Fatou Bensouda: The challenges and the record

By Chief Charles A. Taku*

From left to right: the former and first African president of the ICCBA, Chief Charles Taku, former First Vice President of the ICC, Madam Justice Joyce Aluoch, the former President of ICCBA David Hooper, the ASP President, Judge Silvia Fernández de Gurmendi, and former Vice-President of ICCBA, Ghislain M. Mabanga. The photo was taken on 20 July 2016 © ICC-CPI

The election of Fatou Bensouda as the chief prosecutor of the International Criminal Court on December 12, 2011 brought a sigh of relief to many who were concerned about the direction her predecessor, Luis Moreno Ocampo, was taking the court. I was among these persons.

The Prosecutor of the International Criminal Court (ICC), the judges, and the Registrar were entrusted with the arduous task of setting up the court. This was a key foundational objective of the Rome Statute, which established the court. The Rome Statute expected them to be persons of high moral character, impartiality, and integrity, and who possessed the professional qualifications required in their respective states for appointment to the highest judicial offices.

The creation of the court was greeted with enthusiasm and scepticism in equal measure. The expectation was shared by all. The tools for the realisation of the mandate of the court were incorporated in the Rome Statute. The commission given to these officials was defined in the preamble of the Rome Statute. They were to ensure “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”.

From inception, the Rome Statute was perceived as the response of the civilised world to the culture of impunity that threatened to make a mockery of the universal pledge of “never again”, which enthroned a new world order in 1945. Unfortunately, the UN Charter did not anticipate the rise of non-state actors and their ability to challenge the sovereignty of nations, big and small, and commit atrocity crimes. The Rome Statute, although ambitious in its objectives, also failed to anticipate the emergence of new actors and forms of atrocity crimes in the technological age, and to allocate adequate resources to contain or fight them.

New global trends and challenges have expanded the potential jurisdiction of the ICC beyond the 123 States Parties. Technology and globalisation have provided the emergent alternatives to states – such as mineral-for-weapons merchants, drug and money laundering cartels, international terrorism networks, and some multinational corporations – the platform and capacity to operate and commit atrocity crimes in many Rome Statute States Parties. The activities of ISIS-Daesh, Al Qaeda, Boko Haram, and rogue state criminal networks in the Sahel, and the Trans-Sahara journey of death are examples of crimes that are committed by persons and organisations of diverse nationalities in the territories of States Parties to the Rome Statute. The masterminds of these crimes may never have set foot in Africa, but their activities presented the first ICC chief prosecutor with the challenge of pursuing a worldwide mandate of confronting crimes of significant proportions with few resources, or remaining focused on Africa. This was a challenge that Ocampo should have anticipated and pursued, but he failed to do so. Instead, he chose to ignore it. He wasted nine precious years trotting around Africa, fighting atrocity crimes in the media while a deadly confederation was transforming the African Sahel into the most dangerous crime base in the world. Every day, the trans-Sahara crime syndicate and slave cartels were snuffing out the lives of young Africans in the Sahara and Mediterranean Sea. Human life lost its value on Ocampo’s watch.

While the Rome Statute was ambitious in its goals but short on the resources to attain them, it nevertheless commissioned the ICC to use tested customary international mechanisms to realise its objectives. Many of the participating states and delegates in the negotiations in Rome knew that the establishment of the ICC was the realisation of a long search for a standing international court that began at the First World Peace Conferences (The Hague 1899 and 1907). They knew that a key obstacle to the establishment of a court to fight international crimes was many states’ fear of losing their sovereignty to a supranational judicial institution. They feared that a rogue Prosecutor could abuse his/her mandate and use the power of the office and mandate to rock the very foundations of state sovereignty on which the international world order was anchored. This fear was expressed during the negotiations leading to the Rome Statute. The fear is at the heart of some of the problems the court has faced in its two decades of existence. To allay the fears, the States Parties integrated several safeguards, including complementarity and international cooperation, to ensure that serious crimes that concern the international community would not go unpunished.

The court needed a skilful and professional chief prosecutor with a high moral character, impartiality, and integrity, and possessing the qualifications required in his/her state for appointment to the highest judicial offices, and endowed with mature diplomatic and legal skills, to attain the goals of complementarity and international cooperation. Ocampo did not prioritise these objectives, or simply did not think they were necessary. One does need to go far to guess why. His public statements speak clearly on his mandate and its enduring impact on the ICC and international criminal justice far into the future.

Fatou Bensouda, the Deputy Prosecutor during Moreno’s tenure, may be presumed to be one of the architects of the policies that distracted the court from its core objectives. I have not found strong evidence on the basis of which she may be held accountable for Ocampo’s professional and policy missteps, which are many. When Bensouda took over, I stated in an interview in Pan African Visions that it would take her six years to try to resolve the problems created by her predecessor. My prediction turned out to be almost accurate. By the time she became conscious of the fact that she needed to focus on establishing her own legacy, six good years had passed and she was left with only three years to make a mark. It dawned on her that she could not fix the problems she inherited within the OTP’s institutional framework, the wider ICC organisational structure, and the ICC States Parties.

It would be unfair, however, to judge her performance by the number of cases she won or lost. This is an inequitable matrix on which to measure the success or failure of a Prosecutor whose statutory mandate expects her to act as an administrator of international justice and to investigate both or more sides to a conflict. No credible court has ever been established for the sole purpose of securing convictions. Also, no Prosecutor has ever pledged to only secure convictions. Justice should be seen to have been done and should be celebrated when there is a final judgment of guilt or acquittal, provided the trial was legitimate, credible, and fair.

Bensouda’s first intervention as the ICC Prosecutor was the situation in Mali. This was informed by the crimes committed against the museum in Timbuktu, the cultural conscience of Africa and black civilisation. The paper she published explaining the rationale for her intervention was a marked difference from the abrasive style of Ocampo. Through the paper on crimes against protected cultural objects during armed conflicts, published in the last days of Ocampo as the ICC Prosecutor, she intended to cement that unique legacy. History is a stubborn administrator of the truth. She deserves recognition for her legacy and stand on historical truth.

Bensouda made efforts to extend the frontiers of the court beyond Africa to the extent of provoking the stormy waters of international politics. She survived American sanctions only because of a new administration which did not see the targeting of individuals as a solution to America’s opposition to ICC policies towards its allies and its interests. Also, she sent strong signals to Afghanistan, Israel, the United States, and Palestine that through the exercise of their complementarity prerogatives, further ICC action would be unnecessary. Her policy of flexibility and push for complementarity in the American backyard of Colombia swiftly alarmed some disaffected situation countries in Africa, where she did not show such flexibility or even respect. Had she pushed a little more of complementarity and international cooperation in some African situations, her relationship with the continent would have been better by the end of her mandate. This, sadly, appears not to be the case.

Bensouda was qualified to hold the high office of chief prosecutor of the ICC. She came along with experience at the International Criminal Tribunal for Rwanda and as a former Attorney General of her country, The Gambia. Her professional and political background helped her to summon the right instincts to conduct independent enquiries on the calamitous performance of the OTP in the situation in Kenya.

Although the report of the commission remains classified, she published an excerpt in which the OTP accepted some responsibility for the strategic and professional errors that led to the collapse of the cases. Prior to this, she had published a report on the lessons learnt in which she made a candid admission of these errors. The independent commission she empanelled came to the same conclusion in many respects. By this means, she insulated herself from the multiple, even scandalous, professional missteps her predecessor made, and which led to the collapse of the Kenya cases. They were poorly investigated and the sheer amount of propaganda and politicised civil society involvement compromised them beyond redemption. No professional prosecutor should contemplate giving a fig leaf of credibility to civil society reports in criminal prosecutions.

Bensouda issued policy papers on a variety of subjects that she hoped would, from a conceptual perspective, improve the capacity of the OTP to fulfil its mandate. These reports appear to have been of limited value because of lack of focus on emerging world trends and the new frontiers of international criminality that the ICC must confront. The universal expansion of ISIS/Daesh, Al Qaeda, Boko Haram, and other global challenges that Ocampo ignored have become serious threats to international peace and security. The OTP’s action on these crimes in situation countries in the Sahel and other parts of the world would have united the civilised world – both States Parties and non-states parties – behind the ICC chief prosecutor and the mandate of the court.

Unfortunately, the ICC’s policy reports focused on crimes committed in politically sensitive and tense situation countries where effective and efficient complementarity and international cooperation could have brought justice to the doorsteps of the victims. Significantly, Bensouda published policy reports on almost every subject, but not on complementarity and international cooperation. Ocampo did not contemplate the importance of this central statutory mandate, and Bensouda appeared to have started paying attention to it late in her term, and only when she was attacked personally by strong nations and their allies. This might not have happened if she had believed that complementarity and cooperation deserved to be a central focus of international criminal justice at the ICC.

Her greatest achievement is that she made bold steps in redirecting the ICC towards its universal goal as a signpost of hope of justice for victims. In her private life or new endeavours, she will be remembered as a chief prosecutor who attempted to reclaim ICC’s lost first decade, which was expected to define the court and the future of international criminal justice.

During my tenure as the president of the International Criminal Court Bar Association (ICCBA) Bensouda and I were panellists at a discussion on almost 20 years of the Rome Statute and international cooperation organised by France and Senegal during the ASP in December 2018 in The Hague. We both addressed the solemn opening of the Judicial Year and the 20thanniversary of the ICC on July 17, 2018. Listening to her speeches during those historic occasions, I found her tone subdued and humble but dignified, and her reflections profound and meaningful. She was at her best in those moments and occasions. I paid attention to the manner she conducted herself and the professional image she presented. Many persons I spoke to after the events paid attention as well.

Such historic occasions are often defining moments in the lives of some leaders, when they are becoming conscious of their legacy. They use them to define themselves and the institutions they lead. Moments such as these are hard to identify, predict, or track, but disastrous to miss. It requires sagacity and a sense of discernment on the part of a strong but humble leader to discover them.

Bensouda used the historic opportunity for maximum effect and impact. The focus of her addresses was not about a litany of threats against countries and political leaders who were experiencing a contentious relationship with her office. They were not a projection of herself and the power of her office. She was conscious of the diverse audience and the need to place on the historical record professional and policy issues, which she hoped would move the ICC in the right direction and legitimise her legacy. Until that moment, when the world started paying attention, many persons had believed that Bensouda was an uncritical and unapologetic disciple of Ocampo, who should be held accountable for his professional missteps, many of which Fatou has left for her successor, Karim Khan QC, to try to fix. I will never know what was on her mind during those moments when she made her addresses. However, her rendition, performance, and actions presented a professional picture of her that was quite different from what many had come to expect. Unfortunately, this was coming three years to the end of her mandate. She did not manage to tame the ghost of Ocampo and the problems he created. Her efforts, which consumed six years of her nine-year mandate, did not manage to motivate the staff of the OTP. They did not inspire confidence in some States Parties. There is no reasonable explanation why she did not withdraw or terminate some of the politicised cases Ocampo brought when they started falling apart on her watch, such as the Laurent Gbagbo and Charles Blé Goudé case. Doing so would have saved the court wasteful spending of scarce resources that could have been redirected to other matters. Her diplomatic and communication record with States Parties, which she was supposed to rely on to carry out investigations, was not encouraging. That was part of the strategic policy Ocampo left for the office. Yet she cannot be entirely faulted for trying to contain the foundational harm that negatively defined the OTP and the court.

As we welcome the new chief prosecutor, Karim Khan, we must bear in mind the fact that he has demonstrated his ability to handle difficult mandates with commendable success and startling results. He needs the support of all to fulfil his mandate. His honesty, independence, humility, and extensive experiences in all aspects of national and international practice have been identified as the power behind his extraordinary achievements throughout his professional career in many parts of the world. With his vast experience, he should be able to maintain permanent dialogue with States Parties and non-states parties for the domestication of the Rome Statute in national legislations worldwide. The realisation of this objective would provide countries all over the world with enabling legislation to realise the complementary goals of the Rome Statute. Doing so would bring the battle against impunity close to potential victims and dissuade the perpetration of new crimes. The Rome Statute needs to become the bedside catechism of international justice in all countries.

If someone were to ask me the one significant achievement of Bensouda’s that I will remember, it is the fact that she made commendable efforts to put the ICC, at 20, on the right trajectory of its mandate and of history. This is a memorable achievement, even though it came late in her mandate due to the reasons I have advanced. But it came, nevertheless. That is why Fatou Bensouda may not just slip away into oblivion. She may remain a relevant positive factor in the ICC, and in the international justice and diplomatic circles long after her mandate. I wish her luck in her future endeavours.

*Courtesy of Journalists for Peace.Chief Charles A. Taku is a Defence Counsel and a former President of the International Criminal Court Bar Association (ICCBA)

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