With me, zeinab badawi. The recent release of Saif Al Islam gaddafi by the libyan Group Holding him has led to the International Criminal court in the hague, the icc, demanding his arrest. Hes been indicted by the court for alleged Crimes Against Humanity, murder and persecution. The icc was set up in 2002 as a Court Of Last Resort to try such individuals, but its met a barrage of criticisms principally that it has an anti african bias because only africans have been convicted and nearly all the cases before it are from the continent. My guest is the prosecutor of the icc, Fatou Bensouda, a lawyer from gambia. What does she say in the courts defence . Fatou bensouda, welcome to hardtalk. Thank you for having me. You were born in gambia to a muslim family, you studied law in nigeria, then you returned to gambia in 1987 to work as a public prosecutor. Why did you want to go into law . I believe it is my this, you know, sense of right and wrong, and justice thats something which is just in me. And the fact that i also grew up in a community where you really see that there are some people, maybe the vulnerable in society, as we call women, children, who actually do not receive the protective embrace of the law. And i was exposed in a community where i have seen this, where i have seen, especially women, undergo domestic violence. And nowhere to turn to. Because the parents always tell them that it is the right of the husband, for instance. If you go to the police, they will say its a civil matter and that they cannot interfere. And i had the opportunity also to serve as a clerk of court in the high court of the gambia, and this again exposed me to, really, some of the horrors that befell these women domestic violence. And ijust made up my mind at a very early age that this is something i want to contribute to. Somebody who has known you since school days, Amie Bensouda no relative says of you the area of law that fatou is most comfortable with is prosecution. I mean, why not defence . Because defending somebody is also a very honourable tradition, isnt it . Indeed. Indeed, its very honourable, and i always say that the prosecutor will only be as good as the defence. And its very important that anybody, everybody, should be defended before the courts. But also, so should the victims. Prosecuting, in a way, is standing up for the victims. 0k, another thing about the icc, International Criminal court, its not really worthy of the name international, is it . Its not international. It is international. And, look if you look at the idea of the International Community in setting up the court, an International Criminal court, for a long time, it culminated in 1998, when the rome statute was actually signed in rome. This is the idea that the International Community. I tell you why i said that, though. Some of the most significant members of the International Community china, russia, the United States three of the five permanent members of the Un Security Council are not part of the icc. Big countries india, pakistan, indonesia also not members. Indeed, but there is also a large majority of the World Community that are now enjoying the protection of International Criminaljustice and the International Criminal court. Because if you look at today, the International Criminal court enjoys 124 states that are parties to the rome statute and therefore part of the icc. And also, potentially, the icc could have a universal reach in the sense that we, as a court, can intervene in situations where the crimes are committed on the territory of a state party by whomsoever commits the crime, whether you are a state party or not, and the nationals of States Parties where they commit crimes, wherever they also go to commit this crime, we havejurisdiction. So the remit of the icc could potentially be universal in the sense that we are looking at crime even in states that are not parties to the rome statute, because there are allegations of these crimes. Thats your remit as well. Indeed. But the fact of the matter is that your reach seems to have only gone as far as africa, because of the ii situations in varying degrees of progress whether they are the six cases before you or preliminary investigations all but one, georgia, are african. Indeed, this is true. I know you have heard this criticism before but, as an african, you have to have a reasonable answer. No, but this criticism, unfortunately, is misplaced, and it is not backed by relevant facts. Im saying this because if you look at the situations that we are investigating now in africa, a majority of those situations have been at the request of the african states themselves, who have requested the icc to intervene because they are state parties. And the system that the icc has set up is that in the event that these crimes war crimes, Crimes Against Humanity and genocide are committed on the territory of a state party, the state party can actually request. So thats one answer you are giving is that the african countries themselves said, icc, we want you to look at this case. But it seems however, prosecutor, that some of them are having buyers remorse, these state members. I give you one example Yoweri Museveni, the president of uganda, who stood shoulder to shoulder with your predecessor, luis moreno ocampo, saying we want members, the leader of the lords resistance army, joseph kony, and all the other people who have been taking part in these awful atrocities in uganda, to go through the icc. What does Yoweri Museveni say last october . Even though hed brought the case, he says the icc is useless, a Politicisation Ofjustice and nothing more than a western tool designed to humiliate african nations. Again, i come to the same response. That this is not backed by the relevant facts. If you look at uganda, for instance, just take the example the fact that uganda was one of the first countries to refer a situation to the icc, and we started our investigations, one of ourfirst investigations was in uganda. Five people have been charged in this situation in uganda. We have been working until now. Most recently, the case of Dominic Ongwen has been started at the icc, because Dominic Ongwen has been surrendered. From the democratic republic of congo. Dominic ongwen is one of the commanders of the lords resistance army, and he has been tried from the very beginning with the commission of these crimes. He now faces trial at the icc. Hes from uganda. And of course, this requires that we need a lot of cooperation from uganda. You mention Dominic Ongwen, and illjust bring this up that he was taken as a Child Soldier at the age of ten, so therefore, is it really right to try somebody who has obviously suffered himself . He is a victim. Can he now be the perpetrator of evil . We obviously recognise that. We recognise the fact that, yes, as the defence claims also, Dominic Ongwen was abducted when he was below the age, and we do recognise that. If you look at our charges to date that we have brought before Dominic Ongwen, it is those charges which he committed as an adult. Because under the icc, any crime committed by a person below the age of 18 cannot be tried before the icc. So all the crimes that weve charged of Dominic Ongwen, that he is alleged to have committed. 0k, only as an adult. As an adult. With all respect to you though, prosecutor, Dominic Ongwen, yes, ive heard of him, a lot of people have and as you say, hes before you, but people say, what about the Household Names we all know about who are allegedly carrying out these terrible injustices and Crimes Against Humanity the so called islamic state, president Bashar Al Assad of syria . We know that there was a Terrible Civil War Going On in sri lanka. You know, and then you find somebody like Dominic Ongwen and you say, yes, weve got him, but what about these other names that everybodys heard of . Why arent they before you . In the first instance, Dominic Ongwen maybe today is not a Household Name because we are talking about crimes that have been committed over ten years ago. But its all also a matter ofjurisdiction, where we have jurisdiction, where the icc can intervene and where it cannot. If we talk about syria today, syria is not a state party to the rome statute. It doesnt matter. I mean, youve got countries where they are not members, like the sudan and the president of sudan, Omar Al Bashir, has been indicted. Because, i say syria, because people are saying that there is selective justice. In 2014, 65 nations called for the syrian conflict to be referred to the court, and it was vetoed. Let me just come back to the fact that the Un Security Council referred the sudan case to the icc. 0k, can you deal with first of all why we dont have Bashar Al Assad, for example, indicted . I just want to clarify the fact, indeed, sudan is not a state party to the rome statute, and ordinarily, we dont have territorial jurisdiction, but sudan was referred to the icc in one of the ways that can be done through the security council. But why wasnt Bashar Al Assad, when 65 nations called for the syrian conflict to be referred to the court, it was vetoed, wasnt it, by china and russia . Indeed. This is a question that i think would ideally be asked of the Un Security Council. But itjust shows you that there is selective justice, and you are part of that framework. I mean, so, were you upset that syria wasnt referred . No, i beg to differ that we are part of that process. The fact of the matter is, even though Un Security Council, under the rome statute, can refer cases to the icc, but when these cases come, we subject them to the same test as we do by making sure that crimes have been committed, there are allegations about crimes, and that is is within that all the legal requirements are met for us to open an investigation. Are you suggesting that president Bashar Al Assads forces have not been guilty of atrocities . This is far from what im saying. What im saying is that even if a case is referred by the Un Security Council, as sudan has been done, and libya, we subject them to the same tests and see that legal requirements under the rome statute are met. In the case of Bashar Al Assad, let me be clear we do not go to the Un Security Council to request for any case to be referred to the icc. It is the Un Security Council that has been mandated under the rome statute, and also acting under chapter 7, that can take the decision. But you have a say you can present a case to the security council. You can present evidence or you can say, yes, we would approve of this or not. I mean, have you done that . No, because, under the rome statute, this is not my mandate. I can only when a case has already been referred to the icc, then i can make periodical reports to update the Un Security Council on where we are. All right. And what about allegations of torture by us personnel at Bagram Air Base in afghanistan . Afghanistan is one of the Signatory States to the rome statute and it is member of the icc. Would you open formal investigations, for instance . Just to be clear, afghanistan is a state party to the rome statute, as signed and ratified, and afghanistan is one of those situations that have been under preliminary examination for some time now before my office. Including allegations against us personnel . And we are looking at allegations of all parties who form part of all the warring factions that are in afghanistan. But can i tell you what professor kevin heller from london universitys school of oriental and African Studies says the reason this hasnt been opened about us personnel as a formal investigation is that Fatou BensoudaCannot Antagonise the United States. Is there any truth in that . I just want to be clear. My mandate requires me to be impartial and independent and all of the situations that i am looking at, i have to demonstrate and i do demonstrate that im acting with utmost impartiality and independence. Im following the evidence and following the law and what my mandate requires me to do. In the case of afghanistan, as i mentioned to you last year, i took out an activities report, which is something that i take out every year, to update people on situations that are under preliminary investigation. And i did say in that report there was reasonable basis to believe that the warring factions in afghanistan including the taliban, including the Afghan Forces as well as the us forces there are allegations of commission of war crimes and Crimes Against Humanity, and that my office is continuing to look into this situation. We are at a situation where we have not completed. We are currently looking at issues of admissibility, and this is a requirement that i have to go through as prosecutor, and thats where i am. To say that Fatou Bensouda will not do that or will not do another because of Political Considerations does not arrive for me. What about Saif Al Islam gaddafi . Youve asked the Libyan Government, the authorities to hand him over to you. What have they said . Saif al islam gaddafi is one of those that we have already, that has been indicted by the icc on the request of the prosecutor, and there have been difficulties of getting into the icc. Hes at large but in hiding. Yes, we have received information recently that he has been released, and i have made a statement requesting for Saif Al Islam gaddafi to be surrendered to the icc. I have also recently met and im making various efforts, including meeting with the Prime Minister of libya, Prime Minister sarraj, to request for cooperation and to ask that Saif Al Islam gaddafi be surrendered to the court to face justice. What promises did he make about Saif Al Islam gaddafi . When might he had him over . He has to be apprehended, because hes not in the custody of the Libyan Government at the moment, at least the recognised government. What Prime Minister sarraj has promised is that there will be cooperation, a very good level of cooperation on the libya situation generally, broadly speaking, and of course efforts will be made to look specifically into this transfer and surrender of Saif Al Islam gaddafi. As i said, he is one of the cases that you are looking at, libya, obviously in africa, and i have to put it to you that the African Union, as you know, said not so long ago that the International Criminal court is basically an instrument of race hunting. Does it distress you as an african that you hear this kind of criticism . Its very unfortunate, really. This is a court that has enjoyed african support from the very beginning. The establishment of the icc, really, africa has played a big role, and those who negotiated the treaty will tell you this. Secondly, even if you look at 2010, for instance, when we were looking at the icc statute itself again, and looking at whether there is a need to replace anything or to renew, it was in uganda that we had that. Secondly, the president , the current president of the icc assembly of States Parties, sidiki kaba, is a Minister Of Justice in senegal. Senegal was the first state to have ratified the rome statute. Today, the largest block of states in any region is the african bloc. But senegal also tried hissene habre, the former president of chad, and that regionaljustice, that somebody should be tried in the continent where they actually committed the atrocities and victims and witnesses can all be brought, instead of hauling them all the way over to the hague. This is good. Just to have a trial, i believe this is good. And i think it should be known firstly that icc does not even