On Friday June 15, 2012, Fatou Bensouda of Gambia was sworn in as Chief Prosecutor of the International Criminal Court (ICC). With the ICC's caseload exclusively focused on Africa, a narrative has emerged that pits Africa against the international community. Think Africa Press asked a panel of experts: "Will the appointment of Fatou Bensouda pacify claims that international criminal justice is partisan?”
The focus of the International Criminal Court’s early work on situations within African states has given rise to allegations that the Court is anti-African and a European tool to re-colonise Africa. With such criticisms increasingly flung at the ICC, many hope that the appointment of Fatou Bensouda, a former Gambian justice minister, as Prosecutor will quell the “ICC versus Africa” rhetoric.
While it is true that all fifteen cases currently before the Court involve Africans, objective analysis does not in fact suggest that these investigations and prosecutions originate as part of a cynical, anti-African agenda. Uganda, the Democratic Republic of the Congo (DRC) and the Central African Republic referred situations on their own territories to the ICC. Kenya, in ratifying the ICC Statute, agreed to the ICC jurisdictional regime, and the Ivory Coast, although a non-state party, also accepted the Court’s jurisdiction.
The situations in Sudan and Libya differ somewhat, having been referred to the Court by the UN Security Council. That referral mechanism inevitably opens the Court to accusations of politicisation. However, the Security Council’s mandate to maintain international peace and security, and the threat posed to international peace and security by the commission of the crimes within the Court’s jurisdiction, mean that the two bodies cannot logically operate in isolation.
The crimes subject to current proceedings at the ICC are extremely grave and exemplify the very reasons for the Court’s establishment. That said, serious crimes have been committed elsewhere and the Court is also investigating crimes committed in Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria. As Chief Prosecutor, one of Bensouda’s key tasks will be to continue with these investigations and, if appropriate, bring prosecutions against those responsible. The commencement of proceedings against individuals from other regions may go some way to dispelling the charge of partisanship currently directed at the Court. However, the desire to throw off that label should not be allowed to interfere with the execution of the ICC’s judicial mandate, which is quite clear, and is to prosecute the most serious crimes of international concern where its jurisdiction is triggered. Those hostile to the ICC will doubtless find other criticisms to level at the Court, but the focus for Bensouda, as she leads the Office of the Prosecutor into its second decade of work, is to respond more meaningfully to the needs of victim communities and to enhance the efficiency of the evidence-gathering process.
There are great hopes that Bensouda will help recover much of the legitimacy that the ICC has forfeited under her predecessor Luis Moreno-Ocampo. Specifically, the Court's supporters hope that Bensouda will address three main problems that Ocampo has left behind. My sense, however, is that we’re likely to see more continuity than change under the new prosecutor.
First, under Ocampo, the ICC has been perceived as unfairly targeting only African suspects. Bensouda could help address this criticism by opening a non-African case such as Colombia, a situation the Court has been monitoring for many years, or Sri Lanka, where widespread atrocities have occurred. The biggest problem for Bensouda in this regard, however, is that she inherits from Ocampo an enormous caseload of seven African situations. The prosecutor’s office is already overstretched in terms of finance and personnel, and all indications are that it will be operating on an even tighter budget in the next few years as donors struggle with the global economic climate.
Opening non-African investigations and deploying staff to a new continent would be extremely expensive. Therefore the ICC will probably have to remain Africa-focused for many years. Bensouda, as the Court’s first African prosecutor, will handle relations with the African Union more effectively than her predecessor, which will ease some of the political tensions in Africa, but the charge of Africa-centredness won’t go away.
Second, severe resource constraints will also limit Bensouda’s ability to conduct more independent and effective on-the-ground investigations. Ocampo struggled to marshal his limited investigative teams to collect evidence in so many different countries simultaneously. This led to cutting corners and relying on third parties such as human rights organisations to gather information on the Court’s behalf – an issue that nearly led to the collapse of the Lubanga case. Ocampo’s refusal to hire country specialists and reliance on legal generalists hampered the prosecution’s work and, due to an absence of domestic political expertise, left the Court open to instrumentalisation by canny African leaders such as Uganda's Yoweri Museveni and the DRC's Joseph Kabila. Bensouda will be more attuned to these political dynamics but lack of resources will limit her ability to bolster her staff and improve general investigative practices.
Finally, where Bensouda undoubtedly will make a difference is in fostering a harmonious, constructive working environment in the prosecutor’s office, which Ocampo consistently failed to do. Where Ocampo was dogmatic, quixotic and volatile – which led to a constant haemorrhaging of disaffected senior staff – Bensouda is calm and collegial. Better office relations will translate to clearer and more efficient prosecution policies, which have been sorely lacking over the last decade.
It doesn't really matter who occupies the office of prosecutor in the ICC – whether African, female, or Martian. All that matters is that the prosecutor does not speak as Bensouda's predecessor did – as if one officer represented the entire direction of the court. The ICC has prosecuted or indicted many Africans, and many Africans feel it is prejudiced against their continent and its leaders. I think this is a narrow view. The ICC is part of a sprawling international architecture of tribunals: those to do with former Yugoslavia and Cambodia are cases in point. Many more Europeans were and are tried in the Hague for atrocities in the Balkans than Africans have been tried before the ICC. And these have included a former head of state, President Milosevic of Serbia, so Charles Taylor of Liberia was hardly a precedent (not that Taylor was in fact tried before the ICC). The truly problematic politicised nature of such tribunals can be seen not in Africa but in Lebanon.
However, the ICC does have many problems. These are:
1. The third (pre-trial) chamber has no real checks and balances within it.
2. Membership of the ICC is not universal – for example, the US is not a member.
3. It is too closely identified with the UN Security Council and, thus, the great powers.
4. Not all the judges within the ICC share a uniformly high level of jurisprudential background and juridicial experience.
There are emerging problems of 'blended justice' and questions over how formal international tribunals can sit alongside traditional courts, and how such formal tribunals can sit alongside truth and reconciliation commissions.
Having said that, Africa has got to get over its sense of being picked upon – in the totality of provision for international justice, it is not. And, frankly, people who kill, maim and slaughter thousands of Africans should be brought to trial.
The election of Fatou Bensouda – the first African female Chief Prosecutor of an international court – is of great symbolic and historic importance for Africa, but accusations that the ICC is putting Africa on trial stem from a number of reasons unrelated to the nationality or origin of the prosecutor. Because of this, negative views of the ICC amongst some Africans are likely to persist for some time despite the appointment of a highly-qualified African as Chief Prosecutor.
First, there is a perception promulgated by some leaders of the AU that international law is being applied unevenly. Fuelled in part by application of universal jurisdiction by European courts and the UN Security Council referral of the situation in Darfur to the ICC, this led the AU to decide not to cooperate with the ICC on the al-Bashir arrest warrant and to seek the extension of the African Court’s jurisdiction in order to prosecute Africans on African soil. Additionally, some states, such as Sudan, argue that sitting heads of state enjoy immunity and as such cannot be indicted by international courts like the ICC.
Some African states also feel that their concerns regarding ICC investigations and trials have been ignored. This stems from the UN Security Council’s decisions not to grant AU requests for postponements of the ICC investigations in Darfur and Kenya under Article 16 of the Rome Statute. Feeling ignored, the AU adopted a policy of non-cooperation.
Some states, of course, simply criticise the Court for self-serving reasons, using that criticism as a fig leaf to shield themselves from what they see as a breach of sovereignty or the prospect that they themselves may be the subject of an investigation. The election of an African prosecutor is unlikely to change this.
Not really, the change of the person of prosecutor will not do away with the International Criminal Court's proneness to political interference by the most powerful international actors. If the international community is indeed seriously concerned about criminal justice being partisan, two measures will be urgently required:
Those powerful countries (first and foremost three out of five permanent members of the UN Security Council) who so far have preferred not to join the ICC should do so immediately in order to give it jurisdiction over their territory and citizens. A policy of double standards in criminal justice is structurally imposed upon the Court as long as it has no jurisdiction over crimes committed by citizens or on the territory of some of the world's most powerful countries.
The Court's Statute should be amended so that the Security Council – a political, not a judicial organ – cannot interfere anymore into the Court's affairs. It is totally unacceptable that Security Council members who are not members of the Court and thus not subject to its jurisdiction make use of it to advance their political interests – as happened in the cases of the referrals of the situations in Sudan and Libya. Though the new prosecutor cannot change the Court, she may alleviate the Court's predicament if she, unlike her predecessor, is resolved to use her office’s vast powers under the Rome Statute according to strictly judicial considerations and if she refrains from acting like a surrogate politician or as a political lobbyist, a temptation her predeccesor could not resist. In that regard, a lot will depend on the personal integrity, and courage, of the prosecutor.
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