Will Bensouda’s successor bridge gap between Africa and the ICC?

By Marième Soumaré
Posted on Wednesday, 17 June 2020 11:02

Netherlands International Court Congo
Prosecutor Fatou Bensouda in the courtroom of the International Criminal Court (ICC) in The Hague, Netherlands, Tuesday Aug. 28, 2018. (Bas Czerwinski/Pool via AP)

The International Criminal Court is about to release the shortlist of candidates for the prosecutor position. What’s at stake for Africa and the future of the ICC itself in this election?

Speculation is rife even though the names of the candidates have yet to be made public. Who will succeed Gambian-born Fatou Bensouda in the prestigious, overexposed and often downright uncomfortable position of Prosecutor of the International Criminal Court (ICC)? The third judge to serve in this capacity will certainly have his or her hands full over the nine-year term of office, which will begin on 15 June 2021.

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The official final shortlist (containing between three and six candidates) is set to be released during the month of June by the expert panel tasked with reviewing applications. Out of the 150 applications submitted by candidates, 16 were shortlisted in February for an interview. One of these candidates will thus become the next ICC prosecutor, who in all likelihood will be a Western man.

A European prosecutor?

An implicit rule effectively requires that the incoming prosecutor be from a different region of the world than the outgoing one. After the unpredictable term of office of Luis Moreno Ocampo (2003-2012), an Argentine prosecutor with a lot of baggage whose legacy, nearly a decade after his departure, has continued to tarnish the image of the ICC, and following the discreet Bensouda, who was entrusted with the delicate task of making amends between the Court and the African continent (and these efforts were not exactly successful), it’s only logical that a European will take up the post next.

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The names of certain preferred candidates are already circulating, but it’s upon the release of the shortlist that negotiations will truly begin. At that time, the finalists will kick off a difficult campaign process, scrutinised but unofficial, which will mostly play out behind closed doors and in the corridors of major international organisations.

The stakes are high for the campaign, both for member states and for the Court, which risks – perhaps now more than ever before – losing its credibility. At the end of several months of talks, the winner will then be elected by consensus or a secret vote during the nineteenth session of the Assembly of States Parties, which will take place at UN headquarters in New York, from 7 to 17 December 2020.

Anti-African bias

Will the new prosecutor manage to accomplish what Bensouda was unable to? Will he or she be able to shed this “anti-African court” label that has been stuck to the ICC and which also led to Burundi’s withdrawal from the Rome Statute in 2016?

The facts speak for themselves: since the Rome Statute of the ICC entered into force in 2002, the 12 trials held at The Hague have concerned Africans.

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This is despite efforts made by the prosecutor to carry out other investigations. “We have to at least give her that: Fatou Bensouda tried to prosecute individuals from outside the continent,” says Namira Negm, African Union Legal Counsel. “However, since her election, we haven’t noticed any real change in the Court’s activities or in its attitude towards Africa.”

Yet, the anti-ICC revolt that raged on for a long time at the African Union (AU) seems to have lost a bit of momentum. The let up is partly linked to the fall of Omar al-Bashir. The deposed Sudanese president was indeed, along with Kenyan Uhuru Kenyatta – whose charges were dropped by the ICC – one of the driving forces behind the anti-ICC revolt at the AU.

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Nevertheless, mistrust and rejection have not disappeared, as Negm confirms, and countries on the continent fear that the new prosecutor will have an anti-African bias. “It’s crucial that Fatou Bensouda’s successor learn from his or her two predecessors and rethink the relationship between the Court and Africa,” says Negm. The Africa region (which has the most States Parties belonging to the Rome Statute out of a total of 122 countries) thus hopes to be able to influence the selection of the incoming prosecutor.

Under US pressure

The tumultuous relationship that ICC has with African countries has recently been eclipsed by the open war pitting the Court against Washington. Even though the United States never ratified the Rome Statute setting up the Court and has never communicated its wish to belong to it, the country has always influenced the institution, particularly through the UN Security Council. “The ICC is still suffering today from Ocampo’s failures, as he went to great lengths during his term of office to avoid offending the US,” says Reed Brody, Counsel for Human Rights Watch.

More than 10 years passed before Bensouda was authorised by the Court to open an investigation into the situation in Afghanistan, covering alleged crimes committed by the Taliban, Afghan security forces, the US military and CIA agents.

After the publication of a preliminary examination in 2007, the Court’s Pre-Trial Chamber II rejected the prosecutor’s request for authorisation of an investigation in April 2019, on the grounds that it “would not be in the interests of justice”. This decision infuriated observers but was welcomed by US President Donald Trump, who spoke of it as a “national victory”.

Just a few days before the announcement, Washington had declared war on Bensouda by revoking her US visa. However, the ruling of Pre-Trial Chamber II was ultimately overturned by the Appeals Chamber on 5 March 2020.

“The United States has a lot to win or lose with the election of a new prosecutor. Under Barack Obama, cooperation was much easier. His government didn’t try to destroy the Court, which is clearly the objective of the current administration. If Donald Trump is re-elected, someone very strong will need to lead the prosecutor’s office, and that can influence how the States Parties vote,” says our source, a legal adviser from an international human rights NGO.

The ICC is thus looking for a rare bird: a judge at once impartial, independent, and capable of resisting US pressure while remaining on good terms with the African continent.

On trial for incompetence

Another criterion, which seems obvious (and yet!), is oft repeated by ICC observers: competence. In addition to the political balancing act Bensouda had to deliver, she herself and her team have faced a good deal of harsh criticism regarding the quality of their work.

The prosecutor’s office, which has been subjected to several scathing repudiations, is heavily criticised, whether for its “incompetent staff”, “weak cases”, “convenient decision-making” in selecting investigations and lack of turnover in teams. The acquittal of Jean-Pierre Bemba in 2018 was the first heavy blow, but the Gbagbo and Blé Goudé case was the final one (the former president of Côte d’Ivoire and his co-defendant were acquitted on 15 January 2019).

“When it comes to Kenya, the Court can argue that the authorities impeded the investigation,” says the same above-mentioned source. “But with Côte d’Ivoire, the opposite was true: the country’s authorities opened their doors and the prosecutor’s office didn’t manage to build a solid case.”

The mediocrity of the cases raised can primarily be explained by the disconnected nature of Bensouda’s team. “It’s the main issue that has characterised the work of the prosecutor’s office in the past: the members of the prosecutor’s office lack knowledge of their field of investigation,” says Brody. “They spend two weeks on a mission and have to pay middlemen to gain access to victims, with all the pitfalls that go with that.”

Bensouda’s teams are well aware of these deficiencies. In a report covering its strategic plan for 2019-2021, the prosecutor’s office admits that it has sustained “significant setbacks” in the Ruto and Sang, Bemba, and Gbagbo and Blé Goudé cases.

The office also acknowledges its “unsatisfactory results” and explains that they are due to “budget constraints”, “a lack of cooperation to support the investigations and prosecutions” and the “deliberate creation of misunderstanding or misperception affecting the support to and cooperation with the Office”.

A reform process for the Court – unusually early for such a young institution – was initiated last year by a group of independent experts. “We hope that the dynamics will change and that our demands will be taken into account,” says Negm. “Our main concern is that the person taking over for Bensouda will have an anti-African bias. Our campaign isn’t about maintaining impunity on the continent. We just wish to be treated like the rest of the world.”

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