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ICC is not targeting Africa, it is responding to calls from Africa

Saturday March 21 2015
fatou

International Criminal Court Prosecutor Fatou Bensouda. PHOTO | FILE

The Prosecutor of the International Criminal Court Fatou Bensouda recently visited Uganda in connection with the arrest of a top LRA commander Dominic Ongwen. Here, she speaks to Julius Barigaba about the challenges of investigating and arresting indictees and the Court’s eroding credibility and the failed case of Kenya’s President Uhuru Kenyatta within the African Union.

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You are on record as saying that you have confidence in the Ugandan government’s support in prosecuting Dominic Ongwen, who is facing charges of war crimes and crimes against humanity committed in northern Uganda under the Lord’s Resistance Army rebel movement. What kind of support do you expect from Kampala?

First, I wish to clarify that my office is depending on the government to investigate the charges against Ongwen on our behalf. The ICC will be conducting its independent investigations. However, we shall require logistical assistance and relevant information from the government that will enable us to prosecute him. On the issue of witness protection, which is under the Registry, we expect that the latter will work closely with the government to make it possible. 

But African governments under the African Union have openly rejected the ICC because they feel that it is targeting them, and that it is acting on behalf of Western powers. So how is it that you are still confident of Kampala’s support?

As I said, one of the main reasons for my visit to Uganda is to make a follow-up on the surrender of Ongwen. I believe it is an opportunity for us to re-establish contacts, talk to the government and ask for its support. I have no reason to doubt that we shall get the support we need during our investigations. Top government officials have declared their support at public fora. In fact, I had a meeting with parliament’s legal committee that reassured me of their support.

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How about the claims that the ICC is acting on behalf of Western powers?

This is a question I have had to answer many times. It is an accusation without justification. We are investigating crimes committed in Africa. This is not a directive from anybody. The ICC is in Africa because African leaders and governments have requested it to come here.

Uganda was the first African state that requested the ICC to intervene; Uganda can do that because it is a state party to the Rome Statute. If crimes against humanity are committed within the territory of a state party and the country is unable to conduct investigations or is unwilling to do so, that country can turn to an institution it is a part of to intervene.

Other countries that have sought the ICC’s intervention are the Democratic Republic of Congo, Central African Republic (twice) and Mali, in 2012.

We are also not here to investigate every other crime happening on the African continent. We would, however, answer a call from an African state requesting the ICC’s intervention.

READ: ICC is not after Africans- most cases were referred to the court

Besides, we are also looking at other situations outside Africa. It is interesting how those who accuse the ICC of investigating only crimes committed in Africa fail to mention those countries. For example, we are conducting preliminary investigations into the situation in Afghanistan, the conduct of UK forces in Iraq, Georgia and Honduras, among other countries.

What is the scope of crimes you intend to prosecute Ongwen for?

We charged Ongwen with war crimes in 2005 — that’s when the arrest warrants were issued; but they had been pending for a long time. This is a case that we hibernated because there were no prospects for arrests, and we felt there was a need to prioritise other cases rather than focus on a situation in which we did not have the persons we wanted before the Court. 

The office is revisiting the file and constructing a team that looks into other crimes that have been committed after the arrest warrants were issued.

These crimes are not just in northern Uganda alone; in CAR and DRC, there are allegations that crimes were committed there. So, the office is also investigating this before it can move forward with the case.

READ: Dominic Ongwen trial: War crimes perpetrator, victim or both?

Is it a weakness of the ICC or your office that over the past 10 years, the LRA has continued abducting and killing, but you have not issued any more arrest warrants after the five that were issued in 2005?

Again, we have to look at the system. ICC is not responsible for arresting suspects. We do not have the means to do so; we do not have the power. The ICC is created as a system in which state parties have come together and ratified the statute and created this institution. But at the same time, they have an obligation to support the institution such as when the ICC issues arrest warrants, in which case they are supposed to execute them.

If this has not happened, it is not because of a weakness of my office. I believe it is a weakness of the system that has caused the ICC not to have wanted people appearing before it.

Coming to the issue of why we have not investigated, again, over the past 10 years, even though many people believe that the ICC has all the resources at its disposal, this is not the case. There are a lot of demands on the Court, and we need adequate resources to answer to those demands.

We cannot continue to follow a situation where the likelihood of action is remote when there are other serious and demanding situations waiting for us to take action.

We have to prioritise. That was the case with Sudan. I went to the Security Council and told them that in the absence of prospects for arrest, I would be hibernating the Sudanese case. Hibernating a case does not mean that it is over or that the arrest warrants will not be executed when the opportunity arises.

There have been calls for both sides in the northern Uganda conflict to be investigated for war crimes. Are you going to investigate the Ugandan army?

The calls for us to investigate the Uganda People’s Defence Force as well came up at the onset of this issue. At that time, my office, in accordance with its policy, said that it would conduct investigations in phases starting with those we considered to hold the greatest responsibility for the crimes committed. In this case, it was the LRA.

At the same time, the northern Uganda case had been hibernated for many years because there were no prospects of arrests. Instead, we decided to focus our resources on other cases that we felt had the potential to move forward.

Given the situation that has now presented itself, my office is looking at the totality of the evidence again, taking into account the resources that we have and our priorities before a decision is made. Therefore, I cannot say for sure that we will investigate the UPDF. A decision will be made based on the assessment.

Wouldn’t the fact that you are working with government interfere with investigations into the UPDF?

I have many considerations to take into account when I decide to move forward with a case; but they are all legal and have nothing to do with politics. My office works on the basis of evidence and the law. The only boss that can tell me what to do is the Rome Statute.

Do you have any regrets about the way the ICC prosecutors handled Kenyan President Uhuru Kenyatta’s case?

I would not say so. The Prosecutor can only control certain information or aspects of the case such as the collection of evidence and presenting it to the judges. That, we have done. Anything else is beyond our control.

In the Kenyatta case, you may recall that when we collected evidence and presented it to the ICC judges, they all confirmed the charges. What this meant was that the judges believed the evidence we had presented was sufficient to take the case into trial.

But overtime, the evidence got eroded for various reasons. I have been vocal about how the witnesses were pulling out of the case for various reasons; some came and said they had been lying. This was no fault of the Prosecutor. In the end, I had to withdraw the charges after the judges asked me to do so.

READ: Uncooperative govt killed Kenyatta case -Bensouda

As a responsible prosecutor, I need evidence. If that evidence gets eroded, it means that it is no longer available. It would have been irresponsible of me to insist that the case move forward.

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