Warmest congratulations to Fatou Bensouda, of The Gambia, who has just been elected Prosecutor of the International Criminal Court. This is a stellar achievement for Ms Bensouda, who has many years of experience in international criminal justice, including eight as Deputy-Prosecutor of the Court itself.
Her election is being heralded as a gesture of reconciliation to African states by the Court. Certainly, she will be able to articulate the Court’s policies and speak to the people of Africa in a sensitive and appropriate way, something that regrettably cannot be said of her predecessor, Luis Moreno-Ocampo. Her comments always seem to be measured and thoughtful. Above all, those to whom she speaks sense that she respects them and takes their own views and sensitivities into account.
African States initially welcomed the Court, and ratified the Rome Statute in large, impressive numbers. But in more recent years, Africa has turned lukewarm towards the institution. This is sometimes explained by the Court’s exclusive focus on conflicts in Africa. But Africans were keen on the Court precisely because they expected it to address their own troubled situations, and it never made sense that they would dislike the Court because it had too many African cases.
The root of the problem is not an obsession with Africa but rather a slow but perceptive shift of the Court away from the apparent independence shown in its early years towards a rather compliant relationship with the Security Council and the great powers.
The strategic choices made by the Prosecutor placed it within the comfort zone of the United States and its close allies. And as the Court increasingly looked like a piece of the larger international system, dominated as it is by powerful states from the North, Africa’s ardour for the institution has waned.
For example, when challenged by the peace and justice dialectic, the Prosecutor has suggested that while justice is the responsibility of the Court, peace falls to the Security Council. The African Union indicated its discontent with this perspective by a proposed amendment to the Rome Statute acknowledging a role for the General Assembly, where Africa’s role is more entrenched than in the Security Council, which has no permanent African members. The amendment was not realistic, but it underscored the problem. It is better for the Court to offer a comprehensive answer that balances peace and justice rather than to suggest it is part of a tag team, where the other player is the Security Council.
All of this is to say that while Fatou Bensouda will undoubtedly be a much better interlocutor with African States than Luis Moreno-Ocampo, the rift can only be healed by changes in policy. She (and the Court) will only regain the confidence of African states by courageous policy decisions. She deserves all of our encouragement in this difficult challenge.
There is an interesting discussion of her appointment on Al Jazeera that includes our own eloquent Joseph Powderly, a doctoral student at the Irish Centre for Human Rights and now a young professor at Leiden University in The Hague.
Interesting and thought-provoking as always. I largely agree with you although I think the mere selection of an African to the post in and of itself is a positive development for the ICC and will have positive effects for the Court and its relations with African states. This isn't to over-state these effects; Bensouda's selection will not be a panacea. As you rightly say, the Court's policies will determine the nature of the relationship between African states and the ICC. But it certainly can't hurt. I've written up my thoughts on the subject here: http://justiceinconflict.org/2012/01/05/the-iccs-got-an-african-prosecutor-does-it-matter/
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