Fatou Bensouda Bids Adieu, But Her Shadow Will Linger Over the ICC

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“As some may be aware, I have been decorated by the Government of Senegal, and most recently, my own country, The Gambia, has also announced that they will be awarding me the country’s highest civilian honour. Along with the Office, we have also been nominated for the 2021 Nobel Peace Prize.”

This excerpt from her end of term statement to the International Criminal Court summarily describes Ms. Fatou Bensouda’s remarkable story—and also tells a half-truth.

Ms. Fatou Bensouda’s nine year term as Chief Prosecutor of the International Criminal Court ended on 15th June 2021. There wasn’t as much fan-fare on her departure as on her accession to office when she replaced Luis Moreno Ocampo in 2012.

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Elected by consensus by the Assembly of States Parties, hers was a tenure that was marked as a turning point for the court’s target for prosecutions. Her predecessor had been widely criticized for the court’s increased investigations and prosecutions on Africa. It was argued that the International Criminal Court, established to exercise criminal jurisdiction over the most grave crimes that “deeply shock the conscience of humanity”, was a neo-colonial tool on Africa.

In the decade proceeding its establishment, African leaders had grown a distaste towards the court and its activities.

The Gambian’s appointment was thus seen as a positive for the credibility of the Court. And rightly so. She had previously served on the United Nations International Criminal Tribunal for Rwanda, was a delegate of The Gambia to the meetings of the Preparatory Commission for the ICC, and eventually served as the court’s first Deputy Prosecutor. Her election was therefore not a roll of the dice, it was cards played right.

Or so it seemed.

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The International Criminal Court is not the most popular legal establishment in Africa. In fact, that may be putting it lightly. Various African leaders have spoken out against the court. Ugandan President Yoweri Kaguta Museveni has referred to the court as a “bunch of useless people” and The Gambia, Bensouda’s own country, has labeled it as the “Infamous Caucasian Court”.

The first twelve trials held at the Hague concerned Africans, and while Ms. Bensouda has launched investigations and several preliminary examinations into Georgia, Ukraine, Afghanistan, Palestine, Myanmar and most recently, the Philippines, the jury is still out.

In 2017, the leaders of the African Union called for a collective withdrawal from the court, branding it racist, colonial and anti-African because it almost exclusively investigated and prosecuted Africans.

So, for someone who may be criticized for not removing the “African bias” of the court, one would assume that the scrutiny from the other global regions is less intense, or even perhaps, non-existent. One would be wrong.

The United States of America is not a State Party to the Rome Treaty, and thus it has been argued that it cannot have itself, or any of its leaders dragged into investigations and trials at The Hague. However, in an unprecedented move, the Prosecutor’s Office under Ms. Bensouda’s watch opened up an investigation into atrocities committed in Afghanistan, and these involved certain American personnel. Suffice it to say, this course of action was not well received by Uncle Sam.

Mike Pompeo, the Secretary of State under Donald Trump’s government termed the ICC a “thoroughly broken and corrupted institution” and on 2nd September 2020, the Donald Trump administration took the step of labeling her a “specially designated national”, in effect blocking her assets, prohibiting US citizens from dealing with her and grouping her alongside terrorists and narcotics traffickers.

Asked if such actions have been taken with the intention of blunting criticism towards the alleged anti-African bias of the court, she has been stern. “No. It’s about the law and where it leads me and where I have jurisdiction.”

Such is the criticism that has been leveled at Ms. Bensouda and the Prosecutor’s office that her actions, while triggering such reactions from some countries, have also on occasion been attacked on grounds of not being “good enough”.

Of note is the case of Laurent Gbagbo, whose acquittal was confirmed by the Appeals Chamber of the International Criminal Court in 2021 and the case of Uhuru Kenyatta, who had his charges withdrawn. This criticism may be a little harsh, considering the high evidentiary threshold of the court, financial and resource complaints, and the fact that the court has secured more convictions in her tenure as compared to Luis Moreno Ocampo’s.

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It has convicted Ahmad al-Faqi al-Mahdi for destroying monuments in the Malian city of Timbuktu, Germain Katanga, a warlord from the Democratic Republic of Congo for his role in a 2003 massacre, and most recently, Dominic Ongwen, for crimes against humanity and war crimes committed while he served in the infamous Lord’s Resistance Army.

In the end, however, history and time may be Ms. Bensouda’s final critics. The ICC has faced a tumultuous existence. Whether her actions prop up the court or lead to its eventual downfall is yet to be decided. For now, Ms. Fatou Bensouda vacates the Prosecutor’s Office and the British barrister, Karim Khan QC, takes over.

Expectations are high, just like they were for the Gambian. Mr. Khan should take a few lessons in courage and determination from Ms. Fatou Bensouda, all the while remembering that while history doesn’t always repeat itself, it often rhymes.

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