ICC Prosecutor Fatou Bensouda.
(photo credit: REUTERS)
This year the Palestinian Authority joined the International Criminal Court and has made a series of submissions of what it describes as evidence of alleged Israeli war crimes during the 2014 Gaza conflict.
In doing so Palestinian President Mahmoud Abbas has been forthright that his intention is to use the ICC to bring charges against some of Israel’s leading political and military figures.
Israel is not a signatory to the Rome Statute, the international treaty that empowers the ICC. But this is not stopping the court’s prosecutor Fatou Bensouda – a former justice minister from The Gambia, a tiny West African country with one of the world’s worst human rights records – from already having begun a preliminary investigation into the Gaza conflict. If taken forward this will inevitably encroach on Israel’s sovereignty. Indeed, Bensouda has herself made it crystal clear that Israelis will be liable for prosecution, even if the State of Israel is not a signatory, saying only last month that “anyone – on either side – who commits, orders, incites, encourages or contributes in any other way to the commission of crimes falling within the jurisdiction of the ICC is liable to prosecution either at the national level or at the court.”
Yet the most existential threat to Israel comes not just from any potential future trial, but rather from a recent change by the ICC to allow as evidence in prosecutions any witness testimony available, even if it has been recanted, and including witness statements that have not been made under oath, or even directly made to the ICC.
This astonishing power awarded to the Office of The Prosecutor has been granted by three judges in a case against the deputy president of Kenya, William Ruto, and, in doing so, they have made it possible for the same powers to be applied in future cases.
The Ruto case concerns Kenya’s post-election violence in 2007-8. He and a Kenyan journalist, Joshua Arup Sang, are accused of coordinating and promoting violence against another tribal group that were on the opposite side of the political divide to their own Kalenjin tribe during 2007 election. The case against them was confirmed in 2012 based on the written testimony of six witnesses, known as the “Confirmation Six.”
None of the testimony given by these six witnesses was made under oath, nor was it originally provided to ICC investigators. Rather, it was gathered by NGOs in Kenya that received foreign funding as part of a previous Kenyan government commission of inquiry into post-election violence. Since that time, and now with the trial of Ruto and Sang underway, three of these witnesses have publicly recanted their testimony, with two others discrediting and contradicting what they had previously said while under oath in court, and another refusing to testify at all.
In most reputable courts of law this case would be considered collapsed, and the accused would be acquitted.
But the ICC is no ordinary court and the judges in the case against Ruto and Sang are now allowing the prosecutor to use the original witnesses statements given to foreign-funded NGOs as all the evidence she needs to continue the case, and disregarding as if it had never occurred the witnesses’ varying degrees of recantation.
This new power, known as “Rule 68,” has serious implications for Israel. Imagine a scenario where Fatah or Hamas-supporting foreign-funded NGOs are allowed to gather witness statements against Israelis, without the need for them to be made under oath, and for this “evidence” to be considered all that is needed to mount a successful prosecution. Then, even if witnesses later recant their statements, what they say can be disregarded.
The chance for opportunistic abuse of such a system does not bear thinking about. Those with a desire to see Israelis and Jews punished can pressure witnesses to grant statements on which they have not sworn; the prosecutor can use whatever evidence she believes best fits her story to push forward with prosecutions that would endanger individuals based on potentially fictitious “evidence.”
The fact is Bensouda is in desperate need of this new rule. The ICC has an abysmal track record of successful prosecutions, with only two during its entire 13-year history. The majority of cases before the court have been dismissed, including four of the original six cases brought over the post-election violence in Kenya. As the most high-profile of all its prosecutions Bensouda needs to save face over Kenya, even if this means bending what would normally be considered acceptable before a court of law. The judges of the ICC also need the remaining Kenya case to succeed – and for a successful prosecution to occur – to re-establish the organization’s reputation with an increasingly critical international media and its European funders.
One might hope in such a moment of crisis the ICC would reconsider its over-reliance on witness testimony gathered by others with political objectives; instead they have decided to double down and increase their powers to pick and choose which witness evidence they use.
This decision puts Israel in real danger. Instead of waiting in the hope that a case brought against Israelis can be successfully defeated in the courtroom, the government of Israel needs to lobby its allies who are funders of the ICC to force it to reverse Rule 68. The government should also come to the defense of Kenya and make it clear that evidence gathered by politically motivated opponents should never be admissible in a courtroom.
The ICC was founded to ensure impunity was not acceptable and that victims anywhere in the world could be assured of justice. But in this Kenyan case that threatens Israel it is clear that where impunity rules now most of all is within the courtrooms of the ICC itself.
The author is an advocate of the High Court of Kenya. He has acted as defense counsel at international courts including the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for former Yugoslavia, as well as leading a successful defense case before the International Criminal Court at The Hague.