Twenty years on the frontline of international criminal justice

Ruth Green, IBA Multimedia JournalistWednesday 9 June 2021

As Fatou Bensouda approaches the end of her tenure as ICC Prosecutor, Global Insight assesses the cases and events that have dominated her time at the Court and looks at the challenges that lie ahead for her successor.

Fatou Bensouda never ducks a challenge. The Prosecutor has spent almost two decades at the forefront of international criminal justice, guiding the International Criminal Court (ICC) through torrid times, continually rebutting criticism – both institutional and personal – and steering a course to deliver the ICC’s mandate to fight impunity.

Having joined the ICC as Deputy Prosecutor at its inception in 2004, she was the natural choice to succeed the Court’s first Prosecutor, Luis Moreno Ocampo, when he reached the end of his tenure in June 2012. She was sworn in on 14 June 2012, exactly three months after the ICC delivered its first ever verdict. Thomas Lubanga Dyilo, a Congolese militia leader, was found guilty of enlisting and using child soldiers in the Democratic Republic of Congo (DRC) and was sentenced to 14 years in prison.

My approach has always been grounded in trying to apply the law and to apply it with impartiality, objectivity and independence

Fatou Bensouda
Prosecutor, International Criminal Court, 2012–2021

It was a milestone for the nascent institution and a decade in the making. Lubanga spent six years in ICC custody and it took over three years to reach a verdict. To some outside observers, the progress of international justice seemed somewhat slow and others noted the expense.

All eyes were on the Gambian prosecutor, therefore, when she stepped up to the plate. Undeterred, Bensouda used her swearing-in speech to stress the need for the Court ‘to focus on and listen to the millions of victims who continue to suffer from massive crimes’. Nine years on, the Court has delivered ten convictions and four acquittals. The pressure on the ICC and the Prosecutor, as the face of the Court, has grown exponentially, but Bensouda’s resolve never faltered.

‘What I said from the time that I took office in 2012 was that I would strictly honour my mandate’, she tells Global Insight. ‘I have kept that pledge, and for me – this has always been an important point, and this has always been something that was driving me – always having in mind the interests of the victims and, also, having to adhere really strictly to the law. My approach has always been grounded in trying to apply the law and to apply it with impartiality, objectivity and independence.’

Bensouda’s unwavering focus on giving a voice to the voiceless was paired with a determination to re-strategise how her office approached, investigated and prosecuted underreported crimes. Luis Moreno Ocampo was confident he was leaving the Court in the most capable of hands. ‘There were many doubts about the possibility to have an operational court’, he says. ‘When I left, the ICC was established, it was permanent, so Fatou Bensouda was part of that process. She knew [it] very well and she adjusted to a new challenge. She increased the relevance of gender-based crime that we were doing.’

Bensouda’s appointment also came at a critical time as the Court continued to fend off criticism, namely from African countries in the Assembly of State Parties of the Rome Statute, the treaty that formally established the Court in 2002. ‘Africa very much felt that it was a great supporter of the Court, but that it was also the target of its initial investigations’, says Anneke Van Woudenberg, Executive Director of Rights and Accountability in Development (RAID). ‘The role of Fatou Bensouda was important in beginning to change the tone and the impression of what the Court represented, who does it hold to account and who is its face. She was steady and what the court needed.’

The role of Fatou Bensouda was important in beginning to change the tone and the impression of what the Court represented, who does it hold to account and who is its face

Anneke Van Woudenberg
Executive Director, Rights and Accountability in Development

Van Woudenberg points to the success of the Bosco Ntaganda investigation, which Bensouda began working on during her time as Deputy Prosecutor. Ntaganda was indicted by the ICC in 2006 for his alleged role in recruiting child soldiers in Ituri Province between 2002 and 2003. After years of evading the Court, the case came to a dramatic conclusion in December 2019 when the warlord was found guilty on 18 counts of war crimes and crimes against humanity in the DRC and sentenced to 30 years in prison. It’s the longest sentence in the Court’s history and follows the sentencing of Lubanga in 2012 and Germain Katanga in 2014, who were also charged with carrying out war crimes in Ituri.

‘The fact that he actually appeared before the Court remains extraordinary’, says Van Woudenberg. ‘Here was a man whose liberty mocked the court. He walked around in full view of UN diplomats in Eastern Congo, dining in the same restaurants and playing on the same tennis courts as them, all the while under an ICC arrest warrant. Hats off to Fatou Bensouda that she continued to make strong statements about him during this time. He eventually surrendered to the Court and was brought to justice. When you see how long these cases take, you see how long it takes to seek justice.’

Ntaganda isn’t the only success story. In 2015, Ahmad al-Faqi al-Mahdi was convicted for his role in destroying religious and historic buildings in Timbuktu, Mali. This marked the first time the Court had declared cultural destruction as a war crime and the first time it had prosecuted an Islamic militant. Just earlier this year, Dominic Ongwen, a former Commander of the Lord’s Resistance Army, was sentenced to 25 years for 61 counts of war crimes and crimes against humanity committed in northern Uganda between July 2002 and December 2005.

For Bensouda, these convictions aren’t just numbers though, they’re part and parcel of the Court’s long-term contribution to the course of international criminal justice. ‘All of this I did to ensure that there is greater accountability’, says Bensouda, ‘and that we as an office – as an institution – can contribute to the prevention of these very horrendous crimes’.

This tenacity and drive to hold the powerful to account have made Bensouda ‘an indomitable champion of international justice’, says Dr Simon Adams, Executive Director at the Global Centre for the Responsibility to Protect in New York. ‘Despite her office being under constant attack from political detractors, she has upheld her responsibility to protect people from crimes against humanity, war crimes and genocide’, says Adams. ‘She has helped expand jurisprudence when it comes to the connection between atrocities and attacks on cultural heritage, as well as advancing jurisprudence on sexual and gender-based violence. She has been a fearless and impartial advocate of international justice. That is exactly what an ICC Prosecutor is supposed to be.’

Her tenure has not been without its setbacks, however. In June 2018, Congolese warlord Jean-Pierre Bemba was acquitted of charges of war crimes and crimes against humanity committed in the Central African Republic between 2002 and 2003 by the ICC’s Appeals Chamber. It was a huge blow to the Court’s reputation. ‘It was really one of the setbacks that the office has received at the appellate level, but we were able to learn lessons from’, says Bensouda. ‘I think that what the office was supposed to do with respect to that case was completely done. It was totally and fully done. There was full dedication to that case, but what happened at appeals is what happens at appeals.’

The case was reviewed and in September 2019 the ICC fined Bemba €300,000 and issued him with a 12-month sentence for witness tampering. For Van Woudenberg, the case still highlights the Court’s – and the Prosecutor’s – determination to hold high-profile individuals to account for crimes of sexual violence. ‘The fact that the Court was willing to bring the case is important’, she says. ‘It also shows her willingness to bring these kinds of cases that really put women, and how they suffered, as individuals at the centre of justice.’

Dr Mark Ellis, Executive Director of the IBA, agrees that one of the defining features of Bensouda’s legacy has been her ability to uphold the rights of civil society. ‘She always saw civil society as a partner, not necessarily there to support everything that she was doing, but clearly appreciating the important role it plays in promoting international justice through the work of the Court’, he says.

In March this year, Laurent Gbagbo and Charles Blé Goudé were both acquitted of committing crimes against humanity in Ivory Coast in 2010 and 2011. It was another high-profile case for the Court and particularly for the Prosecutor in the final months of her tenure. Although Bensouda can’t conceal her disappointment when she speaks about the outcome, she respects the Trial Chamber’s verdict: ‘We were completely convinced and had the conviction that the position of the Trial Chamber was wrong. But now the majority has decided. And, of course, we all have to abide by that.’

Such acquittals fuel renewed criticism, both internally from State Parties and the Court’s external opponents. Yet it never ceases to amaze Ellis how unflappable Bensouda is, even in the face of adversity. ‘She was always willing to engage in discussions on these issues and never defensive about any suggestions or even criticisms’, says Ellis. ‘I think that characteristic is indicative of who she is, of someone who is always trying to reach out, to engage with people and to improve the Court’s operations. The ICC has endless challenges. I don’t envy any individual in her position, but I think the legacy of what she’s accomplished as the Prosecutor for the Court will be significant.’

ICC under review

The Independent Expert Review (IER) was published in September 2020, citing 384 recommendations for the ICC, including action points to improve efficiencies and strengthen its governance, investigations, prosecutions and overall performance. It also highlighted concerns regarding the internal working culture, including examples of bullying, harassment and an atmosphere of distrust.

Danya Chaikel is Secretary of the IBA War Crimes Committee and an international criminal lawyer in The Hague. She says the report has been an important wake-up call. ‘The independent experts have called for major cultural changes at the ICC to address the Court's “culture of fear” including “predatory behaviour” and stressed that any real improvements must come from the top – from the ICC and Assembly of State Parties leadership’, she says. ‘As a female lawyer in this field, it was really upsetting to read that the experts heard frequent complaints that the culture of the Court’s workplace was adversarial and implicitly discriminatory against women. The Court's so-called “zero-tolerance policy” on bullying and harassment glosses over the extent of the problem, together with reporting mechanisms that aren't fit for purpose, won't cut it any longer.’

The IER was chaired by Justice Richard Goldstone, the former Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Honorary President of the IBA’s Human Rights Institute. The ICC published a response to the findings in April 2021, stating that it would ‘intensify its internal process for a holistic review of all areas’ covered in the report. ICC Prosecutor, Fatou Bensouda, told Global Insight that she welcomed the recommendations and considered these improvements a necessary step to for the Court to bring its work ‘to the next level’.

The response noted several areas in which the Court has already implemented strategies and changes to address the report’s concerns, including continued efforts to deal with harassment and predatory behaviour, improve recruitment processes and address the gender imbalance at senior management levels. Chaikel says the IER provides an apt opportunity for the Court to learn from past mistakes and build on its success. ‘In order to survive and thrive, the Court needs this review process – it's a sign of great strength rather than weakness to admit vulnerabilities in order to generate positive changes’, she says.

Kate Orlovsky is Director of the IBA’s International Criminal Court and International Criminal Law (ICC and ICL) Programme. She says the IER comes at an opportune time as the ICC prepares to welcome its next prosecutor. ‘The Independent Expert Review process, and the fact that the court has politically charged situations before it, make expectations particularly high for the incoming prosecutor’, she says. ‘While Mr Khan is not obliged to take up the IER recommendations, there will certainly be scrutiny on how, and how quickly, he moves to address the IER’s findings about the Office of the Prosecutor (OTP). The IER report has identified issues with the working culture and the substantive work of the OTP and creates expectations that Mr Khan should prioritise certain reforms when setting the course for his nine-year term. He may also come under considerable pressure from states to do so. However, any reforms taken on board, from the IER or based on the Prosecutor’s own assessments, should safeguard the independence of the office.’

Sanctions and support

Support hasn’t come easy for the Court. Amid growing tensions among the ICC’s African members, in February 2017 the African Union called for the mass withdrawal of member states. By October, Burundi had withdrawn from the Rome Statute, alleging that the institution was only trying to prosecute Africans and wasn’t investigating alleged war crimes committed by Western nations. South Africa and Bensouda’s homeland, The Gambia, only narrowly retained their membership.

Bensouda has used the fact that she is from the continent to great effect, successfully seeking dialogue and engaging with African member states. These efforts have paid dividends and raised awareness of the ICC’s global mandate. ‘I do believe that now Africa does understand that this Court was not just created for Africa’, she says. ‘It was created to address these very serious crimes, wherever they occur. Today, if you look at the case docket and you see that we are also working for victims from Georgia, we are working for victims [such as] the Rohingya in Bangladesh, we are also looking into allegations of crime from Philippines to Colombia, from Venezuela to Palestine, and also indeed for African victims.’

The decision to pursue investigations in other jurisdictions has prompted considerable political backlash. In 2019 and 2020, the US imposed sanctions on the Prosecutor and Phakiso Mochochoko, Head of the Jurisdiction, Complementarity and Cooperation Division of the ICC. The sanctions, which included a travel ban, visa restrictions and asset freezes, were introduced in direct response to the Court launching investigations into alleged war crimes related to the armed conflict in Afghanistan – including the actions of US troops – and a separate conflict in the Palestinian territories occupied by Israeli forces.

The US objects to the ICC exercising jurisdiction over nationals of non-member countries. However, Moreno Ocampo says the latest actions by the country have been deplorable. ‘The Trump administration treated Mrs Bensouda as they do terrorists and drug dealers, for doing her job, for investigating torture’, he says. ‘That for me is the biggest scandal.’

The Trump administration treated Mrs Bensouda as they do terrorists and drug dealers, for doing her job, for investigating torture. That for me is the biggest scandal

Luis Moreno Ocampo
Prosecutor, International Criminal Court, 2004–2012

Following international outcry, the Biden administration finally repealed the sanctions on 2 April this year. ‘I am glad that this new administration under Biden has revoked those sanctions and the Executive Order that was made against the office’, says Bensouda. ‘I just want to again emphasise that, notwithstanding the difficult phase that we have gone through with respect to those sanctions, it should not stop the office. It should not stop the Court to continue to work in accordance with the Statute, within our legal mandate, and to always do what is required of us under the Statute.’

The US is not party to the Rome Statute, but has unduly influenced the Court’s investigations through its membership of the UN Security Council, which is also permitted to refer alleged atrocity crimes committed in any country to the Prosecutor. This has only happened on two occasions: with Darfur, Sudan, in 2005 – when the US did not block the vote at the Security Council – and Libya in 2011, when the US voted in favour of the Security Council to refer the situation to the Court. ‘Unfortunately, pursuing notorious perpetrators of atrocities will never be a popular job, but it remains an essential one’, says Adams, who is deeply concerned by the ongoing reluctance by the US and several other permanent members of the Security Council to engage constructively with the Court.

As the ICC looks to recalibrate its relationship with the US and other global powers, Bensouda believes the Court continues to act as a bulwark against atrocity crimes. ‘We get communications every year in their hundreds […] of various crimes that are committed around the globe, asking for ICC intervention’, she says. ‘I think that that in itself demonstrates the relevance of the institution, but also the fact that it can and, if supported, will act as a major deterrent to the commission of these crimes.’

Future-proofing the ICC

Sanctions haven’t been the only challenge facing the ICC over the past 18 months. Like other courts around the world, the outbreak of Covid-19 in 2020 posed considerable obstacles to the ICC’s operations and made it particularly challenging for essential fieldwork, let alone trials, to take place at the height of the pandemic. ‘We had to adjust quickly’, says Bensouda. ‘I want to recognise here that my team did a tremendous job, as well as the Court as a whole. We created a committee which was coordinating emergency measures as a result of the pandemic and we were able to find ways in which we could have business continuity […] to gather evidence and be able to speak to people.’

These efforts paid off, resulting in the surrender of alleged Sudanese militia leader Ali Kushayb to ICC custody in June. The following month the Court began the trial of Al-Hassan Ag Abdoul Aziz, a former head of Islamist police accused of destroying religious and historic buildings in Timbuktu and forcing hundreds of women into sexual slavery. It marked the first time the ICC succeeded in bringing someone to trial on charges of gender persecution.

It was also a time for reflection. In September, an independent review by international legal experts examined the Court’s inner workings, citing grave concerns over its internal working culture (see ICC under review). Danya Chaikel, Secretary of the IBA War Crimes Committee and an international criminal lawyer in The Hague, says the report raises a large number of red flags for Bensouda’s successor, British barrister Karim Khan QC, who will assume office in June: ‘Some of the most pressing challenges incoming Prosecutor Karim Khan will face include improving the quality of investigations and prosecutions, addressing the unrealistically high number of preliminary examinations, standing up to pressure from powerful states who are blatantly trying to obstruct the Court's jurisdiction, and perhaps the most delicate – being a visionary leader and reforming the Office of the Prosecutor’s institutional culture, especially the old boys' club mentality that still silently condones workplace misconduct including predatory behaviour.’

The report also highlighted the ‘potential liquidity crisis’ facing the ICC. Bensouda acknowledges that the resources available to her staff do not match the myriad of challenges facing the Court. As of 31 May 2020, there was a funding shortfall of almost €71m – almost half of the Court’s 2020 annual budget. Kate Orlovsky is Director of the IBA’s International Criminal Court and International Criminal Law (ICC and ICL) Programme. She says the report provides a timely reminder of the crucial role played by State Parties in enabling the Court to continue its work effectively. ‘Do they provide timely cooperation and pushback against political interference in the ICC’s investigations? Are states providing sufficient resources for the Court’s operations, when it has a growing number of situations before it? The ICC simply cannot succeed without resources and cooperation from State Parties.’

Today the ICC remains the only permanent body investigating crimes against humanity. The Court has heard 30 cases to date, some with multiple suspects. The incoming Prosecutor has considerable pedigree in international criminal law. Khan previously worked in the Office of the Prosecutor at the International Criminal Tribunals for Rwanda and the former Yugoslavia and is currently leading a UN investigation into war crimes committed by ISIS in Iraq. Bensouda concedes that her successor is taking over at a critical juncture for international justice. ‘We all have seen that multilateralism is under threat as never before’, she says. ‘I would urge him, together with the team, to continue to be vigilant. There is progress that has been made. We have to try not to lose that progress.’

As she prepares to step down, Ellis says it’s clear that support – political as well as financial – will be vital in ensuring the Court can continue its mission to fight impunity. ‘For me, the biggest challenge facing the Court, and the new Prosecutor, is how to secure ongoing support from the international community’, he says. ‘The success of this Court has been, and always will be, determined by the willingness of the international community to support its work.’

Bensouda does take some comfort from the solidarity shown by the international community in the wake of the US sanctions. ‘I will cite the example of what happened during the sanctions and how the world rose, how our supporters and how the State Parties rose to speak in one voice in defence of the ICC and its mandate’, she says. ‘There must be a red line. We cannot continue to just accept any attacks or sanctions […] against the ICC without saying anything. This is how we need to continue to defend the Court from interference, especially the independence and impartiality of the Court.’

As she nears the end of her tenure, Bensouda spares little thought for her own future, but is in no doubt about the enduring need for the Court to hold powerful individuals to account: ‘I just want to say lastly that the ICC is there, and it is there for the benefit of humanity. It was born from the hope of a more just world. This is why the ICC exists. This is why, long after me – we are all transient where we come and go, but this institution is here to stay – it is here for those of us who have the opportunity to continue to support it, to make it work, to give effect to what we wanted to do from the very beginning. That is to make sure that this crucial work of investigating and prosecuting these serious crimes go on, and they go on as effectively as possible.’

Ruth Green is Multimedia Journalist at the IBA and can be contacted at Ruth.Green@int-bar.org