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Tuesday, October 20, 2020

On Fatou Bensouda and her ICC

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 The Statute entered into force on 1 July 2002 after ratification by 60 countries with Argentina born Luis Moreno Ocampo becoming its first chief prosecutor.

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Admittedly, consensus for the setting up of the court was based on the need to end impunity. As a global watchdog, it was hoped that politicians will no longer resort to desperate means if they lose in elections. It was also hoped it would serve as a deterrent to those in power who may have been inclined to commit crimes that had horrendous impact. However, what was initially a welcome move has now generated much alarmist talk. 

 

Example, in October 2013, the Uhuru Kenyatta case made for a full-blown reference point for the African Union. It was at its extraordinary heads of state summit in Addis Ababa when the body discussed and reviewed the continent’s relationship with the ICC. It was a matter of relevance because the future of 34 African countries was at stake. 

 

At that Summit, there was an attempt to shape a mass disengagement from the court, with calls for a unified position to withdraw from the ICC unless it stopped its questionable and hypocritical focus on Africa and African leaders. If that had come about, it would have and could still destroy the disdained Hague-based institution, and probably spell its doom.

 

The leaders argued that ICC was clearly suffering from widespread manipulation by the West. If anything, the dropping of charges against the Kenyan president by Fatou Bensouda gave weight to these leaders’ argument. In fact, the ICC admitted paucity of evidence against a man who advocated his innocence throughout the entire case. There were other instances where the institution stated that its own witnesses were unreliable and incredible. As Chief Prosecutor, The Gambia’s Bensouda was left disappointed.

 

Meanwhile, is it fair to state that this body remains resolute towards protecting its image.  Currently, the court is undertaking investigations or trials in eight countries, including, Uganda, DRC, Darfur (Sudan); Central African Republic; Kenya, Libya, Cote d’Ivoire and Mali. Among the countries that it is examining for possible fresh cases are Afghanistan, Colombia, Georgia, Guinea, Hondura, Iraq, Ukraine, Palestine and recently in Nigeria. 

 

In the case of Nigeria, Fatou Bensouda appears determined to deter the politicians from instigating election violence. On three separate occasions in successive months since the beginning of 2015, Bensouda, has weighed in on the rising election-related violence. On January 20, she asked her office to continue gathering information on possible crimes in Nigeria within the jurisdiction of the court. She also warned against the risk of election violence in Nigeria and restated her resolve to prosecute individuals responsible for ICC crimes.

 

 

Also, in possibly her most explicit statement, on March 16, Ms Bensouda warned that any person who incites or engages in acts of violence in the context of the upcoming elections or otherwise – including by ordering, inciting, encouraging or contributing to the commission of crimes that fall within ICC’s jurisdiction – is liable to prosecution. 

 

It is true that the ICC is founded on the principle of complementarity and this means that the court would usually give national systems the first opportunity to prevent such crimes or ensure that they are prosecuted when they occur. The court would step in when national authorities are unwilling or unable to ensure accountability. 

 

In the case of Nigeria, Bensouda has made it clear that she is willing to take prompt steps to prevent further instability in the country and also sent a clear message that electoral competition does not have to result in violence and crimes that shock the conscience of humanity.

 

Ms Bensouda is trying to do her homework in going after those individuals who might have incurred the wrath of her institution. But there is need for her to also work on its image. The disgruntled feeling that is being held by most African leaders has to be adequately addressed.

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