Despite heeding the UN General Assembly’s vote upgrading Palestine’s status within the UN, ICC Prosecutor says that the UNGA does not dictate to her, and is now out of the picture.
With the fate of the Israeli army and the country’s legitimacy at stake in the ongoing war crimes debate, The Jerusalem Post on Monday became the first Israeli outlet to sit down for an in-person exclusive interview with International Criminal Court Chief Prosecutor Fatou Bensouda in her office on the court’s permanent premises in The Hague in the Netherlands.
Since she controls Israel’s fate about whether the IDF’s conduct during the 2014 Gaza War and the settlement enterprise are investigated as war crimes or not, Ms. Bensouda may be the most important global figure in Israel’s future, having an even greater concrete impact than UN Secretary-General Ban Ki-Moon.
In the 2014 Gaza war, around 2,100 Palestinians were killed, between 50-80% civilians, depending on whether one accepts the IDF or UN calculations.
The 54-year-old Gambian Bensouda came out of the gates in her relationship with Israel mostly under attack by Prime Minister Benjamin Netanyahu for recognizing Palestine as a state for the purposes of her office deciding to open a preliminary examination into whether Israel and the Palestinians have committed war crimes.
Since her recognition on January 16, 2015 and her explanation that she felt compelled, in her own decision, to follow the UN General Assembly’s vote upgrading Palestine’s status within the UN, Jerusalem has worried that she would follow the UNGA and what is viewed as a general anti-Israel atmosphere in future decisions as well.
On Monday, Ms. Bensouda, who spent almost a decade as deputy chief prosecutor before taking the top job, put those concerns to rest.
In one of the most intense exchanges of the interview that will be music to Israel’s ears, Ms. Bensouda said that “the UN General Assembly do not tell me what to do, that the prosecutor should act in this way or that way, unless of course it is in accordance with the statute.”
Asked if this meant that the UNGA is now out of the picture of her legal conclusions, Bensouda, in one of her rare emotional moments of the interview where she let down her guard, said forcefully, “Completely! I’m not even thinking of why they would tell me why I should take this case and not this case. That would be interfering with my independence.”
The ICC chief prosecutor was clear that Palestine’s upgraded status within the UN by the UNGA in 2012 as “a non-member observer State” was relevant to her determination of whether it could accede to the Rome Statue, the Court’s founding treaty. This was for technical reasons, but she emphasized that she will never take directives from them, or any other institution, when deciding the central question of the war crimes debate: whether the IDF’s investigative apparatus for the 2014 Gaza war complies with international standards.
But Palestinians can take comfort in some of her other positions or non-positions (with Bensouda, like many legal officials, observers are sometimes left grasping at non-answers to shed light on issues which the official does not wish to discuss.) Israel tends to lose most battles in the international arena, with the exception being cases in which specific international figures are, from the start, ready to go against the grain and recognize the complex challenges it encounters in fighting its neighbors.
Bensouda is not ready to declare her acceptance of Israeli exceptionalism.
Asked about whether the Israeli case is unique, because, Israel would argue, it has performed far more serious investigations of its own soldiers’ conduct during the Gaza war than any prior country that the ICC examined, Ms. Bensouda demurred from answering the question.
Pressed about what, if anything, her view is on Israel and the Palestinians’ situation after 18 months of preliminarily examining of the conflict, she said, “I would not go to the extent of saying what is unique at this time.”
Elaborating, she said, “We are not looking, judging the whole judicial system of any state or any system that is supposed to have jurisdiction or that could exercise jurisdiction. We are not looking at the judicial system and how it is functioning. We are looking particularly at specific crimes and we are looking at specific conduct, we’re looking at specific persons, who bear responsibility for those crimes and what is being done with regard to that…and as I always say [we are doing this] in an independent and very dispassionate way and this is very critical whether it is in…any other situation.”
Over and over again, she repeated the mantra of her commitment to the Rome Statute, to her mandate and to being guided by a set criteria of the law applied by the ICC, with no accounting for exceptionalism or a broader approach being a prism through which to view the conflict.
Even pressed on whether she would judge Israel or Hamas as more credible and truthful when the sides disagree about the specifics of an incident in which both could be on the hot seat, she insisted she would not choose.
Subsequently, Bensouda’s office issued a clarification on this issue stating that she does not have any other criteria apart from those set by the Rome Statute and that is what will guide her assessment.
In the measured and remarkably consistent dispassionate tone that characterized most of the interview, even if others viewed her not choosing as a judgment, she stated “it’s a judgment in the sense that I am going by my legal boundary. If you are calling that a judgment, yes, that is a judgment, because that is in the statute.”
There were answers which Bensouda gave which may give Israel at least a temporary sigh of relief. There was no sense of being pressured to make a decision anytime soon about alleged war crimes against the IDF. She would not even make an advance commitment to making a decision about whether to move from a preliminary examination to a full criminal investigation before the end of her term in 2021, even under pressure from Israel critics who claim that she is moving too slowly in jumping on alleged Israeli war crimes.
The top prosecutor said, “The message that I have consistently wanted to send…I am not going to deviate from what the statute tells me to do. I will not deviate from that, not for any reason. It is very critical for the credibility of this office… I can assure you, whether it is here, whether it is Palestine, whether it is any other situation,” Bensouda said, emphasizing she would not be rushed.
“I cannot sit here and say that it will take seven years, or it will take ten years or it will take any number of years…all of this depends on the facts and the circumstances. The preliminary examination cannot be given a timeline,” she added.
Not that this should be confused with Bensouda giving the IDF extra slack. Her refusal to commit to a deadline for deciding whether to move to a full criminal investigation was due to an opposition in principle to making even theoretical commitments.
In fact, she qualified that statement, noting “I will not hesitate to take the next step…I will not hesitate once the legal requirements have been met to do what I have to do…but it is not my situation that I’m sitting here” waiting to pass it on “to the next prosecutor who’s coming, because I don’t have the courage or the mandate to make a determination.”
Other good news from the Israeli perspective was Bensouda’s refusal to opine on the UNHRC Report lead author Judge Mary McGowan-Davis’ comment that, “It becomes clear very early on [in the war] that huge numbers of families are dying in these houses that are targeted by large bombs. It must become apparent to someone [in the IDF] that the rules of engagement that are supposed to protect civilian lives are not effective, so those who were in the position to make the kind of decision to change the course of the operation should have done so.”
In response, Bensouda said that even as she carefully reviews reports filed while she is making an assessment, her determination is independent and impartial. “We are not judging what the report said or what it didn’t say, we are collecting information, we take note of this report…but I don’t feel…our work is based on what other people are saying, but it is more based on the information that we collected, the assessment that we will make based on that information, as of now we do not collect from one source, we collect from different, divergent sources, we do cross-checking,” she said.
Probably, the least good news from the Israeli perspective was her response to being confronted with her former boss and former chief ICC prosecutor Luis Moreno-Ocampo’s statements to the Post about settlements.
On December 10, Moreno-Ocampo told the Post that anyone prosecuting Israelis regarding settlement activity would be incapable of proving criminal intent if those Israelis explained that they honestly believed their actions were legal once ratified by the country’s top court.
While calling Moreno-Ocampo a good prosecutor who did his best, she refused to prejudge any issues related to the settlements. This was significant since the Post did not ask her to decide legal issues regarding a specific settlement, only to comment on whether there could be any theoretical situation in which an Israeli High Court ruling could be a defense to the alleged crime of illegally building settlements (direct or indirect forcible removal under the ICC Rome Statute.) Bensouda refused to name any situation, regarding settlements or otherwise, where an Israeli High Court ruling could be a defense, standing true to her overall theme of staying away from theoretical situations.
There was one area where Bensouda was proud to take a clearer stand – regarding sexual crimes often related to gender, like mass rape.
Bensouda, who has made gender issues a hallmark of her term, implied she was gratified, “realizing that I have the opportunity in this position to bring more focus to these very serious crimes which will not go away…For me, it has been ignored long enough… people want to overlook these crimes, I like to underline the importance of these crimes.”
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Analysis: Israel on thin ice with the ICC
June 16/16
The IDF’s legal division’s decision to clear Lt.-Col. Neria Yeshurun of criminal charges of illegally ordering the revenge shelling of a pharmacy in Gaza during the 2014 war, without having filed an indictment, puts Israel on thin ice with the International Criminal Court.
Military Advocate-General Brig.-Gen. Sharon Afek decided to clear Yeshurun late Tuesday, despite his being recorded in July 2014 telling his soldiers on the radio that they were shelling the pharmacy (or residential building, according to recent information received by The Jerusalem Post) as revenge for the killing of one of their comrades the day before.
That is no easy decision to explain to the world.
Afek said that Yeshurun’s actions were unethical and censured him, but that available evidence did not meet the high standard for filing a criminal case.
In January 2015 ICC Chief Prosecutor Fatou Bensouda started a preliminary probe of alleged war crimes in the 2014 Gaza conflict in which 73 Israelis and around 2,000 Palestinians were killed (50-80 percent civilians) and may still decide to launch a full criminal investigation.
Such a probe could have massive negative legal and diplomatic consequences for Israel.
The thin ice metaphor is especially apt following the April closing of the case also without an indictment against Col.
Yisrael Shomer for shooting in the back a Palestinian who was fleeing after having shattered Shomer’s windshield.
It is true that the IDF indicted and is currently trying Sgt.
Elor Azaria for manslaughter for shooting a Palestinian terrorist after he had been neutralized despite protests supporting Azaria.
But Bensouda has shown in her probe of war crimes in Colombia that she is ready to even grill countries who are prosecuting their own soldiers, if they do not prosecute senior officers as well.
Will the ICC view the IDF as creating a higher evidentiary standard than usual for indicting its officers? Recently, the Post confirmed that “initial reviews” have essentially replaced criminal investigations of Shin Bet (Israel Security Agency) agents regarding torture complaints, implying only the blackest of cases would lead to indictment.
But the ICC is not as focused and concerned on cases of alleged torture of detainees spread over time as it is over alleged widespread war crimes by the IDF during the 2014 Gaza war.
The first twist in clarifying the higher standard issue is that it appears that Afek reached a conclusion different from the one his predecessor in the position, Maj.-Gen. (res.) Danny Efroni, might have reached.
Technically, Efroni never made a decision and, crucially, Afek had additional evidence that Efroni had not seen when he left office in October.
But in an interview a few months after leaving office, Efroni made it clear that he viewed the incident as “grave” and appeared to lean toward a criminal indictment, including violations of international law (though one could interpret Efroni as merely discussing the standard for opening a criminal investigation.) The ICC could question Afek’s decision in comparing it to Efroni’s initial statements.
The second twist is the facts themselves and the scarcity of the facts released by Afek regarding his decision.
During the Efroni era, the IDF issued several unprecedentedly detailed reports regarding decisions to close alleged war crimes cases relating to the 2014 Gaza war.
In Afek’s two recent decisions, the explanations were a mere two to three paragraphs long and left out some obvious issues. They left out the censure of Shomer for leaving the Palestinian without medical attention and the issue of whether there was a Hamas tunnel under the building Yeshurun attacked.
If there was a tunnel, as Yeshurun’s lawyer claimed, the purpose of the shelling could have been to hit the tunnel under the building, which would qualify as a military target and might meet the necessity test.
Neither the public nor the ICC knows from the decision whether there was a tunnel, and any information on the tunnel’s importance could be crucial to convincing the ICC that the IDF made the right call.
A completely different perspective on this could be that this case may not standout as much to the ICC since no as killed or even injured and that the IDF’s reprimand of Yeshurun seriously harmed his career despite no one being hurt.
There is also the “red-face test.” Not remotely scientific or particularly legal sounding, it says that even in criminal proceedings, any explanation that reasonable people would laugh at can be given short shrift.
Yeshurun’s lawyer had said that he did not really mean it when he told his troops they were shelling the building as revenge, and that he had only said it to improve morale. It would help to know and might completely reframe the issue, if there were a range of other witnesses who confirmed Yeshurun’s story.
Absent that, the ICC may think Afek concluded that Yeshurun’s explanation, however unlikely, passes the red-face test and might create enough doubt for an acquittal in court.
This the ICC may find hard to swallow.
By saying that the evidence was enough to censure Yeshurun but not enough to indict him, and without disclosing other evidence and witnesses, the ICC may think that the IDF is ready to accept far-fetched explanations by its commanders in deciding against indictments.
Ex-IDF international law division head Col. (res.) Liron Libman said, overall, the decision could go either way, depending on a full review of the evidence.
And he disputed the idea that the IDF does not go after senior officers, citing, among others, a 2008 incident in which Lt.- Col. Omri Borenberg was tried and convicted over an incident where a rubber bullet was fired at a Palestinian activist who was already handcuffed and blindfolded, and the case of Lt.-Col.
Shalom Eisner, who was tried and convicted of striking an activist in 2013.
But Libman would like to have seen greater public disclosure, including a discussion of why warnings were not necessary to attack a specially protected building.
Without greater disclosure and without a campaign presenting examples where IDF officers were indicted in the past, the ICC may be left with the simple impression that IDF officers can attack uninhabited pharmacies for revenge without real consequences.
a more knowledgeable legal journalist should conduct such interviews because that person would know in advance what questions will not be answered.