Institute for War and Peace Reporting | Giving Voice, Driving Change

Bensouda to Push for Expeditious Justice

Those who know ICC deputy prosecutor well say she believes in “mean and lean indictments”.
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When asked what it feels like to be a Gambian woman working in the International Criminal Court, arguably the most powerful international judicial institution in the world, Fatou Bensouda’s face broke out into a smile.



She pushed herself back into her black leather chair in her spacious office that overlooks a suburb of The Hague - the diplomatic centre of the Netherlands. “Gambia is a country with a big heart,” she laughed.



Bensouda, 44, who is married with children, is from one of Africa’s smallest countries, but there is nothing small about the woman herself. Far from domineering, she has a quiet authority that makes you stop and pay attention.



She is respectful and kind and likes to share a joke, but is sharp as a razor.



VOTE OF CONFIDENCE



Her sharp intellect grabbed the attention of the group of countries who have signed up to the ICC, who elected her to the position of deputy prosecutor with an absolute majority.



Bensouda started work at the court in November 2004, and holds one of the most powerful positions in international law.



There are two deputy prosecutors serving under the chief prosecutor, Argentina's Luis Moreno-Ocampo. Bensouda has responsibility for the prosecutions of suspected war criminals. This means she is in charge of the trials of suspects accused of such offences as genocide, crimes against humanity and war crimes.



The ICC was set up in 2002, and most of the situations it is currently investigating are in African countries.



These include the Democratic Republic of Congo, Uganda and the Central African Republic, which all referred their problems to the ICC as they felt unable to deal with them sufficiently. The Darfur region of Sudan was referred to the court by the UN Security Council in March 2005.



Bensouda sees these referrals as a “vote of confidence” by African states.



“MEAN AND LEAN INDICTMENTS”



Obviously aware of critics who have asked why the ICC seems focused on Africa, Bensouda said, “The ICC was set up as a court of last resort. It does not have primacy, but will intervene when a state is not willing or able to investigate war crimes itself.”



And she brings to her role the experience gained as a prosecutor of another international tribunal set up before the existence of the ICC.



Prior to her election at deputy prosecutor, Bensouda worked at the International Criminal Tribunal for Rwanda, ICTR, in Arusha, Tanzania, established after the atrocities in that country in 1994.



She experienced a meteoric career progression, rising from legal adviser and trial attorney to senior legal advisor and then head of the legal advisory unit.



At the ICTR, Bensouda implemented new strategies to bring war crimes suspects to justice quickly and efficiently.



Dr Alex Obote-Odora, senior legal advisor and special assistant to the prosecutor at the ICTR, who worked with Bensouda when she was at the legal advisory section, told IWPR that at a time when “very few were listening” she was the voice arguing for “mean and lean indictments”.



This means fewer counts in an indictment, and trials for one person at a time instead of prosecutions against groups of people.



The Arusha court has been bogged down by a number of long running cases. One, known as the Butare trial, started in 2001 and involves six defendants charged with genocide, crimes against humanity and war crimes. The trial is marked by slowness due to strong disagreements between defendants’ lawyers.



“Ms Bensouda argued that prosecution of multi-accused in a joint trial was expensive and time-consuming,” said Dr Obote-Odora.



It seems that under her guidance, this will not happen at the ICC.



Thomas Lubanga, the leader of the Union des Patriotes Congolais, UPC, is the court’s first accused. He is awaiting trial in The Hague on charges of conscripting child soldiers to fight in the Democratic Republic of Congo.



This is the only war crime he is charged with so far, when many human rights organisations claim his militia is responsible for mass killings, torture and rape in the inter-ethnic conflict.



However, Bensouda stands firm that “expeditious” justice is important for the victims of war crimes, and necessary for reconciliation.



“Bringing perpetrators to trial will give victims a sense that what they have suffered has been recognised by the international community. This is an important part of the reconciliation process, as it is the only way victims feel compensated for what they have suffered,” she said.



CONCERN FOR VICTIMS



In fact, a deep concern for victims of crime has driven much of Bensouda’s work.



Dr Obote-Odora told IWPR that, while in Kigali, she volunteered to travel with investigators in the field, although her primary role was legal advisor at the ICTR, “Ms Bensouda assisted and advised investigators on how to handle witnesses, at a time when security in Rwanda was not very good.”



Those working under Bensouda in her native Gambia noticed her commitment to bringing justice to the people. Almami Fanding Taal, principal legal officer at the Gambia Divestiture Agency, worked with Bensouda when she was appointed Attorney General in 1998, and says she was concerned with bringing justice closer to the people of Gambia.



Taal said high and superior courts in the capital Banjul are “not accessible to the majority of the people”, and it was Bensouda who “laid the foundation for the first regional high court in Brikama – a town 50 kilometres from Banjul”.



The decentralisation of government and the judiciary were all started under her watch. “Those of us who worked with her knew how difficult it was to get support for constitutionalism in the post-military government in the Gambia,” said Taal.



CONFLICT AND POST-CONFLICT



This experience in her native Gambia, and at the ICTR, has gone a long way to prepare Bensouda for work at the ICC. She is a skilled “people’s person”, and understands the complexities of peace and reconciliation in Africa.



She explained that the ICC will “never interfere” with local attempts at negotiating peace deals.



For example, she said that the court will not stop talks between Joseph Kony, the leader of Uganda’s Lord's Resistance Army, LRA, and Riek Machar, the vice-president of southern Sudan’s autonomous government. Video footage from early May shows Machar offering to broker talks between the Ugandan government and the LRA rebels.



But she maintained that justice will always persist.



“We want to bring peace to Uganda, and have had meetings with religious and opinion leaders in the country to show justice is part of the peace process. It is well understood that whilst other peace processes are going on, this will not stop the justice component. We just want them to recognise they are part of bringing peace,” said Bensouda.



INTERVENTION



However, she believe that the mere presence of the ICC as a permanent court can serve as a deterrent to potential perpetrators in situations of ongoing violence. The fact that a justice component is already there on the ground, whilst the crimes are being committed, will have a “drastic impact in reducing them”.



“War criminals now know that they will be held accountable in an up-and-running institution,” she added.



And Bensouda has evidence to support her claim.



When the prosecutor issued arrest warrants in Uganda, she says, “Lord’s Resistance Army members started to run away from their bases to try and escape justice”.



This is part of the reasoning behind the UN Security Council tasking the ICC to investigate crimes committed in Darfur. “The ICC is independent, impartial, and already set up,” explained Bensouda.



Instead of the logistics and bureaucracy of setting up another ad hoc tribunal, the ICC is a permanent court and not confined to a narrow remit. Its investigations are ongoing, and not confined to one geographical location. Bensouda says this means the ICC can “take on cases expeditiously”, adding that speedy justice has a “deterrent effect”.



NOT A WESTERN COURT FOR AFRICA



However, the very fact that the ICC is a fixed court is, for some, a cause for concern. Does it mean that justice is being taken out of the hands of national authorities and sovereign states?



Some human rights organisations feel that suspected war criminals such as Thomas Lubanga from the DRC and Charles Taylor from Liberia should be tried in their own countries. But Bensouda said, “The reaction we got from the Congo and neighbouring countries shows the people feel justice will be done by the ICC.”



She also said the flexibility of the 1998 Rome Statute (which lays out the rules of how the court works) "makes provision for the court to sit anywhere, and move anywhere where we already have jurisdiction".



FIELD EXPERIENCE



Talking to Bensouda, you realise she has an unshakable belief in the power of the ICC. “The court is set up for a noble cause, and it is an honour and privilege to work as deputy prosecutor,” she said.



Her colleagues describe her as “proactive and an excellent team player”, and as deputy prosecutor, Bensouda advises the chief prosecutor and makes key decisions.



Africa has the greatest number of countries from any continent as signatories to the Rome Statute, and Bensouda believes that her being at the ICC demonstrates that “Africa is in the leadership of the court”.



“This demonstrates the ICC is not a western court for Africa, [but a] result of a call by the international community to end impunity,” she said.



And this view is shared by others.



Dr Obote-Odora said that the contribution of the ICC to address conflict and post-conflict situations in Africa is enhanced when senior members of staff are Africans “who understand and appreciate African history and other socio-economic factors”.



However, he believes that Bensouda was not elected because she is an African, but because she is qualified and competent. He said that her election as deputy prosecutor is not connected with justifying the ICC in the eyes of Africans, who will “judge the court on its track record”.



He added that Bensouda’s contribution will be pivotal “not only in the eyes of Africans, but supporters of the ICC at large”.



Katy Glassborow is a regular IWPR contributor in The Hague.

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