With Luiz Moreno Ocampo leaving his position as the
International Criminal Court’s (“ICC”) chief prosecutor in June of 2012
after heading the Office of the Prosecutor (“OTP”) for eight years, the exciting question of which candidate would replace him arose in the last months. After
preliminary, informal testing of the waters, the current Deputy Chief
Prosecutor Fatou Bensouda was the only name put to vote to the 120 ICC
member states during the ICC Assembly at the UN headquarters in New York.
Majority opinion for choosing
Bensouda seems to be positive. After having seen her in the ICC courtroom on a
daily basis for three months while covering the ICC trials for the Coalition
for the International Criminal Court, I also believe that she was the best
candidate that applied for the position. From what I have observed, Bensouda is
well educated, highly intelligent, strong and humble in Court, and has sufficient
“court time” experience in international criminal trials. Her resumé is
impressive and underlines that her selection was not solely a political pick; she
worked as an adviser and trial lawyer at the UN International Criminal Tribunal
for Rwanda, rising to the position of senior legal advisor and head of the
Legal Advisory Unit, and then becoming the ICC deputy chief prosecutor, the position
she has occupied for the last seven years.
As such, the ICC OTP will be headed
by an experienced international criminal law practitioner. Her experience as a
delegate of Gambia to the meetings of the Preparatory Commission for the ICC
may have also given her the necessary insight into how political agendas are
involved in the Court. And finally, Bensouda being an “in house” choice sends a
strong message that the work that the OTP has done so far is generally appreciated
by the member states.
The fact that all cases being tried by the ICC play on the African
continent, accompanied by grave complaints from some affected states, particularly
Kenya and Sudan, surely played a role in selecting a chief prosecutor from Africa
to counter the argument that the ICC is a patronizing “western” institution.
Others claim that choosing an African chief prosecutor was justified as most
ICC member states are from the African continent. In any case, Bensouda will
have to deal with a huge workload and must be prepared to counter the rising
criticism of the ICC not working fast enough.
This claim is not totally unjustified. Of
course, on the one hand it was clear from the beginning that the first ICC
trials would need their time due to the time-consuming method of establishing
precedents by the Appeals Chamber through the filing of interlocutory appeals
to reach clarification on procedural issues (i.e. for rules to disclose evidence).
Such appeals by the OTP or the Defense against decisions of the (Pre-)Trial
Chambers are filed during the pre-trial and trial phases whenever they are
deemed proper and necessary. This has led to a significant disruption for the
(Pre-)Trial Chambers’ work, since they needed to postpone the continuation of
the (pre)-trial until the Appeals Chamber had ruled on the specific subject
that was decided before but appealed. On the other hand it seems astonishing
that even after almost a decade of functioning the Court has not been able to pass
one single judgment as of mid-January 2012.
The international eye will stay on Bensouda and her actions. With
her being elected, there is a reasonable chance that the image of the ICC will
improve. Given her vast practical experience in international criminal law and
procedure, Bensouda will most likely be able to improve the ICC’s image by
wisely picking the situations and cases she will be investigating, taking into
account the likelihood of obtaining sufficient evidence, by staying active in
the courtroom, and by delivering well-thought statements to the international
community in terms of her actions, goals, and achievements. It remains to be
seen whether Bensouda will be able to stand strong against the increased international
(political) pressure vis-à-vis the Court and raise the fight against impunity
for genocide, crimes against humanity, and war crimes to a new level.
Delegate Jennifer Huang Reviews the CASIN Delegation to the 10th Session of the Assembly of States Parties to the Rome Statute of the ICC
As a CASIN student
delegate, I had the honor of attending the tenth session of the Assembly of
States Parties (“ASP”) to the Rome Statute of the International Criminal Court
(“ICC”), which took place from 12–21 December 2011 at the United Nations
Headquarters in New York.Representatives
from each of the 120 ICC States Parties that have ratified the Rome Statute
gathered to address and decide issues central to the Court’s operations.
All in all, it was a tremendous victory for women: on its first day
alone, Estonian Ambassador Tiina Intelmann was elected as the new President of
the Assembly of States Parties. I also had
the luck of sitting only two rows behind Fatou Bensouda and witnessed firsthand
the unanimous election of the new female Chief Prosecutor of the ICC.She graciously accepted the congratulations that
began pouring in and was escorted out of the conference room by a large crowd
of well-wishers.Ms. Bensouda’s election
is significant in any number of ways.For
one, her election benefits women the world over: she has pledged to prosecute
sexual and gender crimes and has promised that she will ensure that the Office
of the Prosecutor will work more closely with women’s organizations in the
future, especially those in conflict countries, which often provide the sole
support to women victims.
The Prosecutor-Elect also has a chance to finish the work she started as
deputy under Prosecutor Moreno Ocampo, as she has yet to secure the ICC’s first
conviction in her first case and is only just managing to wrap up the
much-contested Thomas Lubanga Dyilo case.
But perhaps what will be most critically observed in the coming years is
her ability to handle the African Union’s (“AU”) dissembling in terms of its
support for the Court.From the Court’s
inception, the AU’s stance has shifted from merely critical to sometimes openly
hostile, heightened by the realization that all seven Situations currently
being investigated are located within Africa.Despite the fact that three of these Situations have been self-referred,
Africans claim a special prejudice against them and have steadfastly refused to
cooperate in handing over President Omar al-Bashir of Sudan, ticking years onto
his outstanding arrest warrant.The
Prosecutor-Elect, herself from Gambia, dismissed these notions earlier this
year, stating that “[a]ny time I hear this about the ICC targeting Africa…it
saddens me, especially as an African woman. . . All of the victims in our cases
in Africa are African victims…they’re the ones who are suffering these
crimes.”Her Gambian nationality may
make it harder for these accusations to stick, and, in fact, the Assembly of
States Parties stated as much in acknowledging that there was “pervasive
sentiment that the next prosecutor should come from Africa.”
On 12-16 December 2011 after 15 rounds, the ASP elected six new judges:
Miriam Defensor-Santiago (the Philippines), Anthony Thomas Aquinas Carmona (Trinidad
and Tobago), Robert Fremr (Czech Republic), Olga Venecia Herrera Carbuccia
(Dominican Republic), Howard Morrison (United Kingdom) and Chile Eboe-Osuji
(Nigeria).The two women judges will
maintain the slight female majority, with ten women serving in the
eighteen-strong 2012-2015 class on the ICC.
Despite a painfully laborious negotiations period, the session eventually
concluded on 21 December 2012 with agreement on both an omnibus resolution on
strengthening the ICC, as well as a 2012 program budget.The omnibus resolution included laying out
the parameters of an independent oversight mechanism (“IOM”) for the Court,
which objectors had feared would impinge upon the independence of the
prosecutor.Hopes remain high that
despite being saddled with a budget smaller than desired, the Court will continue
with its revolutionary work. Recalling the President of Botswana Ian Khama’s
keynote address at the start of the session, the Court has done quite well
considering its short time in existence, its limited budget, and not yet
universal support.He deemed the ICC a
“mechanism within a larger international human effort” in the “human quest for
global peace and security.”As the Court
gains a new prosecutor, new parties, and heads into the New Year, the ICC faces
challenges both new and old.Yet with
its first decision on the horizon, the ICC has already demonstrated that the
effort to end impunity is not a mere aspiration.With the collective support of States
Parties, the Court can only make further inroads towards the realization of
international peace and security.
