Being the ICC’s Chief Prosecutor is a delicate and politically sensitive job. For Luis Moreno Ocampo it has been “the best job in the world.” Fatou Bensouda will be taking over his office in June. She inherits a huge caseload and has yet to secure the ICC’s first conviction in her first case.

By Thijs Bouwknegt, The Hague

When 120 states agreed on 12 December that Bensouda shall succeed Ocampo, the Gambian was “definitely honoured.” It was her second present before the close of the year. With the recent arrest of Laurent Gbagbo, Bensouda already reaped the benefits of the investigations she led in Ivory Coast. It may be the ICC’s first ‘presidential case’, but she faces a huge task in preparing for the confirmation of charges hearings next June.

While Africa has been the main playground of international justice so far and the ICC its main theatre of justice, the Assembly of States Parties stated there was “pervasive sentiment that the next prosecutor should come from Africa”. Bensouda was chosen from a list of 52 potential candidates. Almost half of them were from Africa.

Double standards
It seems to be a logical choice: African countries are over-represented in the ICC membership and all the ICC cases originate from Africa. African leaders, once the most passionate protagonists of the court, nowadays speak contemptuously of the ”African Criminal Court”. The African Union (AU) criticises the ICC for being discriminatory and conducting a selective dispensation of justice. Jean Ping, chairperson of the AU Commission, said earlier this year that the AU is “not against the ICC […] but against Ocampo who is rendering justice with double standards.”

But the new prosecutor herself was very clear in stating that she will act - irrespective of her background. “Africa has taken the lead in international criminal justice and this has to be recognised,” but she added “my origin, being African has nothing to do with my mandate as ICC prosecutor.”

In contrast to her predecessor, it seems to be a clear wish of the member states to have a reserved African lawyer who does her job without much fanfare. But the ICC states parties also chose Bensouda because she has been a constant factor at the court. She, like no other, knows the ins and outs of The Hague. “I have the good fortune to inherit a fully functioning office with about 300 staff,” she said last week. Bensouda’s ‘internal promotion’, is also a clear signal that the states are happy with the status quo at the prosecutor’s office.

Fruit from the backyard
The question remains whether she will reap the fruits of her earlier work as deputy prosecutor. She has been in charge of preliminary investigations in Ivory Coast, Guinea and Nigeria. For the former Gambian Justice Minister, this was her backyard: not only does she know the files, but she knows the main players. It is a huge advantage given that for the chief prosecutor politics weigh heavier than justice.

After seven years as head of prosecution, Bensouda has only managed to wrap up one much-contested trial. Proceedings against Thomas Lubanga Dyilo took blood, sweat and tears to complete. Twice, the judges ordered Lubanga’s release because of prosecution failures in disclosing evidence.

A situation never seen in the history of international justice. For the International Federation for Human Rights, “both episodes raise questions about the investigative capacity of the OTP. In particular its independence in conducting investigations.” The rights organisation believes it would be highly desirable for Bensouda’s office to reinforce its investigation teams, including recruiting more investigators. Bensouda said her office “has just completed an operational manual to standardise the work of the office.” But it remains to be seen what that means in practice. Human Rights Watch warned of much “unfinished business” due to the limited prosecution policies that Ocampo and Bensouda have pursued up to now.