As a young girl growing up in Gambia in the 1970s, the future chief prosecutor of the International Criminal Court watched a female relative being repeatedly beaten by her husband. The beatings happened week after week for four years. And week after week, Fatou Bensouda, who was 11 when the beatings started, would take her relative to the hospital to be treated for her injuries, and then the increasingly outraged girl would round on neighbors and family for doing nothing to protect the woman. Almost four decades later, Bensouda still remembers being told that "there was absolutely nothing my relative could do. The parents and the so-called elders would say [to her], 'He's your husband.' We even went to the police, [but] they said it was a civil matter. It was total helplessness." It was also a formative experience. "I was very, very angry about it — it really marked me," says Bensouda, barefoot and wearing a bright print dress at her modest home in the Gambian capital, Banjul. "I made up my mind that law was what I wanted to do in life. I used to go from school to the courthouses just to sit and watch the cases."
As an adult, that constructive outrage propelled Bensouda to the offices of Gambia's Minister of Justice and then on to an advisory role at the International Criminal Tribunal for Rwanda in Arusha, Tanzania, before joining the International Criminal Court (ICC) in the Hague as its inaugural deputy prosecutor in 2004. She will take over from Luis Moreno-Ocampo as chief prosecutor on June 16.
The ICC was set up to try the worst crimes, like genocide, and — since many of the worst criminals are despots who control national courts — to provide a venue where those criminals can be called to account. The international court was a natural fit for Bensouda, now 51. "Human rights are inherent rights," she says. "You ought to be able to have justice if those rights are violated."
Lofty ideals, no doubt. But as a practical tool of justice, in the 10 years since the Rome Statute established it and in the seven years since it became operational, the ICC has disappointed. There are atrocities aplenty from Syria to Sudan, Colombia to North Korea. But the ICC has managed just one conviction — in March this year, of a lesser Congolese warlord, Thomas Lubanga, on charges of using child soldiers. Indicted leaders such as Sudanese President Omar Hassan al-Bashir and the Ugandan Lord's Resistance Army leader Joseph Kony are still at large. Many more leaders are never even indicted.
To an extent, the ICC's attempts to extend international justice to the world were undermined from the start by a set of founding statutes that made it subservient to national powers. The ICC has no police of its own and has to rely on national forces to serve its indictments. The rules under which it operates mean it can only rarely be proactive; mostly it must be asked to intervene, either by the country in question or the U.N. Security Council. Even membership itself is voluntary. Zimbabwe and Syria have not signed the Rome Statute, as you might expect, but neither have major powers like China and the U.S.
But the ICC has scored own goals too. Justice has rarely been this slow or expensive. Lubanga was arrested in 2006. With suspects and witnesses flown in from around the world and accommodated for months or even years in a foreign country, each ICC trial costs tens of millions of dollars. And even though war crimes are committed all over the world, the ICC's indictments have sparked accusations of Western discrimination. Though investigations are more widespread, the combination of war, bad leaders and impunity in many African countries means that all six indictments issued so far are against Africans.
If international justice is to thrive, costs must fall and caseloads must rise. In particular, with a dozen conflicts on the continent, says John Prendergast, a co-founder of Africa-rights group the Enough Project, "African support is critical." That's one reason for the excitement over Bensouda. Moreno-Ocampo, who issued the six African indictments, is an urbane and mercurial Argentine, Western in appearance and manner. In contrast, Bensouda is an African, a lawyer with extensive experience in African justice and a woman from a continent still too often ruled by Big Men, many of whom use rape as a weapon of war. All that makes it hard to accuse her of being imperialist, as Moreno-Ocampo was said to be, when she says, "If there is one continent that needs accountability and justice, it is Africa."
Ultimately, however, if the ICC is to be accepted by all, its chief prosecutor must be seen as fair to all. "Being an African woman in this position is important. [But that] does not mean I will be the prosecutor for Africa. I will go where crimes are committed. No matter who they are, no matter how far they run, sooner or later they will all face justice."