Luis Moreno-Ocampo, the name synonymous with the International Criminal Court, belongs to a man whose heavily slurred Spanish accent and five o’clock shadow have inspired fear, respect and caricaturing in Kenya and many other nations. A man for whom the international system is but a stage for, some would say, his matador-esque manner of prosecuting the world’s bad/worst people.
Ocampo is also the man who will not see any Kenyan case to its conclusion should any of the six Kenyan cases before the ICC go to trial. Probably not because he doesn’t want to, but principally because he won’t be around come next year.
The ICC procecutor has served the maximum, non-renewable term in office and will, by the end of the year, be replaced at the helm of, possibly, the most controversial prosecutorial post in the world.
Now that the ICC handles crimes that make the subject of epic movies, crimes for which new words are created in dictionaries, what word should best define the person who will replace Moreno-Ocampo?
After all, to bring to justice men and women accused of the world’s most heinous crimes, you can’t afford to give an inch, especially if you believe that the ICC can bring culprits to justice.
Fifty-year-old Fatou Bensouda, the deputy prosecutor of the Court, wears this quality on her often stern face and business-like demeanour. And it looks like the job is hers to lose. Last week, members of the ICC endorsed her for Moreno-Ocampo’s job ahead of a formal election by member states on December 12.
Since 2004, when she was picked by the Assembly of State Parties of the Rome Statute to deputise the more famous Moreno-Ocampo, Ms Bensouda has inspired belief in her abilities through her current role as Deputy Prosecutor. This comes in her readiness to fit in the shoes of her boss when his term expires this December.
Latter day critics of the Court’s role in Africa, the African Union, have already endorsed her for the job. “Fatou is the best person for the job, not just because she is an African,” said Ben Kioko, the AU’s Chief Legal advisor, “but because she has a good understanding of African issues.”
Of Ms Bensouda, the President of the Assembly of State Parties to the Rome Statute, Christian Wenaweser, once said: “The search committee from the ASP does not favour any endorsement, but Fatou is well known and is a candidate who will certainly be looked at.”
In itself, the approval of Ms Bensouda by the representative body of African states, which make up the largest number of State Parties to the Rome Statute, the body which will select the next prosecutor, was a boost that many candidates for the job will rue not having.
During a conference in Botswana in August, I should have expected that my question to this formidable opponent to injustice about what she made of the possibility that she would become the next prosecutor of the ICC would not be answered, but I asked anyway. “I would rather not discuss those issues publicly. It distracts the work ahead of the ICC now,” she replied as her lips curled into a broad smile, her first during the interview.
Passion for justice
Yet, as the interview progressed, her passion for international justice told of a woman whose determination could push her to the topmost rung of international prosecutorial work. “The work I did in my previous life before I joined the ICC informed my decision to join the Court. It is all I did in Gambia,” she said.
Gambia is her home country. There is no small irony in the fact that The Gambia is among the most corrupt nations in Africa, but Bensouda, who served the Gambian government in various capacities, proudly explains that this may very well have prepared her for the ICC.
“I have a passion for criminal justice. It is all I did in Gambia. I rose to the highest legal office in the land, the Attorney General’s and I served my countrymen well.”
Fatou Bensouda will, however, have to serve a much broader clientele than the African public in her and the ICC’s pursuit of justice. Crimes, in any broad description, happen all over the world, with many of the worst crimes committed against populations happening in the Middle East and Asia.
Africa, though, has in recent times become the talking point in international justice circles, not least because several cases, among them those against six Kenyans, have been presented to the court.
The AU has a big problem with this and the most noise about a court they say is biased against Africa was made most recently in the arrest warrants issued against Libyan strongman Muammar Gaddafi, his son Saif al Islam and Minister for Interior Abdullah Al-Senusi, after a referral of the Libyan situation to the ICC by the United Nations Security Council.
This, ICC critics believe, is an extension of the bias against Africa and the face of neo-colonialism. Bensouda disagrees. “The Security Council is the ultimate body (in charge of maintenance of international peace and security), but the ICC is not bound by a Security Council referral to open a case. We have to investigate first,” she stressed.
AU sore spot
In the case of Darfur, yet another African debacle, Ms Bensouda, who played an important role in investigating the allegations of violence there, is emphatic in her defence of the ICC’s decision to issue a number of arrest warrants there. Chief among them the first against a sitting head of state, Omar al-Bashir, based on the evidence they gathered. This is despite the groaning of a wary AU that questioned the timing of the issuing of the warrants against Bashir.
“It is never the right time to move. There are so many interests in cases that timing is always controversial. Let me say this; while we execute a mandate, we are sensitive to the mandates of other stakeholders. Keep in mind that we must all co-ordinate to save lives. With respect to Bashir, it was the right time to move.”
The warrant of arrest against Bashir still is a sore spot for many within the African Union and was a first in the administration of International Justice. Bensouda’s readiness to stand by the decision of the Court portrays just how unrelenting she has been in her job, whether the cases before her to prosecute are African or otherwise.
“The inaction of the international community in the 1990s in the Congo wars and the genocide in Rwanda led African states to steer discussions on the Rome Statute. African leaders and activists are largely responsible for building the system of International Justice,” she said on the sidelines of a media conference held in Botswana.
“How can we prevent a new cycle of violence during the next elections in Kenya…? How can we ensure the crimes committed in Darfur are not repeated? The Rome Statute defines my mission…”
These were Ms Bensouda’s opening remarks in a speech to African journalists at the Botswana media conference. That statement more than sums up what Ms Bensouda is about, and perhaps what she will be should she become the next chief prosecutor of the ICC.