In April this year, Gambian lawyer Fatou Bensouda, the new chief prosecutor of the International Criminal Court, was listed by Time magazine as one of the 100 Most Influential People in the World. Clearly, the global profile of the court in The Hague has grown since it was established a decade ago.
Ironically, among the eclectic Time list were some people she might prosecute, such as Syrian President Bashar al-Assad and Somalian insurgent leader Sheik Moktar Ali Zubeyr.
Bensouda, 51, is by all accounts a popular choice. Certainly, her appointment is crucial to the ICC’s efficacy – as an African she may help dampen criticism that the continent has been singled out for prosecutions while appalling offenders elsewhere have been largely ignored.
Her appointment is the latest milestone in what so far has generally been a good year for the ICC, the kernel of an evolving international justice system that is charged with prosecuting war crimes, crimes against humanity and genocide.
In March, in the ICC’s landmark first judgment, Congolese rebel leader Thomas Lubanga was convicted of conscripting, enlisting and using children in armed conflict between 2002–03. The court will hold a separate sentencing hearing and consider the issue of redress for victims for the first time.
In April, former Liberian President Charles Taylor was found guilty on 11 counts of aiding and abetting rebel forces in neighbouring Sierra Leone who waged a campaign of terror including murder – of some 50,000 people – sexual slavery, conscripting children and mining ‘blood diamonds’ until 2002. It was the first war crimes conviction of a former head of state by an international court since the Nuremberg trials after the Second World War.
Criticisms in Africa
There are 33 African States Parties to the ICC’s Rome Statute agreed by 120 countries in 1998. By the Court’s launch in 2002, Africa had more countries represented than any other region. The continent thus played a major role in the Court’s creation, but since then relations have soured – particularly with African leaders. Unsurprising, perhaps, given there are some two dozen people facing trial in 14 cases – all of them African.
There have been accusations that the court has unfairly targeted Africans – even though all except two African cases were referred to the ICC by the countries concerned. The ICC has investigated conflicts in seven African countries – Central African Republic, Democratic Republic of Congo, Ivory Coast, Kenya, Libya, Sudan and Uganda. It also has preliminary investigations into Afghanistan, Georgia, Guinea, Colombia, Honduras, Korea and Nigeria. Only in Kenya and Ivory Coast did the ICC prosecutor open cases.
In Kenya this followed parliament failing to establish a national tribunal and Kofi Annan, as chair of the African Union Panel of Eminent African Personalities, handed a list of suspects to the Court. In Ivory Coast, former President Laurent Gbagbo accepted ICC jurisdiction in 2003, hoping the Court would prosecute rebels. But when he was sent to The Hague, his supporters accused the ICC of being a ‘white man’s court’ with an imperialist agenda.
Accusations become actions
Recently, resistance to the Court among African political leaders has moved from words to action.
On 26 April, the East African Legislative Assembly passed a resolution calling on the ICC to transfer the cases of Kenya’s ‘Ocampo Four’ to the East African Court of Justice (EACJ). Former Deputy Prime Minister Uhuru Kenyatta, MP William Ruto, former civil service head Francis Muthaura and journalist Joshua arap Sang are accused of fomenting violence after December 2007 elections, during which 1,200 people died and 600,000 were displaced. Subsequently the appeal was rejected and the four men will stand Trial in the Hague.
The ICC also dismissed the proposal as ‘technically impossible’, but a summit of heads of state mandated urgent amendments to the East African Community treaty to extend the jurisdiction of the EACJ to cover crimes against humanity. Then, on 7 May, the African Union said its legal committee had been directed to review the Africa-ICC relationship with a view to expanding the jurisdiction of the African Court of Justice and the African Court on Human and Peoples’ Rights to cover international crimes. These moves against the ICC have ignited massive debate and split African opinion.
ICC supporters argue the EACJ lacks necessary jurisdiction and capacity. More generally, they believe the ICC makes wartime leaders think about their actions and makes them accountable. It provides justice for victims of heinous deeds in countries where judicial institutions are too weak or politicised to do so.
Many Africans believe moves against the Court are motivated by politicians who fear prosecution and that in East Africa, where national leaders were heavily involved in conflict in the Congo, there are good reasons for such fear.
‘Some argue that ICC trials are a demonstration of Western judicial power… The question now is whether an ICC prosecuting team led by an African will help to quell growing resistance in Africa… Bensouda faces a daunting task, but one that could determine the future of international justice for the victims of wars and atrocities around the world.’
Ahmed Bogere Masembe, a journalist with Uganda’s Ssuubi FM, recently argued that the African Union wanted an African court able to be manipulated by governments ‘through the appointment of judges, control over prosecutorial activities, and by providing a limited budget’.
Abdul Tejan-Cole, a former prosecutor at the Special Court for Sierra Leone and African Regional Director of the Open Society Foundations, wrote that most Africans did feel that Africa was ‘on trial’. ‘It is definitely not the view of the victims of mass crimes… who know that their national courts are invariably unable or unwilling to prosecute.’
‘There is not a single case before the Court that one could dismiss as being frivolous or vexatious. They might all be African but they are also all legitimate. It is farcical that we can equate the trial of 25 accused with the trial of an entire continent,’ said Tejan-Cole.
Meanwhile, critics have condemned the ICC for being slow and costly. Some argue that despotic leaders may cling on to power to avoid prosecution, and that only ‘politically acceptable’ leaders have been prosecuted.
Some argue that ICC trials are a demonstration of Western judicial power rather than a genuine pursuit of international justice for victims, and that the leaders of powerful nations – notably the permanent members of the Security Council: China, France, Russia, America and Britain – will never face prosecution.
Dr Christine Cheng, a politics fellow at the University of Oxford, wrote recently for Al Jazeera that courts build legitimacy partly on cases they choose to hear. ‘For the ICC to remain viable, it also cannot be perceived as the back door by which Western powers target their political enemies.’
The future under Bensouda
The question now is whether an ICC prosecuting team led by an African will help to quell growing resistance in Africa.
Deputy chief prosecutor since 2004, the African Union lobbied hard for Bensouda to succeed Argentinian Luis Moreno-Ocampo, who it viewed as antagonistic. Last year AU Commission chair Jean Ping said: ‘We are not against the ICC. What we are against is Ocampo’s justice.’
Bensouda worked well with Moreno-Ocampo, and some critics have expressed concern that his office’s less-than-perfect prosecuting and slow progress may have rubbed off on her. On the other hand, she offers the key asset of continuity to the ICC and has been credited with holding the Office of the Prosecutor together in difficult periods.
Bensouda faces a daunting task, but one that could determine the future of international justice for the victims of wars and atrocities around the world.