Saturday, December 17, 2011

Reflections on Fatou Bensouda's Election as ICC Prosecutor: Is it Good for Africa?

My brief remarks below about Fatou Benouda's election and the next Prosecutor of the International Criminal Court appeared in the , a kenyan daily on 15th December 2011. See here

Fatou Bensouda’s election as the second ICC Prosecutor has received mixed reactions, although the majority of voices have been positive. I add my voice by arguing — as someone who has come to know Ms Bensouda personally, and as a follower and participant in developments around the ICC over the last few years — that her election is good for ICC, and for Africa. However, I suggest that it is precisely the fact her election is good for Africa that could be her undoing. It is no exaggeration to say she is assuming the position not only because of her abilities, but also because the African Union (AU) wanted, and fought hard to ensure an African succeeds Ocampo.

Her election is good for the ICC because it ‘buys’ continued support for the ICC from a large part of the African bloc in the ICC, and the AU, which has shown itself — for good or bad — a major player in the sphere of international justice. Bensouda’s election is also good for ICC simply because she is not Ocampo. While she has been at the heart of operations in the Office of the Prosecutor and in many cases handled the technical aspects of constructing cases (with Ocampo mostly as the PR person), she lacks Ocampo’s much reviled abrasiveness that turned many off the ICC. After the fallout between AU and the ICC (read Ocampo) over President Omar Al Bashir, one heard arguments in African capitals — mostly in boardrooms, but also publicly — that the ICC had ‘marginalised Africa’ while focusing entirely on Africa.

At the time when the ICC’s support was plummeting in Africa (in political circles at least), she became somewhat a ‘poster girl’ for the court. And I don’t mean this pejoratively. Accused by AU of being a ‘Western court’ that prosecuted Africans while at staff level relegating Africans ‘to deputy everything’ as some African leaders would gleefully state, the court had gone on a charm offensive by deploying its senior African staff. I was honoured to share platforms with Ms Bensouda in several African cities — Addis, Kampala, Pretoria, Maputo and Midrand (the seat of the Pan African Parliament) while she travelled the continent to market the court and put out fires. She came across to me as someone who is not only smart, but also one with a genuine belief in the ICC project. More importantly, unlike Ocampo, when some of us took the liberty to criticise her office and ICC constructively for the manner in which certain things were done, she was open to acknowledging these failings, but always referenced the need to do justice for victims.

For Ocampo, you were either unquestioningly with the ICC, or you were ‘with the criminals and killers’. She will win the ICC many friends just by being nice and accommodating. The AU’s triumphant fight to see her at the top must be seen in one of two ways. First, the AU hopes — however strange this may sound — to ‘establish balance’ in the court by gaining a foothold at the highest echelons of decision-making. If the idea is to somehow influence things through her however, there will be disappointment. Save for a limited space where the prosecutor enjoys total discretion (who to charge and largely, the charges), pretty much everything else is subject to judicial control of Pre-Trial Chamber.

Second, but linked to this is that there is a desire — and this is not limited to Africa — that the new prosecutor must expand the focus of ICC investigations beyond Africa. For long-term legitimacy of the ICC, many would agree that there must be a genuine attempt to truly internationalise the ICC. This could be Bensouda’s greatest challenge, one that could prematurely end celebrations. Because of the limits in ICC jurisdiction, some situations (non-state parties like Sudan) can only come to it through the UN Security Council. There is no doubt the AU will watch her every move, and I will not be surprised if some demands are made on her in the Al Bashir matter. She may have no choice but to rebuff these overtures. Her burden clearly is do her job in a way that does not open her to criticism globally for being ‘soft’ on Africa, merely because she is African. My suspicion is that it is precisely for this reason that she could be firmer than Ocampo, although in a more diplomatic and accommodating way. It is a commendable personal victory, but I honestly don’t envy her. She must rethink strategy and re-position the Office of the Prosecutor while remaining on course in existing situations and cases.

The reality is that even though there are proclamations that support for ICC is growing — largely because of new situations opening — in political circles resolve waivers and most doors have closed or near-closed in older situations like Uganda, DR Congo, CAR and Sudan. Even among communities of victims, experience shows that support for ICC reduces sharply as the process advances. This is partly because it becomes evident the ICC — however important — does not deliver quick justice and the promise of reparations from the court remains illusory for the vast majority of victims. Some hard thinking for Bensouda is necessary, but there are limits to what she can reasonably be expected to achieve because some of the problems of the ICC are structural. Only time will tell. She has my best wishes!

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