New prosecutor likely to widen scope of ICC
As Fatou Bensouda takes up her role, she will be setting out to improve the image of the court
AS THE International Criminal Court returns after Easter and clears its decks for the high-profile trial of former Bosnian Serb general Ratko Mladic, it will also be preparing behind the scenes for the most significant leadership change in its decade-long history – its first African chief prosecutor.
In terms of familiarity at least, it will be an easy transition for former Gambian attorney general Fatou Bensouda (51). Since 2004, she has been deputy to the flamboyant Luis Moreno-Ocampo; his day-to-day partner in breaking what has been described as “the cycle of impunity” which had previously surrounded some of the most horrific crimes since the second World War.
Yet many of those who supported Bensouda’s appointment will be expecting much more than a switch in comfortable offices. Some of Moreno-Ocampo’s most vocal critics during his nine-year term have been from the continent of Africa, claiming he imposed “western justice” by focusing unfairly on African states – an accusation of selectivity he’s always vigorously denied.
Why, Moreno-Ocampo’s critics have inquired, have all seven conflicts so far investigated by the ICC – Libya, Sudan, Ivory Coast, Kenya, Uganda, the Democratic Republic of Congo and the Central African Republic – been in Africa? Why, they ask, have there been no ICC investigations in Syria, Iraq or Gaza? Why has the UN Security Council so far referred only two cases to the ICC, those of Darfur and Libya? Why is it that only in Africa – or so it appears – are the world’s worst international crimes allegedly being perpetrated?
Those are the questions that Bensouda will inherit as ICC chief prosecutor. And that is the climate of political tension and mutual distrust between the West and much of Africa into which she will step when she takes her new seat in The Hague in July.
“Frankly speaking, we are not against the ICC,” said chairman of the African Union Jean Ping last year. “What we are against is Ocampo’s justice.”
Regardless of whether or not such a culture of selectivity actually exists at the ICC, there will be intense pressure on Bensouda – as an African lawyer and former government minister married to a Gambian-Moroccan businessman – to restore, at the very least, the perception of balance.
“She will be expected to bridge the divide with the AU, while still providing victims of crimes against humanity, war crimes and genocide on the African continent with the possibility of justice,” observes pan-African human rights lawyer and academic George Mukundi.
Bensouda was appointed by a consensus of the 118 states – out of the UN’s total membership of 193 – that are signatories of the Rome Statute under which the ICC was established in 2002. She won the job ahead of three other shortlisted candidates: Andrew Cayley, the UK co-prosecutor of the Khmer Rouge Tribunal in Cambodia; Mohamed Chande Othman, chief justice of Tanzania; and Robert Petit, the Canadian war crimes specialist.
However, the fact is that the African Union – in pursuit of what it hoped would be a change of perspective at the ICC – lobbied intensely in favour of Bensouda, as it was fully entitled to do.
“The AU was adamant that an African candidate would be selected – and they got their wish,” says Mark Kersten, who writes the UK-based Justice in Conflict blog. “At the same time, Bensouda clearly satisfied all of the political and the merit-based criteria necessary to become the ICC’s chief prosecutor.”
The African question is not one from which Bensouda has shied away in the past.
Throughout her term as deputy chief prosecutor, she has been an unfaltering supporter of Luis Moreno-Ocampo, rejecting claims that he had “needlessly alienated” governments or that he had unfairly targeted Africa.
“Any time I hear this, about the ICC targeting Africa, about the ICC’s alleged double standards, it saddens me, especially as an African woman,” she said some months ago.
“The fact is that these conflicts are happening on the African continent – and our involvement is always as a result of the engagement of the African people with the ICC.”
Despite that, Bensouda’s primary aim now is likely to be to improve the perceived legitimacy of the ICC by broadening its scope. Preliminary investigations are being carried out in eight new countries, including Korea, Colombia and Afghanistan.
A lasting achievement for her term would be to persuade some of the major powers, such as the United States, Russia, India and China, who remain outside the ICC framework because they believe it would compromise their independence in foreign policy, to reconsider their positions.
That might help to persuade sceptical African leaders that there can, after all, be one justice for all.