Tuesday, June 26, 2012

Who Is the New Prosecutor of the International Criminal Court? A Profile of Fatou Bensouda

ICC Prosecutor Fatou Bensouda.
Photo by Max Koot Studio

By Audrey Kim

On June 15, 2012, Fatou Bensouda was formally sworn in as the new Prosecutor of the ICC. She was elected in December 2011 by the Assembly of States Parties (ASP) for a nine-year term and replaces predecessor Luis Moreno Ocampo.

According to the Rome Statute, the treaty that governs the ICC, a Prosecutor must have (a) high moral character, (b) high competence and extensive practical experience in the prosecution of trial of criminal cases, and (c) excellent knowledge of and fluency in at least one of the working languages of the court. With her former position as Deputy Prosecutor of the ICC and credentials both on the national and international level, the ASP decided that Ms. Bensouda was the most qualified candidate for the position.

Born on January 31, 1961, Ms. Bensouda grew up in Banjul, the capital of the Gambia. She was born into a polygamous family, as her father had two wives. She grew up in a large family with more than a dozen siblings. Ms. Bensouda is married to a Gambian-Moroccan businessman and is mother to three children, one of whom is adopted.

In a recent interview, Ms. Bensouda explained that at a young age she decided to become a lawyer because of the domestic abuse she saw happening in her community. “It wasn’t happening in my immediate family, but in Africa, you live in communities and you see it…and there was always this innate feeling in me saying this shouldn’t happen,” she said.

Education: After studying law in the University of Ife in Nigeria from 1986 to 1987, Ms. Bensouda attended the International Law Institute in Malta from 1990 to 1991 and holds a Masters in International Maritime Law and Law of the Sea. She is the first Gambian international maritime law expert.

Career: Ms. Bensouda has had an extensive career, both at the national and international level, making her highly qualified for the position. Since 2004, Ms. Bensouda has been the ICC Deputy Prosecutor. Before her work in the ICC, Ms. Bensouda was a Legal Advisor and Trial Attorney at the International Criminal Tribunal for Rwanda (ICTR) from 2002 to 2004, of which she was later Senior Legal Advisor and Head of the Legal Advisory Unit. In 2002, she was briefly the General Manager of the International Bank for Commerce Limited in Gambia, and since 2000 she has been a member of the International Advisory Council of the International Board of Maritime Healthcare.

In her native Gambia between 1987 to 2000, she was successively Senior State Counsel, Principal State Counsel, Deputy Director of Public Prosecutions, Solicitor General and Legal Secretary of the Republic, and then Attorney General and Minister of Justice. It was during her work as Senior State Counsel from 1990 to 1992 that she attained her Masters in International Maritime Law. As Attorney General and Minister of Justice, she was constitutionally responsible for the control and supervision of all criminal prosecutions in the Gambia. During her tenure as Minister of Justice, she was also a delegate to the Economic Community of West African States (ECOWAS) in a series of meetings on the ECOWAS Treaty, the Western African Parliament, and the ECOWAS Tribunal.

As the first female and first African prosecutor of the ICC, Ms. Bensouda has received much attention and support, especially from the African Union (AU). The ICC has been criticized for focusing extensively on Africa, and Ms. Bensouda’s appointment is expected to alleviate the tensions between Africa and the ICC. In response, she remarked, “I am an African and I am very proud of that... I'm not going to discount it or dismiss it. But I think it is not because I am an African that I was chosen for this position… I am a prosecutor for 121 states parties and this is what I intend to be until the end of my mandate...”

Although she is supported by the AU, Ms. Bensouda has rejected the AU’s criticisms that the ICC implements selective justice against Africa. In the OpenForum conference in Cape Town, South Africa, she said, “With due respect, 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 … Indeed, the greatest affront to victims of these brutal and unimaginable crimes … 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 the courtroom, Ms. Bensouda projects remarkable calm and poise. She has a commanding presence and combines passion, sensitivity, and self-control. Furthermore, her thoughtful demeanor and ability to communicate clearly and eloquently are some of her strongest traits. Acknowledging Ms. Bensouda’s dedication to global justice and her strong personal character, many have expressed their support and high confidence in Ms. Bensouda’s leadership.

According to Richard Dicker, the international justice director for Human Rights Watch, “In Syria and other strife-torn countries over the past 10 years, the ICC has come to symbolize the last, best hope for justice. We look to Bensouda’s leadership to advance cases, build bridges with victims, and push countries to support its impartial application of the law to get the job done.”

ICC President Song has stated, “I am confident that her strong independent voice, legal expertise and genuine concern for human rights issues will contribute greatly to the continued fight against impunity."

Friday, June 22, 2012

Former Bush Official Urges Rollback of Anti-ICC Legislation to Ease US-ICC Cooperation

Writing in today's Washington Post, former State Department Legal Adviser under George W. Bush, John B. Bellinger III, urged US Congress to amend the American Servicememmbers' Protection Act (ASPA) to make it easier for the US to support "the court in cases where justice for international atrocities cannot be achieved through other means."

Monday, June 18, 2012

ICC in the Media, Update #65

Several exciting ICC-related events have taken place recently that have drawn the media's attention. As we reported earlier, Fatou Bensouda was recently sworn in as the International Criminal Court's new prosecutor. She is both the first African and first woman to hold the post. In the Libya case, four ICC staffers part of an official mission to meet Saif al-Islam Gaddafi have been detained in Libya. Reportedly one of the four, lawyer Melinda Taylor, was carrying documents relating to Libyan national security, as well as a camera.
The ICC has released a statement expressing hope that the individuals will soon be released, and the United Nations Security Council has expressed concern about the situation and urged Libyan authorities to immediately release the ICC staff members. In addition, President Judge Sang-Hyan Song of the ICC has released a statement demanding the immediate release of the four staff members.  Reportedly the four have been held under house arrest until Taylor answers the questions of the Libyan authorities. In the Ivory Coast situation, a hearing against Gbagbo originally scheduled for this week has been rescheduled for August 13 to provide the defense with more time to prepare their case.
In other news, the prosecutor has asked the judges for a sentence of 30 years for Thomas Lubanga, who was recently found guilty by the Court. The judges have yet to set a sentencing date for Lubanga. In the Kenya case, two of the four suspects have reportedly requested that the ICC schedule their trials for as soon as possible. Uhuru Kenyatta, a 2013 election presidential hopeful, and Francis Muthaura reportedly are the two requesting speedy trials. The ICC is scheduled to set the trial dates on July 13, 2012. In Malawi, last week Malawian authorities reportedly have said it won't host the African Union Summit because it does not want to host Omar al-Bashir, President of Sudan and indictee of the ICC. Photo credits: BBC, Voice of America, AFP

Friday, June 15, 2012

AMICC Celebrates the Swearing-In of Fatou Bensouda as the ICC’s New Prosecutor

ICC Prosecutor Fatou Bensouda with ASP President Tiina Intelmann
By Stephanie Kammer

This morning Fatou Bensouda made her solemn undertaking as the ICC’s new prosecutor, the Court's second. Ms. Bensouda was elected by the Assembly of States Parties to serve a term of nine years. The ceremony was held in open court, presided over by the President of the Court, President Sang-Hyun Song, and administered by the President of the Assembly of States Parties (ASP), H.E. Tiina Intelmann.

In her first speech as prosecutor, Ms. Bensouda vowed to continue championing the cause of victims, particularly children and the victims of gender crimes. Ms. Bensouda said that the Office of the Prosecutor (OTP) will work to find innovative methods of collecting evidence, which ensure prosecution while protecting the victims involved in these sensitive situations.

Ms. Bensouda, a Gambian lawyer, has served as the Court's deputy prosecutor for nearly eight years. Before joining the Court, Ms. Bensouda worked as a legal adviser and trial attorney at the International Criminal Tribunal for Rwanda and as a prosecutor in Gambia’s Ministry of Justice.

In an interview with Radio Netherlands, when asked about her mentors, Ms. Bensouda mentioned her mother and other women from her community including her sister. She went on to say, “It is important as an African to have girls see that there is a possibility that they can get to here. There’s always the belief that there’s only so much you can achieve coming from Africa and nothing more, like you’ve been given a handout and you should be happy. My example shows that this is not true, that the sky is the limit. There’s no glass ceiling for Africans, for all women actually….”

Indeed, Ms. Bensouda is an inspiration to us all. We congratulate her and look forward to her continuing contributions to global justice.

Monday, June 11, 2012

Two New AMICC Members: ABA Center for Human Rights and the Bellevue/NYU Program for Survivors of Torture

We are pleased to announce the recent addition of two new AMICC members: the American Bar Association Center for Human Rights, which recently launched its ICC Project, and the Bellevue/NYU Program for Survivors of Torture, NYU Center for Health and Human Rights. We are delighted that both organization have joined AMICC and are working closely with AMICC and its other 36 members to achieve a stronger and more productive relationship between the US and the ICC.

Here are brief descriptions of AMICC's two new members:

American Bar Association Center for Human Rights
The International Criminal Court (ICC) Project converts the ABA’s strong policies on the ICC into concrete action. Its mission is to strengthen, regularize, and broaden U.S. engagement with the ICC by creating dynamic forums where meaningful and sustained dialogue can occur on both practical and policy issues among and between the ICC and various American audiences. These initiatives will advance the field of international criminal law as well as enhance understanding and trust between the U.S. and the ICC.

Bellevue/NYU Program for Survivors of Torture, NYU Center for Health and Human Rights
The Bellevue/NYU Program for Survivors of Torture provides comprehensive medical and mental health care, as well as social and legal services to survivors of torture and war trauma and their family members.  In the past year alone we provided these multidisciplinary services to more than 750 people from 75 countries.  Since its inception in 1995, PSOT has developed an international reputation for excellence in our clinical, educational and research activities.  Our mission is to assist individuals and families subjected to torture and war trauma to re-build healthy, self-sufficient lives, and to contribute knowledge and testimony to global efforts to end torture.

Please join us welcoming these two new AMICC members as we continue to work to expand civil society support for the ICC in the US.

AMICC Analyzes Eric Posner's Assault on the International Criminal Court (ICC) in the WSJ

In an Op-Ed published on June 10 in the Wall Street Journal, University of Chicago Law Professor Eric Posner made no secret about his disapproval of the ICC: "The court has been a failure." He also tells us that the ICC doesn't serve any country's national interest, and that the Court is distrusted and ineffectual. However, his arguments are built on shaky facts and seem to be driven more by ideology than by a careful look at the ICC's track record. Below are AMICC's responses - in bold italics - to some of the not-quite-right points (underlined by AMICC) made in Professor Posner's provocative Op-Ed.

OPINION June 10, 2012, 5:57 p.m. ET

The Absurd International Criminal Court
After 10 years and hundreds of millions of dollars, it has completed precisely one trial.

Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.
In fact, the ICC's Rome Statute treaty entered into force on July 1, 2002. The first judges and officials began their work in 2003 and 2004, building from scratch a new international organization. Regarding the ICC's jurisdiction, it is not "by anyone against anyone" but rather the ICC treaty imposes specific provisions and limitation of the exercise of jurisdiction, requiring a nation to have ratified the treaty in order for the Court to be able to try alleged crimes in its territory or by its national, unless the UN Security Council refers the matter to the Court, something Professor Posner nowhere mentions.

The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.
A failure would suggest that the ICC was created as a short-term experiment that would result instantly in the end of impunity and have the effect of deterring all international crimes. Did the US court system manage to do so in the first ten years of its existence? And while the length of the Lubanga trial was not breathtakingly fast, there were new processes and rules to interpret which helped to ensure that there was in fact a fair trial. These decisions should make future trials faster.
Even by the low standards of international tribunals, this performance should raise an eyebrow. What went wrong?

As with any international organization, the court's ability to operate rests on the consent of states. One hundred and twenty-one nations have agreed to the treaty, a number that sounds impressive. But the 121 include few authoritarian countries that employ repression or conduct military operations. Mostly democracies with some semblance of the rule of law have joined. Since the ICC gains jurisdiction over a defendant only if domestic legal institutions fail to investigate international crimes in good faith, most member countries are those least likely to be subject to its jurisdiction.
Once a nation joins the ICC, it has accepted for good the Court's jurisdiction over crimes committed on its territory and by its nationals. The UN Security Council can refer cases to the ICC as well, as it did in the Darfur and Libya situations, as an alternative to this consent requirement.
Yet where the ICC has exercised its authority, its actions have been controversial. Uganda, the Democratic Republic of Congo and the Central African Republic have asked the court to investigate crimes committed by various rebel groups. In all these cases, the court has been careful not to offend governments willing to cooperate with it—but the upshot has been that it has pursued rebels only and not government officials who might be responsible for atrocities committed by the military.
The ICC's treaty requires it to investigate all sides of the conflict. In the countries mentioned, the ICC's investigations have extended to government and military officials, and they continue. The Court's accused persons from Sudan, Libya and Cote d'Ivoire are all current or immediately previous government officials.
Even when the court has acted with more independence, it has caused more harm than good. The court's involvement in Uganda's civil war in 2004 may well have helped persuade rebels to temporarily lay down their arms. But the refusal to withdraw its indictments has so far interfered with attempts to make peace with the rebels, who demand amnesty.
Joseph Kony, the cult leader of the "rebels" to whom Professor Posner refers, has shown no interest in making peace and thus refused to lay down his arms. In fact, the ICC's action helped push Kony out of Uganda, with substantial international support, and he is now being pursued by the Ugandan army with the assistance of US military advisers.
The ICC has also intervened in Kenya, on its own initiative, in the wake of violence that accompanied elections in 2007. Criminal investigations of top-level Kenyan politicians, conducted at a snail's pace, have inflamed tensions in that country but without producing a resolution.

The ICC's investigation in Kenya, while not formally referred by the government, was initially invited by the Kenyan government. The pace of the investigation was relatively quick, resulting in arrest warrants in approximately one year and another for approval for trial. The ICC's purpose is to do justice, not to "produce a solution," and many experts recognize that justice needs to be done in order to ensure a lasting peace.
The ICC indictment of Sudanese President Omar al-Bashir in 2009 did nothing to bring peace to that country. Other African countries continue to welcome him to their capitals in violation of their treaty obligations.
It was the UN Security Council, not the ICC, which initially determined that the ICC should act in the Darfur situation by referring it to the ICC in March 2005. (The Security Council also referred the Libya situation to the ICC, by consensus, in February 2011.) The US consented to both referrals. And while some African nations have welcomed President Bashir, others - including Kenya and Malawi - have recently refused, joining a growing group of ICC States Parties in Africa who have come to carry out their ICC treaty obligations.
The court also indicted Moammar Gadhafi, whom Libyan forces murdered, and his son Saif Gadhafi, who is being held by one of the many rebel factions in that unhappy country. An impasse has arisen because Libyans have no desire to yield Saif Gadhafi to the comforts of a Dutch jail and would much prefer to execute him. (The ICC cannot impose the death penalty.)

Meanwhile, African countries accuse the ICC of bias against Africans, as it has never indicted people from any other continent. And few countries have shown much inclination to capture indicted suspects and hand them over to the court.
More precisely, the African Union - whose membership includes dictators and other leaders of countries that have not joined the ICC - has tried to build a case of anti-Africa bias. Those African countries that have joined the ICC, however, have welcomed the Court's work. And according to the Court's investigations, Africa is where many atrocities are happening. As a judicial institution, it cannot and should not indict individuals from other continents for the sake of political expediency.
Why does the International Criminal Court have such difficulty? Unlike a national court, the ICC must constantly convince governments to support it while at the same time avoiding the impression that it is a tool of governments. For all the talk of the "global rule of law," this is an intensely political process and essentially contradictory.
Not quite. The ICC does indeed rely on the cooperation of its States Parties. These governments have joined the ICC and obligated themselves to cooperate with the Court. It is more a matter of ensuring that these countries meet their obligations.
The court focuses on Africa because African countries are weak. It operates with incredible slowness because it needs to give the impression to suspicious audiences that it is fair. But because it moves so slowly, it cannot react in a timely manner to fast-changing international events—and it does little to deter dictators, whose life expectancies tend to be short in any event. The upshot is that the court is both distrusted and ineffectual.
No, the ICC focuses on Africa because that is where many of the worst atrocity crimes are occurring and these same countries - and the UN Security Council - recognize that justice should be done. It is slower than it should be, primarily because it is a new court testing its rules and procedures for the first time. Next, its task is to do justice, not to "react in a timely manner to fast-changing international events." No, perhaps Robert Mugabe (who has been in office for over three decades) won't be deterred by the ICC - but how do we know if the next dictator won't be if we write off the ICC after the completion of only one trial? Yes, it clear that Professor Posner doesn't trust the ICC and finds it ineffectual. But the US government - under both Democratic and Republican administrations - have made clear in statements and UN Security Council votes that the ICC serves US national interests, even if it does not wish to join the Court.
The United States was heavily criticized in 2002, when President Bush "unsigned" the treaty that President Clinton had signed near the end of his term. There were concrete reasons based on national interest to withdraw, however: For example, the U.S. could not prevent the court from targeting its citizens, including soldiers and officials.
The US sending a note to the UN Secretary-General stating that the US did not intend to ratify the ICC treaty (the signature is "suspended" but still there) made no difference for the Court's ability to take action against American nationals. Some may argue that distancing itself from the ICC made it harder for the US to assert its interests there. Regardless of whether it joins the ICC, the US always has the right to investigate and try its own nationals for atrocity crimes in US courts. Period.
Now, with the benefit of hindsight, it is clear that the ICC will serve no country's interests, let alone international justice, whatever that might mean. It is too weak to deter atrocities, end impunity or keep the peace, but it is strong enough to serve as an irritant to international relations.
The US government and the majority of the American public disagree with you, Professor Posner.
Mr. Posner, a professor at the University of Chicago Law School, is the author of "The Perils of Global Legalism" (University of Chicago Press, 2009).

Thursday, June 07, 2012

ICC Prosecutor Delivers 15th and Final Report to UN Security Council on Darfur as Term Ends

Security Council Discusses Situation in Sudan
Luis Moreno-Ocampo in the UN Security Council. UN Photo by JC McIlwain.

By Stephanie Kammer

On Tuesday Luis Moreno-Ocampo made his final presentation in his capacity as Prosecutor for the ICC, to the UN Security Council on the situation in Darfur, Sudan. Mr. Moreno-Ocampo called on the Security Council to support the work of the Court in Darfur by ensuring Sudan's compliance with the ICC's arrest warrants against Omar Al Bashir (President of the Republic of Sudan), Ali Kushayb (alleged leader of the Militia/Janjaweed), Ahmad Harun (former Minister of State for the Interior of the Government of Sudan), and Abdel Raheem Hussein (Minister of National Defense).

The Security Council referred the Darfur situation to the ICC in 2005 under Resolution 1593. Although Sudan is not a party to the Court’s Rome Statute, the Court has jurisdiction over crimes committed in Darfur under Article 13(b) of the Statute. Article 13(b) allows the Security Council to refer situations to the ICC when the Council is acting under Chapter VII of the UN Charter to address threats to international peace and security.

Mr. Moreno-Ocampo began by describing the difficulty of conducting an investigation in Darfur. The cases in Darfur involve thousands of alleged crimes committed by different parties over a vast territory. The Office of the Prosecutor needed to collect the testimonies of hundreds of witnesses and victims around the world. Concern for the safety of witnesses and victims further complicated the process of gathering evidence. 

Regarding Sudan’s previous challenge to the value of the evidence collected, the Prosecutor said that the matter was for ICC Judges to assess. He said that the Judges have evaluated the evidence provided by the Office of the Prosecutor and have concluded that the government of Sudan's forces committed war crimes and crimes against humanity by means of a strategy adopted at the highest levels of government. 

Mr. Moreno-Ocampo emphasized that it is the primary responsibility of the Sudanese Government to execute the arrest warrants issued by the ICC:

"The Court fulfilled its judicial mandate. The evidence collected uncovered the functioning of the State apparatus used to commit genocide, crimes against humanity and war crimes. Those who bear the greatest responsibility have been indicted. The current challenge is their arrest. In accordance with Security Council Resolution 1593, the Government of the Sudan has the legal obligation to implement the arrest warrants. But President Al Bashir is taking advantage of his position of power to continue with his strategy and to ensure his own impunity and the impunity of those who follow his instructions."

Mr. Moreno-Ocampo concluded by reiterating the critical role of the execution of the arrest warrants in international peace and justice. He argued that the failure of states to arrest and surrender those subject to ICC warrants is a direct challenge to the Security Council's authority.

In response to the Prosecutor’s presentation, Ambassador Daffa-Alla Elhag Ali Osman, Permanent Representative of Sudan to the United Nations, made a lengthy statement decrying the Court as a political entity, subject to the whims of the Prosecutor. Ambassador Osman said that the Prosecutor's report contained misinformation and that there had been positive developments in Darfur as a result of the Doha Agreement. Ambassador Osman then quoted former Secretary of State Condoleezza Rice from her memoir about her time in the Bush Administration, expressing that Administration's concern for the ICC as a potential threat to US sovereignty. However, it is important to note that Secretary Rice made statements in 2005 and 2008 supporting the ICC and the Security Council referral of the Darfur situation. In the paragraph immediately following the section of her memoir quoted by Ambassador Osman, Secretary Rice writes: 

"Yet when the genocide issue of Darfur reached the Security Council, I did not want the United States to let the perpetrators off the hook just to make an ideological point about the structure of the court or the Rome statute. After much back-and-forth and strong dissent from John Bolton, I talked to the President and we agreed that the United States would abstain from voting on, not veto, the resolution. Darfur was referred to the ICC on March 31, 2005."

Following Sudan’s reply, other members of the Council were invited to give statements. Many members were supportive of the ICC, in particular, the United States, which also stressed the responsibility of the Sudanese government to comply with Resolution 1593. Ambassador Jeffrey DeLaurentis expressed US concern with the lack of progress on accountability initiatives provided for in the Doha Agreement and the continuing violence in the Darfur region, including sexual and gender-based violent crimes.

Notably, at the close of the meeting when invited to respond to the statements of all the parties, Mr. Moreno-Ocampo stated that it was his duty as Prosecutor to inform the Council and the parties that under Article 25(3)(d) of the Rome Statue, denying crimes could be considered part of the crimes themselves, and that the Office of the Prosecutor has an obligation to investigate anyone suspected of this kind of activity.  Mr. Moreno-Ocampo went on to say that the Office would investigate whether Ambassador Osman's actions at the meeting could be considered a contribution to a group of perpetrators acting with a common purpose.

Click here to view the video of the Security Council meeting.