In one of her more dramatic interviews to date, International Criminal Court Prosecutor Fatou Bensouda told the Associated Press that Israel must provide her with information on alleged 2014 Gaza war crimes, or she may be forced to decide whether to launch a full criminal investigation based solely on information she has received from, presumably, human rights critics of Israel.
In the interview – which broke early Wednesday Israel time, but took place in New York on Tuesday ahead of a major speech Bensouda gave to the UN Security Council – the ICC prosecutor said that neither Israel nor the Palestinians had provided any official information to date.
She said she might be “forced to just go with just one side of the story,” emphasizing that she still hopes Israel would cooperate.
She said it is in the “best interest” of both sides to provide information.
Diplomatic sources in Jerusalem expressed “surprise” at Bensouda’s comments in the interview.
It is also surprising, the sources added, that the prosecutor – obligated to act according to the rules of the courts and conduct her job “according to the highest standards of professionalism, prudence, independence and lack of bias” – chose to relate to these matters “through the pages of the newspaper.”
This type of behavior, the sources said, does “not add to the credibility of the process.”
“We hope that the court will not allow the exploitation of its resources to address an appeal without legal basis that is driven by cynical political motives, and whose promotion will damage both the credibility of the court and chances to maintain an Israeli-Palestinian dialogue,” they said.
The sources added that Israel’s position – as well as that of other countries, including the US and Canada – is that the Palestinians are not entitled to join the ICC, and that the court does not have jurisdiction since, for one thing, “Palestine” is not a state. In this regard, the sources asserted, the prosecutor’s office erred when it agreed to open a preliminary examination into the matter in January.
It was unclear from her official statement how much time Bensouda plans to give Israel to respond, as she said a preliminary examination could take two to three months, one year, or even 10 years.
In particular, it was unclear whether the timing of her remarks had any connection to the UN Human Rights Council report on Gaza war-crime allegations related to the deaths of more than 2,100 Palestinians, which is due June 29.
However, knowledgeable sources said that some of Wednesday’s sparring may turn out to be an overreaction, as Bensouda has made similar statements in the past about wanting Israel to provide information.
According to sources, her interview would not likely signal any new stage in the court’s approach to the investigation or an imminent decision on its key issues, but a reaffirmation of her ongoing desire for cooperation.
Sources also indicated that the ICC prosecutor would be familiar with the three publicly posted ongoing IDF reports on investigations, but would continue to desire more comprehensive cooperation.
Bensouda came into the picture officially in January, when the Palestinian Authority signed the Rome Statute to join the ICC. Her preliminary examination kicked into high gear in April when the PA acceded to the statute as the “State of Palestine.”
Though Israel does not recognize Palestine as a state, Bensouda has been adamant that she will not back off from her recognition of Palestine’s statehood.
Further, she has said that if Israel wishes to avoid a full criminal investigation, it will need to convince her that its own investigations of war crimes are reasonable.
On Wednesday, former deputy foreign minister Danny Ayalon echoed the official Israeli diplomatic sources regarding the ICC prosecutor’s statement, when he called on her to “hold your horses” and said that ordering a criminal investigation before she had information from Israel would be “premature.”
He said Israel was well-known for investigating itself with an “unbiased and independent judicial system” and that there would be “due process by the Israeli authorities.”
Ayalon added that a democracy like Israel, which “has a culture and tradition of investigating itself,” should be treated the same as “terrorists like Hamas” by the ICC.
The ICC is a court of last resort and does not get involved in a country’s business unless it views that country as unable or unwilling to investigate its own citizens and soldiers properly.
To date, the IDF’s three reports about the status of its war-crime investigations included preliminary probes into well over 100 incidents and at least 19 criminal investigations already ordered.
Also, a UN Board of Inquiry report recently came out with a mixed report on IDF strikes of UN facilities and Hamas’s illegal use of some of those facilities for its weapons. The report was somewhat less critical of Israel than the UNHRC’s June 29 report is expected to be – partially due to Israel’s background with each of the two bodies, which led Israel to cooperate with the Board of Inquiry but not with the UNHRC.
Bensouda told the AP that she would also be looking at Israeli settlement construction, and Hamas’s potential war crimes in firing thousands of rockets at Israel.
She said she is seeking a copy of the recent Breaking the Silence report, which was highly critical of Israeli war-making policy (and highly criticized by the Israeli government), to see if it could assist her in her preliminary probe.