By Susan Kendi
Fatou Bensouda is scheduled to hand the role of chief prosecutor of the International Criminal Court to Karim Khan on June 16, 2021.
She took office on June 14, 2012, after being elected by the Assembly of States Parties of the International Criminal Court on December 12, 2011. Journalists For Justice reflects on the highs and lows of her nine-year tenure as Prosecutor of the ICC.
Here are some of the achievements that Fatou Bensouda will be remembered for
- The launch of a policy paper on sexual and gender-based crimes
On December 7, 2014, the International Criminal Court’s chief prosecutor, Fatou Bensouda, launched a policy paper on sexual and gender-based crimes, the first-ever policy issued by the Office of the Prosecutor.
It was the first and most detailed policy paper adopted by the ICC with the aim of strengthening the capacity to investigate and prosecute perpetrators of sexual and gender-based crimes falling within its jurisdiction, while integrating a “gendered perspective and victim-responsive approach”.
“It is my duty as ICC Prosecutor to challenge the culture of impunity that allows sexual and gender-based crimes against girls and women, boys and men, in conflict and peacetime, to persist,” said Bensouda.
In the past, the court had failed victims of sexual violence, and the evident examples are the cases against Thomas Lubanga, Jean-Pierre Bemba, and Uhuru Kenyatta. In the Prosecutor versus Uhuru Kenyatta case, Pre-Trial Chamber II ruled that forced circumcision and penile amputation of Luo men did not qualify as other forms of sexual violence. The judges added that the “acts were motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other”.
In the case against Thomas Lubanga, the confirmation decision did not include findings around sexual violence. He was not charged with or convicted of any crime of sexual violence. He was instead convicted of enlisting and conscription of children under the age of 15 years into the Patriotic Force for the Liberation of Congo and using them to participate actively in hostilities.
In the third case, against Jean-Pierre Bemba, who was later acquitted by the court, the 2008 application for arrest included any form of sexual violence but the ICC Pre-trial Chamber refused to include it since militias forcing civilians to undress in public [forced nudity] did not pass the comparable gravity test.
However five years after the launch of the policy, it was implemented in the conviction of Congolese warlord Bosco Ntaganda and a former Lord’s Resistance Army commander, Dominic Ongwen.
2) The launch of a policy paper on children
In November 2016, the ICC chief prosecutor launched a policy paper on children, which is in five languages: Arabic, English, French, Spanish and Swahili.
This is one of the milestones of Bensouda’s tenure. The policy paper looks into the “plight of millions of children who are trapped by conflict”, addressing crimes against and affecting children.
3) Securing a conviction and sentencing of Bosco Ntaganda
The case of the Prosecutor versus Bosco Ntaganda was a great success of Bensouda’s tenure.
In August 2019, the International Criminal Court unanimously convicted Ntaganda of 18 charges of war crimes and crimes against humanity. Three months later, in the sentencing judgement held on Thursday, November 7, 2019, the Trial Chamber VI handed Ntaganda the longest sentence in ICC’s history – 30 years imprisonment.
It was the first time that the ICC sentenced a commander for rape and sexual slavery offences against his own troops. Ntaganda was found responsible for committing sexual violence crimes against civilians and female members of the Union of Congolese Patriots and its military wing, Patriotic Force for the Liberation of Congo, under the age of 15. The chamber also recognised the two types of victims of sexual violence and gave a separate sentence for each of the victims.
4) Securing a conviction and sentencing of Dominic Ongwen
The case of the Prosecutor versus Dominic Ongwen was another legacy for Bensouda.
On February 4, 2021, the ICC found the former Lord’s Resistance Army commander, Dominic Ongwen, guilty of 61 of 70 counts of war crimes and crimes against humanity He was convicted of murder; attempted murder; torture; enslavement; destruction of property; pillaging; conscription of children under the age of 15 years to actively participate in hostilities; and sexual and gender-based crimes, including rape, torture, and forced pregnancy and marriage.
Three months later, on May 7, 2021, the chamber sentenced him to 25 years in prison.
It was the first time the ICC convicted and sentenced an individual for forced marriage and forced pregnancy as war crimes and crimes against humanity.
5) The preliminary examination of the situation referred by the Union of the Comoros
Bensouda is known to be one to hold her ground. She refused, three times, to investigate an Israeli attack on the Humanitarian Aid Flotilla bound for the Gaza Strip.
She closed the Union of the Comoros’ file for the first time in her decision on November 6, 2014, saying the case lacked the weight to be admitted before the court of last resort, ICC, and declined to open an investigation.
The ICC Pre-Trial Chamber (I) voted against the decision and ordered her to open an investigation into the issue. She appealed the decision and the ICC Appeals Chamber requested her to review her previous conclusion, but gave her room to file the same decision afterwards.
“Without in any way minimising the impact of the alleged crimes on the victims and their families, I have to be guided by the Rome Statute, in accordance with which the ICC shall prioritise war crimes committed on a large scale or pursuant to a plan or policy. In the final analysis, I have, therefore, concluded that the legal requirements under the Rome Statute to open an investigation have not been met and I am announcing that the preliminary examination has been closed.”
6) Darfur case
Ali Muhammad Ali Abd-Al-Rahman is the first Sudanese national to face charges at the International Criminal Court over the Darfur conflict and face the first war crimes trial with regard to the crimes committed in Darfur.
In 2005 the UN Security Council referred the situation in Darfur to the ICC. On April 27, 2007, the ICC issued the first arrest warrant against Abd-Al-Rahman. Then 13 years later, on June 11, 2020, it issued the second arrest warrant. Al-Rahman was charged with 53 counts of war crimes and crimes against humanity allegedly committed in Darfur, Sudan.
On June 9, 2020, the Sudanese war crimes suspect was transferred to ICC custody after he surrendered himself in the Central African Republic. The Pre-Trial Chamber II held an initial appearance hearing on June 15, 2020, to ascertain his identity and ensure that he was informed of the charges against him and his rights under the Rome Statute.
Al-Rahman is facing 31 charges of war crimes and crimes against humanity before the ICC.
He is also known as Ali Kushayb and is alleged be one of the most senior leaders in the tribal hierarchy in the Wadi Salih locality and a member of the Popular Defence Forces. He is believed to have commanded thousands of Janjaweed militia from August 2003 until about March 2004.
Al-Rahman will remain in detention after the ICC Appeals Chamber rejected his appeal and confirmed Pre-Trial Chamber II’s “Decision on the Review of Detention”.
However, some cases have cast a long shadow on the outgoing chief prosecutor’s successes
- The collapse of the Kenya cases
The first major blow in Bensouda’s tenure came in December 2014, involving the “Ocampo Six”.
ICC Prosecutor Bensouda had taken over from the Argentine, Luis Moreno Ocampo, under whom she served as deputy prosecutor.
The then prosecutor accused the “Ocampo Six” of committing crimes against humanity during the 2007/2008 post-election violence in Kenya.
The six included Kenya’s President Uhuru Kenyatta and his deputy, William Ruto, whose defence counsel was the incoming prosecutor, Karim Khan.
ICC investigations focused on alleged crimes against humanity committed in six of the then eight Kenyan provinces: Nairobi, North Rift Valley, Central Rift Valley, South Rift Valley, Nyanza, and Western.
Kenya was the first situation in which the Prosecutor opened an investigation proprio motu (on his own initiative) rather than by receiving a referral.
However, a significant number of witnesses withdrew their testimonies and others died, leading to the collapse of the cases.
The charges against President Kenyatta were withdrawn due to “insufficient evidence”.
The cases also involved Francis Kirimi Muthaura and Mohammed Hussein Ali, whom the chamber refused to confirm charges against.
Withdrawing the charges meant that the court considered the case closed unless the Prosecutor submits new evidence.
In the case against Deputy President William Samoei Ruto and radio presenter Joshua arap Sang, the Trial Chamber V(A) on April 5, 2016, by majority, vacated the charges.
After the collapse of the cases, the ICC was left grappling with criticism and being termed a “neo-colonial court” targeting weak African countries.
Some African countries threatened to withdraw from the ICC. These included Kenya, South Africa in two instances, and Burundi, which later officially left the ICC following the Prosecutor’s intention to open investigations into the crimes committed during the tenure of President Pierre Nkurunziza.
2) The acquittal of Jean-Pierre Bemba Gombo
The failure of the Jean-Pierre Bemba Gombo case was a big blow for Bensouda.
On March 21, 2016, Trial Chamber III convicted Bemba of war crimes and crimes against humanity including murder, rape, and pillage. On June 21, 2016, the chamber sentenced him to 18 years in prison for war crimes and crimes against humanity committed by his Congolese Liberation Movement (MLC).
This was a great win for the Prosecutor considering that it was the first ICC conviction for acts of rape and sexual violence committed against women and men. The judgment was termed “a turning point in the ICC’s history” following the fiasco in the Thomas Lubanga Dyilo, Germain Katanga, and Kenya cases.
On April 4, 2016, Bemba appealed against his conviction and raised six grounds of appeal. He claimed that the trial was unfair; the conviction exceeded the charges; he was not liable as a superior; the contextual elements were not established; the trial chamber erred in its approach to identification of evidence; and other procedural errors invalidated the conviction.
Two years later, on June 8, 2018, the Appeals Chamber, by majority, overturned Bemba’s conviction, discontinuing the proceedings in relation to certain crimes, and acquitting him of all remaining charges brought against him.
Bemba became the first accused to have his conviction fully reversed.
3) The acquittal of Laurent Gbagbo and Charles Blé Goudé
The Office of the Prosecutor presented documentary evidence against Laurent Gbagbo and Charles Blé Goudé. The evidence included eyewitness(es), insider testimony, expert witnesses, documents, videos, photos, audio recordings, physical exhibits, and forensic evidence.
However, these were not “enough” to meet the burden of proof, according to the court.
On January 15, 2019, two of the three judges of the Trial Chamber I issued an oral decision acquitting Laurent Gbagbo and Charles Blé Goudé, of all charges of crimes against humanity allegedly committed in Côte d’Ivoire in 2010 and 2011.The judges issued an order for their immediate release.
The chamber, by majority – Judge Cuno Tarfusser, Presiding Judge and Judge Geoffrey Henderson, and Judge Herrera Carbuccia dissenting – issued the following decision, “[…..] The chamber, having thoroughly analysed the evidence and taken into consideration all legal and factual arguments submitted orally and in writing by the parties and participants, finds, by majority, Judge Herrera Carbuccia dissenting, that there is no need for the defence to submit further evidence as the Prosecutor has not satisfied the burden of proof in relation to several core constitutive elements of the crimes as charged”.
The Prosecutor appealed against the decision. On March 31, 2021, the ICC Appeals Chamber confirmed the Trial Chamber’s decision on acquitting the two. The Appeals Chamber further asked the ICC Registrar to make arrangements for the safe transfer of Gbagbo and Blé Goudé to a receiving state or states.
Gbagbo and Blé Goudé had been charged with four counts of crimes against humanity, including murder, rape, and other inhumane acts alleged to have been committed in Côte d’Ivoire during post-electoral violence between December 16, 2010, and April 12, 2011.
Despite the lows, Bensouda will be remembered for trying to salvage the cases handed to her by her predecessor, Ocampo, and rewriting ICC’s reputation as a “neo-colonial court” targeting Africa countries by opening investigations into other situations, including Palestine and Afghanistan.
She was fearless in her work and investigated without favour.