That a war crimes court should focus on the victims of war crimes sounds like a simple concept.
But many of those living in the African communities where most of the atrocities being prosecuted by the International Criminal Court (ICC) took place, have long complained they have been forgotten by this controversial and costly institution based thousands of miles away.
The new ICC prosecutor has pledged that victims - particularly women and children - will be her priority, but analysts worry that shrinking budgets could make her promises difficult to keep.
Fatou Bensouda said at her swearing-in speech in June that she would “focus on, and listen to, the millions of victims who continue to suffer from massive crimes…
“The return on our investment for what others may today consider to be a huge cost for justice is effective deterrence and saving millions of victims’ lives,” said Bensouda as she took over the ICC’s highest profile job from Luis Moreno-Ocampo. Gambia’s former justice minister and attorney-general served more than eight years as Ocampo’s deputy.
Sunil Pal, head of the legal section at the Coalition for the ICC, an advocacy organization comprising 2,500 civil society groups in 150 countries, expects Bensouda to bring her own unique approach to the role of prosecutor. He welcomes her diplomatic style and focus on victims.
“The tone is very positive [with Bensouda],” he said. “There is a real emphasis on working with victims and ensuring that the process is meaningful for the direct beneficiaries of this process - the victims. It is about recognizing the importance that victims play in this process and an acknowledgement and strengthening of that role.”
On paper at least the ICC is the most victim-friendly of all the international tribunals.
Court-recognized victims are given lawyers and allowed to participate throughout a trial, including by questioning witnesses. Those who have suffered injury or harm from a crime for which someone is convicted are also eligible for restitution, compensation or rehabilitation.
The reparations process is now under way in the Thomas Lubanga case, the only trial completed during Ocampo’s nine-year reign, but awards are many months away. Lubanga was a Congolese militia leader convicted of recruiting children.
It is up to the court’s registry and judges rather than the prosecutor to explain the reparations procedure to victims. But analysts say it is Bensouda who should take responsibility for improving communications with victims who have often complained about the lack of information coming from the Hague-based court about the trials.
“There has been a general insufficiency of information being passed to victims which leads to certain perceptions of how the court works which may be false,” said Carla Ferstman, director of Redress, a human rights group working with war crimes victims. “It’s not only about bad practices of the prosecutor, it’s about practices that are misunderstood.
“Bensouda does have a role in reaching out and bringing victims in. She should see them as her stakeholders. These are constituents she should be working with and getting on board.”
The ICC’s focus on African cases has been controversial and has led to charges of bias from the court’s vocal critics on the continent where cooperation has been patchy at best. Eleven ICC arrest warrants for African accused remain outstanding.
Pal believes that by placing an emphasis on the importance of victims, Bensouda will bring greater relevance to the work of the ICC in the places it is investigating.
“Communications is [a] priority, ensuring the process is relevant and meaningful for victims and communicating, educating and informing victims around its decision-making process, particularly in the case of preliminary examinations,” he said.
“This is about creating environments that are conducive to facilitating the court's work in-country, which will help them get buy-in and counteract accusations of bias.”
But with a reduced 108 million euro budget this year and an ever increasing caseload, the ICC could struggle to meet its obligations to stay in touch with victims. States are pressuring the ICC to reduce its budget, which would impact on victim participation and communication with those on the ground.
“Outreach to victims and affected communities presents unique challenges, which will only become harder in the face of additional cuts,” said Pal.
“These activities are critical to ensuring that victims and victim communities understand what the court is trying to achieve in their name. It's also critical to facilitating their participation in proceedings, in terms of explaining their rights in the ICC process.”
Bensouda’s task of improving relations in Africa could also be complicated by the upcoming trials of four prominent Kenyans accused of orchestrating post-election violence in 2007. The case has generated huge interest in Kenya where debate has raged over whether the court is striking a blow for impunity or targeting innocent victims.
Photo: ICC-CPI/Hans Hordijk
|Former Congolese warlord Thomas Lubanga’s conviction was the ICC’s first verdict|
Nick Kaufman, a former ICC prosecutor turned defence lawyer who has represented Congolese clients accused of war crimes, says negotiating a smooth prosecution should be her main priority.
“I think it is a good thing there is an African prosecutor in charge of the court at the moment, because she will be able to bring her own cultural outlook to bear in the case, especially when negotiating the minefield of Kenyan politics which avidly follows the developments in the cases,” he said. “Hardly a day goes by without some sort of reference to the cases in the Kenyan media.”
Elsewhere in Africa, Bensouda will expected to explain to victims and others the recent sentencing of the DRC’s Lubanga. Bensouda, a member of the prosecution team, was in court on 10 July as judges sentenced the militia leader to 14 years while praising him for enduring prosecution misdeeds during the trial which twice came close to collapse.
Reaction was mixed among victims, according to Bukeni Waruzi, an expert on child soldiers and the programme manager for Africa and the Middle East at the NGO Witness.
“You have some who actually are happy that at least he was sentenced,” said Waruzi. “But there are some who believe it should be more. If he was prosecuted in DRC, with the gravity of the crimes, it could have been more than 14 years.”
Ocampo, in one of his final acts as prosecutor, had asked for the maximum penalty of 30 years. However, with six years already served, Lubanga could be out in less than eight.
Kaufman says this puts Bensouda in an awkward position with victims.
“She is being forced to defend a previous sentencing policy that was promoted mistakenly by her predecessor - and I say mistakenly because it was completely wrong for the prosecutor to ask for the maximum sentence, bar a life sentence, for a crime of this nature,” said Kaufman.
He expects a different ICC under Bensouda who endured a rocky start to her tenure with the arrest by Libyan authorities of defence lawyer Melinda Taylor on charges of spying for her client Saif al-Islam Gaddafi.
“She is the complete opposite of Ocampo. I don’t think we’ll see any of Ocampo’s antics with Fatou - for example courting film stars and other totally irrelevant figures to the conduct of international justice,” said Kaufman who also represents two of Muammar Gaddafi’s children, Aisha and Saadi.
“She will be far more professional in her outlook. She’s a very competent orator and is also very courteous and respectful.”
Taking on too much?
Though confidence in Bensouda is high, analysts worry she could be spreading herself too thin.
The ICC has14 cases before judges, ongoing investigations in seven countries and preliminary investigations under way in countries including Afghanistan, Colombia and Korea. On 18 July, Bensouda announced that the government of Mali had asked for an investigation into violence which erupted there earlier this year.
“How many more situations can they take on?” said William Schabas, a professor in international law at Middlesex University.
“Have they taken on already more than they can actually manage? You see how complicated this is. Look at Lubanga - one trial chamber basically full time for four years and they are not finished. They still haven’t done the reparations stuff.”
Back in the Congo, where new fighting alleged to have been orchestrated by ICC fugitive Bosco Ntaganda has broken out, expectations that the new prosecutor can help end the violence and impunity remain high.
“There is a huge amount of expectations - from victims, from activists, from everyone,” said Waruzi. “This will be a challenge, how to meet those expectations while fulfilling her mandate.”