The Case Against Fatou Bensouda by Mary Serumaga [657 words]
Now that the Russell Tribunal has carried out an investigation of the actors in ‘Operation Protective Edge’ and found evidence of incitement to genocide, crimes against humanity and war crimes, it is time the Prosecutor of the ICC begin her own investigation with a view to bringing the perpetrators to trial.
The impression is widespread that the Prosecutor can only investigate if the Palestinian Authority accedes to the Rome Statute. This is not so. Israel would be obliged to accept the jurisdiction of the ICC by virtue of being a signatory to the Rome Statute and if the crimes were committed either in the signatory State, per Article 12(a) or by nationals of the signatory State per Article 12 (b). In fact the only action a non-signatory State (here, Palestine) would be obliged to take in order to receive justice would be to make a declaration to the Court accepting the jurisdiction of the Court with respect to the crimes in question. And this only if Article12(a) and 12(b) are not satisfied.
Note the alleged crimes in question were committed by Israeli nationals, satisfying 12(b). Others, such as incitement to genocide were committed in Israel and involve public statements by opinion leaders. This satisfies 12(a).
There is another widespread erroneous impression or belief that the Prosecutor can only initiate an investigation if the Gaza situation is referred to her by the victim State, i.e. Palestine. The story goes that because the Palestinian Authority has not acceded to (i.e. signed) the Rome Statute, complaints about violence to Palestine cannot be received, much less investigated. Wrong. The Prosecutor may initiate an investigation once a situation is referred to the ICC by a signatory State, any signatory State. It makes you wonder why all those African leaders who fulminate about Gaza and the alleged racism of the ICC but do not make formal referrals about Gaza to the Prosecutor.
Additionally, the Prosecutor herself may initiate an investigation on her own initiative. In doing so she may rely on evidence received from anywhere, even the Russell Tribunal on Palestine. Article 15 needs to be quoted here, “The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court. So, during such an exercise the Prosecutor is empowered to receive testimony from witnesses, much as the Russell Commission has done. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”
Finally, the Rome Statute empowers individuals to write directly to the Prosecutor in what are called Communications. While the Court considers whether or not to allow the investigation to continue, the Prosecutor is further empowered to continue collecting evidence which might otherwise be lost. At the end of her investigation the Prosecutor may conclude the case is not serious enough to be heard by the ICC or she may find the defendants (here Israeli leadership) is carrying out its own independent investigation which will suffice. Article 53 allows her to shelve the matter if she believes “there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” Her findings must be communicated to the pre-trial chamber. What she is not entitled to do is to maintain a supercilious silence in the face of slaughter of innocents in Gaza or anywhere else.
If Prosecutor Fatou Bensouda’s hands are tied and she cannot investigate, they are not tied by the Rome Statute. She must have other difficulties.