Bensouda downplays US, Israel controversies in speech

Written by on February 17, 2021

In a virtual conference speaking to the Institute of International and European Affairs on Wednesday, International Criminal Court prosecutor Fatou Bensouda tried to play down the controversies with the US and Israel.

While Bensouda spent around 20 minutes discussing the importance of the ICC for the world’s past and future, and rattled off various accomplishments, she spent only a few minutes near the end of her speech relating to these two major issues.

The ICC chief prosecutor is already in the middle of a full criminal war crimes probe of US treatment of terrorist detainees in Afghanistan during the post-9/11 era.

On February 5, she received permission to open a full criminal war crimes probe against Israelis’ conduct during the 2014 Gaza war, in the settlement enterprise, and during the 2018 Gaza border conflict.

During her comments on Wednesday, she said that her office is “carefully assessing documentation from the government of Afghanistan” in which it argues that the ICC should stay out of US-Afghan issues and “defer to its national investigations.”

The US has taken a similar position, under both the Trump and Biden administrations, though the Biden administration is expected to try to have much more positive engagement with The Hague court in general.

In other comments, she said regarding “Palestine, the judges of the Pre-Trial Chamber recently rendered a decision by the majority, clarifying the court’s jurisdiction regarding territory. We welcome this judicial clarity. My office is currently analyzing the decision and then will decide the next steps.”

Without addressing specific points or listing off the critics she has faced in Israel, the US, Germany, Canada and a number of other countries, she defended the decisions generally, saying: “My office conducts activities with the utmost professionalism and independence… is focused on the evidence.”

She added, “Not least, given the political environments in which our cases operate, there is increasing evidence that ICC decisions are likely to change the calculus of would-be perpetrators. ICC jurisdiction contributes to ensure greater awareness and readiness to ensure accountability for human rights protection.”

Moreover, she said that the ICC’s positive impact on deterring future war crimes “goes well beyond the courtroom,” while almost pleading with the ICC member states that, “for the court to function effectively… it needs to have the support and cooperation from its state parties to the [ICC’s Rome] Statute.”

Most of her talk detailed how hard it was to get the nations of the world to agree to establish the ICC and what she thought the organization’s broad future would look like.

She said that it became possible only after the end of the Cold War and after the world, and especially Europe, was horrified by two genocides – in the former Yugoslavia and in Rwanda – occurring within a few years of each other in the 1990s.

Despite the ICC’s creation, Bensouda mused that increasing nationalism and violence worldwide leave significant doubt about whether the nations of the world would have cooperated to establish the ICC in the current environment, had it not already existed.

Rather than zoning in for too long on the US and Israel, her main focus was the broader threat that she “observes with concern in this new century – threats to multilateralism and to the post-World War II based order… the rejection of the rule of international law.”

In support of the ICC, she said that most of its 120 member states have given her and the court their backing.

She mentioned wins that her office secured against war criminals from Myanmar, Sudan, Congo, Mali and Uganda.

A major emphasis of Bensouda’s term has been expanding the definition of war crimes to include: sexual slavery, forced pregnancies, raping either men or women and destruction of ancient cultural-historical sites – accomplishments that she rattled off for each of the above countries.

She did call for an end to all sanctions against the ICC without explicitly mentioning the US.

The only other brief reference to battles with the US and Israel came from the institute official who introduced her, who noted that she faced great challenges like when the financial accounts both for her and some of her staff had been frozen by US actions.

Bensouda concisely noted that his observations about her challenges “were astute.”

She will be replaced by British lawyer Karim Khan on June 16, and he will likely make many of the next fateful decisions confronting Israel and the US.

During the questions and answer session after her speech, the Israeli-Palestinian case did return to the fore, with Bensouda delivering a more detailed defense of her actions.

She said, “I gave it a very, very careful analysis,” noting that the issue is “very complex legally and factually and has nothing to do with politics.” 

Further, she said that, “when we collected information, we engaged both parties, both with Palestine and with Israel. We had several meetings in which we listened. It is not that my office has gone and blindly collected information from elsewhere or from only one party.”

Bensouda seemed to also justify her decisions by drawing a moral equivalency between Israel and Hamas when she said she did not favor one side, but is looking at allegations against both sides.

“Those who choose to misinform, who continue to say that the office is after one side of the conflict and not the other,” she said are not being truthful.

However, a major criticism of Israel of Bensouda’s decision-making process is the seeming treating of Hamas firing rockets at Israeli civilians in parallel with the IDF’s battle tactics, which include measures to try to evacuate Palestinian civilians before targeting fighters.

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