Nelson Mandela Foundation

Fatou Bensouda Nmal 2021 2

Madame Fatou Bensouda was the chief Prosecutor of the International Criminal Court in The Hague from 2011 to 2021. She delivered this year’s Nelson Mandela Annual Lecture, where she spoke on themes of the rule of law, international criminal justice and its contribution to sustainability development. Her focus was on peace, justice and accountability.

On 24 August 2021, a day before the lecture, I hosted a Twitter Space about international criminal law and the International Criminal Court. I was in conversation with two incredible women who have been writing and thinking about international law. 

My first accomplice was Dr Yassin Brunger, who is a lecturer in Human Rights Law at Queen's University, Belfast, and Co-Director of the faculty-wide Qub Gender Network. She is also a Fellow at The Senator George J Mitchell Institute for Global Peace, Security and Justice. My second accomplice was Prof Ntombizozuko ‘Zozo’ Dyani-Mhango, a professor in the Department of Jurisprudence and Head of the Public Law Department at the University of Pretoria, whose writing primarily focuses on international constitutional law and international criminal law. They both looked forward to hearing what Madame Bensouda was going to say about the rule of law, international criminal justice and sustainable development.

The second Twitter Space I hosted took place after the lecture, and included Dr Brunger and PhD candidate Kelly-Jo Bluen, whose research examines the colonial, raced and racist narratives and materialities of atrocity crimes and international criminal justice in international relation.

"There can be no justice without the rule of law

Madame Bensouda spoke about notions of justice and law and it was her statement about no justice without the rule of law that intrigued me: "I do not think that justice cannot exist without the rule of law."

Law was created and continues to be created by certain people, law has and continues to be used to criminalise and dehumanise certain classes of people, law is often acontextual, ahistorical, colour blind and gender blind. And in a place like this, how can we say that there is no justice without the rule of law? What do we mean when we talk about justice? We often say that we want the criminal law to be victim-centred but we seldom ask the victims what they want and what justice looks like for them. Does it look like a conviction? Or does it look like something else?

Justice for me is the victims of crimes deciding what they want to happen to the perpetrator. And often that does not accord with the rule of law. So, it is not true to suggest that there can be no justice without the rule of law? As Kelly-Jo Bluen said, “Law can be a tool of injustice. Law itself can be a sight of injustice. Law is not necessarily a tool of justice.”

Ungendering gender

As a gender scholar and activist, I was particularly struck when Madame Bensouda spoke about gender parity. What was underneath that was the ‘woman question’.  She said:

“A just and equitable society is one which prioritises among other things, education on human rights and gender equality, equal access to education, zero-tolerance for discrimination against women and girls, non-discriminatory laws and policies… We have a collective responsibility to advance gender parity in Africa and beyond.”

While it is important to highlight the ways in which women and girls are marginalised, it is also important to talk about the use of the term ‘gender’ to refer to women. Gender is for all of us, gender equality is for all of us. When we acknowledge this, we can begin to have fruitful conversations pertaining to gender and how it maps on bodies. We will begin to include non-binary people in our welcoming, it will not only be ladies and gentlemen, it will be good evening everyone because we, too, are worthy of being seen and welcomed. 

There has been much discussion and reflection on the recent unrest in South Africa and many people have called the people involved in the unrest looters. I do not like the term. I always return to James Baldwin, who spoke about looting in the United States and said:

The mass media-television and all the major news agencies-endlessly use that word “looter”. On television you always see black hands reaching in, you know. And so the American public concludes that these savages are trying to steal everything from us, and no one has seriously tried to get where the trouble is. After all, you’re accusing a captive population who has been robbed of everything of looting. I think it’s obscene.

And I return to this again as I was listening to Madame Bensouda when she spoke about the unrest, she said, that the expanding wealth gap is a clear pointer that we must work towards a progressive economic model that levels the playing field. Madame Bensouda’s framing reminds us that there is a large problem in place – the expanding wealth gap and the legacy of apartheid – that needs our urgent attention.

“When leaders sabotage their own countries, do they not have future generations in mind? This short-sightedness fails to foresee the ripple effect of their actions, not only on themselves but on the people whom they took an oath to serve.” – Madame Fatou Bensouda

These words are ones I remember from her lecture and I would say are apposite, especially in a moment in which people are dying as a result of greed, corruption, maladministration and short-sightedness in South Africa.

All in all, I enjoyed Madame Bensouda’s lecture. There were sprinkles of radical thought in it, and a glimpse of much needed hope.