In an unfortunate twist of fate, the deciding elements of the future of the International Criminal Court will occur almost simultaneously in 2011 and 2012: the success or failure of efforts to prosecute those accused of committing atrocities in the Libyan conflict and the seating of a new chief prosecutor—the first African and first woman to hold the position—Gambian lawyer and ICC deputy prosecutor, Fatou Bensouda.
The particulars of the Libyan dilemma have been tossed around across the twitterverse and beyond ever since former Libyan dictator Muammar Qaddafi, his son Seif al-Islam and Libyan intelligence chief Abdullah al-Senussi were accused of crimes against humanity for targeting civilians in the regime’s brutal crackdown against the rebellion. The ICC issued arrest warrants for the three in June, and Senussi and Seif al-Islam have since been captured, both currently being held in Libya by rebel factions whose future cooperation with the ICC remains to be seen (the rebels have expressed interest in trying the two in Libya). Even those usually uninterested in ICC scuttlebutt are aware of the importance of the Security Council’s use of the ICC and the test it presents for the ICC’s future and that of the norm of international justice as a whole. Furthermore, the competing claims of jurisdiction over the current Libyan accused, asserted by Libya (mirroring that of the previous Libyan administration, albeit with far greater legitimacy), represent an image and a procedural test for the court. How it proceeds in Libya and the decisions Bensouda makes as prosecutor may largely decide the future of the ICC’s role in international diplomacy and politics, as well as the resources and attention it receives, its legitimacy as a moral actor and the direction of its currently tenuous relationship with Africa and the global South more broadly.
The future viability of the court depends on the results of a set of paradoxical public relations challenges. Its actions in Uganda, Libya and Sudan have placed it on the radar of international security actors in a manner distinct from other human rights institutions. Some suggest that since the Security Council issued resolution 1593 which referred the Darfur situation to the ICC, and led to the issuance of an arrest warrant for Sudanese president Omar al-Bashir, the UN Security Council has come to see the ICC as an useful alternative to placing boots on the ground. ICC referrals may allow it to address peace and security issues in a way that can save money and mitigate its own internal disputes. If the ICC becomes a tool of the Security Council it will face intense scrutiny and suspicion particularly by less powerful states. Conflicts over Security Council actions in Libya, resulted in fresh criticism of the Security Council, and as a result the ICC. Sharp disagreements over the investigation of al-Bashir and the threat of withdrawal from the Rome Statute levied at the time by African states show the potential danger to the ICC if it is perceived as an arm of the powerful particularly if it is seen as a weapon of the North to be used against South states.
In addition, the ICC has largely failed to win minds, gain legitimacy, and adequately explain its mission to individual citizens especially outside of the areas in which it has held investigations. It is fair to say that most people in the world have no clue what the ICC actually does, where its power comes from, and under what circumstances it can act.
Though the acts that comprise genocide, crimes against humanity, and war crimes (the crimes in the ICC’s jurisdiction) are evils that transcend the moral borders of history and culture, the limited history of international criminal justice creates an unusual governance paradox for the ICC that connects its survival to the perceptions of ordinary citizens as well as high-level international actors. The Rome Statute provides the framework for criminal justice administration much like domestic constitutions, and can give sanction for crimes, much like judicial authorities worldwide. Yet unlike these the ICC and its governing statute do not rest on a similar bedrock of cultural legitimacy as that enjoyed by more local justice structures. This absence of embedded cultural legitimacy is a problem for the court despite its international nature, as its power and relevance are subject to the threat of state withdrawal from the Rome Statute. Should state citizens perceive the ICC as illegitimate (even if they largely share its moral objections) state leaders may increasingly be forced to limit its actions and their support for its activities. As such, the image, meaning, and practices of the court must be conveyed to the world in a way that is accessible and builds institutional legitimacy if it is to survive.
What the people of the world do know about the ICC is largely derived from the image of its prosecutor, Luis Moreno Ocampo, the “rock star” of the court, whose persona and statements are that of a kind of rogue sheriff seemingly unconcerned by politics, but rather driven by his internal forces for justice. Often disliked, and accused of sexual and prosecutorial misconduct in his previous work, the prosecutor is no diplomat, yet he has been a linchpin figure for the ICC. In 2012 Bensouda takes over as the new sheriff in town.
Her appointment is a balm for the ICC’s damaged image thanks to her personal characteristics as well as her legal savvy: her gender, national origin, and perhaps race figure prominently in discussions of her appointment (Mohamed Chande Othman, the Tanzanian candidate, was also an African candidate, though he is not black and thus perhaps lacked the social significance of Bensouda--at least to the eyes of western commentators, if not the AU). Her qualifications are top-notch: she has a distinguished record of service in key national positions in the Gambia,including as chief legal Advisor to the President and Cabinet; and internationally particularly in the position of Head of the Legal Advisory Unit of the International Criminal Tribunal for Rwanda.
The field of candidates, though large to begin with, was narrowed to four key candidates in October: from the South: Bensouda and Mohamed Chande Othman, a Tanzanian; from the North; Andrew Cayley of the UK and Canadian Robert Petit. With the African Union and state’s parties explicitly pushing for an African candidate and the court’s imaged marred or marked by the actions of Ocampo, Bensouda emerged early on as the likely candidate. After the field narrowed down to Othman and Bensouda in late November, Othman withdrew his name from consideration and last week Bensouda’s appointment was announced by the Assembly of State Parties to the Rome Statute.
She will inherit a court on the precipice of demise and of incredible power. The court needs, first of all, to successfully prosecute a case; particularly an important and universally appealing one. Fears of world government, as well as fears of western legal imperialism need to be assuaged and re-directed. In addition a number of procedural questions must be answered, most importantly those of complementarity--the decision of when the court prosecutes v. when a state prosecutes, and of investigation--what procedures can be used to get information from prosecutorial investigations. In addition, the failures of legitimacy of the two ad hoc courts that precede its establishment, the International Criminal tribunals for the former Yugoslavia and Rwanda, continue to haunt the court, especially in regards to the connection of people on the ground in situations where crimes occur.
The court is striking new ground in prosecuting in ongoing situations, unlike most of the preceding mechanisms such as ICTR and the Cambodian, Sierra Leonean and Timorese courts. The resulting peace versus justice debates must also figure in the actions and decisions of Bensouda. Finally, and perhaps more worryingly, Bensouda will have to marry the role of prosecutor and diplomat in relation to the UN Security Council. Given the right of the Security Council to unilaterally require prosecutorial investigations into crimes committed that violate the Statute and present threats to peace and security its actions can both promote and damage the court’s image. Bensouda’s office must strike a delicate balance between appearing apolitical, pursuing investigations, and maintaining a strategic yet productive relationship with the Security Council.
Rumor has it that Bensouda, as deputy prosecuter was active in crafting smooth relations with colleagues in the field and establishing herself as a sober member of the Office of the Prosecutor while remaining aware of Ocampo’s mishaps and putting out their related fires. Her skill and insider knowledge should limit the time she will need to get up to speed and continue the work of the prosecutor. So far, little has emerged about her personality, except for mostly positive acknowledgements of her intellect and warmth. Bensouda’s luck is that in reality what remains to be seen about the ICC will depend not only on what she will do but on the actions of its chambers, judges and the international community. Her role in its legacy over the next ten years will be critical--but will require engaging the work of both her ICC colleagues, and the citizenry of the globe. Positioning herself as a legally driven civil servant, and a capable legal actor is something Bensouda appears capably equipped to do. What remains to be seen is her ability to use the charismatic tools that Ocampo marshaled to brand the ICC, and make it a household name. Criticisms aside, without such actions the ICC might have remained another invisible global institution, marked by UN-style bureaucracy and lacking any of the urgency and effectiveness of criminal justice and responsibility that it can convey. The relief that Bensouda is calmer and more appeasing (read feminine) than Ocampo, must be attended to with the corollary knowledge that Bensouda’s most daunting task may not be in the execution of her statutory duties, but in public relations. Like it or not, a sheriff is a sheriff and in her new role Bensouda will have to marry sweetness with swagger if she is to be successful as prosecutor and enliven the court while encouraging a global culture of faith in the law and in her institution.
Nomvuyo Nolutshungu is a PhD candidate in Political Science at the CUNY Graduate Center. Her dissertation explores role of expertise and discourse in shaping transitional justice. She can be found at itsnotcricket.com, colonialporn.tumblr.com, and twitter.com/nomvuyo.