When I met with ICC Chief Prosecutor Fatou Bensouda in The Hague

I also interviewed top ICC jurisdiction official Phakiso Mochochoko and met again with the ICC Israeli-Palestinian situation team.

International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014 (photo credit: REUTERS)
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014
(photo credit: REUTERS)
When I met with International Criminal Court Chief Prosecutor Fatou Bensouda in The Hague in February 2016, she was a completely unknown quantity in Israel.
It was not easy to get the interview, or the meetings with key members of her team probing the Israeli-Palestinian situation, but I did eventually become the first member of the Israeli media to sit down with her.
I also interviewed top ICC jurisdiction official Phakiso Mochochoko and met again with the ICC Israeli-Palestinian situation team, during their October 2016 visit to Israel and to the Palestinian Authority in the West Bank.
What emerged from my interviews and off-the-record meetings was a group of individuals who exhibited a desire to be neutral and objective, with none of the blatantly anti-Israeli bias of the UN Human Rights Council – but who also lacked any sympathy regarding Israel’s unique situation.
Bensouda herself is a relatively understated woman, who can sometimes speak extremely slowly, as if she is choosing her words carefully so that someone will not fall off a tightrope into a ravine. This is understandable given the microscope under which many countries put her.
Though she is a Muslim from The Gambia who sometimes wears traditional African-style garb, she is equally comfortable in modern Western-style business clothing – which she was wearing when I met her.
In terms of ethnic or national background, to the degree that this might matter, the ICC officials involved certainly did not come from backgrounds where one would expect extra sympathy with Israel (at the time, none were Americans or ex-soldiers.)
Some came from backgrounds where one might guess they came into their positions with less than positive feelings about Israel, though all of them stayed professional throughout. Some were familiar enough with Jewish culture to make some friendly Jewish references.
After all of that – while one never knows what influence people’s backgrounds might have on a person’s view of the Israeli-Palestinian conflict – all indications from Bensouda are that her background is not a major factor.
Rather, to the extent she ruled against Israel last week in moving toward a full war crimes probe, she was acting as part of a group of internationalists who focus on getting justice for civilians killed in conflict zones regardless of the context. If Bensouda is being hard on Israel, she is also being hard on the US and the United Kingdom, not to mention Russia and many African nations.
These internationalists tend to criticize Israel, the US and just about any country that uses force, not out of antisemitism or anti-Americanism per se. Instead, it may come more from a naïve view that the world would be more peaceful if Israel and the US used less force.
This ideological group tends to downplay the role of terrorism and aggressive, nondemocratic countries in destabilizing and threatening Israel and other countries as something that simple dialogue can resolve.
In that spirit, Bensouda confirmed to The Jerusalem Post in 2016 that her office had taken the position that judging whether opening a full war crimes investigation is in the “interests of justice” is less focused on achieving peace or balance between the parties than it is on justice for the victims.
While such justice is important – and very much so in the ivory tower of philosophy – that kind of a focus often is ready to ignore the overall potential destabilizing impact of such prosecutions.
Despite this, Bensouda also said some comforting things in our interview that turned out to be true.
She said that she would not take directives from the UN Human Rights Council on timing, although there was massive pressure on her already in 2015 to decide against Israel.
Instead, she waited for all of the IDF investigations to finish, and when she finally decided against Israel, it was four and a half years later.
Bensouda has also effectively defended Israel repeatedly from prosecution regarding the 2010 Mavi Marmara flotilla incident.
However, she also said some other disturbing things to the Post, which equally turned out to have problematic results for Israel.
I confronted Bensouda with statements about settlements made by her former boss, former chief ICC prosecutor Luis Moreno-Ocampo.
On December 10, 2015, Moreno-Ocampo told the Post that anyone prosecuting Israelis regarding settlement activity might be incapable of proving criminal intent. Those Israelis could say they honestly believed that their actions were legal once ratified by the country’s top court.
The Israeli High Court of Justice has issued dozens of rulings over the years to evacuate illegal Jewish outposts or to redraw the West Bank barrier in light of humanitarian considerations toward nearby Palestinian villages.
While calling Moreno-Ocampo a good prosecutor who did his best, Bensouda refused to prejudge any issues related to the settlements.
This was significant, since the Post did not ask her to decide legal issues regarding a specific settlement. Rather, the question was only to comment on whether an Israeli High Court ruling could ever be used as a defense to the alleged crime of illegally building settlements.
Bensouda refused to name any situation, regarding settlements where an Israeli High Court ruling could be a defense.
This answer of hers in 2016 turned out to be decisive. Last week, she adopted the majority globalist view of the settlements being illegal under international law, ignoring the Israeli and current US administration position. She also ignored aspects of UN Security Council Resolution 242, which suggest that border issues between Israel and the Palestinians can only be resolved between the parties.
Bensouda also insisted in the interview on neutrality between Israel and Hamas. She argued that the ICC’s rules demand such neutrality, and that she has no choice.
The Post pushed her the hardest on this point. But in the most polite and quiet manner possible, she would not budge, citing the ICC statute.
In a vacuum, this answer might have made sense, but it was a shocking admission of how far she was ready to take the concept of “neutrality.” She was ready to ignore the contextual difference between a terrorist group like Hamas intentionally firing rockets on Israel versus the IDF, which at least tries to avoid civilian casualties when it fights Hamas terrorists.
There was not even a hint that she was ready to take this fundamental real-world difference into account, beyond stating the obvious: that Hamas does not probe itself and Israel does.
Jerusalem faces an international environment where only clear Israeli allies – such as the US, some in Europe and a few dozen other countries – seem to fully appreciate what Israel is up against. The other 140 or so out of more than 190 countries tend to criticize Israel when there is a dispute with the Palestinians.
In that environment, while Bensouda exuded a generic sense of fairness – and her decisions showed greater objectivity then some UN institutions – there was nothing in 2016 to indicate that she would be part of the small global group of Israeli allies. That feeling was confirmed last week.