The past week’s legal and diplomatic storm has focused on the decision by one highly esteemed woman, whose decisions in the coming years are likely to shape the legal and political course of the Israeli-Palestinian conflict.
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International Criminal Court Prosecutor Fatou Bensouda, who assumed the position in June 2012, is the second person to hold the post, having served as the court’s deputy prosecutor for eight years. Bensouda’s rich experience in international criminal law began when she served in several senior positions in the International Criminal Tribunal for Rwanda. The Rwanda tribunal, alongside the International Criminal Tribunal for the former Yugoslavia, were the two ad-hoc international criminal courts set up in the 1990s that foretold the formation of the ICC, which began operating in 2002.
Prior to her appointment to the Rwanda tribunal, Bensouda had a rich legal background in her home country, The Gambia, where she filled a series of senior roles, including state prosecutor and attorney general. After completing her legal studies in Nigeria, she earned a master’s degree in international maritime law in Malta. In 2012, Time Magazine named her among the world’s 100 most influential people, writing, “Thoughtful, soft-spoken, yet determined and forceful, Bensouda has been a leading voice pressing governments to support the quest for justice, particularly in Africa.”
Bensouda was born in 1961 to a polygamous Muslim family. Her father had two wives, and she was raised by her mother and her father’s other wife in an expanded family. She has over a dozen brothers and sisters.
“One thing that really made me [want to become a lawyer] was the fact that I realized that there were not many female lawyers,” Bensouda told the American network PBS several years ago. “And I also saw that there were a lot of issues affecting gender and children, which I thought I should be able to play a huge part in presenting it before the court and standing up for them.”
Her prime conviction, she emphasized throughout the interview, was to act on behalf of victims. The ICC, she said, reflected the idea of a “common bond” among the international community. Until its formation, perpetrators of atrocities effectively had impunity, she noted.
“I think perpetrators of these crimes do know that they can be held accountable. There is a court in existence now. A court is not going to be established after they have done whatever they have done. It is in existence. And I think that, in itself, sends a message that there is going to be accountability ... Impunity is going to end.”
She tends to reject criticism that the ICC is a European court investigating African countries and a repeat of the colonial relationship. “Africa has the largest number of countries in any one continent to be members of the court,” she pointed out. “They wanted this court to be created, because Africa was also sending a signal that we also want to end impunity and through this court we think we can achieve that.”
She noted that all eight cases currently before the court related to African countries, four of which originated in the African countries themselves, who asked the court to intervene, and two (Sudan and Libya) after being referred by the United Nations Security Council. Only in two countries, Kenya and the Ivory Coast, had Bensouda herself initiated the legal process.
It is difficult to downplay the expectations from Bensouda when she became only the second prosecutor to the young, faltering court. As one known for her ability to listen and hold dialogues, many observers hoped the court’s eroded relationship with Africa would improve with a prosecutor from the continent itself. She entered the post having previously played a central role in the court’s first conviction, when Thomas Lubanga Dyilo was convicted to 14 years’ imprisonment in March 2012 for conscripting children and using them to participate actively in hostilities in the Democratic Republic of the Congo (DRC). The court’s second conviction thus far, also relating to the DRC, was made during her term, in March 2014, when Germain Katanga (also known as Simba) was convicted for crimes against humanity and war crimes.
“Real justice is not a pick and choose system,” she said upon entering her job in May 2012. “To be effective, to be just and to have a lasting impact, justice has to be guided solely by the law and the evidence. Our focus is on individual criminal behavior against innocent victims.
“Law,” she continued, “is a shield for the powerless, not a club for the powerful, and no one will divert me from the course of justice.
Lack of cooperation
Maybe the expectations from Bensouda’s term were too high. In her time, investigative and legal procedures by the office she heads have continued to move slowly. Only very few of the preliminary examinations, investigations and even indictments before the court have reached the trial and conviction stage.
On top of that, Bensouda’s tenure has been marked by a number of major crises. First was the collapse of the murder and rape case against Kenyan President Uhuru Kenyatta: Last December, the judges who thought that insufficient evidence had been brought to the court demanded that the prosecution bring evidence that would justify a trial. Bensouda accused the Kenyan government of thwarting her attempts to investigate the crimes and denying the victims’ right to know the truth. She says the Kenyan government failed to transfer material to the prosecution that was likely to help prove Kenyatta’s guilt. She also accused the Kenyan government of a campaign designed to instil fear in witnesses who were supposed to help prove the indictment. If all this was not enough, at the beginning of the month a witness who was due to give evidence in the ongoing trial against Kenya’s vice president was murdered.
A few days after the case against Kenyatta was closed, Bensouda announced that she was suspending the investigation into alleged war crimes in Darfur because of a lack of cooperation by the United Nations. An indictment for war crimes was filed against Sudanese President Omar al-Bashir in 2009, yet Bashir remains free after he refused to recognize the court’s jurisdiction.
“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again, most of which are well known to this council,” Bensouda lamented to the UN Security Council on December 12.
The council needed to apply “a dramatic shift” to its approach to arresting the Darfur suspects, she said.
Inactivity on the issue, she said, led to her intention to suspend the investigation and transfer the resources to investigating other urgent events.
These two events point to the court’s difficulty in operating without cooperation. There were those who accused Bensouda of not doing her work sufficiently well, but she still commands great respect. To a large extent, she came out of these crises strengthened as she generally managed to turn disadvantages into advantages: She accused the leaders of Kenya of causing the case against the country to collapse, and the UN Security Council members of thwarting the Sudanese case.
Her decisions in these cases, as well as others, were considered professional, not political.
Now, it appears that most of the criticism is directed against the limitations of this ambitious international body. Under Bensouda’s leadership, the prosecutor’s office is conducting preliminary examinations into allegations of torture by British forces in Iraq and U.S. soldiers in Afghanistan, and alleged crimes by Russia in Georgia. Despite not being a member of the court, Russia cooperated with the examination and transferred many documents to the prosecutor.
Only this week, Dominic Ongwen – a leader of the Lord’s Resistance Army in Uganda – was brought to The Hague after an indictment was issued against him and other leaders (including the infamous warlord Joseph Kony) for crimes against humanity and war crimes, a decade after an arrest warrant was issued against him.
Investigations at various stages are ongoing, alongside preliminary examinations such as the one relating to Israel. The prosecutor closed the previous examination against Israel – after Israel Defense Forces soldiers boarded the Gaza flotilla’s Mavi Marmara in May 2010 and 10 civilians were killed – when she said that even though the court had jurisdiction over the matter (following the agreement of the Comoro Islands, where the ship was registered), the crimes in question were not of sufficient gravity to fall under the court’s jurisdiction.
It can be learned from the prosecutor’s policy, laid out in her office’s 2012 strategic plan, that her office is moving from mainly “focused investigations” to “in-depth, open-ended investigations while maintaining focus,” which will allow for a wider range of issues to be probed. Another change in approach is adjusting the policy of investigating and prosecuting those most responsible for crimes, in the sense that the Office of the Prosecutor consider also mid-level perpetrators, in some cases starting with lower-level cases in order to build to the top – a lesson from the evidentiary difficulty in previous cases against top leaders.
Another change noted is a move away from relying on witnesses to a reliance on other evidence, such as written, scientific, and so on. All these considerations are expected to guide the prosecutor when dealing with the Israeli-Palestinian examination.