Fatou Bom’s Justice - No Pick-and-Choose

Refusing to play oblivious to accusations of selective justice, Hague-based ICC’s new chief prosecutor, on Friday officially began her tenure, vowing to pursue ‘real justice’.

“I solemnly undertake that I will perform my duties and exercise my powers as Prosecutor of the International Criminal Court honourably, faithfully, impartially and conscientiously…” Fatou Bensouda, 50, swore.

But Fatou will soon be judged on not what she said on Friday at her swearing in ceremony held at ICC, but the answers she will provide to queries, such as: How long will Bush and Blair continue to escape the long arm of justice?

The International Criminal Court, is a UN-based international court mandated to preside over war crimes and genocide and crimes against humanity.

Since inception some ten years ago, the court was headed by Mr Moreno-Ocampo, who was Bensouda’s boss for nine years. But the Argentine-born was accused, particularly by AU and African leaders, of selective justice, as he tends to only investigate atrocities in Africa.

“Frankly speaking, we are not against the ICC. What we are against is Ocampo’s justice,” AU commission chairman, Jean Ping, was quoted as saying sometime last year.

He quizzed: “What have we done to justify being an example to the world? Are there no worst countries, like Myanmar [Burma]?”

And as Ocampo’s term expires, AU lobbied intensely for the 50-year-old Gambian, and an African, to succeed him, hoping a better relationship with the court.

Born and bred in The Gambia, and married to a Gambian-Moroccan businessman, Mrs Bensouda, who studied law in Lagos, Nigeria, scored many firsts in her career as a legal practitioner.

Besides being the first woman, and first African ICC chief prosecutor, and first Gambian to assume such a high post, Bensouda is The Gambia’s first international maritime law expert.

She joined the justice ministry in 1987 as a deputy public prosecutor, rose through various ranks to become Gambian attorney general and justice minister in 1998. But familiar to her predecessors in that instable cabinet, her tenure was short-lived as she fell out with President Jammeh, who sacked her, typically, without advancing any reasons.

Undeterred, she would work for Tanzania-based International Criminal Tribunal for Rwanda, where a fellow former Gambian Justice Minister, Assan Jallow, serves as chief prosecutor.

In 2004, she took up the job as ICC as deputy Chief Prosecutor. Fatou Bom had been one of 52 candidates eying Ocampo’s post, but as the rest withdrew, including candidates from Britain and Canada, she was left to battle for the high profile job with Mohamed Chande Othman, chief justice of Tanzania.

However, when top officials from the nearly 120 countries which have signed up to the court’s governing treaty met in New York on Wednesday December 1, in a bid to whittle down the final two candidates, Fatou was confirmed the successor.

Though her election was unanimous, Bensouda got the strongest support from AU, a fierce critic of outgoing International Criminal Court chief prosecutor Luis Moreno-Ocampo.

“The AU has been adamant that an African candidate would be selected, and they got their wish,” writes UK-based law blogger Mark Kersten on the Justice in Conflict blog.

He says the AU’s hand was strengthened by the fact that African countries form the largest bloc in the ASP. Yet the ICC’s various organs - including the presidency and registry - were headed by people from other continents.

Mark however did not fail to recognise that “Bensouda clearly satisfied all of the political and merit-based criteria to become the ICC’s chief prosecutor.”

Mrs Bensouda’s appointment as chief prosecutor has been welcomed in the legal profession and among non-governmental organisations.

“She always struck us a very thoughtful person of great intellect,” says Human Rights Watch senior counsel Liz Evenson.

A senior lecturer at the Melbourne Law School in Australia, Kevin Jon Heller, says “Bensouda offers the best of both worlds - an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo’s incompetent tenure.”

“Having spoken to numerous individuals involved in the ICC, from OTP [Office of The Prosecutor] staff to legal officers in chambers to defence attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.”

“I have also had the good fortune to spend time with Bensouda over the past couple of years. She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful (a welcome change from Moreno-Ocampo) and compassionate.”

But now that Gambia and Africa’s Fatou Bensouda took over, what difference will it make for world justice? Will she soften the court’s stance on African? Will she provide answers to the question: what of justice for the Iraqis?

The ICC has so far investigated conflicts in seven countries - all in Africa: Sudan; Libya; Ivory Coast; Kenya; Uganda; the Democratic Republic of Congo; and the Central African Republic.

But, despite AU accusations of “selective justice”, Mrs Bensouda is unapologetic about the ICC’s focus on African conflicts.

“We say that the ICC is targeting Africans, but all of the victims in our cases in Africa are African victims,” she said earlier this year. “They are not from another continent. And they’re the ones who are suffering these crimes.”

Again and again we hear criticisms about our so-called focus on Africa and about the court being an African court, having an African bias,” she told the OpenForum conference in Cape Town, South Africa, earlier this year.

“Anti-ICC elements have been working very hard to discredit the court and to lobby for non-support and they are doing this, unfortunately, with complete disregard for legal arguments.

“What offends me most when I hear criticisms about the so-called African bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals and to forget about the millions of anonymous people that suffer from these crimes … because all the victims are African victims.

“Indeed, the greatest affront to victims of these brutal and unimaginable crimes … women and young girls raped, families brutalised, robbed of everything, entire communities terrorised and shattered … is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a pro-western, anti-African court.”

In what some may interpret as a coded attack on the US, China and other major nations that have not signed up to the ICC, Bensouda said pointedly: “International justice gives power of leadership to small and medium countries, to principled states, those who are determined to use the power of the law, not the power of arms, to protect their citizens and their territories. Political leaders can lead efforts for international justice in the international arena by supporting the ICC.”

In her statement, Fatou Bensouda did not make any reference to the question as to what will be her stance on Bush and Blair, the two people the world seem keen on having them face justice for atrocities.

Argument is that US is not a party to the Rome Stature, but can this defense hold any longer, as the son of former leader of Libya, a country that is not a party, is indicted after UN security council passed a resolution to that effect?

All eyes are now Gambia’s Fatou Bom, who pledged that: “The one thing which every one of you can rest assured of is that I will be the Prosecutor of all the 121 States Parties, acting in full independence and impartiality.

“Justice, real justice, is not a pick-and-choose system. To be effective, to be just and to be a real deterrent, the Office of the Prosecutor’s activities and decisions will continue to be based solely on the law and the evidence.”