By RICK GLADSTONE
Published: January 18, 2013
GROWING up in the tiny West African nation of Gambia, Fatou Bensouda witnessed the despair of an older relative repeatedly abused by her violent husband. Ms. Bensouda, still in grade school, wanted to do something, so she accompanied the victim to the police precinct in Banjul, the capital, to file a complaint. Officers told them to go home.
“They said, ‘This is her family’s affair, this is a civil matter, we cannot intervene,’” recalled Ms. Bensouda, the chief prosecutor at the International Criminal Court at The Hague. “I remember the helplessness, all the time. I remember saying, ‘There’s something that I should be able to do,’ even at that very early age.”
The episode, Ms. Bensouda said in an interview, helped form her decision to attend law school, pursue a career as a justice minister in Gambia and eventually become a war-crimes prosecutor.
“I am a victim-oriented person,” Ms. Bensouda said. “I like to see that the victims know that they have a voice.”
Ms. Bensouda, 51, is now immersed in a role that lawyers and rights activists have described as the world’s most prominent advocate for crime victims. She is empowered to investigate and prosecute suspected perpetrators of genocide, war crimes and crimes against humanity — massacres, rapes, mutilations, enslavements and other atrocities — in a global court that opened 10 years ago precisely for that purpose.
But things have not been going as well as they could for Ms. Bensouda, who has been on the job for seven months.
She has done little to dispel the impression that the court works too slowly — only one defendant has been convicted so far, with at least 17 cases pending. A month ago her office lost its first case, against a former Congolese rebel leader who went free because of what the judges called insufficient evidence that he had overseen the hacking and burning deaths of an entire village. Although the prosecution had begun under the tenure of her predecessor, Luis Moreno-Ocampo, the court’s decision was nonetheless an inauspicious mark on Ms. Bensouda.
She has also been under pressure to seek arrest warrants for the extremist Islamist militias who seized northern Mali eight months ago and have run amok since, killing, maiming and mutilating in a campaign that has now drawn foreign military intervention. Ms. Bensouda finally took an important step toward arrest warrants this week by opening a full-scale investigation into what she called crimes in Mali that have “deeply shocked the conscience of humanity.”
AT the same time, Ms. Bensouda, who is only the court’s second chief prosecutor, is confronting demands to pursue cases in other parts of the world besides Africa, where all of Mr. Moreno-Ocampo’s cases were prosecuted.
A more immediate challenge could confront Ms. Bensouda next week, when the court is scheduled to decide on Libya’s request to conduct its own prosecution of the eldest son and a former aide to Col. Muammar el-Qaddafi, the fallen dictator, and not extradite them to The Hague. If the court decides that Libya lacks a fair judicial process and that the defendants should be extradited, Libya’s new leaders are almost certain to reject the decision, and there will be little Ms. Bensouda can do about it.
“This is a court with a potentially worldwide mandate and no police force — that poses formidable challenges,” said Richard Dicker, director of Human Rights Watch’s international justice program, who has a high regard for Ms. Bensouda.
Contrary to a popular misperception, the court’s authority is not as global as its name implies. A third of the countries in the United Nations, including some of the biggest like the United States and China, as well as many smaller countries where leaders are suspected of rights abuses, like Syria and Sudan, have not ratified the Rome Statute, the treaty that created the court. While Ms. Bensouda’s office can ask the court’s judges to issue arrest warrants, it must rely on the willingness of host countries to enforce them.
The prosecutor can also pursue crimes in countries that have not signed the Rome Statute — if requested by the Security Council, as happened in Sudan and Libya, for example. By contrast, the prosecutor has no authority to prosecute crimes in the Syria conflict because the Security Council has not requested it.
Ms. Bensouda said she had endured constant and sometimes angry queries about the court’s effectiveness, particularly about why she had not prosecuted atrocities in the Syria conflict, where near daily accounts of massacres and extrajudicial killings have become almost routine. (The violence there led to an extraordinary letter sent on Monday, signed by more than 50 countries, exhorting the Security Council to request a prosecution.) “What has to be recognized is that even though we are a judicial institution, we operate in a political environment, whether we like that or we don’t,” she said. “Those who do not understand the limitations of the I.C.C. jurisdiction — they are the ones who think the I.C.C. is picking and choosing.”
WHILE many African leaders welcomed her appointment — the African Union put her forward as its preferred candidate — she is not universally admired. Lawyers who have worked with Ms. Bensouda say she is less gifted as a trial lawyer and more appreciated for her affable personality and organizational skills.
One of the court’s fiercest critics, President Paul Kagame of Rwanda, has expressed little confidence that Ms. Bensouda, whom he knows because of her work on the 1994 Rwanda genocide prosecutions, would expand the court’s focus beyond Africa. He suggested she was little more than a disciple of Mr. Moreno-Ocampo, an Argentine who appointed Ms. Bensouda as his deputy in 2004 and who was widely disliked and mistrusted in Africa for what critics called his unfair preoccupation with crimes on the continent.
“The worry isn’t whether the person sitting there is black or white or yellow or anything,” Mr. Kagame said when asked about Ms. Bensouda while visiting the United Nations General Assembly in September. “To me that is irrelevant. What is important is the institution.”
Ms. Bensouda rejects such criticism. In an interview last year with New African Magazine, she enumerated the preliminary criminal inquiries by her office under way in Afghanistan, Georgia, Colombia and Honduras as evidence of the court’s scope. “What offends me the most when I hear criticisms about this so-called Africa bias is how quick we are to focus on the words and propaganda of a few powerful, influential individuals, and to forget about the millions of anonymous people who suffer from their crimes,” she said.
Legal experts on Africa speak respectfully of Ms. Bensouda despite her links to Gambia’s president, Yahya Jammeh, a mercurial autocrat who took power in a 1994 coup and appointed her as justice minister in 1998. They had a falling out two years later, and she was dismissed.
Chidi Odinkalu, senior legal officer for the Africa Program of the Open Society Justice Initiative, a private legal and human rights group, said Ms. Bensouda was “the only person I know who kept her reputation” after having associated with Mr. Jammeh.
Ms. Bensouda declined to comment on him, but acknowledged being asked about human rights in her native country.
“I do not think that it is right for me to start giving opinions about the human rights situation of any country, including Gambia, except when those crimes translate into the crimes that I have to investigate.”
Marlise Simons contributed reporting.