(photo credit: REUTERS)
While framing the discussion in terms of cooperation, International Criminal Court Prosecutor Fatou Bensouda met with the UN Security Council and chided it for failing to back her in disputes with Sudan and Libya.
Bensouda did not mention Israel during her remarks late on Thursday, but the Security Council’s lack of support in the Sudan and Libya cases would likely be even greater in the case of Israel, due to US and partial European support.
The Palestinian Authority and some supporters have been making noise for years about filing complaints with the ICC against Israeli soldiers and leaders, noise that has risen since this summer’s Gaza war.
Since the ICC prosecutor last had such a high-level and broad audience with the Security Council nearly two years ago, her comments were likely even more significant.
After describing the court and the council’s common purposes in restraining violence and preventing mass atrocities, the council using a broad range of tools and the court trying to bring perpetrators of war crimes to justice, Bensouda cut into the body for its passivity.
Bensouda discussed the lack of adequate and effective follow-up on Security Council referrals to the ICC as problematic.
Citing the Darfur situation, the failure to implement aspects of Security Council resolutions referring situations, or alleged instances of war crimes, to the ICC, she said, can reflect a much deeper problem.
The ICC prosecutor noted that of the 55 resolutions on Sudan, very few had been implemented, suggesting the need to review them collectively as well as individually.
Bensouda asked the council to use clearer language in its referrals of alleged war crime situations to the ICC, in particular concerning the obligation of all states to cooperate with the ICC and to uphold its judicial rulings.
Sudanese President Omar al-Bashir has had an ICC arrest warrant issued against him for years, yet he has traveled to a number of African countries with none of them arresting him.
The prosecutor called for serious discussion on effective arrest strategies, expressing her sincere hope that the Security Council “can definitively call on all UN member states to provide the necessary assistance.”
Her appeal to all member states as opposed to merely all members of the ICC was significant since, while the ICC includes about two-thirds of the world’s countries, it is missing more than 60 countries, 60 countries that are also bound by Security Council decisions.
Essentially, Bensouda called for the council to take action against those states not cooperating with the ICC.
She added, ”It is not only a question of focusing on noncooperation of specific states, but of looking more positively and proactively at how to encourage cooperation as specific challenges arise.’’ While much of her criticism referred to Sudan, Bensouda also said that the lack of council and member state support diplomatically and financially was hampering the ICC’s investigation into Libya.
With the council giving little support to the ICC in cases dealing with rogue states such as Sudan and in situations like Libya’s where news reports indicate that some alleged war criminals ordered attacks on civilians with no consideration for the laws of war, it is unsurprising that many doubt the ICC will go after Israelis even if the Palestinians file complaints and overcome legal obstacles.
With Sudan, it has only taken the African Union’s help for Sudan to slow ICC progress, whereas Israel has far more powerful allies in the US and parts of Europe that oppose international trials against Israelis.