International Criminal Court: the next chief prosecutor? Fatou Bensouda part 1

By Rebecca Lowe

Fatou Bensouda grew up in a loving, polygamous family in The Gambia. She is now the favourite contender to be the next chief prosecutor of the International Criminal Court at The Hague. IBA Global Insight finds out the secrets behind the lawyer’s popularity.

Fatou Bensouda,
Deputy Prosecutor, ICC

Fatou Bensouda was raised in Banjul, The Gambia, by two mothers: her real mother and her father’s other wife, who lived under the same roof along with her own children. While her father, a civil servant, went out to work every day, the women would stay at home and tend to their brood, cooking, cleaning and designing bed sheets to sell.

To Westerners such an arrangement may seem distinctly uncomfortable. In The Gambia, however, polygamy is a widely accepted practice, and one – for Bensouda, at least – that worked extraordinarily well. ‘We were close to both mothers,’ she says. ‘All the siblings were close. We did not have this unfortunate rivalry that sometimes happens in polygamous families, and we were all very good to one another.’

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Bensouda’s father died from diabetes when she was a young girl, but his inherent sense of fairness and ability to provide equally for both sides of the family has always stayed with her.

This is perhaps one reason why she has managed to retain her popularity throughout her seven-year tenure as deputy prosecutor of the International Criminal Court (ICC) – a Court beset by controversy since its formation in 2002 – and emerged as a leading candidate for the top job.

The role she is after is that of Chief Prosecutor, the position currently held by charismatic Argentine Luis Moreno Ocampo. Yet unlike Ocampo, who has come under fire for his flamboyance and eagerness to court the spotlight, Bensouda has taken more of a back-seat role.

Following a spate of resignations by members of the ICC staff and an array of preventable set-backs to the first trial, which has taken nearly six years to complete, it is Ocampo alone who has borne the brunt of the blame, while his African protégé has emerged relatively unscathed.

 


 

  ‘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.’

Fatou Bensouda 

 

However, this is not to say that Bensouda is media-shy. A woman of imposing stature and kaleidoscopic wardrobe, she is a calm, commanding presence, exuding easy authority. Her smile is huge and enveloping, her speech measured.

She has her boss’s charming feistiness, but is seen as less erratic. She is, perhaps, exactly what the ICC needs as it strives to protect its credibility and prove that its original mandate – to end impunity for the most heinous of crimes across the world – has proven a success.

Power and authority

Having grown up in a house with over a dozen siblings, it is perhaps unsurprising that Bensouda is both confident and assertive. Yet she is also highly intelligent, and breezed easily through her academic studies. After gaining entry to the top grammar school in the country, where she spent many a happy day exchanging Mills & Boon books with her fellow classmates, she won a government scholarship to study at the University of Ife (now known as Obafemi Awolowo University) in Nigeria.

From Ife, she went on to Nigeria Law School, and from there to the UN’s IMO International Maritime Law Institute in Malta, where she became The Gambia’s first expert in international maritime law.

Over the next 20 years, Bensouda rose up through her country’s legal ranks. In 1998 she was appointed Attorney-General and Justice Secretary of State to The Gambia, before moving to Kigali to work at the International Criminal Tribunal for Rwanda.

Luis Moreno Ocampo, current Chief Prosecutor, ICC 

Finally, in August 2004, she was elected to the ICC by an overwhelming majority of votes.

The move, she says, was a challenging one. ‘Once you get here you realise that there are so many things that you are doing for the first time. Here we are investigating ongoing conflict situations, whereas ad hoc tribunals mainly take place after the conflict has ceased.’

Indeed, eight years since the ICC came into being, investigating ongoing conflict situations remains a pressing challenge. The Office of the Prosecutor (OTP) came in for particularly heavy criticism over its handling of the situation in Darfur, Sudan, which it began investigating in June 2005.

The following year, in a peer review of the Court, both Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia, and Louise Arbour, the UN High Commissioner for Human Rights, challenged Ocampo’s failure to undertake research on the ground, claiming safety concerns had been overstated.

Bensouda defends her boss’s decision – ‘we have an obligation that the people whom we interact with are protected, and we cannot do that if there is no cooperation’ – and she perhaps has a right to be defensive.

A charge of genocide levied against Sudanese President Omar al-Bashir, alongside those of war crimes and crimes against humanity, was at first thrown out by the ICC, prompting a barrage of criticism from people who felt the OTP had overstepped the mark. Yet in February 2010, the Appeals Chamber reversed the Pre-Trial Chamber’s rejection of the charge.

‘If they are saying that by not going to Sudan we cannot get our evidence, that is wrong,’ says Bensouda. ‘The Appeals Chamber has agreed with our evidence, so I think the Office’s work has been totally vindicated.’