By Lillian Aluanga-Delvaux

International Criminal Court Chief Prosecutor Fatou Bensouda takes up her new role at the world’s first permanent international crimes court with a full tray.

The Gambian-born Bensouda, 51, is the first woman, and African, to hold the position and now takes charge of Kenya’s cases whose trial date is yet to be set.

Deputy Prime Minister Uhuru Kenyatta, former Civil Service head Francis Muthaura, Eldoret North MP William Ruto and radio journalist Joshua arap Sang are to stand trial in The Hague for alleged crimes against humanity during post-election violence.

Listed among Time Magazine’s 100 most influential people this year, Bensouda steps into her new shoes at a time the ICC is under heavy criticism from some African leaders.

The African Union has accused the court of practicing double standards by ‘only targeting the continent’ in its prosecution of war crimes. While on a visit to Washington for a meeting between the US and AU last year, chairman Jean Ping complained ICC’s formal cases have so far involved “exclusively Africans, as if nothing was going on in Sri Lanka, Pakistan, and Georgia”.

This argument has been discounted on the basis that African countries are signatories to the Rome Statute, which establishes the Court, and have sought ICC intervention. But just what does Bensouda’s entry mean for Kenya’s cases and the ICC’s ongoing assignments?

“Bensouda comes on a ‘clean slate’ since it was her predecessor, Moreno-Ocampo, who instituted investigation into Kenya’s cases,” says International Commission of Jurists Kenya Chapter Executive Director George Kegoro.

While one may argue that a change-of-guard often comes with the potential for re-evaluation of matters, law experts say it should not be construed to mean there might be changes in the handling of Kenya’s cases.

“Kenya’s cases have moved in a particular fashion up to this point and there are presently no obvious options for innovations into the case,” says Kegoro.

African Centre for International Legal and Policy Research director Godfrey Musila agrees.
“A re-evaluation is highly unlikely since Bensouda has been at the centre of Kenya’s cases. She has, at a technical level, been running the show and a re-evaluation may mean revisiting her earlier decisions,” says Dr Musila.

Musila says likely changes to the cases at this stage would relate to additional charges, but chances of this happening are slim.

“The possibility is low since Bensouda has been involved in Kenya’s cases all along. Coming up with additional charges will not only require another Confirmation of Charges Hearing session, but may also point to weaknesses in the Prosecution’s case,” he says.

During a round-table discussion with journalists at The Hague last week, Bensouda also pointed to a likely difference in approach to her predecessor’s.

Said Bensouda: “We clearly have different styles and different approaches...But I have worked with Luis Moreno-Ocampo for almost eight years and it is my responsibility to ensure that we consolidate what has been built.”

So far the ICC has started investigation against or prosecuted more than 20 suspects from the continent, including Sudan’s current Head of State Omar Bashir. Former Ivory Coast President Laurent Gbgabo had his trial, scheduled to start last week, postponed by two months to give his defence time to prepare, even as the hunt continues for Uganda’s rebel leader Joseph Kony.

Anti-Africa
While Bensouda’s appointment may lessen criticism directed at the ICC for its alleged ‘anti-African’ stance, it also comes with huge expectations of the Prosecutor.

“There are other situations under preliminary examination by the ICC in Guinea, Colombia, Georgia and Afghanistan, and it would be interesting to see how the new Prosecutor addresses them,” says Kegoro.  Other countries where preliminary examinations are still ongoing include Honduras, Korea and Nigeria. There have however been preliminary examinations that led the Prosecutor’s office to decide not to proceed, as was the case in Venezuela, Iraq and Palestine.

A preliminary examination into a situation may be initiated by a decision of the prosecutor, a referral from a State Party or the Security Council, or a declaration pursuant to Article 12(3) by a State, which is not party to the Rome Statute, which establishes the ICC.

“The situations at a preliminary examination stage have been cited by proponents of ICC and one of Bensouda’s tasks will be to move the debate beyond this point and re -orient the office towards other situations outside Africa,” says Musila.

In a discussion with journalists at The Hague Bensouda reiterated that the prosecutor’s office has never been driven by geographical considerations, contrary to what critics of the ICC have alluded to.

“I will open new investigations in Africa if I have to, but I will not hesitate to open investigations elsewhere if the criteria of the Rome Statute are met. Being African or not is not the issue here,” she said.

Besides Kenya, the Democratic Republic of Congo, Central African Republic and Sudan also have cases before the court.

With Bensouda’s entry comes the possibility of re- evaluating current preliminary examinations and may either see them move to the full investigations stage, or have them dropped altogether. There is also the possibility of having more countries added to the list.
Musila however points to the politics in countries where situations are being investigated as crucial to determining what direction the prosecution’s office may take. This relates to a country, for instance, opting to institute local mechanisms to address the crimes committed. Although Bensouda’s appointment may have been celebrated across the continent, Musila says those who expect her to be soft on Africa may be disappointed.

“She (Bensouda) has to balance several competing objectives which include cultivating waning support for the ICC in Africa and pushing forward current situations and cases, while reorienting the direction of the ICC to truly internationalise its operations,” says Musila.

Geopolitical terrain
Besides remaining focused on her job while navigating a mined geopolitical terrain, Bensouda faces structural challenges at the court that she may be unable to change.

“There are countries that haven’t ratified the statute and can therefore not be investigated by the prosecutor unless through a referral by the UN Security Council,” says Musila.
Given majority of the countries that have ratified the statute are from Africa, there is also a possibility of more investigations, even as pressure mounts on the new prosecutor to show a concrete expansion of the ICC’s scope beyond the continent.

There is also the challenge of managing resources with regard to the number of persons the prosecution’s office may want to indict. “The issue of managing resources here is not only financial but judicial as well since the prosecutor’s office would like to send a clear message on ensuring justice is served without depleting its resources,” says Musila.