In an interview with DW, Fatou Bensouda gives an update on her organization's ongoing casework and limited resources. The ICC’s chief prosecutor hopes to encourage non-members to rethink their relations with the court.
DW: You recently announced your first official investigation into Mali since taking over as chief prosecutor six months ago. What will be the focus of your Mali case and how does French intervention influence your investigation?
Fatou Bensouda: On the 16th of January I announced the opening of investigations into Mali. You will recall that Mali is now the fifth African state to refer a case to the ICC for investigations and prosecutions.
But as you know a referral from Mali covers the entire territory of Mali. The French intervention really has nothing to do with my announcing of the opening of investigations.
You mentioned the other African cases you are dealing with right now. In which of these are you making the most progress?
I would say we are making progress in all of them. In the Democratic Republic of the Congo (DRC) cases, they are already in court and the trial is proceeding. Also, the two Darfur cases, which are against those who attacked the Haskanita base in 2007, are progressing. But also the Laurent Gbagbo case is progressing. We have a date for a confirmation hearing. In the Kenya cases there is progress as well. A trial date has been set for both cases and we hope to start in April.
Switzerland, with broad international support, called on the UN Security Council recently to refer Syria to the ICC. Do you support that effort and do you think this would be a strong case?
I think the Swiss initiative before the UN Security Council, and the 57 states that have supported this initiative, is a vote of confidence for the ICC and its credibility. And this of course is very much welcomed. I appreciate it a lot that there is confidence that the ICC is able to handle a situation like Syria. But as you know Syria is not a state party to the Rome Statute [the treaty that established the court in 1998 and entered into force in 2002] and unless we have a referral from the UN Security Council we are not able to intervene in Syria.
If you look at Syria right now, an estimated 60,000 people have been killed. No end to the violence in sight. Do you think there is a good case for bringing Syria before the ICC if were referred?
I do not want to speculate. But from the indications we find, obviously civilians are being killed. There are a lot of civilians who have died. As you said the number is quite big. But if the situation were to be referred to the ICC, of course we would have to make a preliminary analysis to see whether the crimes that have been committed fall within the jurisdiction of the ICC and whether they are the subject matter jurisdiction of the ICC.
But do you see from your own analysis right now - without a formal investigation - that there seem to be grounds for an investigation?
I should probably be clear that the ICC is not doing any analysis of the situation. I am just speaking from the open sources, that we see that obviously there are killings.
Some experts question whether the ICC can properly carry out its duties due to a lack of funding. Your office's budget was slightly raised in the past and stands at $37 million (27 million euros) this year. But since then you have added many cases. Can you, as the ICC prosecutor, carry out your job in the manner that you need to?
Lately, with the opening of investigations into Mali, obviously there is a need to source the contingency fund to get additional resources to be able to investigate. But I have to say that the office is very stretched at the moment. We are overstretched in trying to take care of all the situations that are now before us.
A couple of years back we had a few cases. The resources, the people, the staff - there has been almost an explosion of cases. So if you just do the math you will see that really there is a need for the state parties to look into the resources that the ICC has to be able to deal with situations adequately and do quality investigations.
With major traditional and rising powers such as the US, Russia, China and India not members of the ICC, and with some even highly critical of it, isn't the ICC basically a ‘European and South American club' with limited global support and reach?
If you look at the history and the development of the ICC in the last 10 years, I think we have taken a number of strides. The track record that we have shows about eight situations and almost 30 persons who have been indicted by the court. We have concluded one trial and we have other trials that are ongoing before the ICC. We are involved in a number of preliminary examinations not only within Africa. I don't think that the ICC is limited.
In the US, unlike the Bush administration, the Obama administration has not been openly hostile toward the ICC. There even have been some hopes that, since Obama won't have to face another election, he could re-sign the Rome Statue of the ICC. What is your hope for President Obama's second term with regard to relations between the US and the ICC?
I don't want to speculate what is going to happen in the second term of President Obama. All I can say is that the US has been very cooperative with the ICC. We have very good working relations with the US. And also we work quite closely and we exchange information with the ambassador for war crimes, Stephen Rapp, for instance. Even in the last Assembly of States Parties, the US participated as a non-state party with observer status and even took the floor to indicate to the assembly and publicly the support that the US was willing to give to the ICC. So I think that is a quite positive development in the relationship between the ICC and the US.
Could ratification or an openly positive stance from the US, in your opinion, also be a catalyst for other countries that would then perhaps also rethink their relationship with the ICC?
I think it is quite encouraging really, and other states should also be encouraged to at least cooperate with the ICC and assist the ICC in our investigations and prosecutions. For instance, with respect to some of our indictees that have been wanted for a long time by the ICC, such as Joseph Kony in Uganda and (Sudan's) President al-Bashir, the US has been very helpful in having the reward program for the arrest of these persons and their surrender to the ICC. You will also recall that in our investigations in the Sudan the US had also been very vocal in saying that this is genocide. So there are quite a few things that the US is doing currently which are directly helping in our investigations and prosecutions. This is encouraging and I think other states who are not party to the ICC should be encouraged by it.
Fatou Bensouda, a Gambian lawyer, is the Chief Prosecutor of the International Criminal Court in The Hague. She took office in June 2012.
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