ICC seeks new prosecutor for impossible job

There have been just two prosecutors in 17 years of the court, which sits in The Hague

Outgoing ICC chief prosecutor Fatou Bensouda.  Photograph:   ellou Binanicellou Binani/AFP/Getty Images

Outgoing ICC chief prosecutor Fatou Bensouda. Photograph: ellou Binanicellou Binani/AFP/Getty Images

 

Wanted: experienced lawyer to face down Donald Trump, restore the writ of international justice by pursuing Syria’s mass murderers despite the politics of the UN Security Council, and reform a hugely slow and expensive court, many of whose most vocal member states hypocritically refuse to fund it.

That’s not the actual advert published this month for a new prosecutor for the International Criminal Court (ICC), which sits in The Hague. Anyone who knows the job knows it’s much more daunting than that, at once a poisoned chalice and the most important legal posting in a deeply dysfunctional geopolitical world.

A more accurate characterisation of its challenges might be along the lines of a legal Mission Impossible – so it’s appropriate that the closing date for applications is Brexit day, October 31st.

There have been just two prosecutors in the ICC’s 17-year history. The first, flamboyant Argentine Luis Moreno-Ocampo, dubbed “the world’s prosecutor” during his honeymoon period, was followed in 2012 by his deputy, former Gambian attorney general Fatou Bensouda.

Ironically, one of Moreno-Ocampo’s lasting legacies was to take on “the Kenyan cases”, particularly the case against Uhuru Kenyatta – subsequently the country’s president and staunch US regional ally – who was charged with orchestrating the vicious violence that followed disputed elections in 2007.

That case was presciently described in the Economist at the time as “arm-wrestling” between Kenyatta and his strongman government, business and intelligence inner circle, and an egotistical Moreno-Ocampo, representing “a distant judiciary” with “lukewarm diplomatic backing”.

In the end, it was Bensouda as prosecutor who was left carrying the can when the case against Kenyatta collapsed ignominiously in 2014 for lack of evidence – probably the low point of her nine-year tenure that ends in June 2021.

Not surprisingly, Bensouda has on occasion shown both frustration and commendable combativeness.

‘Without fear’

Reporting to the Security Council in New York in 2014, she slated its lack of action in pursuit of former Sudanese president, Omar al-Bashir, with the withering comment: “It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I’ve said over and over again …”

In response to the threat this year by US secretary of state Mike Pompeo that the US would revoke her visa if an investigation went ahead into alleged war crimes by American soldiers or the CIA in Afghanistan, she said she would continue to carry out her duties “without fear or favour”, which included travelling to New York.

For Bendouda’s successor, however, the problem is that the gloves are now off.

The US is not a member of the ICC. President Donald Trump and his national security adviser, John Bolton, in particular, have made clear that they despise the court and the rules-based global order it represents. Like Russia and China, they want both gone.

“We will let the ICC die on its own,” Bolton said last year. So if Trump secures a second term, how will the new prosecutor handle such blatant hostility from “the leader of the free world”?

Hypocrisy

Similarly, the ICC has been heavily criticised for its inability to act in Syria, the greatest humanitarian crisis of our time. Although that failure is the result of structural links between the court and the Security Council, which allow Russia and China to wave their P5 vetoes, is that a good enough answer for a would-be prosecutor selling change?

And the court’s critics are not only of the right.

Human Rights Watch has described the decision by ICC judges to reject Bensouda’s proposed Afghanistan investigation as “abandoning the field”.

It was Amnesty International that described the opposition of prosperous countries such as Germany, Italy, France, Britain, Canada and Japan to improved funding as “hypocrisy at a new level”.

Not everything is within the power of the prosecutor, of course. The Assembly of States Parties – signatories of the Rome Statute that established the court – needs to do more than congratulate it on its occasional successes and wring its hands at its failings.

The ICC and its prosecutor may be legal entities, but the ecosystem they’re part of is, now more than ever, unforgivingly political.

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