A new frontier has been broken – and this is not meant in a positive way. International Criminal Court prosecutor Fatou Bensouda has announced her willingness to commence an investigation into alleged war crimes following her preliminary examination into what she has called “the Situation in Palestine”. The matter was referred to her office by a “State of Palestine”.
Under international law, Bensouda’s decision is wrong from any perspective one may consider.
To start with, any such investigation will look into the alleged action of Israeli nationals, from the members of the cabinet to the average Israeli that serves the army, even though the State of Israel has never recognized the jurisdiction of the ICC.
The international legal personality of the ICC is only “valid” for countries that recognized it by depositing the instrument of ratification of its founding treaty, the Rome Statute. Israel and several of its neighbors (e.g., Syria, Yemen, UAE, Oman and Egypt), as well as Russia, the United States and China, for example, never did so. For these countries, it is as if the ICC did not exist; in the exercise of their sovereignty, they do not recognize the legal personality of the ICC and, consequently, its jurisdiction.
In addition, under international law there is no such thing as a State of Palestine. This is the case not only because of the Oslo Accords. For a state to exist under international law, certain criteria have to be satisfied. In this regard, it is not sufficient for a group of people to say that they have decided to form a state. Effective – and not merely selective – international recognition is among such criteria. Effective international recognition is where international law meets international politics. Under international law, all states are supposedly equal in principle. This is why a vote cast by Andorra (with a population that does not reach 80,000 inhabitants) carries the same weight as a vote cast by India (with a population of well over one billion inhabitants, a country with a nuclear arsenal) in the context of the general assembly of the United Nations. However, states are still very different among themselves. This is why, again within the United Nations, only five countries are permanent members of the security council and enjoy veto power, differently from all other nations. At the end of the day, it is irrelevant to consider that Venezuela has recognized a State of Palestine if players such as the United States, Japan, and Australia do not do so. To say that there is a State of Palestine is as legitimate as this blogger saying that there is a Principality of Aharon (independent from the State of Israel) is his Tel Aviv apartment.
It goes without saying that international law is not static. But changes in international law do not result from action taken by a prosecutor or a tribunal that lacks effective recognition; or even the general assembly of the United Nations (precisely because Andorra, San Marino, India and China are “equal” in the context of the general assembly).
There are several additional points of international law that may be argued against Bensouda’s decision and the blatant double standards involved in deciding to investigate this matter stemming from 2014, rather than more pressing cases.
What is most alarming goes far beyond fundamental issues of international law. While much attention has been paid to these, few voices have been raised to call this action by its real name, abuse of power. Yes, the real issue is one of ethics.
Anyone slightly familiar with law will know that a prosecutor should recuse himself from investigating a case if certain conflicts of interests or potential conflicts of interests are present. The fairness of any investigation has to be unquestionable; an investigation has to be fair and it also has to appear fair.
Prosecutor Bensouda should have recused herself. And since she did not do so, the ICC should have immediately terminated her employment. Fatou Bensouda was born in Gambia and graduated from the Nigerian Law School. One of the sources of law of Nigeria is the Sharia. As such, the Sharia must have been a relevant part of the minimum curriculum. Fatou Bensouda is also a Muslim woman. The basic inference to be made in terms of ethics is that she has an interest or a potential interest in this investigation because it will deal with the status of Jerusalem at some point, as already indicated by her.
The very wording of her statement in relation to this decision shows a clear prejudgment on territory. Otherwise, she would not have been able to talk about – and trivialize – war crimes. Bensouda has already made decisions or assumptions and they were not based on knowledge resulting from an investigation; they were based on her personal beliefs as a Muslim woman who focused her legal studies on the Sharia, among other things.
This is not a small transgression. The whole system of the ICC has been compromised. Precisely in the manners of the usual lawfare against the one country that is so often singled out despite its strong record of compliance with international law, Israel.
The end result is lamentable. It is lamentable for all countries that funded this tribunal (that is wanting of ethics) and now should rethink the ICC’s past decisions. At this point, as the ICC decided to become the grand jury of a world in which it lacks jurisdiction, red flags are popping up all over the place. From Moscow to Washington and within ICC member countries too.
All this happens because terrorist after terrorist is still given a stage from which to speak between atrocities. The financier of the Munich Olympics massacre, Abu Mazen (aka Mahmoud Abbas), is probably laughing at everyone, including Bensouda.