But what of the temporary collapse of the Thomas Lubanga case? Originally the trial was due to begin in June 2008, but was halted after the prosecutor failed to disclose material potentially beneficial to the defence. The former Congolese rebel leader came within a whisker of being freed – until, finally, a compromise was brokered in January 2009.
Bensouda urges people to bear in mind how young the ICC still is, and the significance of what it is trying to achieve. This is also her excuse as to why trials still take so long. Five years ago she predicted each one would take approximately 15 to 18 months to complete; yet eight years after the Court was formed, only one – Lubanga – has reached a conclusion.
‘The length of time that Katanga has taken is much shorter than Lubanga, and likewise Bemba. So things are getting better. We have to be given the benefit of the fact that we had to set up an office, get the good people and start cases; all of that had to be factored in for the first years of the ICC’s existence.’
Moving faster, of course, necessitates having high quality, effective staff to conduct investigations. Under Ocampo, a significant number of senior employees have left, not always under the most favourable of circumstances. In September 2008, Human Rights Watch (HRW) wrote to the Executive Committee of the ICC to express serious concerns over poor management practices. The departure of staff, HRW said, was having ‘a direct impact on the efficiency of investigations, and is particularly regrettable where due at least in part to the failure to develop a sufficiently supportive work environment’.
Bensouda refuses, however, to criticise her boss. They ‘have worked very well together’, she says, and she admires ‘his commitment to his work, which comes above everything else’. Yet it remains unclear whether her support is based on genuine esteem or her natural instinct for tact. ‘We have a very serious mandate,’ she says. ‘So when we present our office, it is one office.’
On other potential flaws in the system, Bensouda is equally defiant – such as the equality of arms between the prosecution and defence. A recent report by the IBA outlined concerns about the relative lack of resources of the defence when compared to the prosecution and recommended that ‘serious consideration’ be given to establishing the defence as an organ of the ICC.
Bensouda, however, disagrees. ‘For me, equality of arms does not mean that if you have ten prosecutors, you have ten defence lawyers. What is important is that they are in a position to defend the person as they should. And I think that is there.’
What about other concerns, such as the fact that China and the US, as members of the UN Security Council, can refer situations to the Court despite not being signatories to the Rome Statute themselves? This ‘should be debated’, she admits, but it is a problem for the Statute to solve, not the Court itself, which simply applies its principles. It is also a concern that neither superpower has shown any interest in signing up – but the priority is not the big guns, but their weaker brethren. ‘It is a way of protection,’ she says. ‘They have a strategic interest in ratifying the Statute.’
As the Arab Spring continues and the rule of law is pushed to the top of the international agenda, Bensouda is hopeful that other nations will follow Tunisia – currently the only Arab state signatory to the Rome Statute – and throw their weight behind the Court. Similar hopes surround the African Union (AU).
Though roughly half the African continent are states parties, the AU has so far declared itself vehemently opposed to Ocampo’s leadership of the Court, critical of the fact that all seven cases so far have involved African states. Yet this has not stopped the organisation publically endorsing Bensouda, who remains unapologetic about the focus on her home continent, pointing out that three of the current cases were referred by the countries themselves.
Bearing in mind the political ramifications of having an African chief prosecutor, Bensouda agrees that such an appointment ‘would be helpful’ for weakening the perception of the ICC as a Western, imperialistic entity. Yet she stresses that the ideal candidate should ultimately be the most qualified. ‘Once you want to have all these other considerations – of geography, of gender – you lose sight of what is most important: a merit-based candidate.’
The ‘helpful’ thing about 50-year-old Bensouda is that merit and political expediency go hand in hand. She is a woman, she is African and she is considered to be highly capable. The Court could perhaps do worse than to put this self-assured, striking Gambian in charge, and adopt her country’s motto – ‘progress, peace, prosperity’ – as its own.
Trials and investigations
Uganda: Referred by Ugandan authorities in January 2004. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, all members of the Lord’s Resistance Army, have been accused of crimes against humanity and war crimes. The case is currently being heard before the Pre-Trial Chamber. All four suspects are still at large.
The Democratic Republic of the Congo: Referred by DRC authorities in April 2004.Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga and Mathieu Ngudjolo Chui have been charged with crimes against humanity and war crimes, and all but Ntaganda are in the custody of the ICC. The case of Callixte Mbarushimana, who is also accused of crimes against humanity and war crimes, is currently before the Pre-Trial Chamber. The verdict in the Lubanga Dyilo trial is expected in late 2011 or early 2012.
Darfur, Sudan: Referred by the UN Security Council in March 2005.Ahmad Muhammad Harun, Ali Kushayb, Omar Hassan Ahmad al-Bashir, Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus have all been charged with war crimes. Harun and Kushayb have also been charged with crimes against humanity, and al-Bashir has also been charged with crimes against humanity and genocide. Banda and Jerbo appeared before the Court voluntarily, but Harun, Kushayb and al-Bashir remain at large. Bahar Idriss Abu Garda also appeared voluntarily in front of the Court, but the Pre-Trial Chamber declined to confirm the charges. The other trials are due to start in 2012.
The Central African Republic: Referred by the CAR authorities in December 2004. Jean-Pierre Bemba Gombo has been charged with two counts of crimes against humanity and three counts of war crimes. The trial started in November 2010.
The Republic of Kenya: Referred by the prosecutor in March 2010. William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali have all been accused of crimes against humanity. The cases are currently before the Pre-Trial Chamber.
Libya:Referred by the UN Security Council in February 2011. Muammar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi were issued arrest warrants for crimes against humanity allegedly committed across Libya from 15 to at least 28 February 2011. Muammar Gaddafi has since been killed and the other two suspects remain at large.
Côte d’Ivoire: Côte d’Ivoire is not party to the Rome Statute, but has accepted the ICC’s jurisdiction. The situation was referred by the prosecutor in October 2011, with respect to alleged crimes committed in months of unrest following the November 2010 elections.
She said - they said
David Michael Crane, founding Chief Prosecutor of the Special Court for Sierra Leone
James Goldston, Executive Director, Open Society Justice Initiative
Mark Ellis, Executive Director, IBA
On the election of judges:
Bensouda: No comment
Crane:‘In the past the Achilles heel of the modern international criminal law system has been the competency of its judges in all courts and tribunals. For this cycle of judge elections at the ICC there is an unofficial review of candidate files being reviewed by a distinguished panel, which will make their recommendations known to the secretariat. This is a positive step in the right direction.’
Goldston: ‘Contests for judicial office at international courts have often been marred by political horse trading among sponsoring states. The ICC selection process was supposed to mark an improvement, with stricter qualifications for office, more transparency and emphasis on merit over connections. But the experience so far has been mixed.’
Ellis:‘There will always be the potential for political abuse when you’re talking about a structure where state parties are voting. Having said that, everyone seems to be in tune with that concern at the ICC and to ensure that in this set of elections that did not take place.’
On whether the Office of the Prosecutor (OTP) should have undertaken investigations on the ground in Darfur, Sudan:
Bensouda: ‘We have an obligation that the people with whom we interact are protected. We will not be able to protect them if there is no cooperation from the government.’
Crane: ‘There is only so much an OTP can do without state cooperation. The challenges for a prosecutor are more political than legal. I believe the OTP did what it could in relation to The Sudan.’
Ellis: ‘I always think it is best to be on the ground to bolster the evidentiary base that you have, but that is a decision the prosecutor has to make in relation to security issues and the ability to get the information. In the end he was able to show he had sufficient evidence to get an indictment in The Sudan.’
On Ocampo’s use of the media:
Bensouda: ‘We have our different styles. Not all of us have agreed with that style, but in the end he is the prosecutor and the ultimate decision would lie with him. But he does these things according to him for a reason, for a purpose, and in the interests of being transparent.’
Crane: ‘The media are an important partner in the process of seeking justice for victims of atrocity. When used appropriately within ethical bounds it is an effective tool. I don’t think Ocampo strayed from the ethical path.’
On the ICC’s equality of arms between prosecution and defence:
Bensouda: ‘I think that there is equality of arms. For me, equality of arms does not mean if you have ten prosecutors you have to have ten defence lawyers. I think what is equality of arms is that the defence are put in a position that they can sufficiently defend the person accused. And all the facilities that they need to do a proper and rigorous defence of that individual is put at their disposal.’
Crane:‘All international courts have to be perceived to be fair. At the Special Court for Sierra Leone, the Registrar established the innovative Office of the Principle Defender. I believe the same office should be created at the ICC.’
Ellis:‘I think equality of arms has been a consistent and persistent problem for international courts. But other tribunals have done better at ensuring equality of arms. I think the ICC has been slow and could have done a better job. Having said that, I think the Court has made some real positive steps and it should be given credit for doing that.’
On the role of the UN Security Council at the ICC:
Bensouda: ‘Of course, the wider political debate is there as to why countries that are not members of the ICC can refer cases to the ICC. But that is not unfortunately a problem for the ICC itself to solve. We are working within the legal limits that we have, which is the ICC Statute. I am an official of the Court and I don’t want to enter into this debate, but I think it should be debated.’
Crane: ‘I believe, with the role of the Security Council and the significant place these countries play in the international community, that they are largely outside the Rome paradigm and somewhat unaccountable for their actions. I fear that what may evolve is a two tiered international justice system: these three countries [Russia, US, China] and the rest of the world.’
Goldston: ‘The ICC faces the unenviable challenge of seeking to render justice in a world marked by profound inequality of power. The Security Council is far from an ideally representative institution. And yet, the ICC should not be asked to bear the burden of responsibility for the unequal political context in which it operates. Its job is to apply the law impartially.’
Ellis: ‘My criticism is not with the Security Council but with the individual states that have still failed to embrace the Court as an important component in ensuring those who commit the most heinous crimes are brought to justice.’
On the importance of having an African chief prosecutor:
Bensouda: ‘I think definitely it will help the perception that this is not a western court, so I think the face of the court coming from that region is important. […] But once you want to have all these other considerations – of gender, geography – you lose sight of what is most important: a merit-based candidate.’
Goldston: ‘No matter who is chosen, both the candidate and the ICC will be stronger if the election is seen to be founded upon objective qualifications – prosecutorial experience, sound judgment, a commitment to engaging both victims and the wider public in the court's work — rather than a political pay-off to any state or group of states.’
Ellis: ‘The most important thing is to select the best person for the job, regardless of where they are from.’