An African Now Heads The ICC – What Next?

Gambia’s former attorney general and minister for justice, Fatou Bensouda, has become the new chief prosecutor of the International Criminal Court (ICC). Will that improve the image of the court in the eyes of Africans, and what will the relationship between the court and the continent now be? 

On 29 November, the International Criminal Court (ICC) caused yet another affront to Africa’s sense of justice by bundling the former Ivorian president, Laurent Gbagbo, to stand trial at The Hague while his Western-backed rival, President Alassane Ouattara, was left in peace in Abidjan.

Soon after Gbagbo landed in The Netherlands, the ICC made another piece of history by announcing that Fatou Bensouda, Gambia’s former attorney general and minister for justice, would become the new prosecutor of the much-criticised court (at least by Africans). She takes the reins in June 2012 for nine years.

Bensouda, 50, who has been the ICC’s deputy prosecutor for seven years, succeeds the controversial Argentine, Luis Moreno Ocampo, who is stepping down with the unenviable record of being the man who unfairly targeted Africa and created the bad impression around the world that only Africa has war criminals or human rights violators.

The sudden arrest and transfer to The Hague of former President Gbagbo, at a time when Côte d’Ivoire desperately needs national reconciliation, and is in fact working assiduously on it, has angered a lot of Africans across the continent.

Ghana’s former president, Jerry Rawlings, was moved enough to issue an angry statement in Accra condemning Gbagbo’s hasty transfer. He spoke for most Africans!

“I have learnt with dismay reports that deposed President Gbagbo of Côte d’Ivoire has been transferred to the ICC on 29 November, following a speedy indictment, in total violation of [the] relevant international code of procedures and in total disregard for the demands of peace in Côte d’Ivoire,” Rawlings said in his statement.

“This transfer followed a procedure so hasty that it could be rightfully described as abduction. My suspicion grows even more, when the prosecuting attorney claiming to be targeting six officials in Côte d’Ivoire, unduly focuses on Gbagbo, the one who is least likely to escape due to his being already in custody.

“This eagerness to indict and transfer Gbagbo, who did not run away like a common criminal even as his palace was bombed, defies logic and the quest for true reconciliation and sustainable peace in Côte d’Ivoire.”

Rawlings continued: “After 50 years of independence, Africa should have all the know-how to bring justice to its own citizens and do away with imported justice! What kind of prosecution would rather be in haste to bring to justice the victim of an attack, and be lenient with the perpetrator of the attack?

“No one is trying to evade justice. But when such justice is drenched in a sea of humiliation and abuses, so as to be governed by self-righteous hatred with its untenable logic, it only befits human conscience to stand up against it for the good of all. We will not be silent about this because we must not be silent about it as participating members in this human drama,” Rawlings added.

This is the poisoned chalice that Bensouda is going to inherit. Will she pursue alleged African war criminals with the passion and gusto that Ocampo did? Will her presence at the top improve the relationship between the court and Africa?

A well-read and widely-travelled legal expert, Bensouda studied at the University of Ile Ife (now Obafemi Awolowo University) in Nigeria, before proceeding to the Nigeria Law School in Lagos; and later to the UN’s International Maritime Law Institute (IMO) in Malta, after which she became Gambia’s first expert in international maritime law.

Bensouda does not believe in delaying issues that need to be tackled with immediacy. An ardent advocate of fairness and justice, she served her country in different capacities: as attorney general and secretary of state for justice, before moving to the Arusha (Tanzania)-based International Criminal Tribunal for Rwanda (ICTR).

In 2004, she was unanimously named deputy prosecutor of the ICC. As sensitive as her post is, experts say, the ICC needs a strong but cool head like Bensouda’s to stabilise and reconstruct the profile of the court, while pursuing its mandate of eradicating impunity across the globe.

Most of the critics of the ICC and its outgoing prosecutor have been African, and they are angry that Ocampo targeted mostly Africans who happen not to be supported by Western governments. They point to President Alassane Ouattara, whose rebel supporters in the north of Côte d’Ivoire committed as many war crimes and human rights violations as Gbagbo’s forces are alleged to have committed, but Ouattara and his supporters are free while Gbagbo now sits in detention at the ICC.

This “selective justice” is what really irks the court’s critics, such as ICCwatch, the London-based civil rights group that exists to monitor and provide a critique of the ICC and the broader movement towards transnational governance.

According to ICCwatch: “There is a real problem of selectivity, both in terms of what evidence the ICC prosecutor and the court’s Pre-Trial Chamber choose to look at, and ignore, but also in terms of which particular regimes and individuals [it chooses] to investigate among the plethora of governments and persons committing war crimes and other barbarities.

“Why, for example,” the group asks, “has the ICC chosen to target the Sudanese leadership regarding Darfur, but not the Georgian authorities for their pre-emptive attacks against the people of South Ossetia? Why has the Rwanda Tribunal only prosecuted Hutus but not Tutsis?

“And why has Tony Blair not been indicted for authorising the high-altitude bombing of Belgrade and Baghdad, which he presumably knew would result in civilian deaths?”

ICCwatch also fears that the ICC’s selectivity and gung-ho attitude could undermine the capacity of the UN and other mediators to negotiate peaceful settlements in conflict-torn countries. “If the court issues indictments then it will be difficult in certain situations to persuade the targeted individuals to participate in peace talks.

“How could, for example, the Sudanese president [Omar al Bashir] be expected to attend, say, a vital conference outside his country relating to the problems of Darfur if there is an international warrant out for his arrest?” asks ICCwatch.

The task before Bensouda is enormous given the challenges facing the ICC. What matters now is not whether the person at the top is black or white, it is, at this point in time, more about performance than the colour of the skin.