Africa Looks Forward to ‘The Fatou Effect’

On 16 June Fatou Bensouda of The Gambia was sworn in as the second Chief Prosecutor of the ICC, where she previously served as deputy to Luis Moreno-Ocampo. Bensouda was elected by a consensus of the Assembly of State Parties to theRome Statute in December 2011.

At a recent meeting in Cape Town hosted by the Open Society Foundation and attended by the IJR and other civil society organisations, the new Chief Prosecutor outlined seven key areas that she hopes to prioritise during her nine-year tenure. These are: improving the quality and efficiency of investigations; clarifying areas for preliminary investigations; improving the relations between the ICC and African states; a focus on women and children, as sub-groups among victims of international crimes; institutional development within the Office of the Prosecutor (OTP); strengthening the OTP’s relations with both internal ICC and external structures; and an emphasis on work with civil society.

These priorities come as music to the ears of justice and reconciliation practitioners in Africa, and many lie at the heart of a complex and sometimes contentious relationship between the ICC and state parties on the continent. Optimistically coined ‘the Fatou effect’, many hope that this change will signal a positive turn in Africa’s expectations of and engagements with the ICC.

The ICC is currently active in seven African ‘situation countries’. That its reputation as a singular – and predominantly retributive – custodian of international justice may broaden to include consideration of the confluence between justice and reconciliation is indeed a remarkable state of affairs.

Victims of gross human rights violations, atrocities and international crimes need a system that punishes perpetrators, and Bensouda’s new focus on women and children – who are often the most affected by war and violent conflict – is also to be welcomed. Sexual and gender-based violence have become common instruments of war in a number of ICC situation countries, and victims of these crimes are both female and male. They need a justice system that begins to repair and redress the damage caused by violence and crime, and works to provide lasting guarantees that future generations will not be subjected to further violation in times of conflict. These needs are shared by victims in northern Uganda, eastern Democratic Republic of Congo (DRC), Darfur, Kenya, Cote d’Ivoire, Libya and the Central African Republic (CAR) alike – to live in peace and security and to develop economically without fear of war, conflict and tension.

Up against growing criticism from Africa that its work on the continent pursues a ‘neo-colonial’ agenda, the OTP would also do well to establish policies that more effectively guide government engagements in the situations it investigates. Although not the only organ of the ICC, the OTP is responsible for both initiating investigations of where it deems these to be necessary, as well as for receiving and acting on requests from both state parties to the Rome Statute and the UN Security Council. As such, the OTP is often seen as the public face of the ICC, and a new tone of engagement may lead to a better understanding of its work, more support and cooperation, and less criticism.

Greater, and more constructive engagement with civil society organisations, as Bensouda has promised, may also go a long way in both improving the quality of ICC investigations and judgments, and increasing the court’s credibility in Africa. Local organisations often possess the dual advantages of access to grassroots intelligence and insight through direct engagement with people and communities, and the experience and agility to negotiate and manoeuvre through governmental and inter-governmental offices and institutions within countries. Many credible civil society organisations are willing and able to act as liaisons for dialogue between these various stakeholders.

Yet despite the anticipation surrounding ‘the Fatou effect’, it remains important to recall that all organs of the ICC are still bound by the provisions of the Rome Statute, including the OTP. Although Bensouda has committed to pursuing a more responsive, engaged and accessible ICC, her responsibilities and that of her office and the court at large remain the pursuit of criminal justice and an end to impunity by perpetrators.

Further, the responsibility for mending the sometimes tumultuous relationships between African states, the African Union and the ICC cannot fall to the court alone. For the sake of Africa’s many victims of international crimes, many of whom have little hope for redress or the resolution of ongoing violent conflict, it is also important that regional and international institutions, organisations and governance bodies uphold their own commitments to the protection, promotion and enforcement of human rights and dignity, and pursue effective and cooperative partnerships that lead to an end to mass violence and gross violations.

This piece first appeared in the South Africa Reconciliation Barometer Newsletter, Volume 10, 2012 also available at http://reconciliationbarometer.org/newsletter/volume-ten-2012/

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