An interview with the new ICC prosecutor

I’m at the United Nations today attending the annual meeting of International Criminal Court’s member states. (Non-member states, including the United States, are attending the meetings but cannot vote.) This morning the assembled delegates formally elected the next ICC prosecutor, Fatou Bensouda (see here for some earlier thoughts on what her election means for the court). In a few months, she will replace Luis Moreno-Ocampo at the helm of an office which has become a major player in places including Sudan, Congo, Uganda, and Libya.

I caught up with Bensouda a few hours after her election. She told me that her experience inside the ICC–where she currently serves as a deputy prosecutor–will be an advantage. "It’s important for the office that there is continuity….It’s good to consolidate."  But she clearly signaled that there is room for change in how the prosecutor’s office operates. "We will adjust as we go along," she said. "We are not the same. [Moreno-Ocampo] has his personality–I have mine."

Bensouda acknowledged that her election may help alter the perception that the court is a "Western court targeting Africa." But she also insisted that she is first and foremost a prosecutor. "I may come from Africa, but that is not a criterion for the position." In her address to the delegates this morning (delivered half in French and half in English), Bensouda stated that she would be a prosecutor for all the member states.

I asked Bensouda about one of the key unresolved issues of Moreno-Ocampo’s tenure at the court: Palestine’s declaration that it will accept the court’s jurisdiction on its territory. That declaration has alarmed Israel and become one of the most politically delicate issues on the prosecutor’s agenda. Unsurprisingly, Bensouda said little new about how it might be resolved or whether it would be done in Moreno-Ocampo’s remaining months in office. 

On Syria, Bensouda said that the office would be ready to handle an investigation if that situation is referred to the court by the UN Security Council (Syria is not an ICC member state and a referral is essential for the court to have jurisdiction). "These things happen. At the beginning of this year, when Libya was referred, we had not budgeted for it, but we have taken it on board….If we have to have this situation that we were not expecting, we are poised to be in a position to handle it."

More: In our conversation, Bensouda sounded a very conciliatory note on Libya. She rejected any idea that the Libyan authorities are violating their obligations to the ICC by not turning over Saif Gaddafi, the subject of an ICC arrest warrant:

The Libyan authorities have primacy over the crimes and they have indicated to the office of the prosecutor that they want to do the investigations and prosecutions themselves. They’re requesting sort of a suspension under Article 94 of the ICC processes, but this is a decision that has to be taken by the judges. [Libya] will make a formal challenge and the judges will look at it and they will issue a decision regarding that….This is the system of the Rome Statute. If the state claims to be willing and able to do it, the ICC will have to wait.