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
Sec of State Pompeo said the US will take additional steps including economic sanctions against anyone in the ICC who acts against our allies. “Additional steps” do the Prosecutor and Judges have families? Do the US/Israel have a damning file on the Prosecutor about her work in the Gambia, no doubt? Is the Prosecutor going to arm and barricade herself and staff inside ICC HQ in the event of an invasion by US marines? The Prosecutor must realize by now the US and their Allies, notably Israel and Saudi Arabia are beyond International Law for all time, or until they cease being useful to the Empire.
U.S.: ‘Hague Invasion Act’ Becomes Law
U.S. President George Bush today signed into law the American Service members Protection Act of 2002, which is intended to intimidate countries that ratify the treaty for the International Criminal Court (ICC). The new law authorizes the use of military force to liberate any American or citizen of a U.S.-allied country being held by the court, which is located in The Hague. This provision, dubbed the “Hague invasion clause,” has caused a strong reaction from U.S. allies around the world, particularly in the Netherlands.
In addition, the law provides for the withdrawal of U.S. military assistance from countries ratifying the ICC treaty, and restricts U.S. participation in United Nations peacekeeping unless the United States obtains immunity from prosecution. At the same time, these provisions can be waived by the president on “national interest” grounds. https://www.hrw.org/news/2002/08/03/us-hague-invasion-act-becomes-law
The secretary of state said visas could also be withheld from ICC personnel involved in conducting probes of US allies, specifically Israel.
Pompeo said “implementation” of the policy has already begun but he did not provide any details, citing confidentiality surrounding visa applications.
“These visa restrictions will not be the end of our efforts,” Pompeo said. “We’re prepared to take additional steps, including economic sanctions, if the ICC does not change its course.”
https://www.theguardian.com/us-news/2019/mar/15/mike-pompeo-us-war-crimes-investigation-international-criminal-court#maincontent
For the record and reminiscent of Europe under the boot of the Nazis:
https://israelpalestinenews.org/human-rights-watch-92-page-report-israeli-suspension-of-palestinian-rights-is-unlawful-unjustifiable/?utm_source=mailpoet&utm_medium=email&utm_campaign=Latest+News
“Human Rights Watch 92 page report: Israeli suspension of Palestinian rights is unlawful & unjustifiable” If Americans Knew Blog, Dec. 17/19, reposted from Human Rights Watch,
https://www.hrw.org/news/2019/12/17/israel/west-bank-grant-palestinians-equal-rights#
“Human Rights watch says that 52 years into the Israeli occupation, its human rights suspension is unlawful and unjustifiable. The organization tells Israel: ‘Grant Palestinians Equal Rights.’”
(Jerusalem) – “Israel should grant Palestinians in the West Bank rights protections at least equal to those afforded Israeli citizens, Human Rights Watch said in a report released today, citing Israel’s 52 years of occupation with no end in sight. The law of occupation permits occupiers to restrict some civil rights in the early days of an occupation based on limited security justifications, but sweeping restrictions are unjustified and unlawful after five decades.
“Israel’s Use of Draconian Military Orders to Repress Palestinians in the West Bank.”
“The 92-page report, ‘Born Without Civil Rights: Israel’s Use of Draconian Military Orders to Repress Palestinians in the West Bank,’ evaluates Israeli military orders that criminalize nonviolent political activity, including protesting, publishing material ‘having a political significance,’ and joining groups ‘hostile’ to Israel. Human Rights Watch examined several case studies to show that Israel unjustifiably relies on these sweeping orders to jail Palestinians for anti-occupation speech, activism, or political affiliations; outlaw political and other nongovernmental organizations; and shut down media outlets.
“’Israel’s efforts to justify depriving Palestinians of basic civil rights protections for more than half a century based on the exigencies of its forever military occupation just don’t fly anymore,’ said Sarah Leah Whitson, executive director of the Middle East and North Africa division at Human Rights Watch. ‘Given Israel’s long-term control over Palestinians, it should at minimum allow them to exercise the same rights it grants its own citizens, regardless of the political arrangement in place.’
“Human Rights Watch conducted 29 interviews, primarily with former detainees and lawyers who represented them, reviewed military court indictments and decisions, and examined eight illustrative cases of activists, journalists, and other Palestinians detained under restrictive Israeli orders in the last five years. The report also reflects substantive responses to the findings from the Israeli army and police.
“In the lead-up to the report release, the Israeli government, rather than substantively responding to the Human Rights Watch report, has chosen instead to impugn a Human Rights Watch staff member.
“Other governments and international organizations concerned with the rights of Palestinians should endorse a civil rights framework to highlight the impact of Israel’s restrictive military orders in the West Bank and press Israel to grant Palestinians full civil and other rights at least equal to what it grants Israeli citizens, Human Rights Watch said. Those should supplement such protections under the law of occupation as the prohibition against building settlements, which remain in place so long as the occupation persists.
“The international law governing military occupation requires Israel as the occupier to restore ‘public life’ for the occupied Palestinian population. That obligation increases in a prolonged occupation such as Israel’s, as the International Committee of the Red Cross and Israeli Supreme Court have said and the Israeli government itself has acknowledged. The Palestinian population’s needs have increased over the decades while Israel has done far too little to develop more narrowly tailored responses to countering security threats that minimize rights restrictions.
“Suspending rights for a short period may temporarily disrupt public life, but long-term, indefinite suspension cripples a community’s social, political, and intellectual life. The longer an occupation, the more military rule should resemble an ordinary governing system that respects the standards of international human rights law that apply at all times. In cases of indefinite occupation, such as Israel’s, the rights granted to an occupied population should be at least equal to the rights afforded the occupier’s citizens.
“British Mandate-era regulations that remain in force in the West Bank and military orders that Israel has issued since it captured the West Bank in 1967 allow the Israeli army to strip Palestinians of basic civil rights protections. The regulations, for example, allow Israel to declare unlawful groups that advocate ‘bringing into hatred or contempt, or the exciting of disaffection against’ local authorities and to arrest Palestinians for affiliation with such groups.
“The military orders impose prison terms of up to 10 years on civilians convicted by military courts for influencing public opinion in a way that could ‘harm public peace or public order.’ A 10-year sentence can also be imposed on Palestinians who participate in a gathering of more than 10 people without a military permit on any issue ‘that could be construed as political’ or if they display ‘flags or political symbols’ without army approval.
“These sweeping restrictions apply only to the 2.5 million Palestinian residents of the West Bank, excluding East Jerusalem, but not to the more than 400,000 Israeli settlers in the same territory who fall under Israeli civil law. That law, which also applies in East Jerusalem – annexed by Israel, but still occupied territory under international law – and in Israel, much more robustly safeguards the rights to free expression and assembly.
“’Nothing can justify today’s reality where in some places people on one side of the street enjoy civil rights, while those on the other side do not,’ Whitson said.
“According to data it provided to Human Rights Watch, the Israeli army between July 1, 2014 and June 30, 2019 prosecuted 4,590 Palestinians for entering a ‘closed military zone,’ a designation it frequently attaches on the spot to protest sites, 1,704 for ‘membership and activity in an unlawful association,’ and 358 for ‘incitement.’
“In one example, the Israeli army detained Farid al-Atrash, 42, who works for the Independent Commission of Human Rights, a quasi-official body of the Palestinian Authority, for participating in a peaceful demonstration in Hebron in February 2016 that called for reopening a major downtown street to Palestinians. Military prosecutors cited provisions of military law that prohibit political gatherings, pointing to his ‘waving Palestinian Authority flags’ and holding a sign that read ‘Open Shuhada Street.’
“They also accused him of entering a ‘closed military zone,’ and ‘assault of a solider,’ but furnished no evidence of this offense. The authorities released him after five days, but continue to prosecute him more than three years later.
“Israeli authorities also rely on military orders to ban 411 organizations, including all the major Palestinian political movements, and to detain people affiliated with them. Israel’s association-based claims against one banned organization, al-Hirak al-Shababi, appear to focus on its protests against the Palestinian Authority, based on a review of an indictment against Hafez Omar, an artist in Israeli detention since March 2019. Military law affords no appeal of such bans.
“Prosecutors have cited the broad definition of incitement under Israeli military law to criminalize speech advocating resistance to the occupation, even when it does not call for violence. For example, they used the charge to justify detaining a 43-year-old activist, Nariman Tamimi, over a livestream she posted to Facebook of an encounter between her then-16-year-old daughter Ahed and Israeli soldiers in her front yard in December 2017.
“’Israeli military law in place for 52 years bars Palestinians in the West Bank from such basic freedoms as waving flags, peacefully protesting the occupation, joining all major political movements, and publishing political material,’ Whitson said. ‘These orders give the army carte blanche to prosecute anyone who organizes politically, speaks out, or even reports the news in ways that displease the army.’
“Excerpts from Selected Israeli Military Orders”
“’A person who organizes a procession, assembly or vigil without a permit, calls for or instigates their being held or encourages them or participates in them in any way … shall be liable for imprisonment for ten years or a fine of ten thousand liras, or both.’ Military Order 101
“’It is forbidden to hold, wave, display, or affix flags or political symbols, except in accordance with a permit from the military commander.’ Military Order 101
“’It is forbidden to print or publicize in the region any publication of notice, poster, photo, pamphlet or other document containing material having a political significance, unless a license is previously obtained from the military commander of the place in which it is intended to execute the printing or publication.’ Military Order 101
“'[T]he expression ‘unlawful associations’ means any body of persons … which by its constitution or propaganda or otherwise advocates, incites or encourages … the bringing into hatred or contempt of, or the exciting of disaffection against [local authorities].’ Defense (Emergency) Regulations of 1945 (enforced by the Israeli army)
“’A person who [a]ttempts, orally or otherwise, to influence public opinion in the Area in a manner which may harm public peace or public order, or … [c]arries out an action expressing identification with a hostile organization, with its actions or its objectives or sympathy for them, by flying a flag, displaying a symbol or slogan or playing an anthem or voicing a slogan, or any similar explicit action clearly expressing such identification or sympathy, and all in a public place or in a manner that persons in a public place are able to see or hear such expression of identification or sympathy – shall be sentenced to ten years imprisonment.” (Military Order 1651)
https://www.haaretz.com/opinion/editorial/israel-s-final-warning-from-the-icc-1.8295209
“Israel’s Final Warning From the ICC” Haaretz editorial, Dec. 22/19
“The decision of the Office of the Prosecutor at the International Criminal Court that there is a basis to investigate Israel on suspicion of war crimes, as well as Hamas and the Palestinian factions, should not have surprised anyone.
“During the five years in which the preliminary examination by ICC prosecutor Fatou Bensouda was underway, the Israeli government provided her with more and more material. The examination may have begun in the wake of the events of Operation Protective Edge in Gaza in 2014, but since then an endless number of incidents have been added to it. First on the list is the question of the firing at protesters along the border with Gaza. The question of the settlements, which never stopped expanding, was also placed on the doorstep of the prosecutor, with the most recent addition to this being Prime Minister Benjamin Netanyahu’s declared plans for annexation.
“Israel has demonstrated crude and continued contempt for international law. At the same time, in the absence of negotiations, Israel has pushed the Palestinians directly into the arms of international institutions. The only surprising thing is Israel’s own response. Attorney General Avichai Mendelblit rushed to release, just a moment before the prosecutor’s announcement, an urgent legal opinion whose main point was the old claim that the ICC does not have the jurisdiction to hear the matter because Israel never confirmed its membership in the treaty, and because Palestine is not a real state and therefore cannot provide the court with the criminal judicial authority required.
“These claims are well known to the international community and to the prosecutor and her staff. Moreover, the reliance on the claim of lack of authority is strange, to say the least. In practice, Israel does not deny the carrying out of war crimes but is focusing on the question of who is authorized to judge it, if at all, and accuses the ICC of politicization.
“Even harder to understand is the claim that the issue of the Israeli-Palestinian conflict must be left for dialogue and negotiations and the legal process will only harm it, while it is clear to all that there is no such process on the table because the Israeli government is not interested in it. Even more so, the government itself publicly expresses growing support for annexation. Israel’s lawyers also claimed that the Palestinians need to decide if they are a sovereign country – that can grant authority to the ICC – or occupied territory that does not have sovereignty. This is also an old and well-known legal argument, but ridiculous diplomatically: Israel is actually admitting in this that the Palestinians are under occupation and not sovereignty.
“The prosecutor’s decision is the final warning alarm for the Israeli government and its institutions that are interested in denying the reality of the occupation. In the next few months the court will decide whether to open an investigation. Alongside the fear of the possible results of the investigation, it is regrettable that Israel is not capable of recognizing the tragedy that it has brought upon itself through blindness and arrogance – the occupation and the settlements – and it is regrettable that only an external threat might open its eyes.
“The prosecutor’s decision is the final warning alarm for the Israeli government and its institutions that are interested in denying the reality of the occupation. In the next few months the court will decide whether to open an investigation. Alongside the fear of the possible results of the investigation, it is regrettable that Israel is not capable of recognizing the tragedy that it has brought upon itself through blindness and arrogance – the occupation and the settlements – and it is regrettable that only an external threat might open its eyes.”
Well, if what’s pompously called the Community of nations put what is essentially Africa’s Gina Haspel in charge of prosecuting crimes against humanity, there should be a reason, no? Like many other UN institutions (the organization to cover up chemical warfare by Our Guys springs to mind immediately when looking for an example), the International Criminal Court was set up to pacify the public but organized and manned to screw the same public.
Essentially it exists to do everything to give the lie to the promise by Justice Jackson that the US would hang its own, too, if found guilty of crimes against humanity — instead it is one more tool in the hands of the US and allied mass murderers against their enemies of the moment.
The court has been dragging its feet on this issue for years.
It is obvious that senior officials of the court are compromised, or intimidated or both.