Oral evidence - Sexual Violence in Conflict

Members present

Bishop of Derby (Chairman)

Lord Black of Brentwood

Baroness Goudie

Lord Hannay of Chiswick

Baroness Hussein-Ece

Baroness Kinnock of Holyhead

Lord Sterling of Plaistow

In the absence of the Chairman, the Bishop of Derby was called to the Chair

_________________________

Examination of Witness

Mrs Fatou Bensouda, Chief Prosecutor, International Criminal Court

Q126 The Chairman: Mrs Bensouda, thank you very much for being with us. I notice that you experienced some of the previous session, so you know a bit about what we are about. We are grateful for your time and wisdom. I am obliged to give the housekeeping notices for each session so that they are clear. You have a list of interests that have been declared by the Committee Members. This is a formal evidence-taking session of the Committee. A full note will be taken, and it will go on the public record in printed form and on the website. You will be sent a copy of the transcript in case you want to make any minor corrections. As you have heard just now, if we run out of time you are very welcome to submit further evidence in writing. Thank you very much for being with us.

As we begin the session, could I ask you to outline the main problems associated with investigating and prosecuting sexual violence in conflict?

Mrs Fatou Bensouda: First, Lord Chairman and Members of the Committee, I am pleased to be here and to have this opportunity to share some reflections on a matter that is crucial: sexual violence in conflict. I believe you are aware that the need to curb this reprehensible crime has been an intrinsic part of my work as a prosecutor. It is a personal commitment for me as a woman, a prosecutor and a lawyer. The effective investigation and prosecution of sexual and gender-based crimes has been, and continues to be, a key strategic goal for my office since I assumed office in 2012, when I was sworn in as Prosecutor of the International Criminal Court. During this time, I have also developed a policy on sexual and gender-based crime, making it the first of its kind by any international court or tribunal.

Coming to your question about the challenges, they are many. Already, investigating and prosecuting international crimes—war crimes, crimes against humanity, genocide—is complex in itself, but with respect to sexual and gender-based crime there is a range of problems that are specific to this kind of investigation. First, the crime itself is underreported in most cases; you do not really see the full scale of what you want to look into, whether for societal reasons, cultural reasons, because the national system has completely broken down, or because sometimes the necessary legislation is not in place to enable effective investigation and prosecution. These are some of the challenges. Witnesses usually do not come forward easily, and we know why: the stigma they would face once they came forward and were known to have endured this crime. They are looked at not as victims but as responsible for being raped. These are problems that are intrinsic to this kind of crime, and it makes it difficult and challenging for an office of the prosecutor at the international level. It is already difficult even at the national level; at the international level, it is even more complex.

The Chairman: Thank you. That is very helpful.

Q127 Baroness Goudie: Thank you very much for your opening statement. What are the obstacles to the successful prosecution of sexual violence in conflict under international law, and how could that be improved?

Mrs Fatou Bensouda: First, under international law, as I briefly alluded to in my previous remarks, we may have jurisdiction to intervene, but most of the time, as I said, you find that the legislation that is needed is not in place at the national level. Secondly—and this probably has implications for the ability not only to collect information at the national level but perhaps to share it with us when we are investigating—that lack of legislation, capacity, ability to investigate and prosecute at the national level also affects us at the international level. The first responders are at the national level. The ICC’s intervention is complementary; it is not a court of first instance but a court of last resort. Where we do have jurisdiction to intervene, we hope to be in a position to work very well with the national jurisdiction, the first responders, for information. When that capacity is lacking, it affects not least the speed at which we would like to go. This is problematic.

The third obstacle relates to the protection of the people we talk to, whether they are victims or witnesses. As you know, under the Rome Statute, not only the Office of the Prosecutor but the Registry and the judges have the obligation to protect victims/witnesses of these crimes. We know that this can also translate into very difficult problems on the ground, such as having to get these witnesses and sometimes not being able to relocate them, if that is the protection measure that we have to take, because they have their families and they do not want their partners to know that they have been subjected to these kinds of crimes. So coming forward is also a problem that we are confronted with. Otherwise, the Rome Statute is a very useful tool in trying to address these sexual and gender-based crimes when they occur in conflict.

Baroness Goudie: Thank you.

The Chairman: Your examples have all been about rape. Do you have anything to say about the reporting of other crimes under the Rome Statute, such as forced marriage, forced prostitution, other sexual violence?

Mrs Fatou Bensouda: The Rome Statute really is the most comprehensive international instrument. It covers a wide range of sexual violence against women. As you know, it covers not only rape but all sexual and gender-based crime, and looks at it not just as a crime against humanity, for instance, but as a war crime and as genocide. You will recall that in the decision by the ICTR the ad hoc tribunals did a lot of work. The ICTR’s judgment in Akayesu was the first time an international tribunal defined rape as genocide in international law. Of course, all this is now codified under the Rome Statute. We have it already, it is there, and it is for us to implement it. The other crimes of forced marriage and other kinds of sexual and gender-based crime are already in the Rome Statute. In our most recent case, the Dominic Ongwen case—Dominic Ongwen is one of the Lord’s Resistance Army commanders whom we have charged in our Uganda case—we have requested that the chamber allows us time to do additional investigations and to include crimes such as sexual slavery and forced marriage, because, as I said, it is great that we have it in the Statute and it is for us to implement it.

The Chairman: Thank you.

Lord Hannay of Chiswick: Can I follow that up and ask you—I think you have partly answered this question—whether the Rome Statute gives you enough scope to prosecute a commanding officer, even of an organisation that is not very well-structured—not a national army—whose troops have behaved in this appalling way but who has not himself, or herself, been guilty of an actual act of sexual violence? To what extent can you proceed to the commander and hold them responsible for what their troops might have done?

Mrs Fatou Bensouda: Absolutely. Under the Rome Statute, you have command responsibility under Article 28. It has happened already at the ICC in the Prosecutor v Jean-Pierre Bemba case. Jean-Pierre Bemba was the former Vice-President of the Democratic Republic of Congo. The conflict unfolded in the Central African Republic and the then President called on Jean-Pierre Bemba for assistance. He came with his own troops, the MLC troops, into the Central African Republic to help to abort the coup that was ongoing. This is one of the cases where we have seen allegations of sexual and gender-based crimes, allegations of rape, outnumber the allegations of killings. Even though Jean-Pierre Bemba was on the ground from time to time, he was not there continuously. These alleged rapes were being committed by troops under his command in the Central African Republic. We have charged Jean-Pierre Bemba with rape, and this is before the judges of the ICC right now. The prosecution has presented our case and has tried to put forward justification for why we say that Jean-Pierre Bemba is ultimately responsible for the crimes committed by his troops on the ground. He was in a position to prevent and to punish, but he did none of that. He was also in a position where he was giving command to his troops and was receiving daily updates from his troops on the ground. He had the command to be able to prevent the crimes or, even when they were committed, to be able to punish them. We are saying before the judges that he did neither of those things. Therefore, we are asking the judges to hold him, in his command responsibility, responsible for those rapes. The case is done. We have submitted all our written and oral submissions. We are waiting for the judgment from the judges, which hopefully we will see before the end of the year or next year.

Q128 Lord Black of Brentwood: Thank you for these answers. You have put forward a very compelling set of reasons as to why investigating and prosecuting is so difficult. This has fed through into a lack in the number of prosecutions. The figure that we have is that, to date, 23 cases in nine situations have been brought before the ICC and there have been no successful convictions. We understand the difficulties that you face, but if you were writing our report, what practical steps could you suggest we might recommend to be able to make the whole act of prosecution more straightforward?

Mrs Fatou Bensouda: When you were asking the question and said that there have been no successful prosecutions, I wanted to add the word “yet”. As I have tried to explain, my office has definitely been trying to make sure that we have an integrated approach: that we integrate the investigation and the prosecution of sexual and gender-based crimes in all our cases.

The statistic today is that in 70% of the cases that we have brought before the judges we have tried for sexual and gender-based crimes. Apart from the Article 70 cases, we have charged 19 individuals for sexual and gender-based crimes across 14 cases. So the effort to charge and bring these cases before the judges is definitely being made at the level of my office. I believe that wherever we are able to find evidence sufficient for charging, we should go ahead and do so. This is the policy of the office and what we are attempting to do. We have discussed the challenges. It is not always very easy because of circumstances that are sometimes beyond the control of the office. That is just the nature of these investigations.

One thing that I always think about in relation to the initiative and the protocol is the idea of training first responders and helping national jurisdictions to develop to a level at which they can take up investigation and prosecution on their own. At the same time, it makes me think about complementarity. I talked about the ICC being a court of last resort. I believe that very strong capacity and a response at the national level as soon as something happens will contribute a lot to the ICC’s prosecution, if we even get to that level. If the national jurisdiction is responding and is in a good position already to respond, investigate and prosecute, there is obviously no need for the ICC to intervene. This is an area where I believe that initiatives such as this can assist the national jurisdictions in order to develop them and to make them have the capacity to be able to assist.

With respect to the investigations and prosecutions of these crimes, my office has already put forward certain strategies that we feel should be added. In the past, we have relied heavily on witness testimony, for instance. The strategy in my office’s strategic plan of 2012 to 2015, now going to 2016 to 2018, is to look for diversified forms of evidence, such as documentary evidence and all the forensic evidence that the office can use. We are trying to see how we can work with partners on the ground to be able to assist the office in its investigations of these crimes. We have put many strategies in place, such as the open-ended investigations, going to the middle perpetrators and moving up the chain. These are things that I can share with you. I can send you my strategic plan to show that we are also looking at other means of making the investigation and prosecution of these crimes more effective. But the role suggested in the initiative is crucial for us to be able to work with national systems and national jurisdictions.

Lord Black of Brentwood: It would be useful to see the plan.

The Chairman: Yes, it would. Thank you.

Mrs Fatou Bensouda: We can send that in.

Q129 Baroness Kinnock of Holyhead: Thank you very much for joining us and giving us the opportunity to hear your wise words. People often forget that the Rome Statute created two independent institutions—the International Criminal Court and the Trust Fund for Victims, which is an extremely interesting aspect of that work. It acts for the benefit of victims of crimes and helps them regardless of whether there has been a conviction by the ICC. That again is a very important aspect of this. Perhaps you can confirm that it fully co-operates with the courts to avoid any interference with any ongoing legal proceedings. Is that the case? Have I covered the truth about this? I am very interested because everyone talks about the ICC and does not give as much attention as they should to a Trust Fund for Victims, for instance, which is a hugely important aspect of your work.

I will add this question on because it may make things go more quickly. Could you tell us about the rehabilitation process going on in northern Uganda and the eastern DRC? We were in the DRC and someone mentioned it to us. That is quite a bundle of questions, but I am sure that you can share your thoughts.

Mrs Fatou Bensouda: The Trust Fund for Victims, as you rightly said, was created with the ICC—they are independent bodies—but it was mainly to deal with reparations for victims in our situation countries. You have seen that even prior to Lubanga—the first case for the ICC—being concluded, work was already being done in Uganda and the Democratic Republic of Congo by the Trust Fund for Victims. Because victims are so central to the work of the ICC—I always say that they are its raison d’être; it is because of the victims that we exist—the Trust Fund for Victims has been working a lot, as I said, to ensure that some form of help or assistance is provided to the victims, even prior to a case being completed by the ICC. Currently, the Lubanga case has gone full circle, as you know. For the first time, the Trust Fund for Victims has been called upon by the trial chamber to work on reparations for victims. This has yet to be finalised, but a lot of work has been done already towards reparation and rehabilitation in this first case before the ICC. The process for Katanga, which is the second case, is also ongoing. The Trust Fund for Victims is playing a crucial role with regard to reparations.

One aspect that I want to mention with respect to reparation is that my office has shown that we are very victim-responsive, even with respect to the reparation of victims. We think that there should be a very gendered approach towards the reparation of victims, especially of sexual and gender-based crimes.

Q130 Lord Sterling of Plaistow: Many of us round the table feel that this is probably one of the most important meetings that we have had. When it comes to it, how do we get prosecutions? We more than understand the difficulty of getting evidence, so your strategic document will be very interesting to read. Could you explain this for our benefit? You refer to yourself as the last resort and there is also first resort. How successful has the first resort been in prosecution? What is the crossover? What causes you to take a case over? To ask a frank question, how the devil can we be sure that you have the authority to do more?

Mrs Fatou Bensouda: It is really all about the set-up of the Rome Statute and the principle of complementarity. The Rome Statute is clear that the ICC was never meant to be a court of first instance. In fact, one of the main ideas behind the establishment of the ICC was to assist national jurisdictions to develop to a level at which they are able to investigate and prosecute these cases by themselves. If the ICC is really successful, it will have no cases, because that would mean that national jurisdictions were performing so well that we would not have to take over cases. Unfortunately, we are not yet there.

Lord Sterling of Plaistow: That is utopia.

Mrs Fatou Bensouda: Yes. We have had occasions on which national jurisdictions themselves have requested the ICC to come in and exercise its mandate, because that jurisdiction is either unable or perhaps lacking in political will to do so. I would like to give you the example of Guinea. Guinea is a developing country whose capacity—not in terms of knowing the legal issues but in terms of simple logistics—means that investigating these cases is a problem. For the principle of complementarity, my office has engaged with the Guinean authorities and has encouraged them all the time to investigate by themselves. I am talking about the events of 2009 at the stadium where, unfortunately, rape was happening in broad daylight. So we have been working with Guinea and I have been sending my investigators—I would even call them my analysts—there to collect information on what Guinea is doing, to try to understand what difficulties Guinea is facing. Of course, we are not a development agency but a court, but we are able to put Guinea in partnership with others who can help—we have done this in the past—whether it is States or international organisations. DfID has been very useful in its help to Guinea, for example. We have got to the point today where charges have been brought in Guinea against very high-level officials. That means that significant steps have been taken to address this issue. With all this encouragement and putting Guinea in partnership with others, the ICC is therefore taking a backseat so that we can see where those charges will lead. As you know, if they are genuinely investigating and prosecuting, the ICC will have to let them do it.

The Chairman: We are almost out of time, but I am just going to ask Lord Hannay whether he would like to ask a question.

Q131 Lord Hannay of Chiswick: Could I just follow on from that and from your obviously wise words that the best thing is when countries themselves can take effective action? Do local communities and survivors understand that, if they are given the run-around by their own judicial authorities, the ICC exists? To what extent do you have outreach programmes that enable victims and their legal advisers to understand that the ICC stands behind the national authorities if they prove to be unwilling or incompetent?

Mrs Fatou Bensouda: We do this through outreach. Unfortunately, there is very little budget dedicated to this for the court, because we are always told that we have to concentrate on our core business, but outreach is also important for us to be able to manage expectations in the local communities. Outreach, as it is, is the responsibility of the Registry, which has a very small unit that deals with it. We have also recently talked about engaging in a court-wide strategy in which we can get the information out there. In fact, just two days ago, members of my office came from a joint outreach mission with the Registry to explain to the local communities in Gulu, in Uganda, about the Dominic Ongwen case and the reason for asking for additional charges to be brought against him. We also explained what we are focusing on, what the procedure will be before the judges, the confirmation of charges and the fact that the trial process has not yet started. So we do a lot of explanation. I have been on missions on a number of occasions when I just go to meet victims in the community—the victim group. I will meet them and civil society. I will also meet other NGOs and governments, but just to explain the process that we have embarked on, what the expectations are and the likely outcome. If we manage just to explain to people, that is crucial. I take another example from the recent mission in Uganda, which I believe the community appreciated a lot. Not only did we talk to the victims in the community, but we talked to the cultural and religious leaders, who form a big part of authority in the villages and local communities. We engage with them and we try to explain. I know that they know very well that the ICC will come in if their own jurisdiction is not doing anything. Maybe the call that we used to hear in Kenya is not made, but I remember that, when the Kenya events happened, they used to say, “Don’t be vague, go to The Hague”.

The Chairman: Thank you very much indeed. We would be very grateful to receive the document that you mentioned. If you have any further thoughts that you would like to submit to us in writing, we would be very grateful for those, too. Thank you very much indeed for your wisdom and help today.