By Christophe Oberlin  

(Translated from French. To view original French article, click here)

Five years after the publication of a book on the Israeli-Palestinian issue as seen by the International Criminal Court, it is clear that the line drawn there is now coming to fruition. The transition to the judicial phase was inevitable. Only the date was unknown. On December 20, 2019, the prosecutor of the International Criminal Court announced her intention to open an investigation into war crimes committed in Palestine from June 13, 2014.

Few Observers were Predicting this Decision

The International Criminal Court had been dealing primarily with African cases since 2002, and had been referred to as the “White court to try Blacks,” and as most of its funding was European, as a “European court to try Africans”.  Some even predicted the collapse of the International Criminal Court.

The institution also raised skepticism among Gaza administration officials:

“We do not trust a court established by the West.” 

And the Palestinian Authority was far from wanting to use this tool: on July 25, 2014, in the midst of the Israeli offensive against Gaza, a complaint by the Palestinian Authority’s Minister of Justice and the prosecutor of Gaza was even blocked by the Minister for Foreign Affairs Riad al-Maliki, who was rushed to The Hague. In another negative sign, the International Criminal Court prosecutor Fatou Bensouda had refused three times to open an investigation into the Mavi Marmara case as we shall see further on; the latest refusal was on December 1,  2019.

Little was heard about the suffering of the victims in Gaza because, according to the European Union and the United States, the territory is administered by a “terrorist” organization (and this despite a reverse judgment of the European Court of Justice). 

Finally, South African John Dugard, the Palestinian Authority’s chief legal adviser, and former UN Special Rapporteur for Palestine published an astonishing document a few days before Fatou Bensouda’s decision:

“Why the Prosecutor will never open an investigation into Israel-Palestine”

 And yet, Steps had been Taken

Palestine had ratified the Treaty of Rome in January 2015 (Art. 12(2)), and also sent a government declaration giving retroactive jurisdiction to the Court as from June 14, 2014 (Art. 12 (3)), which made it possible to include war crimes committed during the war in the summer of 2014.

From Gaza, a large number of victims’ cases were sent to the ICC from 2014: complaints from victims or families of victims, written and documented by staff trained according to international legal standards. These documents concerned the war of the summer of 2014, but there was also a complaint from civil society (about 50 associations, 400 Palestinians, and 40 lawyers) in 2017, and, since the beginning of 2018, from the very numerous victims of the weekly demonstrations along the Gaza border known as the “Great Marches of Return.” 

Finally, on May 23, 2018, the Palestinian Authority formally lodged a complaint with the Court by activating Article 14.

In early December 2019, Fatou Bensouda produced the annual report on the activities of the Prosecutor’s Office.  Attentive observers noted, in the chapter devoted to Israel-Palestine, the use of an unusual formula.

While the office had launched a preliminary investigation in 2015 and every annual report since then merely mentioned a substantial activity of gathering and verifying information, for the first time Fatou Bensouda felt that “the time had come for a judicial decision.” Contrary to some who predicted that the prosecutor would leave the file to her successor, the formula established that a decision would be made within a year, and it happened a few days later.

The Press Release of December 20, 2019

“Today, I announce that, based on all independent and objective assessments of the information received by my Office during the preliminary review of the situation in Palestine, it has been concluded that all the criteria needed to open an investigation under the Rome Statute have been met.”

Fatou Bensouda immediately clarifies that the existence of a “referral of the State of Palestine” exempts her from seeking permission from the Pre-Trial Chamber. On the other hand, as the Statute allows, she asks it for an opinion: “confirmation of the territory of jurisdiction as that of the West Bank, East Jerusalem and Gaza.”

She requests that the opinion be given to her “as soon as possible” and sets a maximum deadline of 120 days.

For the Arab world, the first concerned, Fatou Bensouda’s televised address is broadcast with Arabic subtitles: it spreads on social networks and is immediately welcomed by Hamas, which has ruled Gaza since 2007. 

“The Hamas movement welcomes the announcement by the prosecutor of the International Criminal Court to launch its decision to open an investigation into Israeli war crimes committed in Palestine. (…) This announcement should translate into actions on the ground to hold Israeli officials accountable for their crimes and violations against the Palestinian people and their Holy Places.”

The reaction of the Palestinian Authority, later, is less coherent, no doubt testifying to the different views among Palestinians. Satisfaction is expressed and at the same time criticism of the slowness of the procedure: the “5-year delay” between the start of the preliminary examination and the decision to open an investigation. 

It was apparently overlooked that the Palestinian Authority had sent a declaration of jurisdiction to the Court on January 22, 2009, after the 2008-2009 winter war in support of a complaint by 400 NGOs, and then dropped the procedure. 

It also forgot the time that elapsed between the accession of Palestine (January 2015) and that of the complaint to the ICC by the State of Palestine (May 2018) which automatically froze any opening of an investigation, and which is the responsibility of the Palestinian Authority alone.

The Request by the Prosecutor

The lawyers then rushed to the 112-page document produced by the Prosecutor’s Office.  Still fearing that the devil is in the details, Fatou Bensouda’s text is dissected.

First of all, the title of the memorandum “Situation in the State of Palestine”: the prosecutor announces at the outset that Palestine, in the eyes of the prosecutor, as well as those of the Assembly of States Parties, which accepted the admission of Palestine, is indeed a state in the court’s acception (perception) which gives it all the rights and duties that the Rome Statute accords to states parties.

The first part of the brief is the justification for the first decision taken: to ask the Pre-Trial Chamber 1 for a decision on jurisdiction and territoriality.  Fatou Bensouda sets out the statutory support for such a request, repeatedly stating that it is not an authorization to open the investigation, but a verification of Palestine’s ability to accord jurisdiction to the court and a territorial framework to serve as a focus in the investigation, while explaining that it will be a matter of determining the reality of war crimes committed in a specific territory, and certainly not, at this stage, recognizing the territorial limit between two states.

Fatou Bensouda thus takes the wind out of the sails of those who are likely to criticize the politicization of the investigation or even that of the ICC as a whole. For connoisseurs, one can note some barbed comments addressed by the prosecutor to the three judges of Pre-Trial Chamber 1… the same people who three times asked Bensouda to open an investigation into the Mavi Marmara case.

Three times Bensouda had refused to reconsider her decision on the legal grounds put forward by the judges, saying only: “It is I, the prosecutor, who decides”,  though the judges asked her for a legal answer to the five “errors of law” they claimed to have uncovered.

Fatou Bensouda failed to provide an explanatory answer, citing only her power under the Statute, which was not at all to the taste of the judges who finally gave her three months to review her position. Here Bensouda imposes her authority and affords herself the luxury of setting a deadline for the chamber!

The report then deals with the historical context over some thirty pages.  British-mandated Palestine is treated in only one paragraph, which is certainly insufficient. At the time, Palestine had a defined territory (that of historic Palestine), a permanent population (made up of Muslims, Jews, Christians, Druses, etc.), a government that governed (with the exception of foreign policy and the armed forces), as well as relations with other states (Palestinians had Palestinian passports). The modern state of Palestine existed (it met the Montevideo criteria), although subject to a mandate that was intended to be only provisional.     

Bensouda then discusses the question of the State of Palestine: Palestine having been accepted as a State Party, it places itself under the jurisdiction of the ICC, which accepted it. The prosecutor “observes that Palestine has a population and territory regularly defined in reference to the occupied Palestinian territory (West Bank including East Jerusalem, and Gaza).” 

It should be noted that this formula implies that there would be an unoccupied Palestinian territory, annexed for example. The prosecutor thus effectively leaves open any future provision concerning borders and exempts herself from criticism of political anticipation. The word “territory” takes on its full meaning here.

Subsequently, the prosecutor also anticipates criticism by stating that the existence of the Oslo agreements obviously does not prohibit the ICC from exercising its jurisdiction in order to deal with war crimes. Noting that “the state of occupation of the three territories (West Bank, East Jerusalem, and Gaza), for which she uses the neologism “occunexion” (annexation-occupation) cannot be reduced to the authority of the power of the time.” 

In other words, the Oslo agreements are not imposed in any way on international law. She even quotes Roman law: “ex injuria jus non oritur!” A legal right cannot be derived from an illegal act. One more dig at the Oslo agreements. And she quotes all the institutions, including the United Nations, which have never recognized past, present or future “annexations” (and the Jericho Valley, the current subject of election promises of annexation, is referred to by name).

The prosecutor reiterates the internationally recognized principle of self-determination, which can be achieved by a state gaining its independence, but also through “voluntary integration with another state on the basis of political equality”. A crucial statement that we will repeat at the end of this article. Finally, the marketing of products from Israeli settlements in the West Bank is illegal, as is the wall condemned by the International Court of Justice. All these statements are supported by 648 footnotes.

One cannot fail to think, and understand without approving the idea, that Fatou Bensouda wished by all means, even if they can be criticized in terms of the law, to get rid of the Mavi Marmara file. What is the point of “opening the gates of hell”, as she said, if Turkey (the 10 killed were Turkish citizens) is disinterested (the families have been compensated by Israel), if Turkey is not a state party, if the boat was Comorian (“how many divisions? “), if Palestine, the first concerned, never came forward, and if a much more explosive and comprehensive dossier on Israel-Palestine was ready?

Who is Fatou Bensouda?

Fatou Bensouda, aged 58, is a Gambian lawyer, Prosecutor of the International Criminal Court since June 2012, elected for 9 years. Her career is “tainted” by the fact that she was the deputy of the ICC’s first Prosecutor, Luis Moreno Ocampo, whose mandate is generally considered to have been very poor due to a dramatic lack of professionalism as well as ethics.

At the time of his departure, the Court having been aptly labeled “Court of Whites to Judge Blacks”, the appointment of Fatou Bensouda was described as circumstantial: the Argentinian having been convicted as a sex offender, it was satisfying to see him succeeded by a woman, especially an African.

For the ICC whistle-blowers, the conditions for her election were not clear. The States Parties continue to practice “vote trading”, their representatives are mainly diplomats rather than lawyers, the committee for the selection of candidates was made up entirely of diplomats, etc.

During her mandate, which expires in 2021, the Prosecutor has had to close many toxic cases, i.e. cases impossible to finalize by convictions for genuine war crimes. Evidence was inadequate, the investigation was so long that defendants who had served many years in prison were simply released. It must be said that several of these cases had been widely broadcast to the media by her predecessor against all the rules of procedure.

A culminating episode was the release of Ivorian Laurent Gbagbo, who, on the orders of the Security Council and with the intervention of the French army, had been delivered to The Hague. A disaster for the image of the ICC. But it can be argued, on the other hand, that this kind of event merely reflects the independence of the Court from the United Nations, and its diligent evaluation of evidence, and that it is, in fact, a disaster for Côte d’Ivoire and for France which imposed this case on the ICC. The ICC has merely applied the law.

Moreover, Fatou Bensouda’s career cannot be described as insufficient. Her experience in international courts began in 2002 at the Rwanda court, before continuing with a position in The Hague in 2004.  Curiously, it was only towards the end of her term of office that Fatou Bensouda’s career prior to her appointment to the ICC was criticized: Minister of Justice and Attorney General of the Gambian “dictator” Yahya Jammeh from 1998 to 2000, formerly a lawyer at the Gambia bar, legal adviser to the same “dictator” and then-Attorney General of the capital Banjul. In response to the authors of these criticisms, it can be argued that the greatest criminals in international law are precisely the states that did not adhere to the Rome Statute, unlike Gambia.

The official Answer by Israel

Only hours after Fatou Bensouda’s announcement, Israel’s Attorney General Avihai Mandelblit produced a 34-page argument. According to the Israeli press, this brief was even published a few hours before: so the contents of Bensouda’s document appear to have been known! 

As Mandelblit himself recalls, Israel, a non-party state, had nevertheless sent a delegation to The Hague a year earlier, when the threat of an investigation was already looming. The official reason was “to make the prosecutor’s office aware of the Israeli position.” Although nothing has leaked from these meetings, one suspects that Mandelblit’s argument had already been drafted at that time… allowing Fatou Bensouda to answer it very precisely in her brief.

What does Mandelblit Tell us? First the Summary (THE SUMMARY, FIRST??)

Israel, “born of the Holocaust” was “an early and impassioned advocate of the establishment of an International Criminal Court”!  Israel had even initially signed the Rome Statute “as an expression of moral support” in 2000, before refusing to join in 2002. It must be said that after Nuremberg, which some countries preclude by law from any criticism, it was difficult to do otherwise. So from the first paragraph, Mandelblit provides the wherewithal to contradict him: why not join the ICC? 

The answer: “The court is being manipulated politically.” Second argument: “The court has no jurisdiction over the so-called “situation in Palestine” (sic), because Palestine is not a sovereign state with fixed borders and would not have the legal power to defer to the Court. And Mandelblit argues on for 34 pages.

Palestine should never have been accepted into the ICC. And Mandelblit takes up in detail the argument of Canada, which had opposed it… Without mentioning that Canada was the only State party (as compared with 140) to have raised a protest. For the Attorney General of Israel, the court’s decision is “a lie at the heart of international law”, “an abuse of the judicial process,” “ it inspires populism”, etc. 

This is followed by a lengthy assertion that only a “sovereign state” could join the ICC, a formula which is to be found nowhere in the Rome Statute. And yet, for Mandelblit, to accept a non-sovereign state as a state party “would be to subvert the intention of the founders”!

One cannot help but think exactly the opposite: Rome was written to defend the victims against those responsible for war crimes, and wars do not always take place between “sovereign states”. They are often between defeated states or liberation movements without a state …

Why would war victims be excluded from the ICC?  In any case, nothing in the Rome Statute implies such an intention. Mandelblit says that only sovereign states can refer matters to the Court. So, in a territory that it is occupying, a sovereign state could commit all possible war crimes with impunity? It is unlikely that this idea could have guided the founding fathers. Why then would a sovereign state with the appropriate criminal courts seek the jurisdiction of the International Criminal Court? 

Then comes the very notion of state. The generally accepted political definition is that of a population in a given territory which, according to the famous phrase, “accepts the monopoly of legitimate violence.” In other words, an army to defend its borders and a police force to enforce its laws that are imposed on all the inhabitants; the general interest that takes precedence over the interests of individuals or groups.

The Montevideo conference in the 1930s had issued 4 more precise criteria, criteria which remain valid today: a specific territory, a permanent population, a government, the possibility of relations with other states. Palestine between 1922 and 1948 had a territory, that of Mandatory Palestine, a fixed population of Muslims, Jews, Christians, Druzes, etc. It had a government.

• Article 2: “The agent will assume responsibility for the development of free government institutions”).
• Article 4: “A suitable Jewish organization will be officially recognized and will have the right to give advice to the administration of Palestine.”
• Article 5: “The agent guarantees Palestine against any loss or lease of all or part of the territory and against the establishment of any control of a foreign power.”
• Article 7: “The administration of Palestine will assume responsibility for enacting a law on nationality. This law will include clauses designed to facilitate the acquisition of Palestinian nationality for Jews who will permanently settle in Palestine.”
• Article 9: “The agent will assume responsibility for ensuring the establishment of a judicial system in Palestine.” If we refer only to the text of the 1922 mandate, it is the Palestinians who would be in a position to claim the entire territory of Palestine!
• Article 10: “Pending the conclusion of special extradition agreements, the existing extradition treaties will be applied to Palestine.”  
• Article 15: “No one will be excluded from Palestine solely because of his religious convictions.” Taxes and customs duties are autonomous.
• Article 22: “English, Arabic, and Hebrew will be the official languages of Palestine.” 

Admittedly, Foreign Affairs and Defence were devolved to the proxy power, but temporarily. And this status gave international rights, the Palestinians had a Palestinian passport.  A state is a state de facto.  A state is not constituted through admission to the United Nations. And what of Palestine today? Although it has lost its borders by force, it is nonetheless a “non-member state of the United Nations” like the Cook Islands, which has not prevented the latter from joining the ICC.

By splitting hairs as to whether or not Palestine is a state, Mandelblit poses the same question with regard to Israel. And, were the subject less dramatic, Mandelblit would make us laugh when he quotes  Crawford 2006 word for word: “An entity cannot declare its independence if creation was made in violation of the law applicable to self-determination”!

Or, quoting Crawford again: “The deliberations of the UN General Assembly have no effect pending constitutive or definitive statehood.”  A curious argument coming from the prosecutor of Israël.

Mandelblit then quotes the UN Secretary-General as saying something he did not say: what he, as custodian of the Rome Statute, stated when Palestine was admitted to the ICC was that Rome does not address the Palestinian Israeli issue but focuses on war crimes. So, Rome doesn’t do politics.

Similarly, the President of the Assembly of States Parties of the ICC said:

“The Assembly has taken its decisions in accordance with the rules and procedures of the Assembly, independently and without prejudice to decisions taken for other purposes, including decisions of any other organization or bodies of the court, about any legal situation that would come before it.”

And Mandelblit dreamed that the Pre-Trial Chamber, independent of the assembly, would prove him right and deny Palestine what the General Assembly granted it. A very unlikely outcome as we will see, by getting to know the judges of the Pre-Trial Chamber.

Mandelblit then continues to develop statements that backfire. The precondition for ICC membership should have been a peace agreement under the Oslo process. Would Oslo impose itself on international law? The few who have read Oslo realize that the agreement gave everything to Israel and nothing to the Palestinians.

Bensouda points out: “Some provisions of the Oslo accords could violate the right to self-determination.” But, she adds in essence, it’s none of our business, it’s a political matter. For Mandelblit, on the contrary, the only prerequisite would be to bring the Oslo agreements to completion. Until then, there is no question of an International Criminal Court.

This is followed by another very personal theory. In the history of the Israeli-Palestinian conflict, with every Israeli military advance followed by a ceasefire, the international community has welcomed the ceasefire “without prejudging the future position of the borders”.

For Mandelblit this means that Israel could expand further! Mandelblit even put it bluntly: “The state of occupation does not nullify a previous territorial claim.”

So Mandelblit recognizes the occupation of the West Bank? Would this automatically put the people of the West Bank under the protection of the Geneva Conventions?  Not at all, the Israeli prosecutor replies, “the Palestinian entity has not, and never has had, sovereignty over the West Bank and Gaza.”

Further on it is really Mandelblit against Mandelblit: the prosecutor claims that the Oslo accords are law, and at the same time delegitimizes the Palestinian Authority… which emanated from Oslo.

For him, the law is only the long list (which it enumerates) of what Oslo gives to the Israelis (armed forces, security, police, air, taxes, telecommunications, water management) and takes away from the Palestinians. We are a long way from the terms of the British mandate.

And it is probably inadvertently that  Mandelblit quotes  Mahmoud Abbas (Sept. 2009): “All agreements with Israel will end if any part of the Palestinian territory is annexed.” We’re thinking of East Jerusalem.

Most surprisingly, Mandelblit’s position, which is that of the Israeli government, remains that the West Bank is not occupied while asserting that “the Palestinian Authority has no control over 60% of the West Bank and none over Gaza”. 

Further:

“If the territory is occupied, control must be on the Israelis and not on the Palestinians.” 

Israel criticizes the Palestinian state for not being sovereign, even though it is precisely Israel’s occupation that is responsible for this lack of sovereignty.  Mandelblit concludes: “Any assertion that the Israeli presence in the West Bank constitutes an illegal occupation is worthless”! Incomprehensible!  With regard to the Israeli settlements in the West Bank, Mandelblit avoids the word and calls them implantations, thinking he has solved the problem by asserting that “Palestinians have no jurisdiction over “Israeli nationals” ”.

Conclusion of the Attorney General of Israel:  “The credibility and legitimacy of the CCI” is questionable  “if a non-party state (Israel) has not accepted that jurisdiction”.  Does one ask a criminal to recognize the legitimacy of the court that is going to try him?  It is striking that nowhere in his brief does the Attorney General envisage that war crimes could have been committed by Israel.

Who is Avihai Mandelblit?

Avihai Mandelblit is 54. He is married with six children and he is a reserve major general. A graduate of Tel Aviv University, he has a doctoral thesis entitled “Lawfare and the State of Israel – Past experience and a glance to the future.”  It is worth explaining that the neologism “lawfare” means “using legal tools to wage war”.

This term has a strong negative connotation since the purpose of the law is to establish justice and not to wage war.

It is, therefore, a question of using loopholes in the law or of distorting the law for a military purpose, overlooking what is essential, namely the spirit of the law.  A fitting subject for a thesis by General Mandelblit, a long-time military prosecutor in Gaza, Secretary of Staff to Benjamin Netanyahu (2013-2016), Israel’s Attorney General since 2016 and current legal adviser to the Israeli Prime Minister. Military justice is to justice what military music is to music.

What about the Palestinian Authority in all this?

A paragraph that historians will find difficult to fill, and which observers will analyze with interest on the day of the trial. Indeed, the principle of investigations and judgments at the ICC is that all war crimes committed by all parties to the conflict (and Bensouda cites by name Israel, Palestinian Armed Groups, the Palestinian Authority) in a given territory (Gaza, West Bank including East Jerusalem, Bensouda suggests; Pre-Trial Chamber’s response within 120 days) during a given period (from June 13,  2014, to the present day) are analyzed and may be the subject of judicial decisions i.e. charges and convictions of those responsible.

Benjamin Netanyahu and Benny Gantz, for example, will be implicated in the 2014 war. What about the crimes of torture, deaths in detention of Palestinian prisoners in Palestinian prisons in the West Bank?  The Palestinian Authority’s “security cooperation” with Israel will thus be the focus of attention. What will be the assessment of the complaint of Salim al-Saqa, Minister of Justice of the Palestinian Authority, filed on 25 July 2014, in the middle of the war, and frozen a week later by Riad al-Maliki, Minister for Foreign Affairs of the Palestinian Authority?

This complaint is now fully reactivated. How will the long reluctance of the State of Palestine (2012) to refer the matter to the ICC (2018) be judged? What will be the position of the families of victims who fell during this period? How will the Palestinian Authority’s participation in the crime of besieging Gaza be judged?

Reaction from the Israeli Press and Government 

There is no need to expand: the Israeli media “stick” with Mandelblit: Palestine is not a state. But the confusion in the choice of words and the so-called “legal” explanations given by “experts” and “specialists” often make the message incomprehensible.

However, in the week following Fatou Bensouda’s decision, we learned that the annexation of the Jordan Valley is no longer on the agenda, and the following Friday live ammunition was not used at the Gaza-Israel border; while the Israeli Prime Minister has indicated that legal discussions on the subject will remain limited in the cabinet and secret, and accuses the International Criminal Court of “pure anti-Semitism”.

From Now on, What’s going to Happen?

The most likely scenario is that the Pre-Trial Chamber will confirm to the prosecutor that the jurisdiction does correspond to the West Bank, including East Jerusalem and the Gaza Strip. Fatou Bensouda’s legal argument stands in stark contrast to General Mandelblit’s sole argument about the procedure. There have been countless UN resolutions condemning Israel, a deliberation by the International Court of Justice condemning the Wall, and very recently a condemnation by the European Court of Justice of the exploitation of products from Israeli settlements in the West Bank.

Some are surprised at the lack of UN sanctions against Israel, despite many condemnations by the Security Council. It should be remembered that South Africa under apartheid was even briefly excluded from the United Nations. How could Israel escape the same sanction? The answer is in the UN regulation: The United Nations General Assembly may pronounce the exclusion of one of its members (and there is no doubt that this would be the case today with regard to Israel) but only on the proposal of the Security Council. Israel is protected from exclusion only by the US veto.

The Second Act

So it is the three judges of the Pre-Trial Chamber who, within 120 days at most, will perform the second act after Bensouda.

Who are these three judges? Hungarian Peter Kovacs, professor of international law, French diplomat Marc Perrin de Brichambaut member of the Council of State, and Reine Adelaide Alapini-Ganso of Ivorian nationality, a lawyer at the Bar of Benin and lecturer at the University of Lyon, France. Are these people totally unknown? Not entirely, since they were major players in the Mavi Marmara case. Let’s recall the sequence of events.

• May 2010. Three boats carrying passengers and humanitarian supplies are heading towards the port of Gaza. They are diverted into international waters by the Israeli army. The assault on the main vessel, the Mavi Marmara, registered in the Comoros Islands, resulted in the death of 10 passengers.
• May 2013. A complaint from the Comoros Islands, a state party to the International Criminal Court, is filed with the prosecutor’s office.
• November 2014. The prosecutor refuses to open an investigation.
• January 2015. Comoros appeals to the Court (Pre-Trial Chamber 1 composed of our three judges mentioned above).
• July 2015. Chamber 1 notes what it considers to be five errors of law in the prosecutor’s argument to close the case, and asks for a review.  It should be noted that the decision of Chamber 1 is not, legally speaking, either an opinion or a recommendation, it is a judicial decision. 
• November 2017. The prosecutor made her “final decision” not to open an investigation.
• November 2018. Request for reconsideration by Chamber 1.
• January 2019. Intervention by the Appeals Chamber (5 members) which asks the prosecutor to reconsider her “final decision”.

Let us return to the errors of law attributed to the prosecutor by Judges Kovacs, Perrin de Brichambaut and Reine Adelaide Alapini-Ganso (hereafter KPA).

A Poor Assessment of the Gravity of the Crimes

While the prosecutor does not deny that war crimes may have been committed, she nevertheless justifies her refusal to open an investigation by “insufficient gravity”.

The question of gravity, KPA judges point out, is not limited to the number of dead and wounded. Even if it were, many of the Court’s precedents show that the Court does not necessarily have only a quantitative assessment. According to the ICC Statute, the nature, scale, and manner of commission of the crimes must be carefully assessed.

The complainants and the UN Human Rights Council report rely on autopsy reports: multiple shootings of the same victim (so to kill and not just neutralize), shooting in the back (of a fleeing person), post-rendition fire, simultaneous impacts on the hands and face (victims trying to protect themselves).

The notion of wilful crimes, of the existence of a premeditated plan, is dismissed by the prosecutor without explanation.  Yet many witnesses report hearing gunfire before the assault. Some autopsies show that some of the victims were hit from the head down, suggesting shots fired from helicopters. In addition, all the cameras and phones were confiscated by the Israeli army, reflecting a deliberate desire to destroy evidence. 

The Rome Statute specifies a particular situation in which war crimes allow the prosecutor to refuse an investigation: where such an investigation would not be likely to “serve the interests of justice”, meaning no possible conviction of an official for practical reasons. Our three KPA judges insist on this point: in all other cases, the refusal to open an investigation must be legally justified.

KPA also accuses the prosecutor of limiting her arguments only to crimes committed on the three ships,  thus excluding all the other crimes: the ill-treatment of passengers who survived on the boats and during their incarceration on Israeli territory, and also the siege of the Gaza Strip, an unlawful siege that is on the list of war crimes and which justified the arrival of the boats.

At the end of the day, the prosecutor knows that, under the Rome Statute, she alone can decide on an investigation. She relies only on this argument of authority and does not accept, in this particular case, the control of her work by the Court. Since she has closed the case, she says: “it’s over”. Wrong! KPA replies, a review following judicial decisions taken by the chambers is necessary for the prosecutor and her “final decision”. Otherwise, Article 53 3a and Rule 108 of the Rome Statute would have no reason to be.

Rather than a lengthy explanation, these episodes suffice to evaluate the rigor of the three KPA judges who have to decide on the case under consideration.   

However, in law as in medicine, one must always strive to envisage all possibilities. The KPA judges could reject Bensouda’s request, asking her to take on the initiation of the investigation herself before anything else.  This possibility is not excluded in view of the heated exchanges between Bensouda and KPA on the Mavi Marmara affair.  In this case, given Fatou Bensouda’s brief, it is more than likely that Bensouda will open the investigation.

Finally, if the KPA judges were to reject the ICC’s jurisdiction over Gaza and the West Bank including East Jerusalem, or if they were to join General Mandelblit in his dream to reject the ICC’s jurisdiction on the grounds that Palestine is not a state (contrary to the decision by the United Nations or the ICC  Assembly), the State of Palestine, through the voice of the Palestinian Authority, could appeal to the ICC’s five-judge appeals chamber.

Here again, abundant literature is to be found in the appeal chamber’s briefs concerning the Mavi Marmara case.  There is no need to reproduce here all the arguments of the Pre-Trial Chamber or those that have been added calling for an investigation into Mavi Marmara. We have seen above the probable explanation for Fatou Bensouda’s persistent refusal: given her inadequate investigative resources and the absence of an ICC police force, the prosecutor probably preferred to opt for the bomb she was about to drop.

The Investigation

Given the mass of victims’ documents already in the ICC’s possession, the prosecutor has plenty to work on.

The victims, including those in Gaza, sent more than 750 files of complaints set out in a highly professional form (reconstitution of the chain of evidence, the identity of victims and witnesses, video recordings, autopsy reports, surgical or blood samples) concerning the Marches of Return. With two reservations: as the prosecutor’s thirty or so staff deal with many other cases at the same time, their number is not sufficient for the task.

In addition, they have generally received political or legal training, and the team lacks police officers who are experienced in investigative work. Finally, a delegation from the prosecutor’s office should go into the field where it will undoubtedly encounter certain obstacles created by Israel. Without making a link of course (!), let us also recall the personal threats that the United States has just addressed to Fatou Bensouda.

Further contributions are also expected from NGOs, including some Israeli NGOs (Betselem, Breaking the Silence).  Finally, it will be interesting to see how Israel, a non-party state, participates or does not participate. What the Israeli position will be is difficult to predict because of the Israeli Prime Minister’s decision to keep the cabinet discussions secret, and also because several very important legal texts concerning the crimes were removed from the website of the Ministry for Foreign Affairs very soon after Fatou Bensouda’s statement.

At the end of the investigation by the prosecutor’s office, within a period that cannot be specified due to the foreseeable obstacles and the inadequate resources of the International Criminal Court, the hearing to confirm the charges will take place, which will result in the nominative indictments of some Israeli officials.

At the time of writing these lines, and for almost a year, two candidates are vying for the renewal of the post of Prime Minister of Israel, one of whom was Prime Minister and the other supreme leader of the army at the time of the 2014 war against Gaza, which left 2,400 people dead. There is little doubt that they will both be charged.

The Trial. Who is Responsible, what are the Crimes?

Regarding Israel: the highest political and military leaders. The crimes: premeditated killings of a non-combatant population, the bombing of civilian targets, use of prohibited weapons (phosphorus, depleted uranium, cluster shells, dart shells, explosive bullets, nerve gases), the crime of colonization, unlawful siege, displacement of populations, etc.

To a lesser degree, Palestinian Authority officials may be held accountable for crimes that have occurred mainly as a result of “security cooperation” with the occupying power in the West Bank (torture, death in detention), and participation in the unlawful siege (power cuts, reduction in civil servants’ salaries as well as the amount of pensions). Gaza’s combatant armed forces, Hamas and Islamic Jihad will be accused of war crimes (essentially sending rockets without a geolocation system and therefore at risk of reaching civilians). 

In that event, it will be interesting to see how the judges construe Article 31c and d of the Rome Statute.  The latter specifically envisages asymmetrical conflicts in which one of the parties, far less armed than the attacker, may have to commit war crimes in order to ensure the survival of combatants or the protected population, and would then be exempt from criminal liability.

The Political Consequences for Israel and Palestine

Once the trial is completed, there could be major political consequences.  First of all the withdrawal of the Palestinians from the Oslo Accords and the start of an unmanageable situation caused by exclusively repressive methods on the Israeli side. To this first crisis could be added a second, internal one, related to the Nation-State Law of 2018, which formalizes the apartheid between the Jewish population and the non-Jewish population in Israel. A dossier which, in the absence of a quick political solution, could lead to a new case for the International Criminal Court.

The long term could see the  Israeli side falling within the law; with, in one or more stages, the unification of the two states on the territory of historic Palestine and equal rights for the populations therein. This would not betray the intent of the founders of the International Criminal Court.

– Christophe Oberlin is a University Professor, and a surgeon. He regularly leads surgery missions to the besieged Gaza Strip. Oberlin is the author of several books, including Le chemin de la Cour – Les dirigeants israéliens devant la Cour Pénale Internationale. He contributed this article to the French Edition of the Palestine Chronicle, Chronique Palestine.