http://www.ibanet.org/Article/Detail.aspx?ArticleUid=B641AE84-7D79-4490-8928-8085EDCB6011

02/12/2011
International Criminal Court: the next chief prosecutor? Fatou Bensouda part 1


By Rebecca Lowe

Fatou Bensouda grew up in a loving, polygamous family in The Gambia.
She is now the favourite contender to be the next chief prosecutor of
the International Criminal Court at The Hague. IBA Global Insight
finds out the secrets behind the lawyer’s popularity.


Fatou Bensouda was raised in Banjal, The Gambia, by two mothers: her
real mother and her father’s other wife, who lived under the same roof
along with her own children. While her father, a civil servant, went
out to work every day, the women would stay at home and tend to their
brood, cooking, cleaning and designing bed sheets to sell.

To Westerners such an arrangement may seem distinctly uncomfortable.
In The Gambia, however, polygamy is a widely accepted practice, and
one – for Bensouda, at least – that worked extraordinarily well. ‘We
were close to both mothers,’ she says. ‘All the siblings were close.
We did not have this unfortunate rivalry that sometimes happens in
polygamous families, and we were all very good to one another.’
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Bensouda’s father died from diabetes when she was a young girl, but
his inherent sense of fairness and ability to provide equally for both
sides of the family has always stayed with her.

This is perhaps one reason why she has managed to retain her
popularity throughout her seven-year tenure as deputy prosecutor of
the International Criminal Court (ICC) – a Court beset by controversy
since its formation in 2002 – and emerged as a leading candidate for
the top job.

The role she is after is that of Chief Prosecutor, the position
currently held by charismatic Argentine Luis Moreno Ocampo. Yet unlike
Ocampo, who has come under fire for his flamboyance and eagerness to
court the spotlight, Bensouda has taken more of a back-seat role.

Following a spate of resignations by members of the ICC staff and an
array of preventable set-backs to the first trial, which has taken
nearly six years to complete, it is Ocampo alone who has borne the
brunt of the blame, while his African protégé has emerged relatively
unscathed.



  ‘For me, equality of arms does not mean that if you have ten
prosecutors, you have ten defence lawyers. What is important is that
they are in a position to defend the person as they should. And I
think that is there.’
Fatou Bensouda


However, this is not to say that Bensouda is media-shy. A woman of
imposing stature and kaleidoscopic wardrobe, she is a calm, commanding
presence, exuding easy authority. Her smile is huge and enveloping,
her speech measured.

She has her boss’s charming feistiness, but is seen as less erratic.
She is, perhaps, exactly what the ICC needs as it strives to protect
its credibility and prove that its original mandate – to end impunity
for the most heinous of crimes across the world – has proven a
success.

Power and authority

Having grown up in a house with over a dozen siblings, it is perhaps
unsurprising that Bensouda is both confident and assertive. Yet she is
also highly intelligent, and breezed easily through her academic
studies. After gaining entry to the top grammar school in the country,
where she spent many a happy day exchanging Mills & Boon books with
her fellow classmates, she won a government scholarship to study at
the University of Ife (now known as Obafemi Awolowo University) in
Nigeria.

From Ife, she went on to Nigeria Law School, and from there to the
UN’s IMO International Maritime Law Institute in Malta, where she
became The Gambia’s first expert in international maritime law.

Over the next 20 years, Bensouda rose up through her country’s legal
ranks. In 1998 she was appointed Attorney-General and Justice
Secretary of State to The Gambia, before moving to Kigali to work at
the International Criminal Tribunal for Rwanda.


Finally, in August 2004, she was elected to the ICC by an overwhelming
majority of votes.

The move, she says, was a challenging one. ‘Once you get here you
realise that there are so many things that you are doing for the first
time. Here we are investigating ongoing conflict situations, whereas
ad hoc tribunals mainly take place after the conflict has ceased.’

Indeed, eight years since the ICC came into being, investigating
ongoing conflict situations remains a pressing challenge. The Office
of the Prosecutor (OTP) came in for particularly heavy criticism over
its handling of the situation in Darfur, Sudan, which it began
investigating in June 2005.

The following year, in a peer review of the Court, both Antonio
Cassese, the first president of the International Criminal Tribunal
for the former Yugoslavia, and Louise Arbour, the UN High Commissioner
for Human Rights, challenged Ocampo’s failure to undertake research on
the ground, claiming safety concerns had been overstated.

Bensouda defends her boss’s decision – ‘we have an obligation that the
people whom we interact with are protected, and we cannot do that if
there is no cooperation’ – and she perhaps has a right to be
defensive.

A charge of genocide levied against Sudanese President Omar al-Bashir,
alongside those of war crimes and crimes against humanity, was at
first thrown out by the ICC, prompting a barrage of criticism from
people who felt the OTP had overstepped the mark. Yet in February
2010, the Appeals Chamber reversed the Pre-Trial Chamber’s rejection
of the charge.

‘If they are saying that by not going to Sudan we cannot get our
evidence, that is wrong,’ says Bensouda. ‘The Appeals Chamber has
agreed with our evidence, so I think the Office’s work has been
totally vindicated.’

Courting controversy

But what of the temporary collapse of the Thomas Lubanga case?
Originally the trial was due to begin in June 2008, but was halted
after the prosecutor failed to disclose material potentially
beneficial to the defence. The former Congolese rebel leader came
within a whisker of being freed – until, finally, a compromise was
brokered in January 2009.

Bensouda urges people to bear in mind how young the ICC still is, and
the significance of what it is trying to achieve. This is also her
excuse as to why trials still take so long. Five years ago she
predicted each one would take approximately 15 to 18 months to
complete; yet eight years after the Court was formed, only one –
Lubanga – has reached a conclusion.

‘The length of time that Katanga has taken is much shorter than
Lubanga, and likewise Bemba. So things are getting better. We have to
be given the benefit of the fact that we had to set up an office, get
the good people and start cases; all of that had to be factored in for
the first years of the ICC’s existence.’

Moving faster, of course, necessitates having high quality, effective
staff to conduct investigations. Under Ocampo, a significant number of
senior employees have left, not always under the most favourable of
circumstances. In September 2008, Human Rights Watch (HRW) wrote to
the Executive Committee of the ICC to express serious concerns over
poor management practices. The departure of staff, HRW said, was
having ‘a direct impact on the efficiency of investigations, and is
particularly regrettable where due at least in part to the failure to
develop a sufficiently supportive work environment’.

Bensouda refuses, however, to criticise her boss. They ‘have worked
very well together’, she says, and she admires ‘his commitment to his
work, which comes above everything else’. Yet it remains unclear
whether her support is based on genuine esteem or her natural instinct
for tact. ‘We have a very serious mandate,’ she says. ‘So when we
present our office, it is one office.’

Political justice

On other potential flaws in the system, Bensouda is equally defiant –
such as the equality of arms between the prosecution and defence. A
recent report by the IBA outlined concerns about the relative lack of
resources of the defence when compared to the prosecution and
recommended that ‘serious consideration’ be given to establishing the
defence as an organ of the ICC.

Bensouda, however, disagrees. ‘For me, equality of arms does not mean
that if you have ten prosecutors, you have ten defence lawyers. What
is important is that they are in a position to defend the person as
they should. And I think that is there.’

What about other concerns, such as the fact that China and the US, as
members of the UN Security Council, can refer situations to the Court
despite not being signatories to the Rome Statute themselves? This
‘should be debated’, she admits, but it is a problem for the Statute
to solve, not the Court itself, which simply applies its principles.
It is also a concern that neither superpower has shown any interest in
signing up – but the priority is not the big guns, but their weaker
brethren. ‘It is a way of protection,’ she says. ‘They have a
strategic interest in ratifying the Statute.’

As the Arab Spring continues and the rule of law is pushed to the top
of the international agenda, Bensouda is hopeful that other nations
will follow Tunisia – currently the only Arab state signatory to the
Rome Statute – and throw their weight behind the Court. Similar hopes
surround the African Union (AU).

Though roughly half the African continent are states parties, the AU
has so far declared itself vehemently opposed to Ocampo’s leadership
of the Court, critical of the fact that all seven cases so far have
involved African states. Yet this has not stopped the organisation
publically endorsing Bensouda, who remains unapologetic about the
focus on her home continent, pointing out that three of the current
cases were referred by the countries themselves.

Bearing in mind the political ramifications of having an African chief
prosecutor, Bensouda agrees that such an appointment ‘would be
helpful’ for weakening the perception of the ICC as a Western,
imperialistic entity. Yet she stresses that the ideal candidate should
ultimately be the most qualified. ‘Once you want to have all these
other considerations – of geography, of gender – you lose sight of
what is most important: a merit-based candidate.’

The ‘helpful’ thing about 50-year-old Bensouda is that merit and
political expediency go hand in hand. She is a woman, she is African
and she is considered to be highly capable. The Court could perhaps do
worse than to put this self-assured, striking Gambian in charge, and
adopt her country’s motto – ‘progress, peace, prosperity’ – as its
own.

Trials and investigations

Uganda: Referred by Ugandan authorities in January 2004. Joseph Kony,
Vincent Otti, Okot Odhiambo and Dominic Ongwen, all members of the
Lord’s Resistance Army, have been accused of crimes against humanity
and war crimes. The case is currently being heard before the Pre-Trial
Chamber. All four suspects are still at large.
	

The Democratic Republic of the Congo: Referred by DRC authorities in
April 2004.Thomas Lubanga Dyilo, Bosco Ntaganda, Germain Katanga and
Mathieu Ngudjolo Chui have been charged with crimes against humanity
and war crimes, and all but Ntaganda are in the custody of the ICC.
The case of Callixte Mbarushimana, who is also accused of crimes
against humanity and war crimes, is currently before the Pre-Trial
Chamber. The verdict in the Lubanga Dyilo trial is expected in late
2011 or early 2012.

Darfur, Sudan: Referred by the UN Security Council in March 2005.Ahmad
Muhammad Harun, Ali Kushayb, Omar Hassan Ahmad al-Bashir, Abdallah
Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus have all been
charged with war crimes. Harun and Kushayb have also been charged with
crimes against humanity, and al-Bashir has also been charged with
crimes against humanity and genocide. Banda and Jerbo appeared before
the Court voluntarily, but Harun, Kushayb and al-Bashir remain at
large. Bahar Idriss Abu Garda also appeared voluntarily in front of
the Court, but the Pre-Trial Chamber declined to confirm the charges.
The other trials are due to start in 2012.
	

The Central African Republic: Referred by the CAR authorities in
December 2004. Jean-Pierre Bemba Gombo has been charged with two
counts of crimes against humanity and three counts of war crimes. The
trial started in November 2010.

The Republic of Kenya: Referred by the prosecutor in March 2010.
William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis
Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali have
all been accused of crimes against humanity. The cases are currently
before the Pre-Trial Chamber.
	

Libya:Referred by the UN Security Council in February 2011. Muammar
Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi were issued
arrest warrants for crimes against humanity allegedly committed across
Libya from 15 to at least 28 February 2011. Muammar Gaddafi has since
been killed and the other two suspects remain at large.

Côte d’Ivoire: Côte d’Ivoire is not party to the Rome Statute, but has
accepted the ICC’s jurisdiction. The situation was referred by the
prosecutor in October 2011, with respect to alleged crimes committed
in months of unrest following the November 2010 elections.
	

She said - they said

    David Michael Crane, founding Chief Prosecutor of the Special
Court for Sierra Leone
    James Goldston, Executive Director, Open Society Justice Initiative
    Mark Ellis, Executive Director, IBA

On the election of judges:

Bensouda: No comment

Crane:‘In the past the Achilles heel of the modern international
criminal law system has been the competency of its judges in all
courts and tribunals. For this cycle of judge elections at the ICC
there is an unofficial review of candidate files being reviewed by a
distinguished panel, which will make their recommendations known to
the secretariat. This is a positive step in the right direction.’

Goldston: ‘Contests for judicial office at international courts have
often been marred by political horse trading among sponsoring states.
The ICC selection process was supposed to mark an improvement, with
stricter qualifications for office, more transparency and emphasis on
merit over connections. But the experience so far has been mixed.’

Ellis:‘There will always be the potential for political abuse when
you’re talking about a structure where state parties are voting.
Having said that, everyone seems to be in tune with that concern at
the ICC and to ensure that in this set of elections that did not take
place.’

On whether the Office of the Prosecutor (OTP) should have undertaken
investigations on the ground in Darfur, Sudan:

Bensouda: ‘We have an obligation that the people with whom we interact
are protected. We will not be able to protect them if there is no
cooperation from the government.’

Crane: ‘There is only so much an OTP can do without state cooperation.
The challenges for a prosecutor are more political than legal. I
believe the OTP did what it could in relation to The Sudan.’

Ellis: ‘I always think it is best to be on the ground to bolster the
evidentiary base that you have, but that is a decision the prosecutor
has to make in relation to security issues and the ability to get the
information. In the end he was able to show he had sufficient evidence
to get an indictment in The Sudan.’

On Ocampo’s use of the media:

Bensouda: ‘We have our different styles. Not all of us have agreed
with that style, but in the end he is the prosecutor and the ultimate
decision would lie with him. But he does these things according to him
for a reason, for a purpose, and in the interests of being
transparent.’

Crane: ‘The media are an important partner in the process of seeking
justice for victims of atrocity. When used appropriately within
ethical bounds it is an effective tool. I don’t think Ocampo strayed
from the ethical path.’

On the ICC’s equality of arms between prosecution and defence:

 Bensouda: ‘I think that there is equality of arms. For me, equality
of arms does not mean if you have ten prosecutors you have to have ten
defence lawyers. I think what is equality of arms is that the defence
are put in a position that they can sufficiently defend the person
accused. And all the facilities that they need to do a proper and
rigorous defence of that individual is put at their disposal.’

Crane:‘All international courts have to be perceived to be fair. At
the Special Court for Sierra Leone, the Registrar established the
innovative Office of the Principle Defender. I believe the same office
should be created at the ICC.’

Ellis:‘I think equality of arms has been a consistent and persistent
problem for international courts. But other tribunals have done better
at ensuring equality of arms. I think the ICC has been slow and could
have done a better job. Having said that, I think the Court has made
some real positive steps and it should be given credit for doing
that.’

 On the role of the UN Security Council at the ICC:

 Bensouda: ‘Of course, the wider political debate is there as to why
countries that are not members of the ICC can refer cases to the ICC.
But that is not unfortunately a problem for the ICC itself to solve.
We are working within the legal limits that we have, which is the ICC
Statute. I am an official of the Court and I don’t want to enter into
this debate, but I think it should be debated.’

Crane: ‘I believe, with the role of the Security Council and the
significant place these countries play in the international community,
that they are largely outside the Rome paradigm and somewhat
unaccountable for their actions. I fear that what may evolve is a two
tiered international justice system: these three countries [Russia,
US, China] and the rest of the world.’

Goldston: ‘The ICC faces the unenviable challenge of seeking to render
justice in a world marked by profound inequality of power. The
Security Council is far from an ideally representative institution.
And yet, the ICC should not be asked to bear the burden of
responsibility for the unequal political context in which it operates.
Its job is to apply the law impartially.’

Ellis: ‘My criticism is not with the Security Council but with the
individual states that have still failed to embrace the Court as an
important component in ensuring those who commit the most heinous
crimes are brought to justice.’


On the importance of having an African chief prosecutor:


Bensouda: ‘I think definitely it will help the perception that this is
not a western court, so I think the face of the court coming from that
region is important. […] But once you want to have all these other
considerations – of gender, geography – you lose sight of what is most
important: a merit-based candidate.’

Goldston: ‘No matter who is chosen, both the candidate and the ICC
will be stronger if the election is seen to be founded upon objective
qualifications – prosecutorial experience, sound judgment, a
commitment to engaging both victims and the wider public in the
court's work — rather than a political pay-off to any state or group
of states.’

Ellis: ‘The most important thing is to select the best person for the
job, regardless of where they are from.’

-- 
-Laye
==============================
"With fair speech thou might have thy will,
With it thou might thy self spoil."
--The R.M

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