African dissatisfaction with the ICC is nothing new, and the fact that Fatema Bensouda, slated to be the next Chief Prosecutor to the ICC also hails from Gambia might prove to be more of a challenge than a strength. All proceedings before the ICC today are against African leaders, despite overwhelming proof that violations of the Rome Statute are committed almost every day, by countries everywhere. Danial Fiol, a Spanish lawyer tried to get the prosecutor to sue Obama last year for the targeted killing of Osama Bin Laden. John McNamer of Canada has filed documents with the Office of the Prosecutor (OTP) making out a case of complicity in torture against Canadian troops deployed in Afghanistan. These complaints–and there are many more–are still being investigated, and the focus has stayed almost entirely on Africa (which investigations and proceedings, by the way, seem to be conducted a whole lot faster). Bensouda comes in therefore, at a time when the ICC is facing a serious crisis of legitimacy.
In the words of an observer, “Yes she is African, yes she is a woman and yes she is a Muslim. What else could go wrong or right for her (depending on your views)?” No doubt her appointment does a lot for the movement towards gender parity. The United Nations has never had a female Secretary General. The World Bank has never had a female President. That the destiny of ICL is expected to be guided by a woman becomes particularly significant since sexual crimes have been routinely brushed aside before by the OTP. It is also relevant that the OTP itself has been tainted before by allegations of sexual abuse against Ocampo, and his subsequent dismissal of the employee who reported the misconduct to the President. The ICC absolved Ocampo of blame, but the ILO found against him for the dismissal. Bensouda has had better relations with both the media, and employees.
But the most important aspect of her appointment, in my view, is its role in easing tensions between the ICC and the African nations.
It is some relief that the African Union has endorsed her candidature (they are openly hostile to her predecessor, the AU having gone to the extent of asking African nations to ignore the warrant against Bashir). “Fatou is the best person for the job, not just because she is an African,” said Ben Kioko, the AU’s Chief Legal advisor, “but because she has a good understanding of African issues.” But the correctness of the decision to prove her can only be decided in retrospect. Immediately after her election, she asserted, “”But let me stress: I will be the prosecutor of all the states parties in an independent and impartial manner.”
International reaction has predictably been more or less supportive of her election, but some degree of independent criticsm has been levelled against her. After the expiry of Ocampo’s tenure a lot of people would have been relieved by a clean break from his manner of functioning (I am convinced, like many others, that this was aimed more at grabbing headlines than getting the job done), but the Assembly of Parties has instead opted for continuity. Symbolically, this has ramifications that may be detrimental to the image of the ICC. Already she has indicated that she had been “proud” to have worked with Mr Moreno-Ocampo and so may not bring a radically different approach. The BBC describes her as “unapologetic” about the ICC’s focus on African conflicts.
Perhaps we are all so desperate for some hope, that the Press has remained more or less wilfully blind to the role played by Bensouda as Justice Minister and chief legal adviser to Sheikh Professor Alhaji Dr Yahya Jammeh Naasiru, with little reportage going into her tenure under one of the worse autocrats of our time. Not only has he been known to claim that the heads of all homosexual people should be cut off, he also insists that he has found a cure for AIDS which he can provide only on Thursdays, since on Fridays and Saturdays, he is busy curing asthma. “Cured” Gambians pose the threat of spreading AIDS further, since they believe have no cause to fear. Perhaps it is some consolation that she eventually fell out with him.
No doubt, Bensouda’s credentials are sound. She has extensive experience in Gambia as well as on the international plane. Before leading the ICC’s prosecution division for seven years, she worked at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, from 2002 to 2004, first as a trial attorney and later as its senior legal advisor. One only hopes that Bensouda uses her merit and her positive reputation to act effectively to restore the damaged image of the Court. Ultimately, who she is and where she comes from matters to the extent that it influences her perspective, but what matters more is what she does. I conclude in the hope that the next Prosecutor lives up to Simon Allison’s words, “She’s black and she’s African, which helps. But she’s also very good.”
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