what happens after fatou bensouda departs in june?

ICC launches Palestine war crimes probe
Maureen Clare Murphy, Electronic Intifada, Mar 3 2021

Benjamin Netanyahu. Photo: Reuven Castro/UPI

The International Criminal Court has opened a formal investigation into war crimes in the West Bank and Gaza Strip, chief prosecutor Fatou Bensouda confirmed on Wednesday. Bensouda’s announcement was welcomed as “a historic day in the decades-long Palestinian campaign for international justice and accountability” by Palestinian human rights groups leading those efforts. Netanyahu, who will likely be subjected to ICC scrutiny, branded the investigation as “the essence of anti-Semitism.” The ICC’s announcement of an investigation came less than a month after a panel of judges confirmed that the court’s territorial jurisdiction extends to the Palestinian territories under Israeli military occupation. In Dec 2019, Bensouda concluded a lengthy preliminary investigation, stating that criteria for war crimes investigations in the West Bank, including East Jerusalem, and the Gaza Strip had been met. The ICC investigation will cover crimes committed since June 2014, when the situation in Palestine was referred to the international tribunal.

Bensouda stated that her office “will set priorities” for the investigation “in light of the operational challenges we confront from the pandemic, the limited resources we have available to us, and our current heavy workload.” She added that in situations in which the prosecutor determines a reasonable basis to investigate, the prosecutor’s office “is obliged to act.” The court’s next step will be to notify Israel and the Palestinian authorities, permitting each state party to conduct relevant investigations “of its own nationals or others within its jurisdiction” in relation to crimes that fall under the ICC’s mandate. The ICC defers to a country’s internal investigations, where they exist, under the principle of complementarity, which holds that “states have the first responsibility and right to prosecute international crimes.” Israel has a self-investigation system, albeit one described by B’Tselem, a leading human rights group in the country, as a whitewashing mechanism that insulates the military and political leadership from accountability.

In late 2019, Bensouda stated that her office’s assessment “of the scope and genuineness” of Israel’s domestic proceedings “remains ongoing at this stage.” She had, however, “concluded that the potential cases concerning crimes allegedly committed by members of Hamas and Palestinian armed groups would currently be admissible.” In her statement on Wednesday, Bensouda said that the assessment of complementarity “will remain ongoing” and she suggested that the matter may be deliberated by a panel of judges in a pre-trial chamber. Given that Israel’s settlement enterprise in the West Bank is unambiguously state policy backed by its highest-ranking members of government, it will likely be a primary focus of the ICC’s probe.

Like the question of territorial jurisdiction, complementarity will likely be a major sticking point for the court’s investigation in Palestine. Welcoming Bensouda’s announcement on Wednesday, Palestinian human rights groups urged “that there be no undue delay, and that the utmost urgency be brought to bear.” But Bensouda set an expectation for less than expeditious proceedings, stating:

Investigations take time and they must be grounded objectively in facts and law. There must be patience from Palestinian and Israeli victims and affected communities. The ICC is not a panacea.

Alluding to an argument made by Israel’s allies that an investigation would jeopardize future bilateral negotiations, Bensouda said:

The pursuit of peace and justice should be seen as mutually reinforcing imperatives.

Bensouda said on Wednesday:

The court will focus its attention on the most notorious alleged offenders or those alleged to be the most responsible for the commission of the crimes.

Netanyahu’s election campaign promises to annex West Bank land was mentioned by Bensouda in her request to the pre-trial chamber on territorial jurisdiction.

Media have reported that the Israeli government has a list of hundreds of officials who might be investigated and prosecuted by the court, which tries individuals, not states. Israeli officials claim that some ICC member states “have agreed to give advance warning to Israel of any intent to arrest” its citizens upon arrival to their countries. Providing tip-offs that could allow suspects to escape investigation or arrest would likely violate the obligations that member states have under the ICC’s founding Rome Statute to cooperate with the court’s work. On Wednesday, Bensouda said:

We count on the support and cooperation of the parties, as well as all States Parties to the Rome Statute.

The ICC, however, will come under tremendous political pressure as powerful states like the US, Canada and Australia oppose any investigation of their ally Israel. Last year, Canada made a thinly veiled threat to withdraw financial support to the ICC should it proceed with an investigation. The Trump administration in Washington imposed economic sanctions and visa restrictions on Bensouda and members of her staff. The extreme measures put the court personnel in the company of “terrorists and narcotics traffickers” or individuals and groups working on behalf of countries sanctioned by the US. While Biden has signed a flurry of executive orders reversing measures by his predecessor, the new US leader has allowed the ICC sanctions to remain in place. Amid pressure to lift the sanctions, the White House is promising only to “thoroughly review them.”

During his first phone call with Biden, Netanyahu urged that the sanctions remain in place. Israel has meanwhile directed its vitriol at Palestinian human rights defenders, particularly those engaged with international justice mechanisms like the ICC. Its tactics have included “arbitrary arrests, travel bans and residency revocations, as well as attacks on Palestinian human rights organizations, including raids.” Balkees Jarrah, an associate director at Human Rights Watch, stated on Wednesday:

ICC member countries should stand ready to fiercely protect the court’s work from any political pressure. All eyes will also be on the next prosecutor Karim Khan to pick up the baton and expeditiously move forward, while demonstrating firm independence in seeking to hold even the most powerful to account.

EU backs ICC after Netanyahu’s “anti-Semitism” smear
Ali Abunimah, Electronic Intifada, Mar 4 2021

Benjamin Netanyahu and Benny Gantz. Photo: Menahem Kahana/Reuters

The European Union appears to be rejecting Benjamin Netanyahu’s smears against the International Criminal Court after Chief Prosecutor Fatou Bensouda confirmed on Wednesday that she would be launching a formal investigation into war crimes in Palestine. The Israeli prime minister blasted the investigation as “the essence of anti-Semitism,” and other Israeli leaders lashed out in similar terms. Asked by The Electronic Intifada for the EU’s reaction to Netanyahu’s comments, the bloc’s spox Peter Stano did not respond directly regarding the Israeli leader. However, in an implicit rebuke of Israel’s outlandish charges of anti-Jewish bias, Stano affirmed:

The EU respects the court’s independence and impartiality. The ICC is an independent and impartial judicial institution with no political objectives to pursue. It is a court of last resort, a fundamental safety net to help victims achieve justice where this is not possible at the national level, thus where the state concerned is genuinely unwilling or unable to carry out the investigation or the prosecution.

The EU also urged “states parties to the Rome Statute and non-states parties,” the latter a clear reference to Israel which has not signed the court’s founding statute, “to have a dialogue” with the ICC that should be “non-confrontational, non-politicized and based on law and facts.” Given the EU’s long record of virtually unconditional backing of Israel, it is remarkable that it has held fast to its support for the ICC as at long last the court takes up Israel’s unchecked violations of Palestinian rights. The ICC investigation will cover alleged crimes since Jun 2014, a period that includes Israel’s 2014 war on Gazaand the ongoing construction of settlements on occupied Palestinian land. The EU’s position represents a break with allies such as the US, Canada and Australia that have openly opposed the court investigating alleged war crimes in the occupied West Bank and Gaza Strip. Notwithstanding the EU’s support for the ICC, Israel lobbyists are taking comfort from how some individual EU member states, notably Germany, are opposing a war crimes probe.

On Wednesday, US Sec State Blinken reiterated that the Biden administration “firmly opposes” justice and accountability for Palestinian victims of Israeli war crimes.

This opposition is not surprising, given that the Obama-Biden administration resupplied Israel with munitions while it was bombing Gaza in the summer of 2014, killing more than 2,200 Palestinians, including more than 550 children. Biden’s stance will cheer Netanyahu and other top Israeli leaders including defense minister Benny Gantz, who will likely be targets of the ICC investigation. Gantz was the Israeli army chief at the time of Israel’s 2014 attack on Gaza.

Nonetheless, after years-long delays and decades of waiting for justice, Palestinians are at last seeing their quest to hold Israel accountable and check its crimes bearing fruit.

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