Oireachtas Joint and Select Committees
Tuesday, 17 December 2013
Joint Oireachtas Committee on Foreign Affairs and Trade
Role and Functions: Discussion with International Criminal Court
What a privilege it is to have a woman who is so highly regarded and esteemed here this morning, Mrs. Fatou Bensouda, chief prosecutor of the International Criminal Court. We are delighted to have her here. I read a little about her this morning and see that she is listed by Time magazine as one of the 100 most influential people in the world.
I am just outside the top 100. I thank Mrs. Bensouda for coming. I know that she has a very busy and tight schedule during her brief visit to Ireland. It is her first visit here and, unfortunately, she will only be here for 24 hours. I hope she will come back again to see a little more of the country. It is welcome that she is here and visiting the Irish Parliament.
We are all aware that the International Criminal Court is the first permanent judicial body charged with dealing with the most serious crimes of concern in the international community. We are also aware of the important role the office of the prosecutor plays within the court. As head of that office, Mrs. Bensouda has a key and important role to play. I invite her to make her presentation and we will then put some questions to her. She is here at a very good time for us to discuss human rights issues. The committee has followed all of the court's proceedings.
Mrs. Fatou Bensouda:
I thank the Chairman and the committee for the invitation to speak to them. I am particularly happy to have the opportunity to exchange views with committee members as parliamentarians and representatives of the people. National authorities are the first line of defence against serious crimes. The system of international justice created by the Rome statute will be strengthened only if states are able to take the primary responsibility for investigating and prosecuting. As we all know, the International Criminal Court is a court of last resort and we rely a lot on the co-operation of states for it to be effective. Support for our work is crucially important. The work of this parliament provides critical political support for the court. It enacts the implementing legislation to codify the Rome statute on crimes at national level, which will foster co-operation. At the same time, it will stimulate universal ratification of the statute.
I take the opportunity to provide the committee with a brief overview of the activities of my office and also to emphasise the challenges my office and the entire court face. We have had a very busy year in 2013 which has been one of the busiest we have had so far. In all eight situations that we now handle - Uganda, Democratic Republic of Congo, the Central African Republic, Darfur, Sudan, Kenya, Libya, Côte d’Ivoire and Mali - activities are ongoing, whether at the investigations level or trial in court. The majority of cases we are handling were referred to the court by the states involved. We are mainly handling eight situations, five of which were referred to the court by the countries involved. We are also conducting preliminary examinations in eight other situations, six of which are outside Africa.
The main purpose during the initial stage of the legal process - preliminary examination - is to assess whether these situations warrant the initiation of an investigation. My office makes an assessment of the information we have available on the ground, mainly checking whether the ICC crimes have been committed there. It also checks whether the temporal jurisdiction is satisfied, whether they happened after 2002 when the International Criminal Court was established and particularly whether it would not be in the interests of justice if we were to start investigations. In doing so we also assess whether the national jurisdiction is actually investigating and prosecuting these crimes. If the national jurisdictions are investigating, the International Criminal Court must take a back seat and monitor whatever is ongoing. In some situations such as our preliminary analysis in Colombia or Guinea we are monitoring because some activities are ongoing and we want to give the countries involved a chance to do this by themselves.
During the course of the year we had confirmation of charges against the former President of Côte d’Ivoire, Laurent Gbagbo. This took place from 19 to 28 February. The outcome of the confirmation proceedings was that a majority of the judges decided that we should bring additional evidence to have the charges confirmed. I do not agree with this and have appealed the decision, but at the same time we are looking for additional evidence. It is a two-prong approach - appeal the decision and at the same time look for additional evidence, if we need to submit it to the chamber.
We had a surprise surrender when Bosco Ntganda surrendered himself to the court in March this year. He walked through the gates of the American embassy in Kigali in Rwanda and wanted to be surrendered to the International Criminal Court. Initially we were a little worried because neither Rwanda nor the United States were a party to the Rome statute. They are not part of the International Criminal Court. It was a request to surrender to two states that were not part of the court, but, fortunately, it went very well. We received good co-operation from the United States and in a couple of days were able to have Bosco Ntganda transferred from Kigali to the International Criminal Court. The confirmation of charges will take place early next year. I will talk briefly about the issue of resources. These are some of the challenges the court faces. We had had the file since 2006 or so and Bosco Ntganda had been charged with these crimes, but he was out of reach. We could not arrest him. He was at large for the past seven years or so and all of a sudden came to us, but because there were not enough staff, we were not actively continuing with the case. We had put it on the back burner and concentrated on the other priority cases. When he walked through the gates of the International Criminal Court, we had to pick up the file again, dust it off and recontact the witnesses, some of whom had, unfortunately, died. Some had simply disappeared and we had to do a lot of preparatory work for the case to be ready to proceed to confirmation. In that regard, we had to ask for time from the judges, which they have given us. In February next year we should be proceeding to the confirmation of charges against Bosco Ntganda.
Within the context of the situation in Libya, we had two important decisions by the judges of the International Criminal Court. These were in the case of Saif al-Islam al-Gaddafi and Abdallah al-Senussi. The committee will recall that when the case was referred to the International Criminal Court by the United Nations Security Council, we investigated it very quickly. We had to use the momentum because even the vote at the United Nations to refer the case to the International Criminal Court was unanimous - state parties and non-state parties and African states voted to have the case taken by the International Criminal Court. We charged three people - the former President, Muammar al-Gaddafi; his son, Saif al-Islam al-Gaddafi, and the intelligence chief, Abdallah al Senussi.
Of course, we lost Gadaffi, and the young Gadaffi and al-Senussi have both challenged the admissibility of their cases before the ICC. The judges of the ICC have decided that Libya is doing enough to address the crimes of Abdullah al-Senussi. The Libyans have presented enough documentation showing that they are actively investigating this case. As a result, the case is inadmissible before the ICC. With regard to Saif al-Islam Gadaffi, the judges have decided that the Libyans have not provided sufficient proof to show that they are actively investigating. They have, therefore, stated that the case is admissible and that Libya should transfer the young Gadaffi to the ICC. They Libyans have appealed the decision and we are waiting to see what will happen.
The trial of Kenyan Deputy President, William Ruto, began in September. He is being tried alongside Joshua arap Sang. The crimes involved relate to the post-election violence in Kenya in the period 2007 to 2008. Members will recall that when the charges against Mr. Ruto were confirmed, neither he nor President Uhuru Kenyatta were in office. However, they have since become President and Deputy President of Kenya. The trial of Mr. Kenyatta is due to begin in February of next year. I am sure the committee will be familiar with the debates which have been triggered by this case, both within the African Union and elsewhere. Kenya took the initiative of asking the UN Security Council to defer the case and launched a recent challenge for amendment of part of the rules of the ICC at the Assembly of States Parties.
These are some of the challenges we faced in the context of the situation relating to Kenya. We also face major challenges and deficits in the context of co-operation. We have being trying to the greatest extent possible to emphasise to Kenya that the co-operation we require is not just mere co-operation. It must tangible and serious and must involve their supplying to us what we have requested. This has not been happening and it has created serious obstacles to our work. Another challenge we face in the context of Kenya relates to interference with and tampering in respect of witnesses. Witness protection is a major issue for us in this instance. This has never happened before and the level of witness tampering is unprecedented. In the cases relating to Kenya, there has been a high level of attrition. Many witnesses are afraid to come forward and others have somehow been convinced to withdraw from the case. There has been a great deal of pressure exerted on them.
There have also been challenges at the appeals level. Thomas Lubanga was sentenced to 14 years imprisonment. I appealed that decision because I am not happy with the sentence of 14 years that was handed down. Mathieu Ngudjolo Chui was acquitted by the chamber and we are also appealing that judgment. Even in the context of appeals, the office is very busy.
The Assembly of States Parties met less than three weeks ago. Again, important decisions were taken by the assembly. As members will be aware, the Assembly of States Parties is the governing body of the ICC. When it met two weeks ago, one of the positive outcomes was that it endorsed the budget of the court. It did not give us everything we requested but it at least gave us something with which we can work for this year. I thank the Irish Government for its positive engagement during the course of the negotiations on the budget. The African Union requested a special session of the Assembly of States Parties to discuss the indictment of sitting Heads of State and the impact this will have on stability, security and reconciliation. This forum provided stakeholders with the opportunity to engage in open and frank debate, mainly in respect of the current cases relating to Kenya and the fact that the President and Deputy President of that country are before the ICC.
The assembly also adopted some procedural amendments when it met. These relate to allowing the judges to consider alternative options in respect of presence on the part of an accused person, where appropriate and also in exceptional circumstances. The use of prerecorded testimony will also be allowed under restricted conditions. Rule 134 adopted by the assembly deals with the excusal of persons with extraordinary responsibilities at state level from being present at trial. We will see what the judges will decide. They will be obliged to apply that case by case.
One of the main reasons I am present in Ireland is to discuss witness protection and relocation with the authorities here. This matter is extremely important for the office, which has intensified its efforts to enter into agreements with different states on the African continent and elsewhere to discover how we might make requests for witnesses to be relocated from the countries in which they live. As stated, the issue of interference with witnesses has become a major challenge for us and we should do everything we can and as soon as possible to ensure witnesses will be either relocated or protected in some other way. Relocation is an extreme option because it involves interfering with someone's life and removing them from that which they know to a different place. Sometimes one does not even know when they will be able to return home. The court is engaging in a holistic and comprehensive examination of how it might proceed in this regard. We have invited the input of experts, where possible, and we are also working with national governments to discover how they might assist us in relocating witnesses.
We are not just sitting quietly by and allowing people to continue to interfere and tamper with witnesses. I will do everything in my power to ensure we preserve the integrity of the cases we are pursuing. In that context, we were able to trace a Kenyan national who was part of the scheme to interfere with witnesses and obtain sufficient evidence to go before the judges to ask them to issue a warrant of arrest against Walter Barasa. This warrant has not yet been executed in Kenya but I believe the authorities there will execute it soon. In the case of Jean-Pierre Bemba, we had the same problem. Two or three weeks ago we were able to move against four people who have been arrested and brought before the judges in respect of interference with witnesses. Those individuals will stand trial for obstructing justice under Article 70.
The issues to which I have referred are those which I wanted to highlight. I must re-emphasise the need for co-operation. The ICC will definitely continue to require the support of member states in order that it might continue to carry out its work in an effective and efficient manner. For this reason, I request the support of this committee and the Government of Ireland.
I thank Mrs. Bensouda for coming before the committee. Ireland is a strong supporter of the ICC. Mrs. Bensouda's contribution was dominated by the issue of interference and tampering with witnesses and also the importance of relocation and co-operation. Are there countries which do not co-operate and is this a real issue for the ICC?
Mrs. Fatou Bensouda:
Most of our cases relate to the African continent. There has been a great deal of pushing back at African Union level in the context of co-operation with the ICC.
However, our experience on the ground is that in those individual African states with which we deal and to which we make direct specific requests, we do not have problems with that and get them to co-operate. In fact, 80% of the requests we make go to those countries and almost 100% come back positively. There are of course countries that do not wish to co-operate with the ICC, and typical of this is the case of Omar al-Bashir and Sudan. This case was a referral from the United Nations Security Council, and from the very beginning Sudan indicated it was not going to co-operate with the ICC. It does not feel it has an obligation to so do and consequently does not. The interesting thing about our investigations in Darfur was that we were obliged to investigate the case without going there. While it was very difficult and challenging, we were able to do that as there were many displaced persons who were out of Sudan - even in countries outside Africa - whom we were able to contact. We also were able to go to internally displaced person, IDP, camps, where we were able to get crime base witnesses. However, there are countries such as Sudan that do not wish to co-operate with the ICC.
Mrs. Fatou Bensouda:
Yes. Well, in respect of Sudan, it argues first that it is not part of the ICC and consequently will not co-operate. We argue, of course, that that does not matter because it is under the United Nations Charter. Sudan is a member of the United Nations and this referral came from the United Nations to the ICC. As I explained yesterday, it could have created another court to address the crimes, but under the ICC statute the UN can refer situations to the ICC and this is what it has chosen to do. Consequently, Sudan has the obligation under the United Nations Charter to co-operate with the ICC. However, it is not doing so and, as members are aware, the warrant against President al-Bashir still is outstanding and has not yet been executed.
I thank Mrs. Bensouda. Members should note that we have 45 minutes because the chief prosecutor is on a tight schedule. Consequently, perhaps I will confine members to questions and we will get through them as quickly as possible.
I apologise for being late, as I was delayed due to weather conditions on the roads in my part of the country. I welcome Mrs. Bensouda's contribution. Obviously the work of the court is of extreme importance. I understand there are 122 states parties following the Rome Statute. Has that number being increasing incrementally over the years or has it been fairly static? Are new member states joining? On referral, a state can refer a case to the International Criminal Court, and Mrs. Bensouda also mentioned the United Nations in this context. Do other international organisations have the capacity to refer a case to the ICC? Some time ago, people were advocating that the Assad regime should be brought before the ICC. Have there been moves in that regard? It is highly topical at present due to the deteriorating and frightening humanitarian position in Syria, as well as in the adjoining regions, due to the influx of refugees to those small countries that are doing their very best in difficult circumstances to try to ease the humanitarian situation. However, I welcome Mrs. Bensouda's contribution and the importance of the work. In conclusion, who polices the enforcement of judgments? Is it the member state in which the person resides? What method is available to police the enforcement of such judgments?
Mrs. Fatou Bensouda:
I thank the Deputy. At present there are 122 states parties. However, as the Deputy indicated, over the past three or four years there have been a lot of ratifications, bringing it to the current number of 122. Unless I am mistaken, the last country to ratify was Côte d'Ivoire. It at least was one of the last ones and I note this was even after all the controversies about the ICC targeting Africa and only taking cases in Africa. Côte d'Ivoire ratified either earlier this year or last year. Moreover, the Philippines also has ratified the statute, as has Tunisia. In the past three years, we have seen a good number of countries ratifying the Rome Statute. Moreover, I believe there are some others in the pipeline which still are thinking about and discussing joining the ICC. However, other member states can play a role in this regard by encouraging those who are not yet part of the ICC to so do. Sometimes, it is not deliberate policy on the table of not ratifying but is just that attention is not drawn to the court and no one actually is following up the ratification. It also will be important for member states to remember that they should encourage those which are not yet members to join the ICC. I hope we can soon boast of universality in respect of the Rome Statute.
As for state referral, members are aware that the ICC can have jurisdiction mainly in three ways. The first is when a state that is a party to the Rome Statute refers a situation to the ICC. Thus far, we already have seen this in five situations, not counting the recent request from Comoros for the ICC's intervention in the flotilla incident. In addition, the ICC can have jurisdiction when the United Nations Security Council, acting under Chapter 7, refers a situation to it. A third way is when a state, non-party to the ICC, makes a declaration and accepts ICC jurisdiction - Côte d'Ivoire, for instance, did that - as well as when the prosecutor uses proprio motu powers to start an investigation in a state party where such crimes have taken place and the state is not doing anything to address it. In respect of communication, we can receive communications from everywhere, including NGOs and private persons, drawing attention to crimes being committed where we have jurisdiction. We also get communications from where we do not have jurisdiction but we must assess and then reply stating that we do not have jurisdiction.
This perhaps brings me to the Deputy's question on Syria. We receive a lot of communications about Syria, as well as questions about the reason the ICC is not involved there. However, Syria is not a state party to the Rome Statute, which means that I, as the prosecutor, cannot use proprio motu powers to go to Syria. The only ways in which we could be involved in Syria would be were we to have a referral from the United Nations Security Council, as in the case of Libya and of Sudan - and this has not happened - or in the unlikely event that Syria was to make a declaration to accept ICC jurisdiction. I do not know whether that will happen under the circumstances but these are the two ways in which the ICC would have had jurisdiction. I am aware that states parties to the ICC have been trying a lot to encourage the United Nations Security Council to refer the case to the ICC. Earlier this year or perhaps late last year, there was an initiative on the part of the Swiss in which 64 countries signed a memorandum urging the United Nations Security Council to refer the serious situation to the ICC. However, as the Deputy noted, this has not happened yet.
In respect of enforcement, we enter into agreements with different states parties to the Rome Statute to receive persons who have been convicted by the ICC. At present, we use the Dutch detention facilities in Scheveningen for those who are in detention in the ICC. However, once there is a conviction and the final appeal is done, we have agreements with one or two countries that are willing to receive such persons when they are convicted.
I welcome Mrs. Bensouda to the meeting. I had intended to ask her about the view in many African states to the effect that the court is biased against that continent and about what the court was doing to try to reassure African states.
I note that the international criminal court is looking at situations in other countries, such as Afghanistan, Georgia, Colombia. How does the court select the cases and what resources are at its disposal?
There would be criticism from NGOs and others that the court is not doing enough in that regard. I suppose that is always the case. They criticise the length of time to take a case. Is that down to the lack of resources? Critics state that many of the tyrants committing crimes against humanity would see the court as a paper tiger that is not really effective against them. What can we do to change that?
Mrs. Fatou Bensouda made reference to where the court has jurisdiction. In what parts of the world would the court not have jurisdiction? For instance, there were visitors before the committee speaking of the situation in China with reference to the use of harvesting of the organs of individuals, etc. Would that be seen as of interest to the court? Would the court have to wait for a Government or someone to complain in that regard? Does a matter being too political to take a case present a difficulty? What pressure does Mrs. Fatou Bensouda come under or is the pressure applied before the matter comes to the prosecutor's office?
On the situation in Gaza, recently there was Operation Cast Lead about which there are allegations of targeting civilians and the use of white phosphorous and cluster munitions. It is not down on the list in that regard, but critics would ask what that is down to.
There is compelling evidence that the Sri Lankan Government committed war crimes in areas with a Tamal majority. There is evidence that civilians were told to go into a particular area and given the coordinates, and then those areas were deliberately bombed. Does the ICC have any plans to open up cases against the Sri Lankan Government in relation to these suspected war crimes?
I am sorry there are so many questions. I have questions on other areas as well but I accept there are only 45 minutes. I thank Mrs. Fatou Bensouda.
Mrs. Fatou Bensouda:
There are quite a few questions. I will repeat upfront how the ICC can or cannot intervene, and probably that will take most of these questions away. We cannot intervene in a state that is not a party to the ICC. That is why we cannot look at Sri Lanka, Syria and China, all of which were mentioned by Deputy Crowe, unless there were to be a referral by the UN Security Council for these cases to take place. I want to be clear about the UN Security Council referral. Even where we have a referral from the UN Security Council, it is not automatic that we take the case because always we have to assess whether this is really a case that should be tried by the ICC. Our subject matter jurisdiction is clear. War crimes, crimes against humanity, genocide and, probably later, crime of aggression are the crimes that we look at.
When we do our assessment in the court in terms of selection of cases, we make an assessment as to gravity of the crimes that have been committed and also whether the ICC's invention will be against the interests of justice. When I talk about "gravity", I am talking not only about the numbers, but about the nature, scope and scale of the crime and the impact that the crime will have on the region. All of this assessment is done during the preliminary analysis phase to warrant the ICC's intervention. That is why sometimes it is difficult to understand why the ICC is investigating a matter in one place and, for example, not investigating body parts being traded in China. It has to fall within how we select and how we can investigate.
With respect to the selection of cases, I will mention, for example, Democratic Republic of Congo, DRC, to illustrate it better. When the Democratic Republic of Congo requested the ICC's intervention, it was a time when there was much trouble going on in various parts of the Democratic Republic of Congo. As the committee will be aware, for the ICC it would be difficult to start investigating everywhere. We decided to look at where were the gravest crimes being committed in the Democratic Republic of Congo. At that time, the Ituri region of the DRC was the place where by far the most crimes were being committed and we decided to phase our investigations, and started with Ituri. That is why we ended up with Lubanga. At that time, it was Lubanga, and Germain Katanga and Mathieu Ngudjolo Chui on the other side, who were involved in the conflict.
Contrary to what my office is being accused of, we investigated Lubanga on the one side but we also investigated Katanga and Ngudjolo on the other. These were the warring factions at the time and they were both transferred, once we were done with our investigations and charged them, by the DRC Government to the court. Their trials have taken place. Lubanga has been convicted, Mathieu Ngudjolo has been acquitted and Katanga's judgment is due next year. This is merely to show how we go about selecting the cases. We go for the gravest crimes where they are taking place and then we try to phase our investigations. At present, we are concentrating more in Kivu than in Ituri, where we have seen that the scale of crimes has reduced. It is more serious in another part of DRC and that is where we are focusing.
Also, with respect to the Lord's Resistance Army, for instance, we were criticised for concentrating on the Lord's Resistance Army, not on the Uganda People's Defence Force, UPDF, which is the army of the government. When we made the assessment, however, the crimes that the Lord's Resistance Army was committing were far greater and more serious than those the UPDF also was alleged to have committed, and we started with the Lord's Resistance Army and brought charges against the top commanders of that army. That is mainly how we tried to select the cases.
Deputy Crowe referred to whether it is too political to take a case. That should not be a criteria. In fact, that is not a criteria to take cases by my office. It is clear what is my mandate. It is clear what the statute tells me to do - how to go about the cases, what are the cases and what are the considerations for taking the cases - and it does not involve political considerations. If the office were to start having those considerations - to bring or not to bring a case - the credibility of the institution would be gone. Of course, we are not insensitive that we are working in a political environment, and, unfortunately, whatever we do will be perceived as political, but we should stay on the ball that this is a judicial institution that was set up to try crimes. It is clear what should make me take or not take a case. It does not involve political considerations.
That last issue Deputy Crowe raised was Gaza. I would remind him that in 2009 the Palestinian Authority made a declaration accepting the ICC jurisdiction. This was before the UN General Assembly vote of last year. If one looks at the ICC statute, it refers to a state making a declaration accepting the ICC's jurisdiction.
At the time we decided that, because we assessed that the declaration last year did not fulfil all the legal requirements of the statute, we could not therefore take the case forward. If the status of Palestine changes, we will then be able to examine it.
Last year, there was a vote by the UN General Assembly recognising Palestine as a state. However, we still feel that this recognition does not change the earlier declaration that was made because it is coming after the fact. We cannot just pick up the declaration now and run with it because we do not feel that the legal deficiencies of that declaration have been changed by the vote that was taken.
I welcome Mrs. Bensouda and thank her for giving us her time this morning. I have just one area to question. At the G8 meeting earlier this year, the leaders confirmed that sexual crimes against women and girls were crimes against humanity. They affirmed their determination to pursue such crimes. More recently in London, a lot of other countries signed up and gave similar commitments, as did many international agencies.
In the past, the tendency has been to ignore such crimes. It is easy to ignore such crimes post-conflict, perhaps because the greater good of peace and reconciliation is seen as being more important. The result is that people feel immune from prosecution and have been in the past. I know it is impossible to pursue all the individual cases. However, the leaders not just permitted but encouraged it as a weapon of war and also as a way of maintaining the loyalty of their troops. I wonder if such cases end up on Mrs. Bensouda's desk and, if so, what are the difficulties in pursuing them?
Mrs. Fatou Bensouda:
When I took office last June, one of the first priority areas I identified was sexual and gender-based crimes, especially in times of conflict. Right now, I am formulating a policy on gender for the office, which is very advanced. I hope to be able to send it out soon for external partners to make comments on the policy. Throughout this year my people have been working on it. I have appointed a special gender advisor who is also working hard together with my team for the policy to come out. Deputy Mitchell is right - this is something that we deal with all the time. In fact, in all our situations we have brought charges for sexual and gender-based crimes because they happen all the time.
Taking the example of the Central African Republic, for instance, this is one of the cases where we are alleging that incidents of rape and sexual violence far outnumber incidents of killings. We have brought charges for that.
In the context of Sudan, we have also brought charges of sexual and gender-based violence. As the committee members know, in Sudan the choice that women have is a very bad one. It is either to go out to get what is required for their daily existence and be raped, or their husbands go out and are killed. So women are actually volunteering to go and be raped. This is a terrible choice to have to make.
In the context of the Libyan situation, we have reports of rape and sexual and gender-based crimes. The difficulty we are confronted with there, and also in the Sudan, is that not only does one have to deal with the cultural aspects but also the religious aspects of it. Unfortunately, most of the situations are under-reported but even the unofficial numbers are shocking. It takes place, so I thought that my office should make it a priority which is what I am doing. In fact, we are also working on this British initiative. Members of my office are part of the committee that is examining how we can work closely together. It is important and will not go away, unless those who are committing it know that they will be punished for it.
I will jump in at the deep end. Would it not be better for the International Criminal Court to be an integral part of the United Nations? It seems to me that it is a question of countries being referred to the court. For example, the UN Security Council refers cases for investigation to the ICC, or participants or signatories to the ICC allow it to investigate.
If I understand the situation correctly, the United States of America and China - the first and second largest economies in the world - are not signed up to the ICC. That therefore begs the question of who is funding the court. Can Mrs. Bensouda explain how the following aspects operate?
I thank Mrs. Bensouda for her time. It has been most interesting from my point of view to hear the depth and breadth of her work. I was particularly interested in her response to Deputy Mitchell concerning gender-based crimes against women. It has been most interesting and I thank Mrs. Bensouda very much. I wish her well.
I also wish to join in welcoming Mrs. Bensouda. We are honoured to have such a distinguished visitor in our midst. I am sorry that I will have to leave for the Seanad vote. I presume until such time as Mrs. Bensouda can get all states throughout the world to become members of the ICC, she will not be really effective. Deputy Smith alluded to the situation in Syria. Until such time as the UN Security Council refers the Syrian situation to the ICC, Mrs. Bensouda obviously cannot do anything about it.
Mrs. Fatou Bensouda:
Taking the decision to join any treaty is a sovereign decision that a state takes. From what I can see, I think that states have voluntarily decided to join. The ICC statute is a treaty and states have voluntarily decided to be part of the court. Some 34 of the 54 African states are part of the ICC. I always tell my African colleagues that this is a treaty they did not inherit. They all signed willingly and voluntarily to be part of the ICC, which is why it raises obligations for them to co-operate with the ICC.
I will pick up the threads and see where we are going. The Chairman and other members of this committee visited Sierra Leone and saw the special court for that country. We are talking about the Lord's Resistance Army and the effects of the war there, including amputations. Can Mrs. Bensouda explain the ICC's relationship with the special court for Sierra Leone? The more commonly known one in The Hague is the special court for the Balkans.
Yes. Can Mrs. Bensouda explain how all these institutions knit together?
Eight countries are currently being investigated and they are all African countries. I think Mrs. Bensouda said that the Organisation of African Unity was slipping backwards in support of the ICC, and only 34 of Africa's 54 countries have signed up to the court. The ICC will face a phenomenal task in dealing with the Kenyan situation.
It is not unusual during a regime change for those who have ousted an administration to become the tyrants themselves.
Ireland has a good, tight and solid working relationship with Kenya. We deeply mourned the death of the son of the former Kenyan ambassador to Ireland and his fiancée who were murdered by al-Shabaab in the recent shopping mall attack in Kenya. It is quite shocking and alarming, however, that there is a campaign of intimidation of witnesses perpetrated by the Kenyatta regime. As Kenya is a partner country with Irish Aid, does Mrs. Bensouda believe we should use development aid as a weapon to compel such countries to be more compliant with their international obligations?
Joseph Kony is the best known individual to be indicted by the International Criminal Court. Other international agencies are campaigning for his arrest, but he has not yet been arrested. Will Mrs. Bensouda outline in greater detail how this case will develop?
Mrs. Fatou Bensouda:
With respect to the different courts, in the early 1990s after the conflict in the former Yugoslavia, the United Nations, acting under Chapter VII of the United Nations Charter, decided to establish the International Criminal Tribunal for the former Yugoslavia in The Hague. Shortly after the genocide in 1994 in Rwanda, the United Nations felt it necessary to create the International Criminal Tribunal for Rwanda under the same chapter. These are ad hoc tribunals created by the United Nations. The Special Court for Sierra Leone was set up by agreement with the Government of Sierra Leone and the United Nations to examine the troubles in that country. These ad hoc courts are now closing their doors as they were established to deal specifically with one issue.
The difference with the International Criminal Court is that it is not a UN court but treaty-based in respect of which 122 governments and states have voluntarily ratified and signed the 1998 Rome Statute of the International Criminal Court. The court’s remit covers not just one situation but its jurisdiction in these 122 states. It is a permanent court which is here to stay. That does not mean, however, that it should have many cases. The international community intended it as a court of last resort to encourage national systems to function. If they do function, the International Criminal Court will have fewer cases, accordingly.
Members referred to the accusation of an African bias on the part of the International Criminal Court in that all of the cases before it involve African states. The arguments used to accuse the court of this bias are not based on fact. If one takes away that argument, one takes away the accusation. There are eight cases involving African situations, five of which were self-referrals. These were African governments which requested the court’s intervention. The other two were referred to the court by the UN Security Council. The only case in which the International Criminal Court has moved an indictment is Kenya because it was not seen to be addressing alleged crimes.
If a state joins the International Criminal Court, it is making a declaration that it has joined the institution in order that if crimes happen in its territory, it will address them because it has the sovereign right and primary responsibility to do so. If it does not address them, the International Criminal Court can do so. That is why the court was able to move in the case of Kenya. The then leadership in Kenya pledged its support to investigate and prosecute the alleged crimes. Unfortunately, when the charges were confirmed against the individuals in question, they were not the President or Deputy President anymore. They have used the claim, to a large extent, that the International Criminal Court is an imperial and neocolonial institution that is manipulated by the West to target Africans to gain the resonance of the Kenyan people. This claim is not true. One cannot have an institution ratified by 34 African states and still claim it is imperialist. The fact that there are requests from African states to the International Criminal Court is ignored. It is claimed the court is running all the time to take cases against African states when it is the other way around. After all of these claims, there was the case last year - one month after I was sworn into office - of Mali requesting an intervention by the International Criminal Court to investigate war crimes in its conflict. There is also the case of the Comoros Islands, another African state, requesting ICC intervention with regard to the Israeli intervention against the Gaza flotilla. Therefore, the facts do not support the accusation of an ICC bias against African states. It is convenient for those with an interest to claim the court is targeting Africa. I will never tire of pointing out that the crimes committed were against African victims. They, too, deserve justice.
My apologies for not attending the committee earlier; I had a prior commitment in my constituency. On the way here, I listened to Mrs. Bensouda’s radio interview with Sean O’Rourke who asked some difficult and leading questions. She covered many issues, including the claim of an African bias on the part of the International Criminal Court. Her point about the case of child soldiers was extremely significant. We also know from statistics that 48 women are raped in the Democratic Republic of Congo every hour and that 12% of women there have been raped at least once. Will she comment further on this?
There are some countries that have not signed up to the International Criminal Court which undermines the court’s work somewhat, as we are not all singing from the same hymn sheet. After Mrs. Bensouda’s radio interview some listeners asked about the other crimes committed by the likes of Tony Blair, George W. Bush, Dick Cheney and the US President, Barack Obama. It was pointed out how their actions, what they had instigated in various countries and the suffering caused by these actions would not be highlighted, except in certain circles.
Mrs. Fatou Bensouda:
No. There are no American or Chinese funds. I think they have legislation that prevents them from doing that. It is the member states who contribute. We have the big eight who perhaps contribute more than others but it is the member states who contribute by subscription every year. We put our assumptions out, discuss it with the committee on budget and finance, and, of course, provide justification for whatever we request. The Assembly of States Parties approves the budget of the court for the coming year. The funds are not American or Chinese.
Mrs. Fatou Bensouda:
We get the criticism that we have not investigated George W. Bush and Tony Blair. I explained the situation relating to George W. Bush before the Deputy arrived. The US is not a state party to the Rome Statute and we cannot investigate where we do not have jurisdiction. When we are selecting cases, we do not target individuals. We have never done this. We do not say that this particular person has committed crimes before we investigate to discover whether they have committed crimes. People ask me why we do not go after Paul Kagame or Yoweri Museveni. Our investigations are what should guide us. If we are investigating, we collect the facts and evidence and they lead us to the individual who bears the greatest responsibility, not the other way round. Just getting up and saying we will investigate Mr. X contains a presumption that we already think that person has committed the crimes. We have tried as much as possible not to operate in that way. We collect the information, look at the evidence and then see who is the person who bears responsibility for those crimes.
In respect of Tony Blair, I think the Deputy is possibly talking about the crimes that took place in Iraq. First, Iraq is not a state party to the Rome Statute so we cannot investigate in Iraq. I repeat that the US is not a state party so we cannot investigate crimes committed by US nationals because this is how the ICC operates. We investigate on the territory of a state party or the nationals of a state party. That is impossible with the US. With regard to the other parties involved in Iraq that are state parties such as the UK, the Deputy will recall that there was a series of investigations regarding the crimes that were allegedly committed by UK nationals. If one looks at our website, one can see all of the assessments made by the court. Before the Deputy arrived, I said that the ICC is a court of last resort. It complements national systems. If national systems are investigating these crimes, we do not get involved. We must wait and see what they come up with and monitor developments to see that what is supposed to be done has been done. In respect of Tony Blair, several investigations and prosecutions were initiated in the UK regarding crimes that took place in Iraq. In that case, we assessed that it would not be in the interests of justice to intervene. As I said, we do not just go around hand picking and saying that we must investigate, because our jurisdiction does not permit us to do that.
We have had a very interesting debate this morning and some serious questions from members have been asked. I thank Mrs. Bensouda very sincerely for being very open and frank with the committee. She has a busy schedule. She gave a lecture last night at the Royal Irish Academy and has media interviews and meetings with the Minister, the Attorney General and a number of other bodies. I wish her well and hope she can come back here again in the near future with a bit more time to relax. I wish Mrs. Bensouda a very happy Christmas.