This month, the Appeal Court in Nairobi is to rule on whether President Uhuru Kenyatta’s reform plan is constitutional – a decision that ... could sway the outcome of national elections in a year’s time. Kenya's elite politicians, including former prime minister Raila Odinga and President Kenyatta on one side, and current Vice President William Ruto on the other, are hoping the court will give them the advantage.
Accused of war crimes and crimes against humanity alongside Charles Blé Goudé, the former president of Côte d’Ivoire, Laurent Gbagbo, was cleared once and for all by the ICC.
But it is a final blow for the court’s chief prosecutor, Gambia’s Fatou Bensouda, who worked tirelessly on the case. At the end of a decade-long proceeding marked by a string of defeats, and as she prepares to hand over the reins on 16 June to the incoming chief prosecutor elected last February, the British national Karim Khan, Bensouda was unsuccessful in proving the guilt of the court’s most high-profile defendant.
Bensouda was absent during Gbagbo’s hearing. She was some 6,500km away, in Mali, wrapping up a three-day visit. It was her last such trip as the ICC’s chief prosecutor and a way to “round everything off”, as she put it during her visit of the Djinguereber mosque in Timbuktu, with the end of her nine-year term drawing near.
When she took office on 14 June 2012, after being elected by consensus by the court’s 193 member states, one of the first cases she took up was that of the Malian Islamist militant Ahmad Al Faqi Al Mahdi. In 2016, he was sentenced to nine years in prison for destroying religious and historic buildings, and it was the court’s first such conviction for cultural destruction.
Who will remember the strides made on her watch?
During Bensouda’s visit to the mosque in Timbuktu, which is a UNESCO World Heritage Site, she brought up her successes. She cited the case of one of Al Mahdi’s fellow countrymen, Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, who is currently being tried by the ICC on 13 separate charges, including war crimes, crimes against humanity and, in another first, gender-based crimes.
But who will remember the strides made on her watch? The fiasco of the Gbagbo trial has cast a long shadow over the chief prosecutor’s other successes, including the Malian cases. A “stain” on her tenure, a “disaster”, “a shameful moment in ICC history”: there were plenty of harsh words about Gbagbo’s case in the orbit of international criminal law professionals and people familiar with the court, and even among those who say they have relatively close ties with the highly regarded chief prosecutor.
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“What contributed to the case’s weakness was perhaps that it was overly ambitious in scope, too aggressive and moved too quickly,” says a Hague-based international legal expert. “It’s very difficult to convict senior officials in this type of proceeding, unless you have an extremely strong body of evidence.”
Lack of proof
Bensouda was never able to gather that level of evidence, however. The first bad sign came in June 2013, as the opening of the confirmation of charges hearing was not a resounding success: the ICC’s Pre-Trial Chamber I deemed that the chief prosecutor’s evidence against Gbagbo was insufficient and requested that she provide further evidence.
One year later, she managed to persuade two out of three judges that a trial was necessary. But on 15 January 2019, the judges acquitted Gbagbo and Blé Goudé. In their ruling, they described the evidence submitted by the chief prosecutor as “exceptionally weak”. What people remember today is that the prosecution showed fake videos in court, ones that had nothing to do with the situation in Côte d’Ivoire and made questionable choices as to the witnesses to be called.
The opinion of the Ivorian government, for its part, is clear: “Bensouda did a poor job,” says a person close to President Alassane Ouattara, rebuking the chief prosecutor’s “amateurism”. “She didn’t work hard enough, she wasn’t sufficiently involved in the trial, and she could have made a more thorough and relevant case,” the source adds.
He continues: “Gbagbo built his entire defence around the claim that he was unaware of what his men were doing and that he never gave them any orders. His defence wasn’t difficult to dismantle. It’s obvious that there are never written orders in that kind of situation, but who really believes that all these events unfolded behind the president’s back?”
Reliance on government cooperation
The wave of criticism is all the more harsh given the Ivorian government’s assertion that it did everything in its power to help Bensouda conduct her investigations. That said, a former member of the Bureau of the Assembly of States Parties does not entirely share this rosy assessment: “When the Ivorian government decided to try the former president’s wife, Simone Gbagbo, in Côte d’Ivoire, it was able to block part of the ICC’s investigations by citing the confidentiality of the proceeding, even when those investigations had nothing to do with Gbagbo’s circle.”
An Ivorian court acquitted Simone Gbagbo, who faced charges of war crimes and crimes against humanity, in 2017. Her acquittal was overturned by the country’s supreme court in July 2018, but she received an amnesty a few days later and released on 8 August that same year.
Lacking help from law enforcement agencies and assisted by investigators who do not have diplomatic experience, the chief prosecutor was in reality completely reliant on governments’ willingness to cooperate, which can make or break a conviction. But now the acquittal handed down in Gbagbo’s trial has fuelled the suspicions of those, and they are many, who believe that the entire case against the Ivorian former president was based on political considerations.
Gbagbo’s close allies are revelling in this long-awaited and much hoped-for legal victory, but their comments about Bensouda have been surprisingly tame. “It isn’t unusual for a chief prosecutor to lose from time to time,” says a member of the ex-president’s defence team. “This might be viewed as a failure on the part of Bensouda and her office, but it’s actually good news for the ICC because the quality of a court is also measured by acquittals. A trial doesn’t necessarily need to end with a conviction.”
After Bensouda took over for the Argentinian chief prosecutor Luis Moreno Ocampo, under whom she served as deputy prosecutor, she knew that her role would likely be a very uncomfortable one. It involved carrying out investigations for a relatively young court that some have been quick to criticise for its perceived anti-African bias, while superpowers – the United States chief among them – flout its authority.
The first major defeat in Bensouda’s tenure came in December 2014, in a case involving Kenya’s President Uhuru Kenyatta, who at the time stood accused of committing crimes against humanity during post-election violence in the country in 2007 and 2008.
After several witnesses died or withdrew their testimonies, the chief prosecutor felt compelled to drop the charges against the head of state and eventually did the same for his vice-president, William Ruto, who was represented by none other than Khan. “Kenyatta’s trial impacted the young ICC,” says Mariana Pena, a legal adviser who represented Kenyan victims. “There was a before and after to the trial.”
Then, in 2018, another blow: after being sentenced to 18 years in prison for committing war crimes and crimes against humanity in the Central African Republic, Jean-Pierre Bemba, the former vice-president of the Democratic Republic of Congo, was ultimately acquitted by the ICC Appeals Chamber. In 2019, Bemba sought more than €68m ($81.8m) in compensation and damages from the court, but his claim was rejected a year later.
Bensouda’s leadership has also attracted the ire of some African states. Sudan’s ex-president Omar al-Bashir, who was the subject of an international arrest warrant but protected by some of the continent’s leaders, continued to travel around the world, evading the court’s reach. In 2016, Burundi, South Africa and Gambia withdrew from the Rome Statute, the ICC’s founding treaty.
Bensouda made a courageous effort to undertake investigations in countries outside Africa. And she did not opt for the easiest cases: for one, when she opened an inquiry into the situation in Afghanistan that directly involved the United States, Washington was up in arms about the move and retaliated by slapping the chief prosecutor with sanctions typically reserved for terrorists.
President Joe Biden’s administration repealed the sanctions on 2 April, but her decision to open such inquiries also sparked criticism. According to a judge posted to a European embassy in The Hague: “She opened these types of investigations to show that the court doesn’t just go after African countries, but there were so many that she spread herself too thin. And that became expensive for the states parties.”
Charles Taku, a defence lawyer involved in several ICC cases, says “she did her best” and should be “cut a little slack”. He adds: “We shouldn’t forget that she tried her hardest to fend off political meddling. And she entered her position after Ocampo’s disastrous term as chief prosecutor, which means she spent the better part of her time fixing the mess he made.”
“Bensouda truly wanted to break with the past, but she didn’t have free rein to change things. After all, she was part of the system Ocampo created,” says a West African judge who advises the chief prosecutor’s diplomatic office at the UN.
‘A culture of fear’ and harassment
One thing is certain: Bensouda was unable to right all the wrongs of her predecessor. In late 2020, the findings of an independent expert review of the ICC were released to the public. The report described the court – and more specifically the Office of the Prosecutor, which has a staff of more than 400 people – as being weakened by significant problems. The experts noted that a number of staff members were underqualified for their jobs.
The experts also cited “a substantial problem with regard to the absence in the Office of the Prosecutor (and the Court as a whole) of sufficient expertise relating to situation countries” and a failure to recruit new talent. In addition, the experts found that there was “a culture of fear” and “many accounts of bullying behaviour amounting to harassment”. While the scope of the report extends beyond the Office of the Prosecutor, the findings are another blight on Bensouda’s record at the ICC.
Regardless of the report’s content, the chief prosecutor has no shortage of defenders, perhaps because she is unanimously described as a person of great humanity and a true professional. “She is a very principled person, but she lacked the assertiveness needed to enact real reform,” said the West African judge quoted earlier.
“In contrast to Ocampo, she has made significant strides during her tenure as chief prosecutor regarding gender-based crimes,” says Dorine Llanta, a permanent representative of the International Federation for Human Rights to the ICC.
“She managed to implement a wide-ranging gender policy and convicted both Bosco Ntaganda [a Congolese military chief sentenced in 2019 to a 30-year jail term] for sexual crimes and Dominic Ongwen [a former Ugandan child soldier sentenced in February 2021] for crimes including forced marriage.”
“Her record is mixed, to be sure, but sometimes people forget how complex the job of chief prosecutor is,” says Senegalese legal expert Adama Dieng. He had supported Bensouda’s nomination as chief prosecutor back when he was serving as special adviser of the UN secretary-general on the prevention of genocide. “Countries can make or break her work, and she really struggled with their lack of cooperation,” Dieng adds. “As things stand today, only the UN Security Council can impose sanctions on states. Let’s hope that it will be more committed to supporting the court going forward.”
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