10 December 2011

Kenya: Bensouda Wasn't Best Choice to Take ICC Forward in Post-Ocampo Era

Photo: IRFJ
International Criminal Court Chief Prosecutor, Fatou Bensouda.


Luis Moreno-Ocampo has done some good things during his time as chief prosecutor of the International Criminal Court.

Many right-minded Kenyans will be grateful for the fact that he managed to scare our politicians witless.

One outcome of the ICC's involvement in the country may well be that in the future warlords will think carefully before sending marauding youths to kill and pillage in order to help them claim or retain power.

But his legacy is more complicated than the black and white picture you get in Kenya, where opponents tend to be reflexively critical of the prosecutor while supporters are comically and unshakably convinced of his boundless virtues.

A more nuanced picture of the prosecutor's performance comes from foreign observers of the operations of the court who have no direct interest in the cases in The Hague.

On the morning before the opening of the second Kenya case, for example, the Coalition for the International Criminal Court, a group of NGOs that works to support the institution, held a rather interesting, if little-reported press conference.

Brigid Inder, executive director of the Women's Initiative for Gender Justice, said the prosecutor's office had badly let down the victims of sexual violence in the cases which have come before the judges in The Hague in the last decade.

She pointed out that charges that touched on gender-based violence had routinely been thrown out at the pre-trial stage because of poor work by the prosecution and demanded that the Office of the Prosecutor "carry out more primary investigations before relying on secondary sources rather than relying on secondary sources and then conducting investigations".

You have heard that accusation before. It was made vocally by the lawyers for the Ocampo Six, especially in the first Kenya case.

Greater resonance

That charge of lazy prosecutorial work could be dismissed as an attempt to save the skins of the suspects, but when it is made by a group whose mission is to highlight the abuses that accompany armed conflict in Africa in particular, it has much greater resonance.

A more potent criticism of the Ocampo years has been the charge that the court hews too closely to the position of the major Western powers in its approach to cases.

In the Ivory Coast, a conflict that was essentially a civil war in which the army had fractured along ethnic lines, the prosecution has sought the arrest of only the man who was foolish enough to oppose the former French colonial masters, Laurent Gbagbo.

No action has yet been taken on the perpetrators from the other side of the divide, and your guess is as good as mine what that has done to the prospects of reconciliation in that poisonously divided country.

In Libya, Mr Ocampo, accompanied by his deputy Fatou Bensouda, assured the authorities there they could try Saif al-Islam Gaddafi there even though Libya does not have a functional judicial system. The court later issued a statement saying it was still seized of the matter.

All these missteps fed the desire of a fair few supporters of the court that the transition after Ocampo would provide an opportunity to sweep the stables clean and bring in a fresh pair of hands -- preferably from outside the court -- that would help undo some of the damage of the Ocampo years.

They hoped for a clean break, but in Ms Bensouda the state parties have settled for the candidate that represented continuity.

Ms Bensouda is eminently qualified in her own right although, as Daniel Howden of The Independent pointed out recently, some will be given pause by the fact she served loyally as a legal adviser to His Excellency Sheikh Professor Alhaji Dr Yahya Abdul-Azziz Jemus Junkung Jammeh Naasiru of the Gambia, a leader so autocratic not even the African Union would accept to monitor elections in his country.

Ms Bensouda will almost certainly take Ocampo's job this week. But not everyone is convinced that the Office of Prosecutor will be substantially better off in her hands.


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