At the time I wrote the piece, the Chief Prosecutor challenged her critics to a 'legal debate'. I have no record that such a debate has taken place. I also said at the time that Samantha Power, who was nominated to the UN Ambassador post by President Obama to replace Susan Rice, may be supportive of the Chief Prosecutors in the face of an increasingly hostile AU. Ms. Power is now fully in charge and I expect her to weigh in on the side of the ICC even though the US is not a member of the ICC.
Below is the editorial first published on 6ht June 2013
In Summary:Equally worrying is Jammeh’s seemingly wishy-washy and wobbly stance against his own hand-selected candidate for the job. Theories abound about why Jammeh seemed to have been undermining the Gambian Chief Prosecutor so openly, I do not subscribe to the view by those who believe he’s convinced he’s most likely the next victim to be claimed by the ICC. I am of the view that despite the massive human rights abuses committed under the Gambian leader’s stewardship, and as heinous as they may be, The Gambia’s case does not seem to cross the legal threshold for crimes against humanity as established under the Rome Statute. Any legal recourse against Jammeh will, in my view, has to be taken within Gambia’s borders by special courts set up to judge those brought before them – these courts will necessarily be staffed by foreign judges, preferably with UN and/or Commonwealth support. --- Sidi M. Sanneh
Guest Editorial: ICC Chief Prosecutor thrown to the Wolves by AU and Jammeh?
I hope the ICC Chief Prosecutor, Mrs. Fatou Bensouda, did not take her recent elevation to the post as a routine progression up the promotion ladder. There is nothing normal about her climb up the international bureaucracy because it involves different players from across the globe with different ideas about what her job entails, and what it doesn't entail. They voted her in (or out) with different agendas in mind.
Her elevation to the position was primarily a political act fraught with pitfalls and intrigues. She’s, of course, not new to the international organization scene and hopefully, she has sharpened her political and diplomatic skills in the process to survive the onslaught. She will need all the skills she can garner to succeed, and she cannot succeed without political support from the African Union and, to some extent, Gambia’s leader, Yaya Jammeh.
The Chief Prosecutor’s recent election was assured because of the solid backing from Africa’s premier political organ, the African Union and from her home Government. Without these two sponsors, the British and the Tanzanian governments would have mounted a formidable fight for their candidates who were equally qualified with solid international prosecutorial backgrounds of their own. The British candidate was, for all intents and purposes, out of the running by virtue of being a non-African, and the Tanzanian for being of the right Continent but in the wrong place as Chief Justice of the Supreme Court of Tanzania. If he were the Deputy to Luis Moreno Ocampo, the former ICC Chief, he most certainly would have been elected with equal ease.
I believe Mrs. Bensouda to be eminently qualified academically with the requisite experience of several years as Deputy to Luis Ocampo. With the AU and many African States demanding that an African replaces the outgoing Chief prosecutor because the majority of those brought before the Court were Africans, Mrs. Bensouda was ideally placed to assume the post. Her gender certainly was not an impediment, if not a catalyst.
As the consensus candidate, her candidature was embraced and vigorously promoted by the African Union, the Gambian leader and most, if not all, of the signatories to the Rome Statute. However, sooner did the African Union succeeded in getting her elected to the post, than the fault lines began to emerge within the membership – a membership made up of democrats, democrats wannabes and true, tried and tested despots, with some— though few— of the most corrupt and human rights abusers among them.
Although the latter category is by no means in the majority, they represent a handful of misfits with a disproportionate ability to attract media attention for their gruesome misdeeds and insatiable appetite for the good and flamboyant life-styles. The “flamboyant life-style” bit does remind Gambians of the regime change justification advanced by the “soldiers-with-a-difference” as justification for grabbing power from a democratically elected government almost two decades ago. It so happens that the last soldier standing from the original group of misfits who seized power in The Gambia in 1994 was among the Heads of State and Government critical of the ICC Chief Prosecutor of “hunting down” Africans.
The brouhaha in Addis Ababa on the 50th Anniversary of the OAU-AU was about the handling of the case of the current President of Kenya by the ICC who was indicted, together with his Vice President Ruto for their alleged roles in the 2008 tribal conflicts resulting in many deaths over election results. By criticizing the head of the ICC in her handling of the Kenya case in accordance with the Rome Statute, the AU is undermining the work of the very candidate they fought so hard to get elected in the first place to the position.
Equally worrying is Jammeh’s seemingly wishy-washy and wobbly stance against his own hand-selected candidate for the job. Theories abound about why Jammeh seemed to have been undermining the Gambian Chief Prosecutor so openly, I do not subscribe to the view by those who believe he’s convinced he’s most likely the next victim to be claimed by the ICC. I am of the view that despite the massive human rights abuses committed under the Gambian leader’s stewardship, and as heinous as they may be, The Gambia’s case does not seem to cross the legal threshold for crimes against humanity as established under the Rome Statute. Any legal recourse against Jammeh will, in my view, has to be taken within Gambia’s borders by special courts set up to judge those brought before them – these courts will necessarily be staffed by foreign judges, preferably with UN and/or Commonwealth support.
Jammeh’s support of the AU position that the Kenya case should be referred to Kenya for Kenyatta and Ruto to be tried locally is an expedient move designed to appease his colleagues who are increasingly distancing themselves from him. Jammeh needs all the friends he can get regionally as he gets increasingly isolated internationally. Whether this strategy will work in his favor remains to be seen. While Jammeh struggles to remain relevant and a relevant player on the continent, the Chief Prosecutor is busy trying to starve off the political onslaught unleashed by the African Union with the tacit support of Jammeh.
Faced with a barrage of criticisms from her AU constituents of her handling of the Kenyatta case, Mrs. Bensouda is left with no option but to come out fighting to maintain the independence of the ICC from political pressure by inviting her critics to a “legal debate”, which is a mild criticism of the AU and other critics of engaging in politics instead of considering the legal merits of the Kenya case. She accuses her critics of defending “perpetrators of war crimes and crime against humanity”. She claims to know “the voices” who are more interested in protecting the perpetrators rather than the victims of these heinous crimes. Why should Kenyatta be treated any differently?
Lost in all of this is the fact that when Kofi Annan gave the names of those culpable in the 2008 death and carnage following the elections he gave them a choice of going to The Hague or being tried in Kenya. They chose The Hague. When The Hague issued summonses, they quickly went into reverse. The two probably never thought it would come to this.
I think the Chief Prosecutor is on a sound legal footing however unpopular the case may be among African Heads of State. However, I wish the same could be said regarding her political footing especially, when you are against the African Union which is a political organization full of intrigues, and not to speak of Jammeh, himself an unsteady and highly unpredictable character to be a true friend of anyone.
However, all is not lost. Assuming she’ll be confirmed by the Senate, President Obama's nominee to replace Susan Rice as his new U.N. Ambassador will be, Samantha Power, a human rights and genocide expert who could prove to be a valuable ally of the ICC Chief Prosecutor even though the United States is not signatory to the Rome Statute. The ICC Chief will need all the political allies she can garner outside of the AU to survive the political onslaught coming her way as she moves forward with current and future cases involving Africans.
Postscript: This article was written before the ICC Chief Prosecutor challenged her critics to a 'legal debate' and after the nomination of Samantha Power by President Obama to be the next U.S. UN Ambassador changing the dynamics, somewhat.