11:50 GMT 31st January 2012
Having served since 2004 as deputy prosecutor under the outgoing chief prosecutor, Luis Moreno-Ocampo, Bensouda is a familiar face at the ICC and is said to have exceptional mastery of the court's caseload.
'[Bensouda] is the best person for the job, not just because she is an African, but because she has a good understanding of African issues, ' said Ben Kioko, chieflegal adviser to the AU.
The AU has been highly critical of Moreno-Ocampo and had pushed for Bensouda's appointment. Having issued controversial arrest warrants for Sudanese President Omar al-Bashir and the late Libyan leader Muammar Gaddafi, MorenoOCampo has been accused of pursuing Africans with undue zeal.
In its nearly nine-year existence, the ICC has focused almost exclusively on the continent, opening investigations into seven cases involving African nations - Uganda, Democratic Republic of Congo (DRC), Central African Republic, Cote d'Ivoire, Sudan, Libya and Kenya. Only in the cases involving Uganda and DRC did the ICC have the consent of the concerned governments. Those involving Sudan and Libya were referred to the ICC by the UN Security Council; the office of the prosecutor initiated investigations into the Kenya and Cote d'Ivoire cases.
With all seven cases before the ICC stemming from Africa, the court has been characterised as a neo-colonial tool. The AU has pressed for the suspension ofthe indictment against the Sudanese president and instructed its member states to ignore the ICC's arrest warrant. Charged with crimes against humanity relating to the conflict in the Darfur region of western Sudan, Bashir is the first serving head of state to be indicted by the ICC.
Kenya has also vigorously opposed the ICC's involvement in investigations into the country's post-election unrest, saying that the case should be tried domestically as the Kenyan criminal justice system is capable of handling it effectively.
Uhuru Kenyatta, the son of Kenya's founding father, Jomo Kenyatta and current deputy prime minister, is among six prominent Kenyan nationals being investigated by the ICC. They are accused of orchestrating the 2007-2008 post-election violence in which 1,200 people died in inter-ethnic clashes.
Former president of Cote d'Ivoire, Laurent Gbagbo, is currently the highest profile person in the custody of the ICC. He was flown to The Hague in November and is accused of being an 'indirect co-perpetuator' of crimes against humanity relating to the violence that followed the 2010 disputed elections. Gbagbo will be the first former head of state to face trial before the ICC. Former Liberian leader Charles Taylor is also held at The Hague, but facing trial under the auspices of the Special Court for Sierra Leone for his alleged role in arming the infamous Revolutionary United Front rebels during the civil war in Sierra Leone in the 1990s. The ICC does not have jurisdiction to prosecute crimes predating when it came into force in 2002.
Joseph Kony, leader of Uganda's notorious Lord's Resistance Army insurgents, is wanted by the ICC to face several counts of war crimes and crimes against humanity, including the abduction of thousands of children and their forced use in armed conflict. Kony remains at large and, for fear of arrest, has said that he will not come to the negotiating table until the warrant against him is revoked. Some commentators have suggested that the ICC's indictment may have hampered peace efforts in Uganda.
The ICC is expected to reach a verdict in the coming months in its first case, that of Thomas Lubanga, former militia leader from DRC accused of war crimes involving the use of child soldiers.
The ICC is also conducting preliminary investigations into cases in eight countries outside Africa, including Afghanistan, Colombia and North Korea. But no arrest warrant has ever been issued for anyone outside Africa. Some analysts have suggested that Bensouda's appointment will help rescue the court's reputation in Africa, the largest continental bloc of the ICC's legislative body, the Assembly of States Parties.
The ICC came into force in July 2002 after 60 countries ratified the Rome Statute, the treaty that created the court in 1998. Based in The Hague, the Netherlands, it is the world's first permanent international criminal tribunal mandated to prosecute individuals for the most serious human rights atrocities including genocide, war crimes and crimes against humanity. Previously ad-hoc criminal tribunals, such as those for the former Yugoslavia and Rwanda, were set up to deal with crimes committed in specific areas within specific time-frames. The permanent court has jurisdiction anywhere in the world in cases where national criminal justice systems are either unable or unwilling to conduct investigations and prosecute individuals.
A major limitation on the ICC's work is that powerful nations, such the US, Russia and China, have not ratified the Rome Statute and refuse to recognise the court's jurisdiction. This means that the ICC has no mandate to investigate cases involving these countries unless the cases are referred to the court by the UN Security Council. It does not help that the same countries have veto powers at the Security Council, which itself is regarded as a highly politicised body illsuited to championing impartial justice.
The absence of the US in particular is regarded as a serious impediment for the court's widespread acceptance as a truly competent international legal body, able to apply the law equally to all. Analysts say that the US refuses to recognise the ICC's jurisdiction for fear that American policymakers and military personnel may wind up before the court.
Almost nine years after it opened its doors and began investigations, the court has not yet had a single conviction. The new chief prosecutor is expected to turn things around and introduce a more measured approach than Moreno-Ocampo, whom critics deride for seeking the spotlight. He was appointed for a nine-year term, which expires mid-June.
Bensouda will bring to the job not only profound commitment to the pursuit of justice, but also a wealth of legal expertise spanning decades. 'There are few prosecutors in the world with her experience,' stated a recent article posted on the allAfrica.com news website.
Born in the Gambian capital, Banjul, Bensouda did her legal training in Nigeria and later in Malta where she earned a master's degree in international maritime law and the law of the sea- making her the first expert in this field in Gambia.
Before moving on to the international scene, Bensouda had a distinguished nationallegal career as Attorney general and minister of justice in her native Gambia. She also served at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, in both legal adviser and trial attorney capacity.
Bensouda emerged as the consensus candidate from a list that began with about 50 names. Mohamed Chande Othman, Tanzania's chief justice, was the final candidate to withdraw before Bensouda's confirmation for the post.
At the meeting confirming Bensouda's appointment, the President of Botswana, Seretse Khama Ian Khama, urged African nations to honour their obligations under the Rome Statute despite their misgivings about the court's neutrality. 'The reality is that atrocious human rights abuses and other serious crimes that merit the ICC's attention have [been committed] and continue to be committed in Africa,' he said.
According to Kevin Jon Heller, a senior lecturer at the Melbourne Law School in Australia, Bensouda will strike the right balance between continuity and positive change at the ICC. 'She offers the best of both worlds - an ICC insider who offers institutional continuity, which will be critical in the coming years, but has a strong, independent voice that has not been tainted by Moreno-Ocampo 's incompetent tenure,' Heller wrote on the Opinio Juris blog.
He added, 'Having spoken to numerous individuals involved in the ICC, from OTP [Office of the Prosecutor] staff to legal officers in chambers to defence attorneys, it is clear that Bensouda was the primary reason that the OTP didn 't fall completely apart over the past eight years.'
'I am working for the victims of Africa,' Bensouda said in an interview with AFP. 'That's where I get my inspiration and my pride.' She will need to draw strengthen from that inspiration as she takes on the uphill task of rehabilitating the ICC's image on the African continent while remaining faithful to an uncompromising pursuit for international justice.
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