Law In Africa

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By SAM NALLEN COPLEY

Lady Justice

The first female prosecutor of the Court by consensus, Fatou Bensouda will be tasked with addressing grave violations of human rights and international law as the Court’s public face.

A FRESH START

Throughout its first decade, the ICC faced significant criticism for its singleminded focus on Africa. Many blamed Ocampo, an Argentine lawyer who had previously worked on the infamous Trial of the Juntas in South America and has repeatedly been lambasted for a perceived partisan approach to the law. After issuing an arrest warrant against the Sudanese President, Omar Hassan al-Bashir, British academic Alex de Waal claimed to be “in a state of shock” from the supposedly apolitical Prosecutor’s attempt to institute “regime change.” Many have subsequently questioned the organization as a whole; Rwanda’s current President, Paul Kagame, claimed the ICC was “put in place only for African countries.” “I have come to actually believe that this is just my calling,” Fatou Bensouda told the BBC in December 2011. As the first African and the first woman to be elected as Chief Prosecutor for the ICC, Bensouda’s ascendancy has polarized opinion. Born in 1961 in the Gambia, she received legal training both in Nigeria and Malta before entering the ICC’s Prosecutions Division in 2004. "I am working for the victims of Africa, they are African like me. That's where I get my inspiration and my pride," Bensouda told the media last year, adding, “In this position I am able to give victims the voice they need.” With Bensouda about to take over the reins, many hope this politically uncomfortable era is about to come to an end but not everyone remains so hopeful.

THE RIGHT PERSON Bensouda grew up in a polygamous family in Banjul. She devoted much of her early career to specifically Gambian affairs. As Attorney-General and Minister of Justice, she was legal advisor to Yahya Jammeh, who has openly stated his desire to “cut off the head” of any homosexual found in his country. Amid countless human rights violation accusations and issues of severe corruption, not even the African Union support Jammeh’s mandate in The Gambia. We shouldn’t hold Bensouda accountable for her President’s crimes, but why she remained so loyal to such a shameless autocrat continues to baffle critics. Despite her questionable past, her nationality, ethnicity and sex, Bensouda does not represent the clean break

In December 2011, Fatou Bensouda of The Gambia

was named the new chief prosecutor of the International Criminal Court (ICC). Fatou Bensouda has an impressive legal background. She has obtained several degrees from African and European universities. She graduated from the University of IFE in Nigeria with a Bachelor of Laws degree and obtained her Barrister-at-Law from the Nigeria Law School. Bensouda also holds a Master of Laws degree in International Maritime Law and Law of the Sea from the International Maritime Law Institute in Malta and is the first international maritime law expert of The Gambia.

expensive European experiment on a continent ground to the bone from colonial misadventure. The court’s only success came last month with its first conviction against Thomas Lubanga, a former military commander from the Democratic Republic of Congo. Among ongoing trials, Laurent Gbagbo, former President of the Ivory Coast, Jean-Pierre Bemba from the DRC and Hutu Rwandan Callixte Mbarushimana stand out as the most high-profile. At a glance, two traits immediately unify the men above: all are African and all stand accused of crimes against women.t ws m — #9.12

In 2002, a permanent tribunal targeting war criminals was established at The Hague,

Netherlands. Ten years on, the International Criminal Court has convicted just one man, a middle-ranking rebel leader who enlisted child soldiers during the

Second Congo War. With no jurisdiction in Russia, the US, China, India, Pakistan, Indonesia and much of the Middle East and no direct means of arresting suspects, some feel the ICC is nothing more than an

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from the ICC’s embryonic phase its critics crave. As Ocampo’s Deputy, she has been an integral cog of the court since 2004, by no means from the sidelines; in November of last year, she appeared publicly in Libya alongside Ocampo to discuss Saif al-Islam’s trial with local authorities in Tripoli. Indeed many have considered Ocampo and Bensouda as a double-act, with Murithi Mutiga stating, “the state parties have settled for the candidate that represented continuity.”

GLASS HALF FULL

But throughout the numerous controversies surrounding the ICC’s conduct, Bensouda has retained her tremendous popularity. Her primary weapon here is the sheer width of her allure. As Opino Juris’ Kevin Jon Heller has said, “She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful, a welcome change from Moreno-Ocampo, and compassionate." Indeed, many feel her multifaceted past increases appeal across the board. An additional trait the mainstream media seem to have missed entirely is her religion. As a Muslim, Bensouda is able to distance herself from the colonial connotations of European Christian intervention and ally herself spiritually with followers of Islam, Africa’s largest religion. Kevin Jon Heller has noted, “She offers the best of both worlds.” As an African Muslim woman, her appeal among the victims of war crimes and her profound understanding of the continent tick all the right boxes. From The Hague’s perspective, her previous work at the International Criminal Tribunal for Rwanda combined with her years with the ICC render her perfect for the post. “I am one who has always thought that I have to stand up for the underdog…and this is what drives me.” Bensouda’s ascendancy will mark the start of the second phase of the ICC’s history. Whether the court’s second decade will see it secure more than one conviction, extend its jurisdiction towards the world’s key players and prosecute non-African war criminals will be largely up to her.•

History of a Woman

By CARLA DE YCAZA

Bensouda highlights the importance and role of the Court as an emerging institution designed to combat impunity: “It is a new global institution which can ultimately ensure a single standard is applied in international criminal justice. For hundreds of years conflicts have been fought and resolved through negotiation without legal constraints. The decision to create the ICC has changed that. No more impunity for perpetrators of mass crimes. In the Rome Statute community, leaders who are using massive violence to gain or even to retain power will be held accountable. The world will adhere to one standard for justice when all the countries of the world have joined the ICC. And I believe that ultimately this will happen.”

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ACCOMPLISHMENTS AND ACHIEVEMENTS

Bensouda recounted the way in which she came to work in law: “At a very early age I was witness to gender violence in my surroundings. I realized that it was not being addressed properly because when the person who was subjected to this kind of violence would go to the police, the police wouldn’t intervene, and they would say that it is a civil matter. I remember thinking this is not right, this is not correct. Where would she go? Who can address this? And even after I left school and I went to work at the Law Courts, I used to sit in cases as a clerk, and I always used to think sitting there ‘I can relate to them.’ This is one of the things driving me, and I made up my mind then that this was what I wanted to do, and I never considered anything else.” Bensouda worked as General Manager of a leading commercial bank in The Gambia prior to holding various senior positions in law and government from 1987-2000, including positions as Attorney General and Minister of Justice and Chief Legal Advisor to the President and Cabinet of The Republic of The Gambia, among others. Bensouda has also participated in the negotiations on the treaty of the Economic Community of West African States (ECOWAS), the West African Parliament and the ECOWAS Tribunal. She has served as a delegate to various United Nations conferences. Elected as Deputy Prosecutor to the International Criminal Court in September 2004, she currently heads the Prosecution Division of the Office of the Prosecutor. Prior to her work at the ICC, Bensouda was the Head of the Legal Advisory Unit at the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania.

RISKS AND OPPORTUNITIES

As only the second prosecutor of a newly developed court finishing its first decade in operation, Bensouda is faced with numerous risks and opportunities pursuing work in the international arena to hold perpetrators of mass atrocity accountable for their actions. “The goal of the Rome Statute of the ICC is to end impunity for the most serious crimes of concern to the international community as a whole and to contribute to their prevention. We have seven situations under investigation and so far we have opened fourteen cases related to about twentyseven individuals and more are on the way. My challenge now is to build on what has been accomplished to end impunity, bring justice to victims and to prevent future crimes.” The Court has recently concluded its first trial and received its first

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verdict for the case of Thomas Lubanga Dyilo of the Democratic Republic of the Congo, charged with conscripting and recruiting child soldiers, among other war crimes. "In the first trial of the ICC, Thomas Lubanga has been found guilty of committing crimes against children, the most vulnerable members of society, by using them as soldiers to commit crimes and as sex slaves. These are areas of critical importance for me personally. Sexual violence is one of the main crimes committed against girls and their illegal recruitment is often intended for that purpose even though they also often participate in direct combat. The guilty verdict sends a clear signal: crimes against children will not be tolerated. Perpetrators will be held accountable and their victims will see justice. But justice must also be done for other persons wanted by the Court for abducting children and turning them into child soldiers and sex slaves; such as Joseph Kony, wanted by the ICC for almost seven years. The Lubanga verdict must spur on the international community to bring all suspected perpetrators to account." This verdict is a milestone for the ICC and highlights the importance of addressing a large docket of cases with limited resources and often a lack of cooperation among States and individuals. The ICC has faced criticism regarding its operations due to the fact that the seven case currently before the Court are all African. Many believe this to be an indication of Western bias and have called for cases to be tried domestically, as well as for certain arrest warrants to be ignored.

WHAT IS TO COME

As the field of international justice is growing, Bensouda sits at the forefront of the Court’s work. Supporters and advocates hope that her role as chief prosecutor will address the criticism of the Court targeting African cases and that she will continue to work towards the development of a culture of accountability. "Africa is taking the lead through its commitment to international justice. African leaders and African activists are building a system of international criminal justice defined by the Rome Statute, and they are doing it to protect victims of massive crimes. They are setting an example in terms of their dedication to accountability and prevention of massive crimes. They are setting one standard applicable to all. They are showing, through their involvement with international justice, that a region that has been so deeply affected by atrocities can and must stand up and take the lead in the fight against impunity."