{UAH} No errant president will escape ICC trial, says Bensouda

No errant president will escape ICC trial, says Bensouda

On December 6, the International Criminal Court (ICC) commenced the long-awaited trial of Dominic Ongwen, one of the five Lord's Resistance Army (LRA) rebel commanders the court indicted in 2005

Monday December 19 2016

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ICC Chief Prosecutor Fatou Bensouda. PHOTO BY TABU BUTAGIRA 

In Summary

Bringing justice. On December 6, the International Criminal Court (ICC) commenced the long-awaited trial of Dominic Ongwen, one of the five Lord's Resistance Army (LRA) rebel commanders the court indicted in 2005. ICC Chief Prosecutor Fatou Bensouda told Sunday Monitor's Tabu Butagira in an interview in The Hague that no president will escape the fangs of justice and deflected criticism of the court as a colonial tool targeting Africans as unfounded. Below is a slightly edited version

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By Tabu Butagira

There are 70 confirmed charges against Dominic Ongwen. Do you feel confident to expedite their prosecutions and how much time would you require?
What we are trying to do is to be able to capture as much as possible the criminality that took place during this time when Mr Ongwen has been charged. It is important to say that bringing 70 charges instead of seven charges don't mean that the proceedings will multiply 10 times.
We try to spread [the charges] to ensure that every victim who has suffered during this period [2002-2005] from the actions allegedly taken by Dominic Ongwen are also covered. [The many charges] do not mean that it is going to slow down the process, [but] show the level of criminality that took place and for which Mr Ongwen stands charge.

How do you feel a day after the start of this important trial?
It's an important day for the victims who have been waiting for more than a decade. The charges are very serious and the number of victims subjected to these crimes is a lot ... the process of bringing justice for them has begun. We had to make sure that we prepared the case as carefully as possible. This is, therefore, an important day for justice for the victims of [the almost two-decade war in] northern Uganda.

Who will be your first witness when the trial resumes January 16, 2017?
I am not particular [about it], but we will show the crime base. This was a hideous crime that was taking place. [We will] show the context within which those crimes have been committed. In the evidence we shall also bring experts who will give us information not just the on context but also [radio call] intercept evidence.
Our plan is to present to the judges as clear and comprehensive [as possible] the picture [of what transpired during the war]. Our main aim is to bring out the truth of what actually happened and who actually suffered crimes and who should be held accountable for those crimes.

Let's talk about ICC generally; the African governments have been alleging that the ICC has been prosecuting selectively. What do you have to say about that?
I have always said that this is a wrong accusation because [the allegation is like] talking in the abstract, which unfortunately is being done, and not in the proper context.
If we are making allegations, at least this should be objectively done and based on the evidence on ground. Why are these allegations not backed by facts? I will even go ahead to say that those allegations are just erroneous. Point blank. We are investigating in African countries because African governments have [referred cases to the] court.
They have requested for the court's intervention and they have the right to do so because they are members of [the] ICC. They are state parties and if these crimes happen on your territory and you are not willing to [prosecute] it, whether because of lack of willingness or lack of capacity, being a member of ICC, you can request ICC to intervene.
Uganda is a member of ICC, a state party, ratified the Rome treaty, and when the crimes we are now prosecuting were taking place, Uganda referred the situation to the ICC.
This dates back to 2003 when they requested that the ICC should step in and investigate the crimes that are happening in northern Uganda after the (then ICC Chief Prosecutor Morino Ocampo) clarified that our interventions are going to cover all the parties to the conflict, not just the LRA.
This was agreeable at the time [to Uganda government] and today's prosecution of Ongwen is one of the results of those investigations.

The ICC is investigating about 10 cases, including in Georgia, Afghanistan and Palestine. But since 2002 when the Rome Statute came into force, there have been wars in Iraq and Libya led by the Americans, French and British. War crimes and crimes against humanity have been committed in these wars and the ICC hasn't prosecuted the perpetrators. Does this give you the sense that the ICC is being even-handed in administering justice?
Absolutely even handed. You have to look at this as a matter of jurisdiction. ICC is only able to intervene in places where it has jurisdiction whether by territorial jurisdiction because the party concerned is a state party or where there is [a referral] by the UN Security Council.
In all cases in which the ICC intervenes, the court must have jurisdiction. Iraq is not a party to the Rome treaty. That means we don't have territorial jurisdiction in Iraq. However, the ICC has jurisdiction over individuals who are nationals of state parties.
I in 2014 opened preliminary investigations into the UK forces for their conduct in Iraq during that conflict. This is not well known but this is something ongoing. Why the UK? This is because the UK is a party to the Rome Statute and, therefore, the ICC has jurisdiction over its nationals.
We respect UK forces. We did receive allegations in 2009 about their conduct, mainly focused on detainees' abuse and torture in Iraq. [We] did not have enough evidence for my predecessor to go on with that examination and (he) decided to close it. However, two years ago I received additional information which even raises the gravity threshold.
We are only able to limit ourselves to the UK forces in this case because we don't have territorial jurisdiction over other personnel. That's why the ICC's action in Iraq is limited. You mentioned Syria. Syria is not a party to the Rome Statute ...and we don't have jurisdiction in that territory.
However, we were able to learn that there were many [nationals from countries that are parties to the Rome Statute]. The ICC potentially has limited jurisdiction in this case.
Having said that, ICC is not a court of first instance; it's a court of last resort. It complements a national jurisdiction which means in this particular case, the primary responsibility to investigate the nationals remains with the states themselves whose nationals are involved.
So, unless they would not do it, it's when the ICC as a court of last resort could come in over those particular nationals. This needs to be clear. Also, we go after the persons bearing the greatest responsibility. I request those countries whose nationals are alleged to be among the ranks of the Islamic State (ISIS) to share information to see how my office will be able to handle this particular situation.

Kenya, Burundi and South Africa have begun a formal withdrawal from the ICC. Other African countries are mulling the same. Won't this undermine ICC's work and what should be the new safeguards against likely autocracy and impunity?
Joining the ICC is a sovereign, voluntary act and no state has been forced to join it. Today, the ICC enjoys the membership of 126 states. Talking about the withdrawals, this is a sovereign action that can be taken if the states want to do. This is a treaty.
However, if states withdraw from the ICC, according to the Rome treaty, that withdrawal will take effect one year after the deposit of the instrument of withdrawal with the secretary-general.
Burundi is [still] a state party until October 27, 2017, and this means any process that was taken while still a member will continue and Burundi will still have the obligation to cooperate with the ICC. I opened preliminary investigations in Burundi in April 2016 and this continues.

When you indict or prosecute heads of state such as in the case of Kenyan president Uhuru Kenyatta and his deputy, it undermines citizens' confidence in them and could potentially cause anarchy
The international community and the treaty show us that nobody is above or below the law. The issue here is that there can no longer be impunity for atrocities whoever you may be and this goes all the way to the top. It could be a sitting president; it could be others.
The issue is that if there are allegations that you have committed these crimes, the international community is saying that you must be held accountable for these crimes and this is what we are doing. The important thing is the person we are investigating is the one responsible for the alleged crimes and this is why we come before these judges.
So, it's not a question of being a president or not a president. That is not how my office operates. Given the example of Kenya, Mr Kenyatta and William Ruto were not president and deputy, respectively, (when they were indicted).
Of course we have seen that they have taken advantage of the charges and have been able to draw more support resulting in having to withdraw the charges or the judges declaring a mistrial but it was never any intention or plan or wish by the Office of the Prosecutor that because they are now president and deputy president, we should drop the charges. The charges existed and were confirmed before.

Let's bring the conversation back to Ongwen's trial. Uganda was enthusiastic about the ICC when it in 2003 referred the LRA cases. Uganda in 2010 hosted the Rome Statute review conference. Suddenly, President Museveni is displeased with the ICC he says is "useless". What level of cooperation are you receiving from Uganda?
I must admit that we are receiving very good cooperation from Uganda until now. Even at the time of the surrender of Mr Ongwen (in January 2015) and until when we realised that we need to pick up the file again and look at the evidence to see whether this can stand trial given the lapse of the time (since the 2005 indictments), we had to engage the Ugandan government.
Despite the rhetoric that we were hearing, there was cooperation. And there continues to be cooperation. I must be honest and say that we continue to receive very good cooperation from Uganda.

Under the principle of complementarity, have you received evidence from the government of Uganda about any domestic prosecution of government forces for atrocities against civilians during the LRA war? If so, what are the details?
Under the principle of complementarity if the national governments are taking the efforts to investigate, the ICC takes a back seat. But this does not mean that we don't continue to cooperate and collaborate and see what level of assistance we can give so that they can genuinely investigate and prosecute.
We have done that with Uganda. We have been working with the government. We have been working with the prosecuting agency and have had in this office, members of (Uganda's Directorate of Public Prosecutions). They spent time and exchanged ideas.

When Uganda referred the LRA situation, it meant it either didn't have the will or the means to prosecute it. Why at the time didn't the ICC investigate UPDF so we would this time be seeing suspects from both the Uganda military and the rebel ranks in this court?
When the Uganda government referred the case to ICC, they talked about the crimes that were committed by the LRA rebels. However, my predecessor made it very clear that the investigations or interventions of the court would require that we look at every party in the conflict and this we actually made it a condition of the referral and this was accepted.
So I am telling you this that from the very beginning that the (ICC) prosecutor's office was not intending to go for one party, and not the other, because it made it very clear from the very beginning that everybody in the conflict would be looked at.
However, you should remember that this court and my office moves on evidence and the evidence that we can collect, evaluate analyse, and present before the judges.
When these arrest warrants were issued in 2005, we were able to collect evidence of the most serious cases against the LRA and its top commanders. This is the reason why this case was brought first before the judges and does not necessarily mean that we did not look at other evidence that concerns other parties, in this case the UPDF, but we have really been able to proceed based on the massive evidence [against the rebel commanders].
When I went to northern Uganda recently, it [occurred to] me that the people were mainly concerned that government did not protect them when they were in the IDP camps and that exposed them to being attacked by the LRA and the crimes committed against them.

What are the prospects for the arrest of Joseph Kony now that his deputy Vincent Otti, one of the five indicted LRA commanders, is reported dead?
Joseph Kony should be arrested. The allegations against him are there in our warrants. We know [he has committed crimes] in the Central African Republic, the Democratic Republic of Congo and South Sudan.
So in order to stop these crimes from being committed, one crucial thing we need to tell the international community is to ensure that Joseph Kony is arrested and surrendered to the ICC. This is the only option we have that he can be stopped and enough [damage] has been done already.
In respect to the other arrest warrant, we know [other indictees] Raska Lukwiya and Okot Odhiambo are dead. With respect to Vincent Otti, we also have information that he has passed away, but until now we have not been able to get evidence such as the autopsy report or other documents proving that Vincent Otti actually died. In the absence of that, the judges will not vacate the warrant until they are absolutely sure that it's Vincent Otti that actually died.

One key concern is that the ICC does not have its own police to arrest suspects. This delays delivery of justice. Does this frustrate you?
Indeed ICC directly does not have a police force, does not have an army and directly an executing arm that would go around and arrest people. But this is how the court was meant to be. This is what the state parties agreed to in creating the court; they did not find it necessary to provide this court with a police force or any form of executing arm that would go around arresting people.
You know why? It's because every police force, every army or arresting body of every state party is the executing arm of the ICC. ICC was set up as a judicial institution with mandate to investigate and prosecute these serious crimes and the states know that by joining it, they are holding themselves to execute these warrants.
That's why I continuously keep on calling upon state parties to rise up to that challenge that they have upon themselves by arresting individuals that are wanted by the ICC. It is not our responsibility. Our responsibility is to investigate and prosecute and the responsibility of the states is to arrest and surrender people who are wanted by the court.
Sometimes this takes so long thereby preventing justice to be done or the process of justice and of accountability to be started. I know people are blaming the ICC but it's not the ICC. It's the state parties that have that responsibility but they do not always do it for various reasons, including political reasons.
It's unfortunate because when arrest don't take place, there is no body in ICC for the case to start. So this is of course frustrating. You have to understand the ICC as a system you should not understand it just as a court.
It's a system that has been created. A system where by this institution created by all the states is given the mandate to investigate and prosecute and all those who create the institution are undertaking on behalf of the institution to arrest and assist the decisions that it takes for it to work perfectly.
But if we continue to do our work and states hesitate or do not do their part, which is arrest and surrender the suspects, then the system itself has a problem.

Which other people are on your wanted list?
Well, right now we do not have a wanted list as such. As I told you, most referrals are by African governments requesting [the ICC] to investigate and prosecute. That is not to say that we do not have other cases outside Africa.
Early this year, I was asked by the pre-trial chamber to open investigations in Georgia. So that is outside Africa. At the moment we are doing preliminary investigations in Palestine. We are doing it in Afghanistan; we are doing it in Colombia; we are also doing it in Ukraine. These are states that are all outside Africa which those who criticise the court conveniently forget to mention it.

If you are looking into the eye of the victims of the LRA atrocities and are right now in Gulu, watching the opening of Ongwen's trial, what would be your word to them?
Our word to them is that we will continue to work very hard to bring justice to the victims of LRA crimes. That effort is not only for investigating the crimes, but even during the trial.
We will make our best efforts to put the evidence before the judges for them at the end of this trial to come to a decision [to convict the accused]. And as we pledged at the very beginning, I myself have been to northern Uganda, I have met with victims, I have listened to them and the fact that we have to unravel the truth to bring justice is what is informing this [prosecution] process right now.

Transcribed by Lilian Namagembe

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Allaah gives the best to those who leave the choice to Him."And if Allah touches you with harm, none can remove it but He, and if He touches you with good, then He is Able to do all things." (6:17)

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