimes it's even more—more—more serious for me. And we will—we will—we will see. We will get the information, we will analyze, we'll decide on what steps to take.

SCHEFFER: It would be interesting if the Iraqi government were to step forward and give you an article 12-3 declaration that would open up the pathway for a broader investigation of ISIS on their territory.

Let's move to Lubanga and Kenyatta very briefly, and then I'm going to directly open it up, in five minutes, to the audience. The recent appeals judgment in the Lubanga case upheld Mr. Lubanga's conviction of guilty for the enlistment, conscription and use of hostilities of children under the age of fifteen in the Democratic Republic of the Congo. How significant was that ruling, and was it too long in coming? And can I just say that while in law we distinguish between sexual, gender-based crimes and child soldier enlistment, conscription and use, did you ascertain, as the prosecutor, that indeed one crime can easily overlap into the other when it involves children? I know that you have plans to put out a new—a next—your next policy paper would be on the—on the issue of children.

BENSOUDA: I think you—the—the final judgment in—in Lubanga is—is also another landmark. You know, I think it's a milestone for the ICC. It is our second final case—case that has come to finality, the first one being the Katanga judgment where both the prosecutor and the defense decided not to push through appeals. So Lubanga was one that has really gone through a—the whole judicial cycle, all the way to—to appeal. And the—the—the judges have decided to confirm the—the conviction, to uphold the conviction as well as the sentence in Lubanga. So I think this is quite a good achievement for the—for the court.

With respect to the crimes that we brought against Lubanga—enlistment, conscription of children and using them in hostilities—I remember that when we brought the charges there has been—there was certainly a lot of criticism to the office that we should bring more serious charges like killings and—and—and other forms of violence. But I believe that the Lubanga case has—and the presentation of evidence by the office of the—the prosecutor—has also brought out this overlap and the gender perspective of conscripting children and using them to participate in hostilities.

In the presentation of our evidence, we were able to show how children—girls and young boys—were conscripted. How they would serve as wives, how they would serve as cooks, how they would serve as sexual slaves. And how the girls will be abused every day, how they would be given to commanders as wives. And I think this has brought out not only the—the fact that they're used to fight at the battlefront, but also they are used in different ways. And I—I think that presentation of the evidence has, to a very large extent, vindicated the office. However, we did learn from what civil society was saying, what they were talking about. And you will find that today, in our—in all our cases, or most of them, we have charged—and seventeen individuals currently have been charged with sexual and gender-based crimes, for instance.

And—and also I think they constitute about 70 percent of—of our cases before the—the—the judges, before the chambers of the ICC. So I think this shows—I believe this shows an overlap, you know, in both the conscription and also in the—in the prosecution of—of sexual and gender-based crimes. You talked about it taking a long time. Yes, indeed, it has taken a long time. And I think that there are many lessons to be learned. We have to recall that the ICC, even though a permanent institution, is still fairly young for a—for an international institution. And during the first case, most of the provisions of the Rome Statute were being applied for the first time.

Actually, the—the—the system that the Rome Statute has put in place was being put to the test for the first time. So we had to go through that process. And, fortunately, most of the challenges that we were confronted with—for instance, the issue of victim participation—the judges had to look into the—the modalities of victim participation; how is that done. I think after Lubanga, the other cases were all smooth sailing in—in terms of that. So a lot of the provisions of the statute were being applied for the first time, and the court was becoming operational. And I believe this has added to the length of time that it has taken for—for Lubanga to be completed—completed finally.

But I think that we—we are gaining up speed, we're—we're—we're moving with the other cases. And maybe in a—in a—in a more—in a faster fashion.

SCHEFFER: Well, let me ask about Kenyatta. You are from the Gambia.


SCHEFFER: You have been acutely aware of the views among some African Union member states about the focus so far of the court on formal investigations of African situations. Your decision last week to withdraw charges against Kenyan president Kenyatta was arrived at after a very long journey of investigation, charging and then non-cooperation with an obstruction of your efforts. What should we all understand about the reality of African situations under investigation in your office?

BENSOUDA: I—I think, firstly, I would want to say that contrary to what is being said, Africa still needs the ICC. Africa has shown, from the very beginning, that it needed the ICC. From the time it was being negotiated for establishment until when it was established, we have seen the role that Africa has played for the court to come into—into existence. We have seen that the first referrals that have come to the court is from African states. In fact, five African states referred situations to the ICC; one of them two times. And that is the Central African Republic. Just two or three days ago, at the opening of the assembly of states parties, we had President Catherine Samba-Panza, the president of Central African Republic, come before the assembly and emphasize why the—the—her country, as an African country, needs the ICC and why she thinks that it is only through the ICC and maybe national efforts that they can bring justice and accountability to the—to the—to the Central African Republic.

Today, I sat on a panel—this morning—with the ministers of justice from the Democratic Republican of Congo, from Guinea as well as I believe from Central African Republic. All of them emphasizing the importance of cooperating with the court and why the court is important to bring about stability, security and accountability to their respective countries. So I think this is testament enough that the—the court—that the African states still need the court and are coming towards the court, contrary to what is being said that ICC is targeting Africans, going after African leaders. In fact, it is the Africa states and government that are coming towards the ICC and requesting to—requesting for ICC's intervention.

I have just mentioned to you that five—and you can maybe count it as six because one of them is twice—have requested for ICC's intervention. Maybe the other two instances where it was not African governments requesting it was the U.N. Security Council asking for ICC's intervention. And maybe the only case that the ICC—the office of the prosecutor—has used propio motu powers, the prosecutor, my predecessor, is in the case of Kenya. Which brings me to your question again, the second part of your question about having to withdraw the charges. It was a very difficult moment for—for the office, for myself, for the team who has been working very hard on this case to come to a decision to withdraw the charges, finally.

The—the Kenyatta case was really one that was full of challenges. I—I may even say that the—the Kenya situation is one that is full of—full of challenges. We were confronted with an unprecedented level of witness interference, witness tampering. We—we had gone to a point where we had several scenarios but, at least, witness interference and causing the witnesses to withdraw and potential witnesses not to come forward. Because there were—some witnesses—witnesses that we had hoped would be able to come but, in view of the witness interference, they decided not to come anymore. We had serious issues regarding cooperation.

In fact, if you look at the recent decision by the judges when they made the—they made a finding of noncompliance. In most of the—the—the requests that we had made to the Kenyan government, the court—the court found that there was not good faith. And, in fact, did go ahead to make a finding of noncompliance. They have not made a referral of that to the assembly of states parties, a decision that I have just appealed yesterday. But this—this was a problem that the office was confronted with. And also, the—the attack of the—the—the office, our processes, over the media, over the blogs, I mean, the first witness that appeared in the Ruto case was exposed in a—in—in the media, in social media, and exposed to a lot of danger, both the witness and the family of the witness.

So the case has gone to a point that the evidence that I need as a responsible prosecutor to put before the judges and expect a conviction is no longer there. The crime-based witness—the crime-based evidence—probably, as I said in the last status conference, we had (inaudible) there. But we need a linkage evidence to link those crimes to the—to Mr. Kenyatta. And I remember, in December of last year, I was forced to go before the chamber to ask for a withdrawal—an adjournment of the case—because two critical witnesses, whom we had actually used during the confirmation of charges, to show that—how the cases—the—the crimes were linked to the accused person, one decided to withdraw and the other one said that I was lying when I spoke to you.

So I was forced to take that action, with the hope that over time—because I asked for an adjournment—over time, we will be able to get cooperation from Kenya, which wasn't forthcoming. It—it didn't happen. At the—and at the time the judges were asking for me to proceed, the evidence had not improved. In fact, if anything, maybe it has gone even worse than it was before. So as a responsible prosecutor, I could not do anything else but to go before the judges and make this admission and pull the case.

SCHEFFER: Well, let me open it up now to the audience. But first, I just want to ask is Ambassador Oosterom here? No? OK. We've gotten tremendous cooperation from the—the Dutch government for this event. And I think the ambassador is delayed in traffic somewhere, so we will open it up to the audience now. Let me—I'm going to point to hands as they rise, and let me start right here with the fellow behind you and that with you, OK? Yeah, yeah.

QUESTION: Thank you, Bernd Borchardt from the International Nuremberg Principles Academy—Bernd Borchardt from the—from the International Nuremberg Principles Academy. Thank you very much for the most interesting presentation. I would have two question. One comes—one relates more to my own experience with sexual-related violence. I was the head of the EULEX Kosovo mission investigating—which investigated inter alia sexual violence during the conflict in Kosovo. And we were confronted, literally, with a wall of silence. NGOs had made estimations—organizations made estimations—of 10- to 20,000 rape cases. We had four. One, two, three, four. And even when one of them was indicted, the number rose to nine. So absolutely nothing. What is your experience, and how do you deal with this wall of silence?

The second question, if I may add it, is how do you deal with chain of command responsibility for sexual violence. There has been quite some—there is quite (inaudible) jurisdiction that commanders have to expect destruction mode, et cetera. But some judges feel that they don't have to expect rape. So that this is only something coming from marauders. How—what is the view in the—is there a dominant view in the ICC, and how do you deal with that? Thank you.

SCHEFFER: Thank you.

BENSOUDA: With respect to the wall of silence, I think what—I mean, dealing with massive crime itself—investigating in situations of ongoing conflict, in itself—is a—presents its challenges. We all know that, as international prosecutors. But I believe in—with respect to sexual and gender-based crimes it also provides—comes with its specific challenges. And one of those challenges is the underreporting, or the nonreporting, in fact. And we find this in different situations that we have attempted to investigate these crimes. That there are—there is a situation of underreporting. And this is why I have said—I mean, we have looked at this, we have examined it—and in the policy, one of the areas that we are talking about in respect to the investigation of crimes is to look for new ways, to look for alternative forms of evidence to be able to bring forth to the judges; such as forensic evidence and other kinds of evidence like hospital reports, where they exist.

And also, trying to see what are the best ways we can approach people or we can approach the victims and be able to speak to them maybe in a manner that will not expose them, in a manner that they will not suffer afterwards from stigmatization or retraumatization. We have to find those ways of doing it to be able to talk to the—to the witnesses, and talk to them carefully. Because we all know that in most of societies once you are seen or known as a victim of—of rape, instead of being looked at as a victim you are probably blamed for being raped. You are stigmatized in society, you become an outcast. If you are married, sometimes you are divorced. Your husband would not want you anymore because you are a victim of rape.

And during the time that we've been conducting these investigations and bringing them forth, we have been able to find ways around this in which we can absolutely, sometimes, make sure that the identity of the person is not known; that the person is fully protected, sometimes even from the husband. We have to do that to be able to—to bring this. But there are also, in others—in—in others instances where we have found that witnesses are willing to come forward. I believe in investigations in the Central African Republic and in the Democratic Republic of Congo women are actually brave enough to come and say "this is what happened to me". And we have been able to bring that—bring that—bring those evidence forward.

SCHEFFER: And he had a second question about chain of command responsibility. How do you nail that down?

BENSOUDA: I mean, we have seen this in our—in our cases already, in—in—in Katanga. This was why we tried. But I think, specifically, it is the Bemba case. In the Bemba, of course Bemba himself was not charged with committing the rapes directly. He was charged as a commander. That he had control over his troops, that his troops were committing these crimes, that he neither punished nor stopped them from doing it. And we are bringing evidence, we brought evidence, before the judges that he was aware that they took place and, as a commander, he had the responsibility to stop his—his troops or to punish them where he found that they—they have committed these crimes.

Our evidence has been presented. The evidence of the defense has also been presented. And we're awaiting judgment in that case. But I—I—I hope that the—the—the judges will—will find that, ultimately, he's—he's responsible. I cannot say much more about that, but we—this is how we presented the case before the judges...the commander.

SCHEFFER: I'm going to—I'm going to jump to Felice, and then to you. And then I'll go back. OK, Felice, you want to ask your question?

QUESTION: Felice Gaer of the Jacob Blaustein Institute. And I'm not speaking for, but I'm a member of, the U.N. Committee Against Torture. I want to, first of all, commend you for your remarkable work on the gender-based violence initiative. And in that connection, you just brought up the Bemba case. I wanted to ask you about charging rape as torture. In the Bemba case, that wasn't done. In fact, the two were separated and the two were considered separate. And there wasn't—there weren't two charges. The lesser charge was actually carried forward. How much, under the gender-based violence initiative that you've launched are you addressing rape as torture, and how will you charge that? Thank you.

BENSOUDA: I—I—I think that, under the statute, this is—this is—this is there, that rape can be charged as torture, could be charged as torture. And in the current docket case, in the current cases that we have before the—the court, we have not done that. We've not done that, maybe to a certain extent, in it Bemba case. But I believe, given the elements of—of the crime, if it does happen and we do see that this is rape but—and is being—can be charged as torture, depending on the elements, we will do that, we will do so. I do not think that it is a—it is a difficulty or that there is anything under the statute that is preventing us from—from doing that.

SCHEFFER: And then your colleague next to you?

QUESTION: Thank you very much. Christen Broeker, also with the Jacob Blaustein Institute. My question is about witness protection and the extent to which you think changes are necessary in the way that the ICC is operating, and—and who can help you prevent a situation like what you experienced in Kenya from happening again. And my concern is from places like even the Central African Republic, where you have people willing to come forward. Over time, the absence of effective state structures of any kind to protect them, what can be done when they have extensive family networks and could be exposed to—to pressure to prevent, you know, crucial witnesses from retracing testimony or refusing to participate in the future? Thank you.

BENSOUDA: I—I think the—the situation that we have had in—in Kenya should be taken in—in context. Inasmuch as there were challenges and—and—and problems, always there are challenges and problems in protecting witnesses. I believe, in the situation of Kenya, there was—there were deliberate attempts to interfere with the witnesses. And I think this made it more difficult and challenging for—for the court to be able to protect those witnesses. I think a lot of lessons have been learned from this situation, and also other situations. Because we have—for instance, in the—in the Bemba case, we were able to charge five people, including Bemba himself, with the offense of article seven offenses, interference with the administration of justice. And now they are before—before the court.

But as I said, lessons have been learned with respect to—to Kenya. I think, first of all, starting with my office this idea in the strategic plan, of looking for alternative sources of evidence, forms of evidence, is there. That's one of the reactions that we have towards that. But I think, also, the registry in terms of protection of witnesses is also trying to put a very good system in place towards the protection of witnesses. They are working very closely with our office. Because, as you know, we are the first to deploy to the field, we are the first to have contact and connection with the witnesses. And to see what are the best ways that we are able to adequately protect the witnesses.

Because this—this—the issue of protection, as you know, is not just during the case. It can also extend all the way to after the case. It depends on how long the risk—the witnesses are exposed to the risk. And I—I think that with the new, I believe, revision project, that the—the registrar is trying to put in place, streamlining the—the ways in which we do things, as well as our own efforts, together maybe we'll be able to do things better. Certainly this is how I hope we will—we will be able to do that. But it's a—it's a very challenging issue.

I think you mentioned it in your question. Sometimes you cannot just extract one person. We know that, in Africa, the issue of extended family. Sometimes you have the witness himself or herself, and there are maybe other—fifteen or so dependents, who all depend on the witness. And probably, extracting the witness will create another—another problem. So we have to deal with all of this. We are confronted with all of this—this kind of situation, and we are looking closely at what is the best way and form of dealing with that. As well as also looking for other ways of getting the evidence without exposing witnesses.

SCHEFFER: And it explains the justifiable impact on the budget. Because this all costs money.


SCHEFFER: Right back here, with the glasses? Yes, uh-huh. And then I'll come over here.

QUESTION: We're both wearing glasses.

BENSOUDA: Both are wearing glasses.

QUESTION: He's also wearing glasses, but I got the mic. Yeah. I'm Carroll Bogert from Human Rights Watch. In a recent statement, your office raised the possibility of investigating on the—in Afghanistan, the behavior of pro-government forces, including the United States. In light of the release of the CIA torture report a couple of days ago, I wonder if you have any renewed or redoubled interest in such investigation.

BENSOUDA: I've—I've heard about the report. And this came out yesterday. I'm saying this—I heard about it—because it has been an extremely busy week for the ASB. And the office—at least all of those who are supposed to take decisions and look at this closely—all of us have been busy. And I do not think we have had—none—none of us have had the opportunity to really closely study the—study the report and see if it has any impact on our preliminary examinations. But we will do that, we will look at it. We will—we will look at it.

SCHEFFER: OK. Now, I had a hand right in the back there somewhere before. No? Yes, right there. Yeah, yeah.

QUESTION: Hi. My name's Akshaya Kumar, I'm with the Enough Project. My question is about Darfur. You recently updated the Security Council on your investigation and the situation there. And I was wondering if you could speak specific about the allegations of mass rape which occurred in northern Darfur, in Tabit. Allegedly, over 200 women were raped by Sudan armed—army officers under the command of a local general there. If you might speak to how your recently released policy might help in facilitating an investigation of that incident. Thank you.

BENSOUDA: Actually, the report to Darfur will be tomorrow. I'll be report—reporting on Darfur to the Security Council tomorrow, I believe. And about the rapes, I'm—I also am very concerned about it. As you know, the—our investigations in—in—in the Sudan, in Darfur, has been very, very difficult also, extremely challenging. We rely mostly on reports coming to us, which we are looking at and analyzing. But this is very, very concerning for—for me and my—and my office. Access to the—to Darfur has been—has never happened. We've never been able to go there, and we have to investigate Darfur without going to Darfur.

We are aware of the U.N. reports on—on—on mass rapes. And we are—it's one of those documents that we are also looking at, we are studying closely. I think it just came out not—not so long ago. We have been quite concerned about underreporting of crimes in Darfur, which I did raise—raise last time that I reported to the U.N. Security Council six months ago. I raised it before the council, was supported by many members. And I think that it has caused the U.N. to conduct some form of examination of—of that, the underreporting. We have received an executive summary of that, which is also part of the information that we are analyzing.

But yes, I am concerned about that. And I think that it is the responsibility of our office, of my office, to also look into that as closely as we can. But at the moment, getting information on Darfur that we think will helpful—will be helpful to us is quite difficult and challenging, I must say.

We are continuing our investigations, our work in Darfur. We did not stop. Recently, we were expecting to receive Banda because, as you know, we did the—on the side of the government. But we also did the rebel case, the investigations into the rebel activities in Darfur. And Banda was supposed come forth. But, again, the issue of him coming and his security and all that is a—it has been a problem. And we do not know whether he will come. In fact, I think we do know that he's—he may not come. So yeah.

SCHEFFER: OK, we have a question right here.

QUESTION: Madam Prosecutor, my name is Stanley Arkin. I'm a lawyer for many of those years, and still a defense lawyer. So I ask you, how does ICC process, as desirable as it is in some broad social, humane perspective, the function in connection with the—the local sovereigns, or the site of where the crime took place or the defendant may reside or be? How does ICC process—interact with the sovereign powers and process of that particular locus?

BENSOUDA: Sir, can you repeat that?

SCHEFFER: Let—may I rephrase it?

BENSOUDA: Yes, yes. Yes, please.

SCHEFFER: He's—I think he's addressing the—the issue of complementarity that you deal with so often in terms of how you interact with the sovereign power, where the crime scene is, and also the rights that the—the sovereign judicial system has with respect to investigation and prosecution of cases.

BENSOUDA: Yes. The ICC, you may know, complements national system. It—it is not supposed to replace national jurisdiction or domestic jurisdiction. And to the extent that the domestic jurisdiction has taken up its responsibility—because within the framework of the Rome Statute, the responsibility to investigate and prosecute—the primary responsibility to investigate and prosecute always stays with the domestic jurisdiction. And it is only when the domestic jurisdiction is not investigating or prosecuting, or is not doing so generally, that the ICC prosecutor will—will—will step in to investigate and prosecute those crimes.

And across our cases, I think you—we can give several examples now of this positive complementarity taking place. Within the context of Guinea, for instance, Guinea is a state party to the—to the Rome Statute. And in the context of the crimes that took place in November of 2009, I announced, at the time, that we have jurisdiction over these crimes and that we are encouraging the domestic system, jurisdiction, to take up this responsibility to investigate and prosecute. And over time, we have been interacting with them. We've been encouraging with—encouraging them to investigate. I have visited, I think, three times. My office has taken maybe more than eight missions.

We work with the—the local authorities. We—they give us information as to what they are doing. And I write letters to them to say that, look, this is taking time. If you do not—if you do not proceed, I will be forced, as ICC prosecutor, under my responsibility to step in and investigate and prosecute. And just this morning, again I mentioned, the minister of justice of Guinea was on the panel. And he was explaining that "this is what we have done, this is what we are planning to do". And hopefully, by a certain date, we should be able to bring these persons we've interviewed, over 400 people, and we've charged so and so and so. And we will be able to, hopefully, bring it before the Chambre d'Accusation.

So they are doing something at the domestic level. And—and we are observing what they are doing. Within the context of Kenya, another example I like to do, this is a—a situation where my predecessor used his propio motu powers to—to step in, to—to intervene, to exercise our—I mean, to exercise—to investigate and prosecute. Kenya had failed, and it—Kenya had every opportunity to, for instance, start—open a tribunal or to investigate. Because the—the—the complementarity between the ICC and state, when we looked at what they are doing, we are not looking at the entire judicial system in Kenya. We are only looking at whether they are investigating and prosecuting these crimes that we have—we are looking at.

But, obviously, they were not—they did not set up a tribunal or—or—or a court to try these cases, even though they were encouraged. I think it had gone to their parliament and, on two—more than two occasions they refused to vote to—in favor of setting up a—a court or a tribunal to try the claims. So in this case, you would say that complementarity has not really—did not work. And that is why my predecessor moved in to start investigating at the ICC. Because that is it: you are part of the ICC, you are a state party to the ICC. Your responsibility of investigating and prosecuting is not taken away.

It's—it's—you still retain it. But if you don't do it, then the ICC will stop you. So within the context of that, during our preliminary examination phase we interact with the, as you call it, the sovereign authorities or those who have the responsibility to investigate. We send missions, we make changes, we receive information before a decision is taken for us to step in and exercise jurisdiction, or not. Because that is when you decide to go to the next phase from preliminary examination to investigations, or you don't—don't do it.

SCHEFFER: Celia, do we have one or two minutes? One minute? Then I'm going to take the privilege and ask the question, I'm sorry. Because you're—you're in the United States, and I—I—I do wonder, Madam Prosecutor, when you were here in New York, as you often are with your duties at the U.N., et cetera, you're surrounded by a very activist civil society. Very focused on the merits and the—the good work of the International Criminal Court, as well as being critical of it at times. But still, tremendously engaged. There's a—there's a deep well of interest and support in the American public for the International Criminal Court.

And the, of course, there's the situation in Washington. So I—I just want you to give our audience, particularly here in the United States, what is your vision of international criminal justice and the United States in the years ahead?


We could—we could—you know, this could be a Twitter or something, but.

BENSOUDA: I—I think, so far, the International Criminal Court is finding its rightful place in the—in international dynamics. It's—I believe it has now shown that it is an institution that can take up these very serious mandates of investigating and prosecuting international crimes, and to do it, and to do it effectively. This does not mean that I am not aware of the challenges that the court faces, including the challenges for resources. Because this—there is a lot of expectations, as we know, from—for the court in terms of from the victims, from the communities that are affected, even from the international community.

There are—there's a lot of expectations of what the court can do and where the court can—can go or not go. But what we have, what we see, over—over time is that this expectation, this huge expectation, that—that it's had on the court is not matched by the resources that the court has, and what—what—what will make it function effectively and become the credible institution that we all want it to—to be. So this is—this is a—this is a challenge that I think is—is—is there. I'm not sure whether it's going to go away soon. Because states also—I'm—I'm quite sensitive and—and aware of the economic situations in—in—in states, and—and the difficulty they're also having in probably providing the resources to—to the court.

Another challenge that the court is facing, and I think will also continue to face, is about cooperation; cooperation with the court. The court is not a court, as—as you know. And by that, I mean the court is a system. It's a system in the sense that the enforcement arm of the court is with states and partners. We will do our judicial work, but it is the states that should assist the court in executing the decisions of the judges, for instance—arrest and surrender. It is the—the states that will help the office of the prosecutor in our investigations and—and prosecutions. And by that I mean not the investigations proper, but the logistics and everything that we need to be able to—to go there and investigate.

Because I always emphasize that the investigations, we do it ourselves. The office does it, and—and—and no one. But we need assistance to be able to deploy to the field. But I—we have seen, over time, the first ten years or so of the court, we've seen the tremendous challenges that we face or can face in terms of cooperating with the court. So this is also another—another challenge that I see that the court is confronted with. Politicization is another challenge that the court feels. Every step that the court takes—whether it to open investigation or not to open it, whether to indict a particular individual or not—every step that we take is seen as it's taken because of political reasons, when that is not the case.

And this is likely because we are, of course, operating in a political environment. So everything that we do is conceived to be because of politics that we—that we do it. Which, as we know, is—is not the case. We—I proceed, as a prosecutor, with my team. We proceed based solely on the evidence and the law. And I think this is critically important that we continue on that trajectory and not deviate. To be able to investigate and prosecute without fear or favor, wherever our jurisdiction is met. This is critically important. And I believe that, in time, of course the aim that we have always had, the international community, by creating this international institution, is to ensure that national jurisdictions are also taking up this responsibility to investigate and prosecute.

This is why we say ICC is complementary, it doesn't replace. And the ideal situation is that all states are able to take up their responsibility and investigate and prosecute. But I know that this will take time for that to happen. But by the time it happens, I want to see this institution as a credible one, that the international community look towards it with hope; hope, and belief that what it was established to do, what it was set up to do. To bring accountability. And to ensure that justice—there is justice for the victims of these very heinous crimes. That it is met, that it is doing exactly that. And that it becomes the trusted institution that we had—we all hope that it—it will be.

SCHEFFER: Thank you very much, Madam Prosecutor.

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