Bensouda vs. Othman for ICC Prosecutor (and Bensouda Should Win)

by Kevin Jon Heller

The ICC has announced that the Assembly of States Parties has eliminated Andrew Cayley and Robert Petit from consideration as Moreno-Ocampo’s replacement:

The Assembly of States Parties of the International Criminal Court (“the Assembly”) will hold its tenth session at the United Nation Headquarters in New York from 12 to 21 December 2011.

The tenth session will be marked by elections, which will significantly change the composition of the Court. The Assembly will elect a new President of the Assembly of States Parties for the tenth to twelfth sessions (2011 – 2013). Ambassador Tiina Intelmann (Estonia), was recommended for the post by the Bureau in July. She will replace Ambassador Christian Wenaweser (Liechtenstein).

The Assembly will further elect the Prosecutor who shall hold office for a term of up to nine years and shall not be eligible for re-election. As mandated by the Rome Statute, every effort shall be made to elect the Prosecutor by consensus. The four shortlisted candidates recommended by the Prosecutor Search Committee are: Ms. Fatou Bensouda (Gambia), Mr. Andrew T. Cayley (United Kingdom), Mr. Mohamed Chande Othman (United Republic of Tanzania), and Mr. Robert Petit (Canada).

After informal consultations among States Parties, it was decided to narrow the list to two candidates: Ms. Fatou Bensouda (Gambia) and Mr. Mohamed Chande Othman (United Republic of Tanzania). At the 1 December informal consultations, to be held in New York, States Parties will see if there is consensus on one candidate.

I am surprised that Cayley was eliminated — I think he would have made an excellent Prosecutor.  But, of course, it was always unlikely that a non-African candidate would be elected, especially when the final list included two Africans who were very well qualified for the position.

That said, I still think Fatou Bensouda is the clear choice for the next Prosecutor.  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.  Having spoken to numerous individuals involved in the ICC, from OTP staff to legal officers in Chambers to defense attorneys, it is clear that Bensouda was the primary reason that the OTP didn’t fall completely apart over the past eight years.

I have also had the good fortune to spend time with Bensouda over the past couple of years.  She is, to put it mildly, an incredibly impressive woman: smart, articulate, thoughtful (a welcome change from Moreno-Ocampo), and compassionate.  And her pre-ICC credentials are stellar, including significant posts at both the international level and in her native The Gambia:

Senior Legal Adviser at the International Criminal Tribunal for Rwanda (ICTR); Legal Adviser and Trial Attorney at the ICTR; Attorney General and Minister of Justice of the Republic of The Gambia; Solicitor General and Legal Secretary of the Republic of The Gambia; and Deputy Director of Public Prosecutions of the Republic of the Gambia.

Othman also has excellent credentials — although his role as Prosecutor General of the United Nations Transitional Administration in East Timor (UNTAET) has to count against him somewhat; the Special Panels for Serious Crimes were a fisaco.  But there is only one clear choice for the next Prosecutor, and that is Fatou Bensouda.

Fingers crossed.  We should know in early December.

10 Responses

  1. I have to admit, I’m unsure what it means that Petit and Cayley, after “informed consultations with States Parties”, withdrew. I look forward to reports on what issues these consultations considered, which States Parties participated, where they occurred, etc. But, for now, it’s hard not to see this as purely political.

  2. MK,

    You know I love a good conspiracy theory, but I think you’re reading too much into the “informed consultations.”  My guess is that informal polling indicated that Cayley and Petit simply did not have the support of enough States Parties to justify keeping them in the race — thus making it desirable to withdraw their names, so their supporters could choose a second-choice candidate from among Bensouda and Othman.

    Besides, when was an ASP election not “purely political”?

  3. Fair enough on all counts, Kevin. My question stems from a more general desire and curiosity to understand how the ICC actually works in practice. I’d still be interested in knowing how these decisions are reached but understand the risk of reading too much into it. 

    As for the political nature of the election, I completely agree with you. But, somewhat ironically, the decision for the only non-African candidates to step down actually removes the most political aspect of the election – where candidates are from.

  4. Response…
    If you read the statement from the ASP president – on the CICC or ICC websites you will see how the governments narrowed the choice to 2 of the 4 commended by the Search Committee.  The governments conducted regional ‘polling’ and the two African canidates had the most support reportedly – indeed, many governments indicated ‘either’ in terms of preference among the two.  But, the ASP president is continuing to pursue a ‘consensus’ candidate and we will know by Thursday morning if that happens.

  5. Bensouda was a done deal long time ago. Despite their excellent qualifications Cayley and Petit never stood a chance, because they are not African. African states, constituting the majority of the ASP, clearly indicated that they will not accept a non-African prosecutor with so many cases popping up in the continet. On top of that, with many years in the Hague, Bensouda had more than enough time to do all the lobbying for herself.

  6. VOB,

    Perhaps you know her better than I, but I have a very hard time imagining Fatou lobbying for herself…



  7. I fully agree with Kevin Jon Heller, but I wonder whether he will be happy about  my agreement…  As I wrote in another place (Ejiltalk):

    1. There is an overwhelming political need for an African prosecutor. Such need – we are speaking about the ICC’s credibility and acceptance – is paramount, more than personal juridical capability. If and when both match, fine.

    2. The next prosecutor must be more of a team player than flamboyant and ego-heavy Moreno-Ocampo was. Fatou Bensouda indeed would fit the bill.

    3. The OTP has suffered greatly under its incompetent Common Lawyers. There are still too few Civil lawyers in the office, and the frequent (lack of) quality of the prosecution’s briefs and applications sadly shows this deficiency. But as much as I would like to see another prosecutor coming from the Ius Commune culture, the statistical distribution of the staff here would be more important than the figure-head.

  8. I am hearing it’s a done deal – apparently Othman has dropped out and Bensouda is the consensus candidate.

Trackbacks and Pingbacks

  1. […] Earlier this week, the ICC announced that the four short-listed candidates (Robert Petit of Canada; Andrew Cayley of the UK; Mohamed Chande Othman of Tanzania; and Fatou Bensouda of Bambia), had been whittled down to two. […]

  2. […] Earlier this week, the ICC announced that the four short-listed candidates (Robert Petit of Canada; Andrew Cayley of the UK; Mohamed Chande Othman of Tanzania; and Fatou Bensouda of Gambia), had been whittled down to two. […]