John Bolton, the walrus-moustached former US national security adviser, once wrote an imaginary note to my lunch guest, Fatou Bensouda, prosecutor of the International Criminal Court. “Dear Madame Prosecutor,” it went, according to his own account in a 2017 op-ed written after she had requested an investigation into alleged war crimes committed in Afghanistan, including by American personnel. “You are dead to us. Sincerely, the United States.”
Bolton may have gone but, as I set off — mask and sanitiser in hand — to meet Bensouda face-to-face in The Hague, US animosity towards her is very much alive. From its creation in 2002, the court has been abhorred by many in Washington who regard it as a dangerous curb on American power. In June, President Donald Trump signed an executive order imposing financial sanctions on Bensouda, who has since last year been banned from travelling to the US, except on UN business.
A few weeks after our lunch, Mike Pompeo, US secretary of state, calling the ICC a “thoroughly broken and corrupted institution”, announced further sanctions on Bensouda and anyone providing her “material support”. If paying for a meal counts, I ponder, perhaps this will be the first Lunch with the FT to contravene US sanctions.
Bensouda, only the second ICC prosecutor in the court’s 18-year existence, is sat across from me in an ornate private dining room of the Hotel des Indes, a 19th-century palace built in a well-to-do quarter of The Hague. I say sat across. She is some three metres away, the staff having obligingly shunted two tables together, with us at either end, so that we can maintain a distance that is safe bordering on Robinson Crusoe.
In what is my first proper outing — let alone trip abroad — in nearly five months, I have a lot to learn. The first thing I did on encountering Bensouda’s chief of staff was to stick out my hand for a pre-coronavirus manual germ grab. A look of horror crossed his face that made me think I might be next in line for ICC prosecution.
“I think it is wrong,” Bensouda says about the US onslaught, intoning the word “wrong” with the finality of a dinner gong. “It is actually a vicious attack against an institution which is trying to do good,” she says. “This is the first time in history that it is done to a judicial institution.”
During Bensouda’s tenure, the court has secured more convictions than under its first prosecutor, the Argentine lawyer Luis Moreno Ocampo, partly by taking on more winnable cases. Though some have collapsed, the court convicted Ahmad al-Faqi al-Mahdi, an Islamist militant, for destroying monuments in the Malian city of Timbuktu in 2012, and Germain Katanga, a warlord, for complicity in a 2003 massacre in the Democratic Republic of Congo.
Bensouda has also widened the geographical scope of an institution that had been criticised for targeting Africans and put more emphasis on combating sexual and gender-based violence. Among 13 investigations and several preliminary examinations, she has taken on cases in Georgia, Ukraine, the Philippines and Israel, as well as Afghanistan.
Were these designed to blunt criticism of the court’s alleged anti-African bias, I ask? “No,” she says firmly. “It’s about the law and where it leads me and where I have jurisdiction.”
Before we get into international criminal law and the future — if it has one — of multilateralism, I want to discover more about Bensouda herself. Before that, we should order. In a half-forgotten ritual, we both fall silent as we scan our menus.
“I’ll go towards the fish,” she says, plumping for tuna sashimi followed by sea bass. I suggest wine, forgetting she is a practising Muslim — my second faux pas after the aborted handshake. She asks for still water, served at room temperature, rejecting the chilled bottles already laid out.
I’m thinking of economising in these straitened times by opting for the fixed two-course menu. Then I remember the FT has agreed to hire this private room because of concerns about Bensouda’s security, an occupational hazard for a high-profile prosecutor. So, it’s in for a penny, in for the à la carte. I order sashimi followed by a sirloin steak, something I have been craving during months of mainly vegetarian lockdown. I ask for a glass of red wine and am rewarded with a nicely rounded Malbec.
Bensouda was born in The Gambia, a sliver of a country in west Africa. It is so narrow and follows the Gambia river so faithfully that the apocryphal story goes its borders with surrounding Senegal were settled by cannonball fired from a British warship.
“It was called Bathurst then,” she says of the capital, now Banjul, where she was born in 1961, four years before independence. Her linguistic life was divided: English at school and Wolof at home.
Our starters arrive, served on glazed Japanese-style plates. The tuna slices are scattered with passion fruit seeds and come with something squishy called “soya marshmallow”. We both tuck in.
Bensouda’s father, a government driver, was a savvy entrepreneur and part-time wrestling promoter. “It’s a sport I like very much. I still follow it,” she says, rattling off the names of mostly Senegalese fighters. “The idea is to use your skills to manipulate, to get the other guy on the ground. There’s one [style], they call it lutte avec frappe” — fighting with hitting — she says perkily.
At school, she got into the occasional scrap herself, often on behalf of her sister. “She was slimmer than me, so I would be the one to step forward and fight for her.” In the compound where she lived with her father, his two wives and multiple siblings, she noticed that women in neighbouring compounds were sometimes abused by their husbands. “Why should this be happening? Why should a man be beating up his wife just because he could?”
She recalls, aged 11 or so, encouraging one woman to go to the police, only to have the complaint dismissed as a domestic issue. “ ‘He is your husband, so he has every right to beat you.’ For me, even at that age, I would say ‘No. That is wrong.’ ”
Her father treated both his wives well, she says, describing a life in which she made only passing distinction between her birth mother and stepmother. “We pretty much were one family. It was really only when you grew up that you would know who was the mother of who. It didn’t matter.”
But polygamy is not for her, she adds hastily. She has just one husband, and two children. Her adopted daughter gave birth during lockdown and Bensouda recently attended an online naming ceremony for her grandchild.
Her father died when she was in her first year of high school. “Girls’ education was really important. He insisted on it,” she says. “With hindsight, I see that he was actually very advanced for that age.”
HOTEL DES INDES
Lange Voorhout 54-56
The Hague, Netherlands
Tuna sashimi x 2 €43
Grilled sirloin €28.50
Sea bass €28.50
Glass of Trapiche Malbec €9
Room rental €150
After graduating from school, where she was head girl, she studied law at Ife University in Nigeria, rejecting offers from British universities. Nigeria, a huge and boisterous country, was a world away from sleepy Gambia. “I remember when I came back from holiday and I kept asking my mum, ‘But why is the place so quiet?’ ”
Our starters dispatched — to be fair, there were only four small slices of tuna — the main courses arrive. Her sea bass is served in a large white porcelain bowl like an upturned hat. My steak, medium rare, is sliced and comes with an Indonesian pepper sauce and crunchy fries.
After qualifying in law, she was called to the Gambian bar. By 1994, when a junior army officer called Yahya Jammeh helped organise a bloodless coup against the long-serving president, she was deputy director of public prosecutions. “We all rallied to support this new force . . . because we believed this was the change that we needed,” she says, adding that Jammeh had promised to restore civilian rule within two years.
Bensouda became solicitor-general, later Jammeh’s legal adviser and finally minister of justice.
Isn’t there an irony, I say, that the ICC prosecutor should have been so close to a notorious dictator? Bensouda was fired in 2000, but even in Jammeh’s early years, there were accusations of repression. Later, he became a caricature of an unhinged despot, threatening to behead homosexuals, claiming he could cure Aids, and telling the BBC he would “rule this country for one billion years . . . if Allah says so”. He managed just 22.
I was in Gambia in January 2017 when Jammeh, stunned after losing an election, fled into exile, loading his plane with booty, including luxury cars, before it heaved into the night air. “I think the power had gone to his head,” she says with some understatement.
At The Hague, she says she directed ICC prosecutors to examine Jammeh’s record. But his actions were deemed to fall short of the war crimes, genocide or crimes against humanity that constitute an ICC case, though it later emerged that the regime had operated a death squad.
“There has been heavy criticism of me personally because they think I was trying to help Jammeh, but this was not the case,” she says emphatically, her fork hovering. “What we know now about Jammeh and the ‘Junglers’, this group of people who were going around killing, was not known then.”
After leaving Jammeh’s orbit in 2000, she set up a commercial law practice and then worked for a bank, which was lucrative but dull. She returned to law, advising the UN International Criminal Tribunal for Rwanda, and was elected deputy prosecutor at the ICC in 2004. She’s been in The Hague — “a lovely city, but grey” — ever since. In December 2011, she was elected to succeed Ocampo as prosecutor, a position she will vacate next year.
My steak is pink and moderately tender. The mushrooms have been cut into triangular spear shapes, but thankfully the chef has left the broccoli as nature intended.
I go back to the court’s foundation in 1998, when 120 nations voted for the
so-called Rome Statute. Seven, including the US and China, voted against. Wasn’t that a fatal flaw? With those states refusing to recognise the court’s legitimacy, wasn’t it doomed from the start?
During Ocampo’s nine years as chief prosecutor, nearly all its cases involved Africans. Though Jammeh was discredited, his information minister spoke for many when he called it the “International Caucasian Court”. Nor does the ICC have jurisdiction over non-signatories to the Rome Statute, making it powerless to investigate, say, accusations of human rights abuses in China against Uighurs or war crimes in Syria — unless the UN Security Council requests it.
“I suppose, of course, it would be good if we were to have universal jurisdiction, or if the big powers were part of the ICC,” she concedes. “But this has not prevented the court from working.” It can, she says, investigate crimes committed in ICC member states even if they have allegedly been perpetrated by countries that have not ratified the Rome Statute.
That is what opened the way for her investigation into Afghanistan. She alleged that US forces had “committed acts of torture, cruel treatment, outrages upon personal dignity, rape and sexual violence” in Afghanistan, and later in CIA rendition sites in Poland, Romania and Lithuania.
Last year, the court’s pre-trial chamber rejected her request to open an investigation. In what some regard as over-reach, she appealed and in March, the appeals chamber decided unanimously to authorise an investigation.
“Some believed that I should just stop there and let it go because it concerns a very powerful [state],” she says of the US. “But no. For me, it’s about the law. It’s not about power.”
It is far from clear the court could pursue a case against a US citizen. The American Service-members’ Protection Act of 2002 authorises the president to order military action to liberate any US citizen detained by the ICC. The court has no police force and relies on other countries to execute its arrest warrants. In one notorious example in 2015, South Africa, though a signatory to the ICC, refused to arrest Omar al-Bashir, then Sudan’s dictator, who had been charged for alleged war crimes in Darfur.
Bensouda accepts that the ICC has its problems. It has been criticised for not securing enough convictions and for failing to protect potential witnesses, some of whom have abruptly changed their testimony — or ended up dead.
Although she won’t be drawn into criticism of Ocampo, she concedes that, during his tenure, the court was prone to go after big names, including Bashir.
“It’s a young court,” she says, taking a sip of water. “We live and we learn.”
“When we started initially, we were always trying to go to the highest person. I made some policy changes, because I was very concerned about the court being as effective as possible.”
In an example of building a case from the ground up, in June, even while the Covid-restricted court worked virtually, an alleged commander of the notorious Janjaweed militia in Darfur was taken into custody. And after Bashir’s overthrow last year, the ICC may get a second bite at the Sudanese dictator, though he will be tried in Khartoum first.
We have long ago stopped eating and what remains of our food is getting cold. I push my plate away and suggest dessert or coffee, but the staff seem to have abandoned us.
Rather than stemming criticism, widening the ICC’s geographical remit appears to have sharpened it. Both the Philippines and Burundi have withdrawn and under Trump, the US is more belligerent than ever. “As far as America is concerned, the ICC has no jurisdiction, no legitimacy and no authority,” the president told the UN.
Doesn’t she fear that the whole concept of international criminal justice is crumbling?
“There is certainly this very vicious attack on multilateralism itself,” she says. “We have seen that, and the ICC is no exception . . . But what we have also seen, I believe, is a strong pushback.”
In June, 67 countries led by Costa Rica and Switzerland and including Canada, the UK and South Africa, signed a statement defending the ICC against US sanctions, pledging “unwavering support” for the court. For Bensouda, the flames of international idealism are still flickering. “Not every country,” she concludes, throwing her napkin on the table, “is saying: ‘OK, my country first — and to hell with multilateralism.’ ”
David Pilling is the FT’s Africa editor
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