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Outgoing Prosecutor Praised for Expanding ICC's Reach

International Criminal Court Prosecutor Fatou Bensouda speaks during an interview with The Associated Press in The Hague, Netherlands, June 14, 2021.

First woman, first African and only the second chief prosecutor of the still-young International Criminal Court, Gambia’s Fatou Bensouda leaves office Tuesday both praised for pushing The Hague tribunal’s boundaries as court of last resort, and skewered for key setbacks under her watch.

Under her nine-year tenure, Bensouda secured groundbreaking convictions, including the first-ever indictment defining an attack on cultural heritage as a war crime.

But she also lost high-profile cases against Ivory Coast’s ex-president, Laurent Gbagbo, and former Congolese Vice President Jean-Pierre Bemba. Early in her tenure, Bensouda saw charges dropped against Kenyan President Uhuru Kenyatta and Vice President William Ruto over post-election violence, for reasons including alleged political interference.

FILE PHOTO: Defense counsel Karim Khan appears before a trial at the International Criminal Court in The Hague on Sept. 9, 2013.
FILE PHOTO: Defense counsel Karim Khan appears before a trial at the International Criminal Court in The Hague on Sept. 9, 2013.

British lawyer Karim Khan, who defended Ruto in the case, takes over as chief prosecutor.

If Bensouda’s legacy is mixed, one thing is clear: It hasn’t been an easy ride for the 60-year-old lawyer and former justice minister.

During her tenure, several African countries threatened to withdraw from the ICC, calling its probes unfairly focused on Africa. The Trump administration sanctioned Bensouda last year over an Afghanistan probe, and analysts say the ICC’s ambitions dwarf its budget. Meanwhile, a scathing independent report described a “culture of fear,” bullying and sexual harassment at the ICC, among other problems.

Yet Bensouda has her cheerleaders.

“Bensouda’s term has been marked by a real determination to expand the reach of the court,” says Elizabeth Evenson, associate international justice director at Human Rights Watch, saluting the prosecutor for also defending the court’s independence.

Still, Evenson added of the court more broadly, “there have been disappointments, there have been setbacks. The ICC has not lived up to expectations.”

Gbagbo’s acquittal and Darfur

An especially low point for Bensouda, some say, was Gbagbo’s March acquittal by appeals judges on crimes against humanity charges. Quoting experts, Jeune Afrique magazine described it as a “shameful moment” for the court. ICC judges themselves described the prosecution’s case against Gbagbo and former youth leader Charles Ble Goude, over 2010 post-election violence in Ivory Coast, as “exceptionally weak.”

The former Ivorian leader, who has steadfastly claimed his innocence, is set to return home this week.

Bensouda’s office did not respond to an interview request from VOA. In interviews before her departure, she has defended her record and denied she failed on Gbagbo. She also said she was moving forward in probing allegations against the other side of the Ivorian violence, targeting supporters of current Ivorian President Alassane Ouattara.

“We were not there just to prosecute a leader, we were there to do justice,” she told France 24, noting, “nobody will say crimes have not been committed in Ivory Coast.”

Most recently, Bensouda’s focus has shifted to another African country — Sudan, whose western Darfur region she visited late last month. Despite a years-old international arrest warrant, the country’s transitional government has yet to turn over to the ICC former President Omar al-Bashir. He and two others face war crimes charges from the 2003-2004 conflict in Darfur, which killed tens of thousands and displaced 2.7 million.

Still, the ICC is today weighing evidence against another suspect in the violence — alleged militia leader Ali Mohammed Ali Abdul Rahman Ali, known also as Ali Kushayb, who turned himself in.

In her final address to the U.N. Security Council, Bensouda hailed a “new page” in relations with Sudan but urged authorities to turn over al-Bashir.

“Peace and justice continues to elude the people of Darfur,” she said. “They continue to suffer in (displacement) camps, and for them accountability remains critical for lasting peace in the Darfur region.”

Beyond sub-Saharan Africa

Bensouda’s tenure may be better remembered for cases outside of Sub-Saharan Africa. She has opened or considered probes in Libya and Venezuela, into Israeli actions in the Palestinian territories, and for alleged crimes against the Rohingya in Myanmar and Bangladesh.

On Monday — the day before leaving office — Bensouda sought authorization to open a full investigation into drug war killings in the Philippines — which, if granted, would fall to her successor.

Last year, the Trump administration slapped a travel ban and financial sanctions against the prosecutor and another senior ICC official, after Bensouda launched a war crimes investigation into alleged atrocities by U.S. troops in Afghanistan. In April, the Biden administration lifted the sanctions and called for a more cooperative relationship with the ICC — while still opposing both the Afghanistan and Israeli/Palestinian probe.

Others, however, applaud both moves. France’s leading Le Monde newspaper called Bensouda “courageous” in withstanding political pressure.

In 2016, Bensouda won a landmark case against Malian jihadist Ahmad Al Faqi Al Mahdi, now serving a nine-year sentence for leading the destruction against cultural and religious shrines in Timbuktu, a UNESCO world heritage site.

“For me, the circle is closed,” Bensouda said during a visit to Timbuktu in April, as the Malian government and the U.N. cultural agency received a symbolic payment in reparations.