The International Criminal Court’s Failure Against ISIS:ICC Chief Prosecutor Fatou Bensouda Must Go

February 02, 2016

Jonathan Levy, PhD*

[caption id="attachment_25940" align="alignleft" width="112"] Dr Jonathan Levy[/caption] I accuse the International Criminal Court (ICC) and its Chief Prosecutor Fatou Bensouda of gross negligence in the global struggle against ISIS and its affiliates. The purpose of this allegation against the International Criminal Court (ICC) Chief Prosecutor is twofold. First to expose the International Criminal Court’s Chief Prosecutor Mrs. Fatou Bensouda as being in breach of her duties and to explain the reason a career ICC prosecutor would so badly fail in her responsibilities. Secondly, it has finally come to pass that the ICC through its long term fecklessness has at last become an unwitting tool of Sunni Muslim extremism in a world ravaged by the Daesh (ISIS) and its affiliates. The International Criminal Court’s original purpose was to investigate and prosecute war crimes, crimes against humanity, genocide and to aid victims of these crimes. This court’s record undeniably is poor and shabby, two convictions of minor sub Saharan war lords in 13 years of existence. All of its current pending cases are against Africans all but one black. And this after the expenditure of well over $1 billion. The current ICC budget for 2015 is over $150 million. These figures alone and lack of convictions qualify the ICC as one of the most wasteful international government organizations in history. The first ten years of the ICC’s existence under Chief Prosecutor Ocampo were an example of extreme incompetency. With all the resources of the UN behind him Ocampo managed all of one conviction, a minor Congolese warlord. He handed off faltering cases against the rulers of Kenya and Sudan to his deputy and successor Fatou Bensouda. While Ocampo’s tenure can at best be called a joke; Bensouda has shown herself to be far more dangerous to human rights and international law. Ocampo earned the distinction of being labeled a persecutor of Africans while ignoring war crimes in other parts of the world. Under Ocampo thousands of communications to the ICC sat for years before being rejected. The only cases opened were in Africa. Therefore, when ICC Deputy Prosecutor Fatou Bensouda, the former Justice Minister of Gambia and former UN Rwanda Tribunal prosecutor was elected to succeed Ocampo a collective sign of relief was in heard in Africa and beyond. Bensouda while not a stellar legal mind was at least thought to be competent and evenhanded towards Africans. Upon accepting her post, Bensouda touted her Islamic principles which did not raise any alarm bells at the time. Swept under the prayer rug of peace was the fact that Bensouda started her legal career as the Justice Minister for the dictatorial regime of Gambia strongman Yahya Jammeh. Bensouda is a Sunni Muslim from Gambia and is married to a Moroccan businessman. Gambia was a small secular state in west Africa, whose overwhelming majority is Muslim. In December 2015, Gambia’s long time ruler Yahya Jammeh declared Gambia an Islamic republic. Bensouda obtained her law degree from Nigeria Law School. However, it is the lack of action by Prosecutor Bensouda against the Islamic State or Daesh and its affiliates Al Shabaab and Boko Haram which elevates this deliberate nonfeasance to an entirely new level – intentional breach of duty by a truly flawed ICC Chief prosecutor who is blinded by her Sunni Muslim faith. The Islamic State or “Daesh” is the single greatest threat of the 21^st Century. The Daesh and its affiliates Boko Haram, Al Shabaab and others have claimed the lives of tens of thousands in Africa, Europe and the Middle East through numerous well documented crimes against humanity, genocide and war crimes. If one logically adds the Al Qaeda network to the mix, since Daesh began life as Al Qaeda in Iraq, the tactical reach of the organization is truly staggering. Since December 1, 2015 the Daesh has struck in such varied places as California, Chad, Aden, Nigeria, Dagestan, Philadelphia, Marseilles, Paris, Istanbul and Jakarta. This of course is in addition to more conventional Daesh ground forces in Somalia, Libya, Syria and Iraq. The list is incomplete but Daesh has the demonstrated ability to simultaneously undermine security in Africa, Asia, North America and Europe and challenge conventional forces on the ground. Not since World War Two has such a threat to stability and peace arisen. Today’s Daesh are as infamous as yesteryear’s Nazis for their cruelty and barbaric crimes. [caption id="attachment_25941" align="alignright" width="275"] Fatou Bensouda, the ICC has been accused of targeting African leaders[/caption] Daesh is a global organization with cells and caliphates in countries that are firmly under the jurisdiction of the International Criminal Court including France, Kenya, Mali, Chad, Nigeria and the United Kingdom. It is undisputed that the Daesh modus operandi includes genocide against Shia, Christians, and Yazidis; and related war crimes and crimes against humanity. Verified video evidence exists of ISIS war crimes, genocide, and crimes against humanity committed in Africa, Europe, and the Middle East. There is uncontroverted evidence and admissions that IS has committed beheadings, suicide bombings, mass executions, enslavement, mass rape, looting, and destruction of cultural heritage. Thus even a newly minted prosecutor could find ample material upon which to build a case against the Daesh leadership and its henchmen. Prosecutor Bensouda however has found no ICC jurisdiction exists because: “I have come to the conclusion that the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.” Such a finding is not only an insult to the victims and their families but to the intelligence of the public and ICC member states. Prosecutor Bensouda has refused to act against the transnational Daesh network on the flimsiest of excuses. By refusing to act for justice and truth in the face of the worst threat to human dignity since Nazi Germany, Prosecutor Bensouda has joined the ranks of those Muslims who tacitly support Daesh through their silence except that Bensouda need not be silent. The world would applaud her even in a vain attempt to expose the criminality of the Daesh. What then ails Bensouda? Prosecutor Bensouda is guilty of a serious breach of duty. Further, her refusal to open investigations of Daesh suggests a bias in favor of radical Islam given the credible allegations of Daesh funding and material assistance from NATO member Turkey and Saudi Arabia. Prosecutor Bensouda has effectively granted Daesh impunity from prosecution and has sent a message of non-accountability to the war criminals in the Daesh. This is inconsistent with the Rome Statute and the dignity of the ICC Prosecutor’s office. Bensouda like many Sunni Muslims somehow does not see the Daesh as the big problem facing the world today. Legal argument – The International Criminal Court only has jurisdiction in the countries which have ratified the Rome Statute. This includes many countries where Daesh and its affiliates including Boko Haram and Al Shabaab operate and have committed numerous atrocities: Afghanistan, Nigeria, Kenya, Chad, Mali, Tunisia and Niger. In Nigeria alone Boko Haram claimed over 6000 victims in 2014. Since Daesh operates as a unified organization, even though the ICC cannot indict them for crimes committed in Syria, Iraq, Somalia, and Libya, it surely may indict the Daesh for crimes committed within ICC jurisdiction. The question is why has the ICC not done so? Fatou Bensouda has offered this mind boggling rationale to justify a hands off policy towards Islamic terror. According to Bensouda, she can do nothing because Daesh seems to be mainly based in Syria and Iraq and therefore these countries are not ICC members. She stated, “In this context, I have come to the conclusion that the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.” Perhaps to someone ignorant that Boko Haram has joined Daesh or that Daesh is active in Afghanistan, Bensouda’s excuse may sound vaguely plausible. However, it is not plausible but disingenuous. Fatou Bensouda not only has forsaken the best chance for the ICC to be seen as something more than a persecutor of Africans but to actually be relevant in international law. This is all bad enough but something even more sinister lurks in Bensouda’s flawed logic. Fatou Bensouda is a Sunni Muslim. When asked by Al Arabiya if her religion influenced her, she answered it definitely did, “Islam, as you know, is a religion of peace, and it gives you this inner strength, this inner ability and a sense of justice. Together with my experience, this will help a lot.” Bensouda’s failure to act against the Daesh, Boko Haram, Al Qaeda, and Al Shabaab becomes even more flagrant when viewed in terms of the cases upon which she is currently squandering ICC resources. The ICC has been chasing the Sudanese president Al Bashir for years. Surely, he is no poster child for human rights yet an agreement was made with Southern Sudan that has saved the lives of millions. More tellingly, Sudan is on the front line struggle against Daesh, at least one Daesh affiliate operates in Sudan. Arresting Al Bashir would likely throw the entire Sudan region into chaos much like Libya. Speaking of Libya, the ICC instead of chasing the head chopping Daesh that have set themselves in Libya, has concerned itself with the hapless Saif Al-Islam Gaddafi as an indirect co-perpetrator of crimes against humanity: a man whose father for all his faults kept the extremists out of Libya. Saif Gaddafi is a proxy for his murdered father. Yet another very important front line state in the struggle against Daesh is under ICC attack. The president and vice president of Kenya have been charged by the ICC with crimes against humanity. Kenya furnishes the bulk of troops in the war against Daesh affiliate Al Shabaab in Somalia and the Kenyans have paid a heavy price in blood for their willingness to guard east Africa from extremism. Prosecuting the brave foes of the Daesh seems weirdly flawed. Finally, we have the ultimate proof of Bensouda’s insularity. While Daesh has destroyed and looted priceless ancient Roman and pre Roman sites in Syria, Iraq and Libya, the ICC has concerned itself with vandalism of Muslim mausoleums in Timbuktu, Mali. On 18 September 2015 the ICC issued an arrest warrant for Ahmad al-Faqi, who is accused of the war crime of intentionally directing attacks against buildings dedicated to religion, specifically the mausoleums and mosques located in Timbuktu. Thus the Daesh may pillage and destroy classical archaeological sites but the ICC somehow sees the damaging of Muslim sites in Mali as the greater crime and evil. Meanwhile the antiquities market in Europe and Turkey are glutted with the fruits of Daesh looting. [caption id="attachment_25942" align="alignleft" width="280"] Selective justice? Former Ivory Coast President Laurent Gbagbo is standing trial at the Hague, but what about the other well known culprits of the Ivory Coast crisis?[/caption] The ICC has recognized Palestine and has called the Turkish Gaza flotilla incident a minor war crime. This does not bode well for Israel another bulwark nation against Daesh. However, given the glacial approach favored by ICC nothing substantive will likely occur regarding Palestine this decade. Other ICC failing under Bensouda can be evidenced by lack of action in Ukraine where ICC foot dragging has permitted the Ukrainian government a free hand. Nuremburg this is not – we don’t know if Bensouda studied the Nuremburg War Crimes Trial at Nigeria Law School but they are the standard for swift and efficient justice. Unlike UN Tribunals in which trials can drag out for ten years or more, Nuremburg disposed of Nazi Germany’s major war criminals in 11 months. This was done without information technology, the Internet and a $150 million annual budget. The crimes of the Daesh are well documented in video, admissions, and written statements. There is no lack of evidence. Being a criminal defense attorney it seems odd to me to be castigating a prosecutor for not doing their job but in this case Bensouda is undermining the promises of international law. A prosecutor who won’t do her job must be removed from her position. A Muslim prosecutor who does not deem the Daesh worthy of pursuing is blinded by the religion of peace and is impeding justice. She is a menace who must be sacked. The bottom line is that Fatou Bensouda by invoking a legally flawed jurisdictional argument to avoid the Daesh has presented the Daesh with the greatest gift of all – impunity for genocide, war crimes, and crimes against humanity. Fatou Bensouda must be removed from her post for the sake of the victims of the Daesh. *Dr. Jonathan Levy is a member of the International Criminal Court Bar and is an adjunct member of the Political Science faculty at Norwich University and Southern New Hampshire University. As Chief Administrative Officer of the Organization of Emerging African States OEAS, he has called for ICC member states to remove Fatou Bensouda from her position as ICC prosecutor. Paper prepared  for the John Naisbitt University, National and International Security Conference on Contemporary Global Challenges, 3-4 February 2016 Belgrade, Serbia