Fatou Bensouda, the International Criminal Court (ICC) and Africa

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The geopolitical chronicle of Benoit Ngom. To decipher the news and bring geopolitical and geostrategic depth to the information, Professor Benoit Ngom deals in these columns with a weekly analysis, to be found every Thursday.


An international conference on the theme “Justice for International Crimes: Challenges and Strategies in West Africa and Elsewhere” was held on October 25-26, 2021 in Dakar, Senegal. This meeting, which brought together experts from the United Nations, the International Criminal Court (ICC), the Extraordinary African Chambers in Senegal, offers us the opportunity to put into perspective the work of Fatou Bensounda in the promotion of international justice in Senegal. through his action at the head of the Prosecutor’s Office of the ICC.

At the end of her tenure at the head of the judicial institution, many voices were raised in the press to seek to assess the contribution of the Gambian judge in the effective accomplishment of the mission entrusted to her by the ICC.

Generally, observers find the results of his mandate mixed. For some, it has failed to make the ICC anything other than an institution designed to sanction African leaders. For others, it did not succeed in successfully carrying out the trials which were to result in the sanctioning of certain African leaders, finally for a last group, it conducted the investigations in a disastrous manner and thus allowed the questionable acquittal. of certain defendants.

In the light of the history of the creation of the ICC, by sticking to the essential facts, and in consideration of the reality of the current international relations, we will try to make the share of the things.

Misunderstanding, as the basis of Africa’s engagement at the ICC

Talking about Fatou Bensouda’s record or legacy at the ICC cannot be done without referring to the history of this institution whose creation, seen from Africa, stems from a fundamental misunderstanding.

As soon as the project to create an International Criminal Court was made public, part of the African intelligentsia, very sensitive to the issue of the defense and promotion of Human Rights, loudly demanded membership African countries with the Rome Statute. But, while many human rights activists and many African leaders seemed very motivated for the creation of the ICC, it was not for the same reasons.

From this arose a misunderstanding between the African elite and certain politicians in search of international notoriety. In particular, certain heads of state, used to signing for the gallery, international commitments that they do not intend to respect.

The latter, by ratifying the Statute of Rome, certainly did not imagine that they had trapped themselves. Because contrary to their understanding and expectation, the provisions which govern the C P I do not recognize any immunity to a sitting Head of State.

CRIMINAL RESPONSIBILITY OF HEADS OF STATE IN PRACTICE, ILLUSION OR REALITY?

The indictment and the issuance of an international arrest warrant against President El Bashir of Sudan will sound a wake-up call and general alert among some African Heads of State who believe they are allowed anything under the umbrella of the immunity that confers on them the exercise of their function. Frightened by the bad news, many African leaders, as usual, pretended to forget that they had signed and ratified the Rome Statute which did not grant them any immunity in the event of an ICC prosecution.

In the hope of being able to untie their engagement, these leaders decided to mobilize the African opinion against the ICC by leaning on the U A.

However, despite the noise caused by this mobilization, the Court, benefiting from the international support of human rights activists and the understanding of many democratic states, stood firm and continued the proceedings. This diversion that some African leaders wanted to maintain shows, if it were necessary, how little importance many of them place on the respect of their international commitments.

Therefore, could we validly reproach the ICC Prosecutor for having sought to prosecute, because they are Africans, dictators like Omar El-Bashir whose country, signatory to the Rome Statute, has just accepted? his extradition to The Hague, or the incumbent President of Kenya on whom there were serious and consistent charges of his responsibility in election-related massacres?

Moreover, should the court refuse to educate and try an African leader whose prosecution file was transmitted to him by his own country which is a member of the Rome Statute, as was the case with Laurent Gbagbo, for example?

CAN WE SUPPORT THAT THE ICC PROVIDES VARIABLE GEOMETRY JUSTICE?

Uhuru Kenyatta, elected President of Kenya in March 2013, was accused of orchestrating ethnic violence that left 1,200 people dead. The President of Kenya appeared twice before the ICC to challenge the charges brought against him by the ICC prosecution.

The ICC reversal was explained by Madame Fatou Bensouda in an official document where she said she did not have enough evidence “to prove, beyond a reasonable doubt, the alleged criminal responsibility of Mr. Kenyatta”.

The reasons given by Prosecutor Fatou Bensouda for dropping the investigations and prosecutions against the two alleged Kenyan responsible for a large-scale massacre showed, if it were necessary, the weaknesses of international justice in the face of the inertia of the powers. public.

In the same spirit, concerning the case of President El-Bashir of Sudan, the ICC informed the Security Council in 2010 of the lack of cooperation from the States of Kenya, Djibouti, the Democratic Republic of the Congo and Chad. when it came to arresting the Sudanese President.

Indeed the Prosecutor of the ICC could only note her incapacity to act in front of a kind of paralysis of the Security Council and that she did not have the means to oblige the two African States to cooperate to help her present the ‘one before the ICC or have the necessary elements to establish proof of the guilt of the other.

IS IT REASONABLE TO PURSUE CURRENT PRESIDENTS?

It should be remembered that a sitting head of state is the keystone of all the institutions of his country, but also that he embodies and guarantees the sovereignty of his people who elected him. Thus the international law which is the basis of international relations enshrines, as an element of stabilization of relations between States, the principle of “their sovereign equality”.

Therefore, it is difficult to understand why African states signed an international convention which did not recognize their sovereign immunity during the exercise of their function?

The difficulties encountered in implementing sanctions against sitting heads of state show the inappropriateness of this possibility recognized by the Rome Statute at the ICC. In truth, this vision of universal equality of real and suspected perpetrators is only a figment of the imagination. In the case of these two African heads of state, the ICC has seen it at its expense. Indeed, how can we count on the mobilization of the Security Council, some of the leaders of the countries that make it up could one day be prosecuted if this provision could be applied without obstacle?

But the prosecution of sitting heads of state not only poses problems for states struggling with democracy. Indeed, everyone knows, for example, that the United States has not ratified the Rome Statute when its opinion often weighs more than any other on any international decision. Their refusal to see the other courts of the world judge their soldiers, let alone their President, will always be an objective limit to the implementation of this competence recognized at the ICC.

Conclusion

The tenure of Fatou Bensouda at the head of the ICC will have made it possible to highlight, at least in Africa, the usefulness of international justice, the possible trigger of which is a sword of Damocles hanging on the heads of certain dictator or criminal leaders. . On reading its many interventions, the ICC will also have shown that the causes of its inaction, or even its inertia, are generally beyond the control of its prosecution.

In this, rare are the reproaches made to Fatou Bensouda which can be attributed to her personality or her intellectual capacities

In her work, Fatou Bensouda has shown that she is a confirmed lawyer driven by her deep attachment to fundamental principles of law. In this, she honored her country, The Gambia, the World of Jurists and particularly that of African Jurists.

Fatou Bensouda’s action in this context deserves to be commended by all African countries. By acting in a pragmatic and lucid manner to ensure the triumph of the great principles of equality and justice, she made a great contribution to the triumph of struggles for human rights and particularly those of African women for access to great positions. of responsibility.

Fatou Bensouda has shown that there can be no such thing as a glass ceiling for African women or black women. In this, like Winnie Mandela, Michele Obama, Ellen Johnson Sirleaf, she will have sown the good seed for the harvest of future generations of women.

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