A global search for a new Prosecutor of the International Criminal Court has kicked off, beginning the countdown to the exit of Gambian Fatou Bensouda, who completes her term on June 15, 2021.
Although the President of the Assembly of States Parties to the Rome Statute, the treaty that created the ICC, promised “a transparent and structured process to elect the prosecutor”, behind the scenes lobbying among the 122 states parties has begun in the race to replace Bensouda.
ASP President O-Gon Kwon said the Committee on the Election of the Prosecutor would be seeking to attract the most qualified candidates for the position. The Prosecutor is elected by an absolute majority of ASP members from a shortlist through secret ballot. Once elected, the prosecutor nominates three candidates for deputy prosecutor to be similarly elected by the ASP. Current deputy prosecutor James Stewart’s nine-year term ends on November 16, 2021.
The 58-year-old Bensouda’s success at the ICC is likely to be defined by cases started by her feisty predecessor, Argentinian Luis Moreno Ocampo, who was first in the job and launched investigations into situations in Uganda, the Democratic Republic of Congo, Sudan, Kenya, Central African Republic and Cote d’Ivoire.
The cases from the Democratic Republic of Congo have so far yielded the highest number of convictions — against Germain Katanga, Thomas Lubanga, Jean-Pierre Bemba and Bosco Ntaganda. Bemba’s conviction was overturned on appeal because the defense presented evidence exonerating him while Ntaganda’s lawyers have appealed against his conviction.
Malian Ahmad Al Mahdi was convicted after he confessed guilt for the destruction of religious monuments in Timbuktu, and the confirmation of charges against his fellow countryman, Al Hassan, for crimes against humanity in the same conflict was only concluded in July 2019.
Bensouda’s signature prosecution is the crimes against humanity case against Lord’s Resistance Army commander Dominic Ongwen, whom she has charged with 70 counts.
Cases in two situations with more initiated after the United Nations Security Council referred Sudan and Libya to the ICC have not begun. One of Bensouda’s abiding frustrations has been the ICC’s failure to try Sudanese President Omar el-Bashir against whom warrants of arrest were issued on March 4, 2009 and June 12, 2010. Libya’s Saif al-Islam is also wanted at the ICC for crimes against humanity. On February 8, 2010, ICC judges decided not to confirm the charges against Darfur rebel leader Abu Garda, who had come to the court voluntarily, and later rejected the prosecutor’s application to appeal the decision. There are an outstanding 15 ICC warrants of arrest that slow down the court’s work.
After Cote d’Ivoire accepted the ICC’s jurisdiction in the aftermath of the election violence in 2008 in 2010/2011, charges against former president Laurent Gbagbo and youth minister Charles Ble Goude were not confirmed. The prosecutor was allowed to conduct new investigations during the confirmation phase, pushing hearings to lengths many never imagined when the Rome Statute was being negotiated. There was a trial, but it was ended by a no-case-to-answer motion defence lawyers filed after the prosecution had completed presenting its evidence — considered by a majority of the judges to be too weak to secure a conviction.
Bensouda was forced to withdraw crimes against humanity cases Ocampo initiated from the situation in Kenya against Uhuru Kenyatta and Francis Muthaura because witnesses had withdrawn, changed their testimony or been killed. Another case from Kenya against William Ruto and journalist Joshua arap Sang was terminated mid-trial because of what one judge called “intolerable levels of witness tampering”. Kenya mobilised its diplomatic clout at the African Union and at the UN to campaign for the termination of the cases in a manner that tested the ICC’s political mettle as never before.
The Kenya cases, started on the prosecutor’s own motion, put the court in the eye of the storm of global politics pitting Africa versus the Western hemisphere. Elected almost as a shoe-in after deputizing Ocampo at the height of accusations of the ICC targeting African leaders, and fortified by her experience from the International Criminal Tribunal for Rwanda where she worked in the prosecutions section, the Gambian lawyer seemed like the perfect riposte to the charge of the ICC being a stalking horse for neo-imperialism in Africa.
The pressure on the ICC to launch cases in situations outside Africa laid ground for the attacks on the court by the United States when Bensouda sought authorization to investigate crimes against humanity in Afghanistan.
In April this year, the State Department revoked Bensouda’s personal visa to enter the United States – despite the headquarter agreement which allows unfettered access for people travelling to the UN headquarters in New York for UN business. Although Bensouda has since visited New York twice to brief the Security Council on Sudan and Libya, which it referred to the court, US hostility towards the ICC has punctured much of its international clout. Even though the US is not a state party to the Rome Statute, its embassies have played a critical role in receiving suspects wanted at the court such as Ongwen and Ntaganda.
During her tenure, Bensouda has launched seven preliminary examinations since assuming office in June 2012. Her predecessor, Ocampo, closed the first examination on Iraq in February 2006 but in 2014, new evidence prompted Bensouda to reopen investigations into crimes allegedly committed by British military troops in the Iraq conflict, but Britain has dismissed the allegations.
Similar examinations in Burundi after violence in the aftermath of political unrest after President Pierre Nkurunziza sought a controversial third term, where the judges subsequently authorised investigations, and in the Philippines, have produced a heavy backlash: Burundi withdrew from the ICC while the Philippines signalled its intent to pull out of the Rome Statute system after the prosecutor launched investigations into crimes allegedly committed during the country’s war on drugs. On February 8, 2018 Bensouda accused the government of killing thousands of people for dealing in and selling drugs. The country reiterated by banning her from setting foot in the Philippines.
Bensouda also launched preliminary examinations in Palestine on January 16, 2015 after the country filed complaints against Israel for the crimes committed by Israel in 2014 during protests on the Gaza border and the illegal Jewish settlements in occupied territory
The prosecutor is yet to make a decision on whether or not to open an official investigation.
Venezuela has also come under the prosecutor’s radar for crimes committed in 2017 during demonstrations and political unrests. The decision to examine the situation came about after eight countries accused President Nicolás Maduro of crimes against humanity. It is the first time that instead of a country referring a situation on its own territory, other countries have made the referral.
Following another preliminary examination, Bensouda requested the ICC judges to authorize investigations into the deportation of Rohingya people from Myanmar to Bangladesh. The legal representatives of the victims have until October 28, 2019 to submit representations to the judges.
A preliminary examination in Nigeria is focusing on the admissibility of crimes against humanity allegedly committed by government forces and the Boko Haram insurgents in Niger Delta and the Middle Belt states.
Ukraine requested the ICC to examine the protests which took place in Kyiv and other regions in the country. The unrest allegedly resulted in crimes including, murder, and torture. Bensouda promised to fully cooperate with Ukraine’s regulatory bodies during the examinations.
From the Central African Republic, Alfred Yekatom and Patrice-Edouard Ngaïssona are in the court’s custody awaiting confirmation of charges hearings for war crimes and crimes against humanity.
Much of Bensouda’s work has focused on closing gaps in evidence gathering, building better cases and developing signature policies around sexual and gender-based violence — but the role of the court in global politics diminished.
The Prosecutor is expected to be a person of high moral character, highly competent and have extensive practical experience in the prosecution or trial of criminal cases – and must be fluent in at least English or French. The prosecutor receives referrals and information on crimes within the jurisdiction of the court, examines them and carries out investigations with a view to starting prosecutions.
As Bensouda prepares to head into retirement in two years’ time, questions are emerging in her Gambia homeland about her previous role as Attorney General to the country’s military dictator Yahya Jammeh. Two victims of torture and detention have testified at the Truth, Reconciliation and Reparations Commission claiming that she played a role in their tribulations.
Reporting by Kwamchetsi Makokha, Millicent Zighe and Susan Kendi in Nairobi; and Thomas Verfuss in The Hague