Yesterday’s announcement by the International Criminal Court’s Chief Prosecutor, Fatou Bensouda, to conduct a full investigation into war crimes in Occupied Palestinian Territories, is the news.
Yet despite the enthusiasm of many concerning the highly-delayed decision (following a 5-year preliminary investigation), there was also bewilderment and disappointment that the decision did not lead straight into an active full-investigation phase. No, Bensouda referred the case to a Pre-trial Chamber, for it to adjudicate on the question of “territory”. From Bensouda’s statement:
As there has been a referral from the State of Palestine, there is no requirement to seek Pre-Trial Chamber’s authorisation before proceeding to open an investigation, and I do not seek to do so.
However, given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, I deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.
Earlier today, I therefore requested from Pre-Trial Chamber I a jurisdictional ruling on the scope of the territorial jurisdiction of the International Criminal Court (“ICC” or the “Court”) under article 12(2)(a) of the Rome Statute in Palestine.
Specifically, I have sought confirmation that the “territory” over which the Court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza. Such determination is made strictly for the purposes of determining the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute.
But it ought to be clear to anyone that the territory is, as noted: the West Bank, including East Jerusalem, and Gaza. Why does Bensouda feel a need to ask this question once again?
The State of Palestine wondered too, in its official press statement:
The State of Palestine notes that the Office of the Prosecutor already stated that it has jurisdiction over the entirety of the Occupied Palestinian Territory and that there are reasonable basis to believe that crimes have been committed therein. In this regard, the State of Palestine views this request as seeking a confirmation of the position already reached by the Office of the Prosecutor on jurisdiction.
The State of Palestine will partake in the judicial process to reaffirm that this matter is already clearly settled as a matter of international law. The Office of the Prosecutor has jurisdiction over the occupied territory of the State of Palestine, given that Palestine is a State Party to the Rome Status and that the State of Palestine granted the Prosecutor jurisdiction to look into crimes committed in its territory.
Kenneth Roth of Human Rights Watch also voiced his critique:
The prosecutor should have proceeded directly with a formal probe as was within her power to do.
Three Palestinian NGOs, Al Haq, Al Mezan and Palestinian Centre for Human Rights, also commented on this point:
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC [Pre-trial Chamber], that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory. To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation. This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Indeed, this “just a moment” is maddening.
It should come as no surprise that the court is allowing the Israeli propaganda machine to go into overdrive. Prime Minister Benjamin Netanyahu says the prosecutor’s decision “has turned the International Criminal Court into a political tool to delegitimize the State of Israel”, that “the prosecutor has completely ignored the legal arguments we presented to her”, and that Bensouda is ignoring “the truth when she says that the very act of Jews living in their ancestral homeland, the land of the Bible, that this is a war crime.” I mean, this mythical schmaltz can’t really be taken seriously.
Nor does it come as a surprise that Israel’s official legal opinion published yesterday just ahead of the ICC announcement, claims that the court has no legal jurisdiction over Occupied Palestinian Territories (which Israel does not even fully consider occupied).
All this is known and has already been resolved by the court. Israel’s positions are in broad opposition to international law, and this is part of the whole point – Israel regularly defies international law with impunity, and that needs to stop.
So then, why drag feet? Why not proceed directly with a full investigation?
The answers concerning this foot-dragging may lie elsewhere, deep inside the recesses of the soul of Fatou Bensouda. John Dugard, who is Professor of International Law and former UN Special Rapporteur on Palestinian territories, has recently opined that the explanation to Bensouda’s hesitations are related to her past “abuses” as Justice Minister in The Gambia, and suggested that she has been blackmailed.
“It is the fear that further abuses may be revealed by Israel if she initiates an investigation may well be the inarticulate factor in her decision not to investigate Israel.”
It should be noted that Dugard published his statement on December 5, ahead of yesterday’s ICC announcement:
Are there factors in her life-history, particularly in The Gambia, that may provide some indication of inarticulated reasons for her decision to protect Israel from investigation?
Between 1987 and 2000 Fatou Bensouda was Principal State Counsel, Deputy Director of Public Prosecutions, Attorney General and Minister of Justice, and Chief Legal Advisor to the President and Cabinet of the Republic of The Gambia. From 1994 to 2016 The Gambia was under the brutal dictatorship of Yahya Jammeh. Repression was the order of the day as human rights were vigorously suppressed. The Minister of Justice could not remain aloof from this. That she was involved in this process of repression has become clear from evidence before The Gambian Truth, Reconciliation and Reparations Commission (TRRC). Two men, Batch Samba Jallow and Sainey Faye have recently testified that she was complicit in their brutal torture, long detention without trial and denial of legal representation. This has led two Venezuelan lawyers to lay a complaint with the head of the Independent Oversight Mechanism (IOM) of the ICC that claims that she is unfit to hold the office of Prosecutor. Fatou Bensouda is not on record as having criticized or distanced herself from Yahya Jammeh.
These complaints call for a serious and urgent investigation into the fitness of the Prosecutor to hold office. It is the fear that further abuses may be revealed by Israel if she initiates an investigation may well be the inarticulate factor in her decision not to investigate Israel.
In South Africa, during the apartheid era, legal scholars invoked the methods of the American legal realists to expose the inarticulate premises of white judges who routinely delivered racist and pro-executive decisions. This led to a heightened awareness on the part of judges of the nature of the judicial decision and resulted in more fair and independent decisions. American legal realism is a powerful antidote in an unjust and corrupt system. It might profitably be employed in an examination of the work of the Office of the Prosecutor of the ICC.
Dugard said that the prosecutor’s staff might be afraid of losing ability to travel, or get jobs, if they pursued an investigation.
As most members of the OTP [Office of the Prosecutor] staff have limited tenure and are required to consider their next professional post there is inevitably the fear that future job opportunities may be jeopardized by a decision to investigate Israel which will be interpreted by potential employers as a sign of anti-Semitism. There is also the fear that this may result in refusal of entry to the United States. Most European states view Israel as part of the European alliance (hence its inclusion in WEOG, the group of Western European and Others Group in the United Nations) and therefore as a state exempt from investigation by the ICC . Failure to respect this “given” may understandably be seen as an obstacle to future employment.
Fatou Bensouda’s term as Chief Prosecutor of the ICC is soon to expire – in 2021. There has been huge pressure upon her to finally act on the case of Palestine. While she apparently felt compelled to do so, perhaps so as not to appear as completely failing her job, her current referral of the “question” concerning “territory” to the Pre-trial Chamber risks dragging this process out by months, maybe even years. This, despite Bensouda’s instructions to the Pre-trial Chamber to act “as swiftly as possible” and to rule “expeditiously”.
Bensouda’s past provides worrying indications concerning speed. John Dugard:
[T]he Prosecutor had already conducted a preliminary examination into the situation in Palestine in 2009, which was discontinued in April 2012, and into the Gaza Flotilla situation from 2013. This means that the OTP has been conducting a preliminary examination for ten years into a situation on which there are four Human Rights Council independent fact-finding mission reports, an advisory opinion of the International Court of Justice, resolutions of the Security Council and General Assembly, numerous Israeli, Palestinian and international NGO reports , extensive TV coverage and video recordings depicting and testifying to war crimes and crimes against humanity.
The impatience with the ICC and Bensouda has been growing, and the recent announcement to principally fully investigate is a step forward, which was necessary to indicate some movement at all. Yet the unnecessary “question” seems to halt this movement once again. Hopefully, the movement towards Israeli accountability will continue, with Bensouda, or after her term expires, because it’s been way too long.
Thanks to Allard De Rooi, Francois Dubuisson