Thijs Bouwknegt
13 December 2011
Being chief prosecutor of the International Criminal Court is one of today’s most delicate and politically sensitive jobs. “The best job in the world,” is how current chief prosecutor Luis Moreno Ocampo describes his position. Fatou Bensouda will be taking over the office in The Hague in June 2012. She then has the chance to bring to a close what she started in 2004 as deputy prosecutor: “unfinished business” in Africa.
Bensouda, 50, received two presents in the past weeks. On Monday she was elected new ICC Chief Prosecutor. With the arrest of Laurent Gbagbo, who arrived on 30 November in The Hague, Bensouda already reaped the benefits of the investigation she led in Ivory Coast in the past year. Former Ivory Coast President Gbagbo made his first appearance at the ICC on 5 December. But she was not there to meet him face to face. She will wait until his confirmation of charges hearing next year.
The rumours have been making their rounds for some time: the new face of the ICC will be African. This should not come as a surprise, as Africa has been the main playground of international justice so far – and the ICC has become its main theatre.
While African countries are over-represented in the ICC’s membership, all current cases in The Hague originate from Africa. African leaders, who used to be among the most passionate protagonists of the court, nowadays speak contemptuously of the ‘African Criminal Court’. Within the African Union, some are even talking about giving up their ICC membership. The court is accused of judicial colonialism and arbitrariness. One of the reasons why Bensouda has been appointed is to rectify that image.
African Prosecutor
Her Argentine predecessor Ocampo had a tough time making the ICC’s message palatable: prosecuting the main suspects of genocide, war crimes and crimes against humanity. Bensouda, who is fluent in English and a working knowledge of French, should be able to bring that message across more clearly than the sometimes confusing and “Spanglish”-speaking Ocampo. The court will most likely appear a bit more boring with the pragmatic and legalistic Bensouda. This, however, seems to be the wish of the member states: a reserved lawyer who does her job without much fanfare.
At the last stage of the selection process, there were two African candidates for the position of chief prosecutor. Some insiders had hoped for the nomination of Tanzania’s Chief Justice Mohammed Othman. He was believed to have been able to clean up after Ocampo, and is known for his diplomatic qualities. Nevertheless, the ICC finally chose Bensouda, who has been a constant factor at the court. She, like no other, knows the ins and outs of The Hague. Bensouda’s promotion is also a clear signal that the ICC member states are happy with the status quo at the prosecutor’s office.
The former Gambian minister of justice and bank manager came to dreary The Hague in November 2004. Bensouda was welcomed by her ex-boss Carla Del Ponte, who was the former chief prosecutor of the International Criminal Tribunal for Rwanda (ICTR). They had worked together in Tanzania for three years, prosecuting Rwandan genocide suspects. “Fatou, you have what it takes to do this job,” a proud Del Ponte said during Bensouda’s inauguration as deputy prosecutor of the ICC in November 2004.
Undoubtedly, Bensouda is the most experienced candidate for the position. She has worked together with Ocampo on the first investigations and cases since 2004. In the past, she was in charge of the preliminary investigations in Ivory Coast, Guinea and Nigeria. For the West African, this was her backyard: not only does she know the files, but she also knows the main players in them. That is a major advantage, given that – for the chief prosecutor politics weigh heavier than justice.
Bensouda also pioneered the trial against Thomas Lubanga Dyilo, the court’s first case, in which a judgement is expected early next year. She led the proceedings against the former Congolese warlord and gave her first closing statement in the case last summer. For her, success would be if Lubanga would be found guilty of using child soldiers in Congo. However, this first trial took blood, sweat and tears to complete. She had to deal with unpredictable witnesses who sometimes retracted their statements at the last minute. There were two instances in which Lubanga almost had to be let go due to serious procedural lapses.
Most difficult job
There are more difficult files in waiting at the prosecutor’s offices in The Hague. There are ongoing investigations in seven countries, while another eight countries are being monitored. Thus, a huge task awaits Bensouda. While the ICC has just received fresh cases from Libya and Ivory Coast, it is also in the midst of trying the difficult case of the former vice president of Congo, Jean Pierre Bemba Gombo. Meanwhile, closing arguments are being prepared in the cases against two former rivals of Lubanga: Germain Katanga and Matthieu Ngudjolo Chui.
Bensouda inherits other tough dossiers. How will she manage the burden of proof against Rwandan leader Callixte Mbarushimana, accused of running the FDLR rebel group in Congo from his home in Paris? How will she cope with the criticism surrounding the proceedings against the “Ocampo Six” in Kenya? Besides – she also has a trial to prepare against Sudanese rebels Saleh Jerbo and Abdallah Banda.
Another thorny issue is that in many instances the ICC is heavily dependent on the cooperation of the local authorities. Ocampo and Bensouda do not have a police force to arrest suspects, and thus the court often receives suspects who are no longer wanted in their country of origin. Gbagbo, for example, was presented on a silver platter to the ICC, courtesy of rival President Allasane Ouattara. Meanwhile, it will remain difficult to apprehend Sudanese President Omar al Bashir and Congolese warlord Bosco Ntaganda.
The warm, ever-smiling Bensouda will have a lot on her plate. Her greatest challenge will be to prove that the ICC can operate independently. For this to happen, the ongoing cases must be completed, human rights organisations warn from the sidelines. These organisations point to the limited prosecution policies which Ocampo and Bensouda have pursued so far. There is much “unfinished business,” Human Rights Watch recently wrote in a report. The court has yet to go after the biggest fish: the presidents of Congo, Uganda, the Central African Republic and Kenya have remained untouched.
As Bensouda will also remain dependent on cooperation from states for her investigations – the biggest question remains whether she will be able to go after the main culprits.
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