In this post from International Justice Monitor, Wairagala Wakabi interviews International Criminal Court (ICC) Prosecutor Fatou Bensouda on Jean-Pierra Bemba’s 18-year sentence for war crimes and crimes against humanity, challenges that arise when investigating and prosecuting alleged Rome Statute crimes, and efficiency measures taken by her office.
Earlier this month, International Criminal Court (ICC) Prosecutor Fatou Bensouda answered questions from International Justice Monitor. She spoke about the 18-year jail term handed to Jean-Pierre Bemba, how the Bemba and Thomas Lubanga convictions could act as deterrents, and the challenges that come with investigating and prosecuting numerous charges such as in the case of Bosco Ntaganda and Dominic Ongwen. The prosecutor also discusses what her office is doing to become more efficient.
Wairagala Wakabi (WW): In the view of the Office of the Prosecutor (OTP), what is the significance of the Bemba conviction?
Fatou Bensouda (FB): The verdict sends a strong message to all commanders around the world: you will be criminally responsible for atrocity crimes of subordinate troops if you fail to prevent them from committing such crimes – or if you fail to investigate and punish them when they do. We cannot underestimate the significance of the conviction of Mr. Jean-Pierre Bemba. This ruling makes clear to anyone in a command and control position that they will be held responsible should forces under their control commit atrocity crimes.
Mr. Bemba unleashed his MLC [Movement for the Liberation of Congo] troops onto the Central African Republic (CAR), where they carried out a brutal campaign of rape, murder and pillage against defenseless civilians. These are among the most serious under the Rome Statute and heinous crimes of concern to the international community.
Mr. Bemba had detailed and constant knowledge of the crimes committed by his forces throughout the CAR operation. Despite this, and the measures available to him to prevent and repress them, he failed to take any meaningful action. He only used his extensive authority in an attempt to protect and rehabilitate the image of the MLC.
This conviction is also significant in that it represents a concrete example of my Office’s commitment to fighting the scourge of sexual and gender-based crimes (SGBC) within the Rome Statute legal framework. Through our work, we will continue to do whatever we can to highlight the severity of these crimes, hold perpetrators accountable and hopefully to deter the commission of future crimes. My sincere hope is that Mr. Bemba’s conviction brings some comfort to the victims and survivors, for all those who endured or witnessed terrible suffering, including those subjected to sexual violence by his troops. I hope that it will contribute to preventing mass crimes in future, to spare others from the same fate.
WW: The OTP had asked for a minimum of 25 years prison sentence for Bemba. Are you satisfied with the sentence handed down or do you have intentions of appealing?
FB: Mr. Bemba’s troops inflicted terrible crimes. To this day, men, women and children who survived are still haunted by the horror of what happened to them, and what they saw happen to other victims. The ICC judges agreed that the gravity of the crimes committed by Mr. Bemba deserves a substantial prison sentence and accepted our submissions on the aggravating circumstances and the degree of his culpability.
Our recommendation to the judges was that Mr. Bemba should receive 25 years of imprisonment. We felt that 25 years was commensurate with the degree of his culpability and the gravity of the crimes with which he has been charged. He was ultimately sentenced to 18 years’ imprisonment. The maximum sentence permitted under the Rome Statute is 30 years, while exceptionally more can be granted. The sentence imposed on Mr. Bemba aimed to reflect the gravity of his conduct in failing to prevent and repress those crimes. This recognition itself is a very important development for the work of my office and the work of the court to fight against atrocity crimes.
We are pleased that we secured an important conviction carrying a significant sentence. We are all the more pleased that the victims of this case now have the opportunity to be heard on matters of reparation. My Office is studying the judges’ decision regarding sentencing and we will decide in due course whether to appeal.
WW: In sentencing submissions, the OTP said a long sentence for Bemba could deter other military commanders from committing similar crimes. Why is it important for commanders to be held for their own and their subordinates’ crimes?
FB: Soldiers have raped in wars through the ages, usually with no punishment. This is not acceptable. Would-be perpetrators and their commanders must be on notice that these are serious crimes with serious repercussions. It is my office’s policy, in our investigations, to focus on those who bear the greatest responsibility.
The Bemba case is important because of the very strong signal it sends to those in positions of command and control regarding the responsibilities they have over their subordinates. All commanders around the world should know and understand that they are criminally responsible for atrocity crimes committed by their subordinate troops, if they fail to prevent them from committing crimes, or investigate and punish them if they do so.
Because of their position as the highest ranking individuals with authority over their troops, commanders have the means, by taking alternative or remedial measures at their disposal, to prevent crimes and to punish those who commit crimes. When failure to discharge their duties results in large-scale crimes, with the soldiers under their authority feeling authorized to commit criminal acts, then commanders will be held accountable. As a commander you have responsibilities. You cannot escape liability for such serious crimes because you did not commit them directly.
WW: Looking back at another ICC trial that set a precedent, did the Thomas Lubanga conviction deter the recruitment and use of child soldiers?
FB: Deterrence it is a crucial function of all our trials as well as the other activities of my office. By its very nature, deterrence is impossible to quantify, but I believe the court’s first trial, against Lubanga, has had a significant and lasting impact. A single court ruling can have an effect around the world. This is what the Secretary-General of the UN has referred to as the “shadow of the Court”. Through their global impact, trials [such as at the ICC] contribute to prevent recurring violence.
The ICC’s first trial concerned the crimes against children. Lubanga used children under 15 to fight his wars, including young girls, using them not only as child soldiers but also as domestic and sexual slaves for the other fighters. Even before the verdict, the Lubanga trial helped trigger debates on child recruitment, in Colombia and Sri Lanka for example, and child soldiers were in fact released in Nepal. The then Special representative of the UN Secretary-General on children and armed conflict (Radhika Coomaraswamy at the time) immediately factored in this potential and used the example of Thomas Lubanga to campaign around the world, and secure even more releases.
From my own interactions with authorities from the DRC, I am also told that the Lubanga case has raised awareness about the issue of child soldiers in the country, has incited debate and has put would-be perpetrators on notice.
As with domestic criminal justice systems, one of the roles of the ICC is deterrence. But similar to the domestic systems, trials will not necessarily eliminate the commission of crimes, but will hopefully reduce them and deter future instances of criminality. Surely, the absence of accountability for such crimes will do little to advance the cause of deterrence and prevention.
WW: Why is the OTP going for so many charges in recent trials whereas in the earlier ones it tended to focus on a few charges?
FB: The charges we bring are always determined on a case-by-case basis, depending on the evidence we collect in the course of our investigations. The number of charges in a case depends on several parameters including the seriousness and nature of the crimes, the circumstances of their commission, and the number of incidents.
The “tendency for many charges in recent years” which you mentioned in your question is not accurate across all our cases. In 2005 in the Darfur situation, as just one example, Sudanese Government Minister Ahmad Harun was charged with 42 counts, and Janjaweed militia leader Ali Kushayb with 50 counts of war crimes and crimes against humanity.
That said, as part of our attempts to address sexual and gender based crimes, where possible we include charges on such crimes where there’s supporting evidence. We have done so for instance in the [Dominic] Ongwen case. In the same case, there are charges which relate to the crimes of which there is evidence at each of the four attack sites. That enables the defense and the judges to understand the prosecution’s case in detail, right from the start.
WW: What challenges come with investigating and prosecuting numerous charges such as we see in the case of Bosco Ntaganda and Ongwen?
FB: Each trial is unique and the challenges vary depending on the specifics of the cases. But overall, challenges the Office has to deal with relate to factors such as the cooperation of States, the issue of resources, the complexity of the case, the nature of the issues, the number of witnesses, the lapse of time between the commission of the offence and the eventual investigation, and the availability of documentary evidence.
The Office has to rely on States’ cooperation most of the time, as this is a key component of the Rome Statute, and when such cooperation is lacking or slow that impacts our activities. We have to carry out very complex investigations, prosecute very serious crimes, all of which involve challenges such as the protection of witnesses and victims, the prevention of witness interference and ensuring the integrity of the proceedings.
WW: In such cases where there are multiple counts, how does the OTP assist in having an expeditious trial when there is a lot of evidence to gather, analyze, and also disclose to the defense? The defense for Ntaganda and Ongwen has a few times claimed a huge amount of evidence is disclosed when the defense does not have sufficient time to analyze and investigate it.
FB: Ensuring expeditious trials is a requirement in many legal systems and in the Rome Statute, which encourages trials to be focused. The Office has the duty to investigate and collect both incriminating and exculpatory evidence. The prosecution cannot turn its back on relevant material. A balance has to be struck between doing things quickly and doing things thoroughly. [All] evidence is disclosed – with the relevant and detailed metadata, to save time – to the defense, subject to the relevant provisions and rules, and according to a calendar agreed between the defense and the prosecution or imposed by the judges.
The Office always strives to ensure that disclosure is made in a timely manner so that it is not prejudicial to the rights of the suspect or accused. For example, the prosecution analyzes and categorizes the evidence and discloses it on a regular basis, which can be monthly. In the end the judges will listen to the concerns of the defense and ensure that they have a reasonable amount of time to digest the evidence and prepare for trial.
Beyond timely disclosure of evidence, there are other ways the Office actively contributes to an expeditious trial. We discuss with the defense areas of evidence which we mutually agree on in advance of trial with the view of litigating only on areas that are in dispute. We also make sure to agree on the admission at trial of evidence that is uncontroversial or corroborative; we ask the defense to notify us sufficiently in advance of any defense it intends to rely on; and we also agree on ways we think the proceedings should be conducted regarding certain matters.
WW: The OTP a few years ago committed to have evidence “trial-ready” at confirmation stage. How has this turned out so far?
FB: A figure which captures the results of my Office’s Strategy so far is that 86 percent of charges that my Office brought forward under the 2012-2015 Strategic plan have been confirmed. More importantly, all eight suspects presented were confirmed. It is anticipated that the Office’s new strategy will similarly yield positive results with respect to the rate of convictions and successes in appeals over the next few years.
We have striven to [make the Office] more effective, efficient and to continuously produce positive results. In addition to new and innovative Strategic Plans to respond to challenges we face and help us do our work more effectively, there are other measures towards this end. These include a Code of Conduct for the Office, and a number of policies that give clarity and guide our work in accordance with the Rome Statute.
More needs to be done, but we are committed. By the end of my term, I would like greater worldwide support for the Office and the court. This is for us to earn through demonstrating the importance of the court’s mandate and the effective and efficient exercise of that mandate.
This article was originally published on the International Justice Monitor.