April 19, 2024

Photo: ‘There must be justice, there must be accountability … that drives me’ … Fatou Bensouda. https://www.theguardian.com/law/2016/jun/05/fatou-bensouda-international-criminal-court-tyrants

 

“So I wouldn’t say that I regret that we are working in Africa, because of the fact that the victims also are African victims. If certain people are looking to shield the alleged perpetrators of those crimes, of course they will say we are targeting [African nations]. But … the victims deserve justice, the victims are Africans, and in the absence of the ICC nobody else is giving them justice”
Bensouda


 

 

 

 

 

 

At the Centrestage:

British lawyer Karim Khan was sworn in as the new chief prosecutor at the International Criminal Court (ICC) in The Hague on Wednesday 16 June 2021. Khan succeeded Gambian-born Fatou Bensouda in the prestigious, overexposed, and often downright uncomfortable position of the Prosecutor of the ICC. Khan inherits a series of challenges from his predecessor, including investigations into alleged crimes in the Palestinian territories, Afghanistan, Myanmar and the Philippines.

 

Decoding in details:

 

It cannot explain quite, but for the better part of five decades, since she was a very young schoolgirl growing up in Gambia, Fatou Bensouda says she felt strongly driven by a sense of right and wrong. As she said The issue of justice and accountability seems to be … in my DNA…. As soon as I was able to figure out and analyze some of the injustices in the society around me, I wanted to do something about it.

That young schoolgirl is one of more than a dozen siblings born to a polygamous Muslim family in Africa’s smallest country, she became the chief prosecutor of the ICC in the Hague. The institution was founded with the goal of eradicating impunity for war criminals and genocidal rulers all over the world who may have thought they were above the law; Bensouda said, as such, is the person they should be most afraid of. From that young schoolgirl to this,  It’s been a journey.

Bensouda is now 60, and has been the ICC’s most senior prosecutor since 2012, a decade after the court was established, when she was elected to replace the posts’ inaugural holder, Luis Moreno Ocampo. She became, at a stroke, one of the most powerful African (or Muslim) women in the world.

 

  • Bensouda’s role in strengthening the International Criminal Law:
Photo: A Gambian Lawyer, Fatou Bensouda, The chief Prosecutor of the International Criminal Court, in office from 15 June 2012 – until 15 June 2021. https://diplomatmagazine.eu/2020/12/06/in-the-pursuit-of-international-criminal-justice-without-fear-or-favour/

 

To understand what Bensouda did, it is important first to clarify what was before the status quo. It was not, for instance, the international criminal court that put the former Serbian president Slobodan Milosevic and more than 100 others on trial for crimes in the former Yugoslavia, and earlier this year convicted Radovan Karadzic of war crimes and genocide.

That was the International Criminal Tribunal for the former Yugoslavia (ICTY), an ad hoc body established in 1991 that to date has seen more than 80 of that conflicts’ bloodiest criminals convicted and sentenced. A similar International Criminal  Tribunal for Rwanda (ICTR), set up three years later, convicted 61 people of war crimes, genocide, and crimes against humanity.

The ICC, by contrast, has had a much bumpier beginning. Though the court has issued nine summonses and 29 arrest warrants, including for the Ugandan warlord Joseph Kony and, before his death, Muammar Gaddafi of Libya, in the 14 years since its existence it has convicted three people of war crimes, the Congolese rebels Thomas Lubanga and Germain Katanga and the country’s former vice-president Jean-Pierre Bemba. The latest conviction was of Dominic Ongwen and its is considered to be a historic moment as far as ICC is concerned.

More than 120 countries have ratified the court’s founding statute, but equally important is the list of those that have not – including around half of the nations in Africa, almost all the Middle East and most of central and far-east Asia. Most critically, three of the five permanent members of the UN Security Council (UNSC), which have the power to veto UN referrals to the court, are not party to it: the US, Russia and China.

Her bold stance on Afghanistan and the Palestinian Cause.

In March 2020, following a decision of the Appeals Chamber of the ICC which ordered the Prosecutor to open an investigation in Afghanistan, Mike Pompeo, then-Former Secretary of State of the United States of America (USA), delivered a scathing tongue-lashing of the ICC for what he called inappropriate and unjust attempts to investigate or prosecute Americans.

He placed the blame squarely on three individuals: Sam Shoamanesh, the chef de Cabinet to the ICC Prosecutor; Phakiso Mochochoko, the Head of Jurisdiction, Complementarity and Cooperation Division; and the Prosecutor Fatou Bensouda herself. The USA’s contention with the ICC also stemmed from the Prosecutor’s intention to investigate international crimes allegedly committed in the State of Palestine, which potentially implicates citizens of Israel, a long-time ally of the USA.

Though the Palestinian Authority joined the Court in 2015 and the Prosecutor was examining alleged crimes committed in the Occupied Territories, few expect any potential ICC action against Israel to get past a US veto. When 65 nations called in 2014 for the Syrian conflict to be referred to the Court, meanwhile – a context for which one might think a criminal court to challenge war crimes and genocide was invented – it was vetoed by China and Russia.

In fact, in September 2020, then-Former President of the USA Donald Trump issued Executive Order 13928, which sought to block the properties of certain persons including associated with the ICC and to impose financial and travel restrictions.

Partly in consequence, the Court has focused to date predominantly on African conflicts, irritating and increasingly enraging the continent’s leaders, who accuse the court of First World bias. In February 2016, the African Union backed a proposal by the Kenyan president Uhuru Kenyatta to develop a road map for the withdrawal of African nations from the Court.

As for the accusations of anti-African bias, Bensouda insists they are easily rebutted. Of the 10 conflicts currently being investigated by the ICC, nine are in African countries (the last is in Georgia), but in six instances, she says, the Court got involved at the request of the countries themselves. In two other cases, those of Libya and Darfur in Sudan, the ICC got involved at the request of the UNSC leaving only one – in Kenya – undertaken at the discretion of her predecessor as Chief Prosecutor.

 

 

 

 

 

 

Bensouda stresses her decisions as Chief Prosecutor are primarily driven by the law, and by the complex tangle of lines defining where her jurisdiction begins and ends. Nevertheless, her own position as a woman from West Africa has also informed the character of Bensouda’s ICC. Bensouda has made it an explicit strategic goal of the court to challenge rape and exploitation of women and children in war.

 

I have sent very loud and clear messages that we will do whatever is in our power and in our mandate to address sexual violence in conflict…in these conflicts, unfortunately the most vulnerable groups are women and children. Whether they are taken as sexual slaves, or forced labour, or the children are recruited to fight wars that they shouldn’t be fighting – this happens

 

A number of important litigation successes and landmark decisions have since ensued, including the ruling delivered in the Myanmar/Bangladesh situation confirming the Court’s jurisdiction over the alleged deportation of Rohingya people (an investigation was opened), and the appellate ruling  on head of state immunity in the Al Bashir case in the Darfur (Sudan) situation, to name a few.

 

 

 

 

 

 

 

 

 

 

  • ICC Principals adopt High-Level Statement on Gender Equality:

On 30 April 2021, Judge Piotr Hofmański, President of the International Criminal Court (“ICC” or the “Court”), ICC Prosecutor, Fatou Bensouda and ICC Registrar, Peter Lewis adopted a High-Level Statement on Gender Equality at the ICC.

We firmly believe that in order to uphold women’s rights and to reap the benefits of women’s important contributions, the perspectives of women in all of their diversity must be integrated in all spheres of the work of the Court

This High-Level commitment is consistent with values of diversity, respect, equity and inclusion as well as the principles enshrined in the Court’s legal framework.

With this Statement, the Court reaffirms its commitment to achieving gender equality by saying, Gender equality is not only right and necessary but a driver of performance and success for the organization, stated the Principals.

 

Standpoint:

However powerful her commitment to justice, in other words, that all amounts to a to-do list of bewildering legal complexity and political sensitivity, as Bensouda puts it with no little understatement: The challenges are there, just because a job is perplexingly difficult does not mean you should give up, however.

It is evident that the biggest threat to the ICC today stems not from en masse withdrawal that the Africa block has been threatening for a few years now but from influential state parties and non-state parties who appear determined to stop at nothing but to protect themselves from the Court’s jurisdiction. Executive Order 13928 and the resultant sanctions have provided a glimpse into what this determination may mean.

The survival of the ICC going forward will therefore largely depend on how the Court and its staff assert their judicial independence and authority amidst significant resistance from powerful state players.

What is required, today more than ever, is greater support for the ICC, its independent and impartial work, and the international rule of law

Bensouda

 

References:

 

Addley, E. (June 5, 2016): “Interview Fatou Bensouda, the woman who hunts tyrants” The Gurdian.com. Retrieved from: https://www.theguardian.com/law/2016/jun/05/fatou-bensouda-international-criminal-court-tyrants

ICC, (October 4, 2018): “Statement by ICC Prosecutor, Fatou Bensouda, at the conclusion of her visit to Mali: “Cultural heritage must no longer be attacked and destroyed with impunity” International Criminal Court. Retrieved from: https://www.icc-cpi.int/Pages/item.aspx?name=pr1413

Diplomat Magazine, (May 1, 2020): “ICC Principals adopt High-Level Statement on Gender Equality” Diplomat Magazine EU. Retrieved from: https://diplomatmagazine.eu/2021/05/01/icc-principals-adopt-high-level-statement-on-gender-equality/

Diplomat Magazine, (December 6, 2020): “In the pursuit of international criminal justice, without fear or favour” Diplomat Magazine EU. Retrieved from: https://diplomatmagazine.eu/2020/12/06/in-the-pursuit-of-international-criminal-justice-without-fear-or-favour/

Opinio Juris, (April 19, 2021): Symposium on the ‘Legacy’ of the USA Sanctions against International Criminal Court Prosecutor Ms Fatou Bensouda and Mr Phakiso Mochochoko”. Opinio Juris. Org. Retrieved from: http://opiniojuris.org/2021/04/19/symposium-on-the-legacy-of-the-usa-sanctions-against-international-criminal-court-prosecutor-ms-fatou-bensouda-and-mr-phakiso-mochochoko/

DW (June 16, 2021): “Karim Khan sworn in as new ICC chief prosecutor”. Deutsche Welle. Retrieved from: https://www.dw.com/en/karim-khan-sworn-in-as-new-icc-chief-prosecutor/a-57916216