Episode 41 – Fatou Bensouda bows out at the ICC

Fatou Bensouda, Anthony Deutsch and Stephanie (Photo by Piroschka van de Wouw)

The current prosecutor at the International Criminal Court Fatou Bensouda is leaving next month, after nine years in the job. And Stephanie finally got an interview with her!

She spoke about the big current issue of Israel and Palestine which the ICC is investigating. If you want to know what she said on that, check out the Reuters piece Stephanie wrote and our podcast exploring the reactions to the ICC move.

The interview was over an hour long and we’ve picked some of the best clips for you.

For background, here’s the policy on prosecuting Sexual and Gender-based Crimes she mentions and the one on Children.

Also useful could be the latest report on the situations the ICC has under preliminary examination.

And the list of cases referred to: Dominic Ongwen, Bosco Ntaganda, Jean-Pierre Bemba, Laurent Gbagbo, Kenya cases, Sudan cases. Listen to our podcast with Sarah Kasande from Uganda on reactions to the Ongwen judgment. And our podcast on Gbagbo asking to be released from ICC custody. And one on Myanmar with Priya Pillai and Melanie O’Brien at the ICJ for background on that case. And the one with Kevin Jon Heller talking about how the ICC could take on cases beyond its state members.


This podcast has been produced as part of a partnership with JusticeInfo.net, an independent website in French and English covering justice initiatives in countries dealing with serious violence. It is a media outlet of Fondation Hirondelle, based in Lausanne, Switzerland.

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Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

Fatou Bensouda [00:00:00] Even in the way we investigate, this was also a change in the strategic plan, if you look at it. For instance, witness-based testimony, I know we used to do that, but again, we said we still do that, but we will dwell more again into alternative forms of evidence that we can have. Why? Because if you look at the Kenya case, one of the lessons is that they interfere with witnesses and the cases then can collapse.

Stephanie [00:00:30] This episode of Asymmetrical Haircuts is supported by JusticeInfo.net

Justice plays an important role.
I consider this tribunal a false tribunal, and indictments false indictments.
Such abhorrent crimes must not go unpunished.
Proceedings will be long and complex.
All rise.
Janet [00:00:55] Hi, welcome to Asymmetrical Haircuts, I’m Janet Anderson,

Stephanie [00:00:59] and I’m Stephanie van den Berg. Thank you for tuning in to your International Justice podcast.

Janet [00:01:03] And today is a different kind of a show because Stephanie went and did something all by herself. How could you, Stephanie?

Stephanie [00:01:12] Well, I had a Reuters interview with Fatou Bensouda, and we had months and months of asking her and having agreements that fell through, and then finally she said yes. And so we also pestered her for an Asymmetrical Haircut’s interview, but she said she just couldn’t find the time to do it before she left office.

Janet [00:01:30] Well, I suppose you are forgiven, because that’s quite a big and important interview to have got. And what I do know of what you’ve got out of it so far is that there was some really timely quotes about Israel and Palestine. Of course, anything Fatou Bensouda has to say might be interesting to us generally, but if you want to know about the Israel Palestine stuff, like I did the last couple of days, then do check out what Stephanie has already written for Reuters in her piece, and we’ll put a link to that in the show notes.

Stephanie [00:02:02] Luckily, we managed to talk to her for over an hour and we got a lot more of Fatou Bensouda looking back really and talking about other things than just the breaking news stuff that we’re just really interested in and that you kind of have to ask if you’re a news agency.

Janet [00:02:15] Yeah, that’s the kind of stuff we really like, you know, the stuff for the nerds. So just paint some picture to start with, Stephanie, what was it like? How many were you, you know, was it just one on one?

Stephanie [00:02:29] No, it was me and my boss, Anthony Deutsch from Reuters, who you also hear in some of the clips asking very sharp questions, and our camera woman and photographer, Piroschka. And then Fatou Bensouda was there and two of her aides were also in the room to check that she didn’t say anything that she shouldn’t have, to kind of guide her. I thought she was kind of nervous in the beginning, she really wants to say the right thing and to not have her words twisted. And obviously, we went in, you know, we had to ask a lot about Israel Palestine, so she has to be really, really careful to pick her words, but I felt towards the end that she was loosening up.

Janet [00:03:10] So what should we actually expect to get out of this episode?

Stephanie [00:03:15] Well, we use the audio of the interview that we didn’t really use for our news reporting, so you have a bit of Bensouda basically saying goodbye to the ICC and explaining a bit of her highlights and also challenges that she had. And I have to warn you, there’s a bit of a squeaky chair that you’ll hear occasionally, because it had to be set up in a certain way for the cameras, and then of course my microphone had to be on the ground so as not to be on camera. So there is some sort of squeaky chair action, but I thought it was a really, really interesting what she said. So we’ll listen to it anyway.

Janet [00:03:50] I’m really excited to hear it. It’s been quite a struggle not to actually listen to all of the clips that you’ve already selected, but we’re going for the “You’re wrong about” style. I think if anybody knows that particular podcast they’ll know that one of the contributors, mainly Michael does all the research and picks all the clips, and then Sarah reacts to the clips, which she hasn’t actually come up against herself. So that’s what I’m planning, I’m playing Sarah from “You’re wrong about”, only I’m not going to swear as much as she does.

Stephanie [00:04:26] Yeah, and you’re probably not going to sound all ‘woke’ or hopefully it’s not going to be the interviewer where “I can’t believe she said that!”, which is seems to be the “You’re wrong about” style. So let’s just get this show on the road. I left out most of the comments on Israel Palestine situation, but obviously she stressed that her Office was monitoring current events. But we also asked her about the trouble with states not cooperating and if she feared a repeat of the Kenya case, which collapsed after the government refused to work with the court.

Janet [00:05:00] For those who are kind of so on top of Kenya and ICC, I mean, it’s dim and distant past probably for some people, there were several different cases which came out of the post-election violence that happened in Kenya. It was instigated by Fatou Bensouda’s predecessor, who decided that he would try and go ahead with cases from both sides in the violence, and as those people actually came into power, they really worked hard at making sure that these cases were very difficult for the Office of the Prosecutor to go ahead with, and you had all these witnesses dropping off again and again. So it’s really interesting to see how a state could manage to block, obfuscate, change how exactly something goes on at the ICC.

Fatou Bensouda [00:05:57] We’re meant to have cooperation in order to be able to do it effectively. That is how this court was set up. We do our investigations, we have cooperation with states and even non-state parties, to be able to advance our cases. But if that doesn’t happen, it doesn’t mean that the Office has to stop its work. You have to find ways. One advantage about the Kenya situation is that we’ve learnt lessons. We have learnt lessons about, unfortunately, the collapse of that case, mainly due to lack of cooperation and also witness interference. We’ve had that. You saw the case that I have to bring because of the witness interference we had with that situation. But as I said, we have learnt lessons. Maybe we’ve learnt a thing or two about doing things differently, and we also know the consequence, the risk of the case collapsing. We are also very much aware of that. And we will go into these situations with our eyes open, but also to be able to see what can be done or what we have learnt to apply to new situations also for the obvious challenges that we will face.

Janet [00:07:13] Well, if she hadn’t learnt lessons out of it, I’d be really shocked because they’ve had an investigation into how they worked, we’ve seen results out of it, there’s been, I mean, there’s still even a case going on the ICC right now concerning potential sort of witness interference. So I’m glad to hear, yeah, great, isn’t it? That the OTP is actually learnt some lessons out of it. But do you think, Stephanie, that they’ve… have we seen how they’ve applied those lessons learnt anywhere else, have they come up against this kind of problem again anywhere else yet?

Stephanie [00:07:54] Not yet, I think, but she also spoke a bit more precisely about how they’re managing investigations differently, also in how to get to top people, but also the kind of evidence they rely on. And here you hear also my Reuters colleague Anthony asking a question and you hear me talking, but I sound a bit distant because I was a bit further from the mic.

Fatou Bensouda [00:08:19] One of the things that I did with my team on assuming office and having the benefit of being the deputy prosecutor for the past eight years was to look into what are the good things that have happened and what are the things that need to be improved. And because of that, the first thing that we did was to look at the strategic plan and the way we do investigations. You will recall that previously we used to talk about focused investigations, very focused investigations, but when we when I took over, I said we needed to look at this again and have more in-depth investigation and focus. Of course, we will need to focus, but also gradually starting mid-level and rising up to the highest level. And this is what we have also been doing. We think that in that way, we will perhaps have less challenges in just starting right away from the top and then confronting the difficulties. So these are changes that we made, and we have been also applying even in the way we investigate. This was also a change in the strategic plan, if you look at it. For instance, witness-based testimony, I know we used to do that, but again, we said we still do that, but will dwell more again into alternative forms of evidence that we can have. Why? Because if you look at the Kenya case, one of the lessons is that you, you, they interfere with witnesses and the cases then can collapse. So let us see what ways in which we can look at alternative forms of evidence. We tried to develop a forensic section, for instance, created the forensic sections and developed it and worked also closely with people who are outside who are doing this thing. In fact, I have a forensic advisory board. I have an advisory board that spans the globe that my Office works with. Once a year we meet, but in between also referring to them for advice on various forms. If you look at the al-Mahdi case, for instance, the way we presented the evidence. So these are all developments that we made as we went along, just so that we could also sort of strategically change the way in which we investigate crimes.

Anthony [00:11:00] Because you can’t manipulate the piece of forensic evidence the way you can manipulate a witness.

Fatou Bensouda [00:11:04] There you go.

Stephanie [00:11:06] You see that as part of the future of international law because you have the al-Werfalli case, which is based partly on Facebook and YouTube videos, and I know there are talks or consultations with Bellingcat trying to figure out how to provide this kind of evidence to courts like the ICC.

Fatou Bensouda [00:11:24] I think it would, if it doesn’t change, it will contribute equally to the way we investigate. You talked about al-Werfalli, it was completely, almost totally based on what we were able to get from the Internet. And this is how we presented the case, this is how we were able to get the judges to issue arrest warrants against al-Werfalli. Again, I come back to the al Mahdi case, we were able to present the case, the actual location of where this was happening, 3-D, to the judges as if they were sitting and looking at the location themselves, and this has also helped in proving the case and for the judges to, in the end, find a guilty verdict on Al Mahdi. So I believe it’s going to just evolve and develop further and it’s going to form a very huge part of the way we investigate and present evidence before judges.

Janet [00:12:24] I think this is absolutely fascinating and great to hear that they’ve made so many strides. Just one small side note, I mean, al Mahdi did plead guilty himself, so I think it’s, you know, would have been a bit strange if the judges hadn’t actually found him guilty in the end. But what it also made me think about was even in some more of the kind of traditional ways of investigating, they’ve relied on strong physical evidence as well, like in the Ongwen case, where you had the intercepts from radio sort of communications between members of the Lord’s Resistance Army. So I can really see how they need to turn to documentary, forensic, social media, you know, all of the most solid forms of evidence that they can.

Stephanie [00:13:19] Absolutely, and obviously, I mean, Israel Palestine is an obvious case, where Israel is now saying that they won’t cooperate, but we, of course, also asked about that other situation where there’s been no cooperation from a government and there’s currently a lot going on with Myanmar and the Rohingya investigation, which has been done from Bangladesh, because Bangladesh is the state party. And so they have that investigation ongoing, and obviously there has been a coup in Myanmar and there’s a lot going on there. So we asked her if the coup and the violence that followed had hindered the progress in the Bangladesh Rohingya case.

Fatou Bensouda [00:13:58] So at the moment, this investigation is ongoing. Of course, we’ve had challenges and difficulties because of the pandemic was one of them, and we are hoping to be able to deploy back soon. We were already going to Bangladesh, we were already visiting Cox’s Bazaar, for instance, but we had to slow down, we had to stop because, as it has affected the whole world, we also had our fair share of problems because of the pandemic. And maybe our immediate concern was that the investigations that are already ongoing would be affected, but so far it is not. And we are not, I would be very clear, we are not directly engaging with any coup authorities in Myanmar. For the moment, we are not, because, as I said, we don’t have jurisdiction in Myanmar over what is happening there because it’s not a State party, unless we were to have a referral from the UN Security Council or maybe there’s a declaration from Myanmar itself accepting ICC jurisdiction. We have not seen that happen yet. So at the moment, we are really focussing on how to advance our investigations into the Myanmar Bangladesh situation, as has been authorised by the judges.

Janet [00:15:21] I think that was really fascinating, how clear she is about the limitations of this particular situation that has been agreed by the judges and the investigation that they can have. It is only into a specific crime that has happened on the other side of the border and not happened in Myanmar. And there’s been a huge kind of praise of the ICC’s Office of the Prosecutor that they managed to get this investigation agreed and that they’re able to look at it. But you can just hear from what she’s saying, the amount of difficulty that surrounds doing that, that they have to be very clear and very precise on exactly what they can look into. And I know that there are a number of people who are trying to push open that door, and we did a podcast with Kevin Jon Heller where we’re talking about pushing at the back door of the ICC to see if we could get more of these cases. And you know that there’s other cases like this, but in each one, just as she says, my God, you’ve got to be so precise what exactly you can do and what you can’t do.

Stephanie [00:16:32] What I thought was really interesting is that what she doesn’t really say here is that we know that there is maybe a movement of NGOs who are trying to kind of push the pre-coup government, who still believe that they’re the recognised government of Myanmar, to refer Myanmar to the ICC, which would mean they have jurisdiction over the coup. And she’s here very obviously saying they don’t have it. But I think the fact that she’s at all talking about it means that that possibility has been mentioned or has at least dawned on the OTP that there might be a chance that somebody will try kind of via [UN] General Assembly to get Myanmar to either be a state party or to get some kind of referral that is signed by the pre-coup government, which I think in the UN is still the recognised government. So there’s a lot of ways that the coup might still get to the ICC, and she’s not ruling them out, she’s just saying at the moment we can only look at this Bangladesh case very, very narrowly.

Janet [00:17:35] I think that’s an extraordinary idea. If you consider the other venue that we look at quite a lot, the International Court of Justice, where the pre-coup government in Myanmar has argued strongly against any suggestion that what they have done is anything more than tackle insurgency, and obviously rejected any claim of genocide which has been brought against them that, you know, feels to me at least, it would be a long… it’s a long road for that pre-coup government to go down to say “yes, look into this Rohingya situation” or “look into the coup” or “look into something”. So it’s a big one.

Stephanie [00:18:20] Yeah, I know. On the other hand, a referral can be quite specific, so you could have they could refer it just from, I don’t know, a month before the coup and that would cut out a lot of the Rohingya stuff, whether obviously that’s kind of a it could be maybe considered a bad faith move, but it’s actually something that they could do. So this is like another space to watch, there’s all kinds of things that could happen with this case.

Janet [00:18:43] Well, let’s move on to something that’s a bit more kind of absolute and clear and stuff that she has been doing.

Stephanie [00:18:48] I asked her about the Office of the Prosecutor’s recent success stories with convictions and long sentences for Bosco Ntaganda and Dominic Ongwen, both militia commanders, one in the Democratic Republic of Congo and the other in Uganda, who had long convictions, also very specifically for sexual and gender-based violence. And this is something she’s really proud of.

Fatou Bensouda [00:19:12] You see, it has been both my professional but also my personal conviction that attention, more attention needs to be focussed on sexual and gender-based crimes, especially at this level. And you will note that from the time I came in as prosecutor, this was something that I said I was going to lend more significance to. Of course, when you’re talking about crimes at this level, all crimes are important, but also the level of attention that is given to the individual crimes is important, and I thought that sexual and gender-based crimes, crimes against and affecting children, are crimes that really we need to elevate, and we need to give more focus to. And you will recall that I have policies, two policies, both on sexual and gender-based crimes, which I published just a year after I came into office, this was in 2014. And we also have the policy on children, which also is, I think, maybe two or three years after that. But this was, for me, important for the Office to be fully equipped to deal with these crimes in its investigations and during trial and even after trial, appeals and reparations. So I believe that it is only that way in which first we can bring our contribution to these horrendous crimes that keep happening all the time, but also it was something that I think that would send a strong message to not only the international, but also at the domestic level, that attention needs to be given to these crimes, that we need to do our utmost to ensure that we address them. So within my Office, apart from introducing these policies, I also made sure that those who deal with them directly, in fact the entire Office almost, are trained on investigating and handling this kind of kind of crimes. And I think this has paid off because we made sure that from that time, as long as we have evidence to charge for sexual and gender-based crimes, we will charge them. And that we have been able to gather the experience to know how to present that evidence before the judges and to make sure we have success in that. So you mentioned Bosco Ntaganda. Bosco Ntaganda was one of them, and, as you know, it resulted in his conviction and also in the fact that he’s one of those who’ve received very high sentences in ICC’s history. And recently, just last week, we have had Dominic Ongwen. And we’ve charged crimes such as sexual slavery, we’ve charged for rape even against men, and we’ve also charged other sexual crimes that are committed against, for instance, in Uganda, against girls, sexually enslaving those girls, and we’ve also ensured that we… in fact I probably want to highlight this because this was also a particularly important development in international criminal law, and that is the charges that we made even against Bosco Ntaganda. As you know, the state of international criminal law up to this point was that you charge the individual for committing the crimes against the opposite camp, but in the Bosco Ntaganda case, what we tried to do is to push the envelope, to say that, yes, there are crimes committed against the other camp, but there are also crimes that are committed within the camp that they are the boss. And who protects those girls? Who protects those women? And we’ve charged for that. And the charges were confirmed, but also Bosco Ntaganda has now been convicted of those crimes. So this, I believe, by pushing the envelope, by daring to go that extra step has contributed to a development in international criminal law. And I would say, again, that I believe it is critically important to continue to give attention to these crimes. It’s not easy to investigate, these crimes are underreported, these crimes create stigmatisation for those who suffer, the women and children. And it also, with respect to children, directly affects a generation, a whole generation can be destroyed because they are recruited, they are enlisted at ages below 15, when perhaps they grew up knowing nothing but to kill and to rape and to commit crimes that they are taught to commit within this conflict. So we must continue to make sure that we continue to investigate these crimes, we continue to learn the importance that that they deserve.

Stephanie [00:24:56] What I found very interesting after she said that is that at the end she is so impassioned about what happened to child soldiers and she said they grow up not knowing how to do anything else than to rape and to kill and to commit those crimes they were taught to commit. So I thought about criticism that she’s gotten from some corners saying that the Office of the Prosecutor went really kind of full force after Dominic Ongwen, even though he was a child soldier himself, he is a child soldier turned top LRA militia leader, and I asked her what she felt about that criticism and she came out quite strongly.

Fatou Bensouda [00:25:36] I think, first and foremost, I believe the criticism that is levelled against the Office, that we went down hard on Dominic Ongwen, I think is wrong and I think it’s unfair. And I’m saying this because we were very much aware of the circumstance of Dominic Ongwen and the fact that he was also abducted and made to be a child soldier and also to fight these wars. And if you will recall, even in my opening statement, this is something that we recognised and this is something that we said, we are not going to investigate Dominic Ongwen or to prosecute Dominic Ongwen for the crimes that he is alleged to have committed while he was still under the age, and that all the crimes that we are going to charge him with, which we did, was after he was no longer a child, under the statute at least, and for those crimes, that’s what we will prosecute for him for. And that’s what we did. And if you look at the evidence we laid, it was always when Dominic Ongwen was no longer a child, and we did that because we have also laid in evidence that there was a time when Dominic Ongwen had the opportunity to leave, and he didn’t. He had like others, there are several others whom we cited who left once they realised that what is happening is not good. But Dominic Ongwen was one of those who kind of glorified himself, in the end becoming a commander and committing one of the most or some of the most brutal crimes under the history of the LRA. You will listen to the judges, when you listen to the judges giving the evidence that was laid before them, they have, in fact, is one of the judgements that I believe was very, very considerate because of the position also that the prosecutor has taken, to say that we are not disregarding completely the fact that Dominic Ongwen himself was a victim, but also we are presenting that he had an opportunity to leave and not to commit these crimes or to stop committing them, but he did not. On the contrary, he just became more and more brutal and only left when he sensed that he himself was in some danger, that’s when he left eventually. But otherwise, he committed these crimes as an adult, not as a child, and that’s what we charged him with. And even if you look at when we requested for sentence, you will see that we took again into account the fact that he could have been considered a victim and we did not ask for the full sentence that is provided under the statute which the judges could impose. On the other hand, when the judges delivered their judgement, they went above what we also requested for by giving him twenty-five years. I think this completely discredits the criticism that the Office was disregarding everything and just fully attacking Dominic Ongwen without taking into account the fact that he was himself abducted.

Janet [00:29:22] I think she comes up with very good arguments there and it makes a lot of sense, but I don’t think that this debate is actually going away in the end. I think there’s still a lot of people, both in Uganda, in the north of Uganda, in places where Ongwen was, victims of his or those who were just affected by the Lord’s Resistance Army insurgency generally, who have very different, contradictory perspectives. So I don’t see it going away.

Stephanie [00:29:55] Well, I felt it was really interesting, she got really kind of impassioned about this suggestion that they were too hard on Ongwen, and you can really hear her. She’s been trying to be extremely diplomatic and very fair and, you know, without fear or favour, the way she likes to be, through the whole interview. And here she really felt wrong that people had suggested that and you could hear that she really felt vindicated by the judges giving him a longer sentence, which, you know, honestly surprised me that they went above the prosecutor, but that argument that she makes that he could have run away and he didn’t, and he actually carved out a very central role for himself apparently, you know, also resonated with the judges. I didn’t only ask about the successes, I also had to ask about some of the failures or difficulties in the case against Jean-Pierre Bemba and the case against Laurent Gbagbo. These trials are very high, politically responsible people that are generally so, so complicated for international courts to get to the kind of higher echelon of politically responsible people and to actually get convictions. So I kind of asked her why this is such a problem for the courts, why it is so complicated.

Fatou Bensouda [00:31:11] I’m glad you said complicated, it is indeed extremely challenging to prosecute at that level, I will accept that. And this is because you have, like in the case of Kenya, you have a sitting head of state who is backed by the full apparatus of the state and assisted in that regard. What does that do for us? It gives huge challenges with respect to our presenting that evidence that we have collected before the judges without having interference in that. We faced that in the Kenya cases. It also brings about huge challenges with respect to cooperation. And we have faith that indeed in the Kenya cases and in fact, these are the two main components that brought about, unfortunately, the Office not to be able to bring those cases to a successful close. However, as I said, we did take lessons away from that, and we’ve done a Kenya lessons learned exercise, for instance, in which we’ve taken away some issues in which the Office will also look carefully at what to do in the future or how differently to approach it, because the good thing with lessons learnt is that you see what you did well, and you will also see what you could have done better. So this is important for us. But yes, the challenges that you face with this, those who are still in power, you see in Sudan with President al-Bashir, you’ve seen the huge problems that the Office was confronted with, the ICC was confronted with, to the extent that in the end they were able to mobilise even institutions such as the African Union to not cooperate with the ICC for the arrest of Bashir, for instance. And you have individual countries within Africa agitating to withdraw from this statute. You remember that we went through all of that, and I believe it’s the resilience of the ICC that today we are enjoying a much better relationship with African states. Because I must also say something about that, African states have really been very, very supportive of the ICC. We’ve cooperated with African states at different levels, and contrary to what everybody’s saying that Africa is against the ICC, our experience is not that. If you recall the establishment of the ICC, it was an African state body that first ratified the Rome Statute in the whole world, Senegal, and then the first referrals that came to the ICC were from African states, and throughout this time, when we’re investigating, we engage with African states, we engage with African governments, and we have huge support from them. In fact, of course, there will be time there will be some difficulties sometimes and cooperation is not coming, but we noticed that that only happens when there is inability to do so. So that is something I really want to place on the record that contrary to what is being said about Africa and ICC, the contrary is what is true.

Stephanie [00:34:52] You can see she pivots very neatly away from saying things about Bemba and Gbagbo and what went wrong there, because some of the things that she’s mentioning in this case and the troubles with Kenya and Sudan are obviously not something that she faced in those cases.

Janet [00:35:09] I know! I mean, for me, I mean, I do get what she means, that state cooperation can be really complicated. Fine. But there is the critique of how her Office handled the Bemba case and the Gbagbo case is completely different and I don’t see the big investigation into the lessons learnt. Let’s hope that quite a lot have been learnt already and that those kinds of things won’t happen again, but that’s not the same as state cooperation.

Stephanie [00:35:39] Yeah, no, absolutely. And while this is very interesting, what she had to say, it wasn’t really an answer to what I asked.

Janet [00:35:46] So did you actually get to ask the question that I asked you to? You asked me to come up with a question.

Stephanie [00:35:51] Yes. You asked me about regrets and, to quote Frank Sinatra, regrets, she has a few.

Fatou Bensouda [00:35:57] What you see is that the demands on the Office continue to increase, to the extent that we all agree that there is a mismatch between resources and the demands. As a result, there definitely are things that we could have done maybe more expediently or sooner or even at all, which are there and unfortunately we have not been able to do that, not by choice, but because we have constraints, we have resource constraints, maybe security issues, the pandemic has just come to add to the several problems and challenges that we face. So those are some of the things that I really regret, and I just want to clarify that it has never been about turning the other way, it’s never been that. You know, we have made efforts, we’ve really gone as much as we can to ensure that whatever we’re supposed to do we try to do it, but it’s not always possible. So these ones I really do regret, either because it’s not done or because we’ve not made the progress that I wanted us to make, those are really things that I regret that hasn’t happened. And as I said, is not because of not wanting to do it or turning the other way, but because we just do not have the adequate resources to make the progress that we wanted to make.

Janet [00:37:44] Yeah, well, she hands over to Karim Khan, her successor, quite a number of unfunded investigations that she set up.

Stephanie [00:37:57] I think she is also very much a person who does really things out of conviction, and so she thinks it’s right to do all this and probably finds it hard to choose between the things that she does and the things that she has done. And that’s what I really felt in this regret, that she would have liked to have done so much more, but she just didn’t have the means. We ended up our interview also with a very news agency type of question of what she would tell her successor, Karim Khan, to look out for, especially in getting that oh so important state cooperation that she already talked about how hard it is when that is lacking.

Fatou Bensouda [00:38:34] I think first and foremost, the actions that you take are critically important. The actions that you take, the decisions that you make, the decisions must always be rooted in the Statute, your law, your rules, that’s what your primary and only consideration should be. If you start thinking about the political considerations or “maybe I should do this because of this”, this is a slippery slope. You cannot even think of doing that, much more do that as a prosecutor. These considerations cannot form part of what we do. It becomes very difficult because always, as you know, passions are high. When we are doing these cases, it is in circumstances that are highly politically charged, we know that, so passions are very high and every action that we take is always judged by … is because of this political reason or that political reason. That is how they judge the work that we do, but that is not the case and we have to stay away completely from that, from using any political consideration to come to a decision. So I think this is critically important, otherwise we will lose the credibility of this institution, and, as I said, it’s just a slippery slope, if you do it for this case, you may do it for another case and then what does this institution really stand for? It was created for accountability, it was created that nobody is above the law, no matter what your political or what position you hold in government or outside of government, it doesn’t matter. We are asked, this institution was set up to look at these crimes, very serious crimes which you all see shock the conscience of humanity. So we look at those crimes and we look at it objectively, we look at it impartially, it is not supposed to be based on politics, it is supposed to be based on the fact that the crimes have been committed and somebody is accountable for those crimes, no matter who you are.

Janet [00:40:58] I love the idea of this objectivity and impartiality, I think it must be terribly important to bear that in mind, but my goodness, the ICC operates in a political world and the idea that you can’t take politics into consideration on any level doesn’t really make sense to me, I can’t think it’s at all practical. I’m sure that you have to at least have knowledge of the politics around, because otherwise, how can you even do your investigation? So there’s something very odd about making that distinction, but I’m sure she meant it slightly differently.

Stephanie [00:41:38] Well, I mean, that’s also what struck me. You know, of course, the Office of the Prosecutor wants to be impartial, and they don’t want politics involved, but I think they realise on some level that politics are always involved, but they have to at least be seen as being non-political. But I had the impression that also she was quite shocked by some of the political pressures, last year the former U.S. administration under former President Trump imposed sanctions on her and it seems that they’re really affected her, that she really felt that they were deeply unfair and also mentioned that it kind of put her on the same level as the criminals she was supposed to bring to justice, and that was really, really wrong, and it shouldn’t have happened. It’s kind of my interpretation, but I had this sense that she really didn’t feel that States would go that far in their kind of political opposition to the court, because she has this really unshakeable belief in international justice and it’s the right thing to do, which, of course, is obviously the kind of attitude I think you must have to want to be the prosecutor of an institution like the ICC. But for me, that was also a sense of …you didn’t think there were going to play dirty political games? Yeah, that’s probably what they do. And she reflected a bit more in this final clip that we’re going to play on Karim Kahn and kind of drowning out the outside noise and the pressure and threats that that come with the job.

Fatou Bensouda [00:43:15] There’s a lot to be done, and knowing Mr. Kahn, he’s also a very dedicated and well accomplished person for the position, I think that he would, again, just hit the ground running and continue, I’m sure, with the same dedication that we have also given to this. Something that I have personally experienced, which you have mentioned quite a few times, is the pressure and the attacks and the politicisation of everything. I think this is something that he will also be very well prepared to take that on board because we’re here as prosecutors, we are, you know, momentary and transient. And what we do in this Office is critically important, history will judge us. And I believe that we must always make sure that this institution continues to be supported by states parties, so I would ask that he works very hard on engaging with the States Parties, that support is important and also non-state parties for this noble institution to continue to be able to do its work and deliver justice as it was it was meant to be. I do believe also as prosecutors or leaders in this institution we should not be affected by personal attacks, criticisms or even praise, we just have to do our work. Politics are there, they will attempt to politicise that. Just drown that out, rise above it and do what you’re supposed to do strictly in accordance with the dictates of the statute.

Janet [00:45:13] So did you manage to get to ask some of our standard Asymmetrical Haircuts questions? What is she reading?

Stephanie [00:45:19] No, unfortunately, because it was not an official Asymmetrical Haircuts interview I couldn’t check what she’s binge-watching, sadly. She did show that she was keeping up with pop culture, jokingly telling us “Bensouda out” and making that kind of mic drop gesture just before the picture was taken, that we’ll put up in the liner notes. That’s why I’m grinning like a like a lunatic in that picture, because I just imagined her doing that in the kind of handover ceremony to Karim Khan, where she is like, “thank you judges, Bensouda out”. And I was like, oh, you must do this. But we’ll see on the, I think it’s the 15th or the 16th, that there will have some kind of handover, and we will see if she does that. And if she does do that, we’ll certainly put it in our new intro that we’re working on.

Janet [00:46:08] I’d be very surprised, I’m sure it’ll be very stately, as these things tend to be at the ICC. But anyway, well done for managing to get hold of her, I’m sure it took a lot of effort to do it and for managing to complete the interview. And thanks to Reuters for letting us use some of your clips.

Stephanie [00:46:26] OK, well, we’ll come back to you later and have another episode, hopefully also with the new prosecutor or at least the expectations of what he will have to do. Thank you. Bye bye.

Janet [00:46:38] Thanks. Bye.


Disclaimer: This transcript was generated using online transcribing software, and checked and supplemented by the Asymmetrical Haircuts team. Because of this we cannot guarantee it is completely error free. Please check the corresponding audio for any errors before quoting.