The Gambian Fatou Bensouda was sworn in this morning as the International Criminal Court’s new Chief Prosecutor, succeeding the Argentine Luis Moreno-Ocampo. Much has been made of the fact that she is the first woman to hold the post, but given that she is only the second chief prosecutor and the Swiss Carla Del Ponte served as Chief Prosecutor of two ad hoc tribunals for the former Yugoslavia and Rwanda, the precedent is perhaps less important than it seems. On the other hand, her status as the first African to head the team of prosecutors at the tribunal is highly significant. The Office of the Prosecutor is investigating 15 cases in seven countries, all of them African. The African Union demanded an African prosecutor, and now has got one. It will be interesting to observe whether the anti-Hague rhetoric it has indulged in since the Al-Bashir indictment will be toned down. Bensouda may help re-kindle the initial enthusiasm shown by the surprising number of ratifications south of the Sahara in the years after the Rome Statute. It will become far more difficult to argue the Court exhibits undue bias towards African nations and leaders if it is an African who is ultimately responsible for issuing indictments. Moreno-Ocampo will not be missed – his parting act two weeks ago of threatening a Sudanese ambassador with investigation for complicity in crimes after the latter denied any crimes occurred in Darfur sums up all too well his aversion to keeping his own counsel and his counter-productive tin-ear for political reality.
Bensouda’s appointment has been interpreted as confirming the barely-suppressed desire among states parties to select a prosecutor who will be more of a ‘secretary’ than a ‘general’, i.e someone who won’t ruffle as many feathers as her publicity-friendly predecessor. She by contrast with the “Cowboy Proseutor” is highly regarded by both insiders to the Court and outside observers. As Kevin Jon Heller puts it: “She offers the best of both worlds: an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo’s incompetent tenure. Having spoken to numerous individuals involved in the ICC, from OTP staff to legal officers in Chambers to defense attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.”
ICC judges have issued 20 arrest warrants and nine summonses but only six suspects have been arrested so far and only one has been convicted — Congolese militia leader Thomas Lubanga who used child soldiers in the conflict in the northeastern Democratic Republic of Congo. Those still on the run include Sudan’s President Omar al-Bashir and Ugandan Lord’s Resistance Army rebel leader Joseph Kony. There appears to be little prospect of securing these individuals for trial. However, Bensouda assumed her role at a highly propitious time as the Court is faced with the prospect of its first trials of genuinely senior figures in Ivory Coast (it’s recently toppled leader Laurent Gbagbo is awaiting a hearing to see if he will face trial on charges relating to violence that killed 3,000 people after the 2010 election), while the ongoing processes of accountability for the Libyans Saif Gaddafi and Abdullah Al-Senussi will require the sort of monitoring and engagement that advocates of “positive complementarity” have long advocated. Far too many resources were wasted under Ocampo’s watch on investigations that could never have come to trial. The focus on genuinely transitional states like Libya and Ivory Coast will for the first time allow the Court to make an appreciable difference in the states its influences.
Aside from cases, key policy issues for Bensouda involve the following:
- Should the Court continue to entertain one-sided self-referrals as seen in Uganda and the DR Congo?
- How far should the policy of positive complementarity stretch in light of the interest expressed at the Kampala Review Conference for an approach better integrated with rule of law reform? Moreno-Ocampo was very reluctant to assume anything but the most residual co-ordinating role in this respect, pleading tight budgets, but the essence of the complementarity regime is that domestic prosecution is the most appropriate where possible – funding dollars go much further in Kinshasa than in the Hague
- Does the “same conduct” test outlined in Lubanga unwisely risk undermining genuine domestic proceedings by prioritising the purity of international criminal jurisprudence over contextual understandings of crime?
- Should resources be wasted on sovereign leaders safe behind borders (Bashir) or fugutives from domestic justice (the LRA indictees?)
- How zealously should the OTP monitor potentially unfair trial processes like the Libyan trials?