The Rights Forum / December 9, 2019
Is there any prospect of an investigation into the ‘situation in Palestine’ under the watch of the present Prosecutor of the ICC, Fatou Bensouda? No, there is not, John Dugard explains, for reasons that might be considered shocking.
I have a short and easy answer to the question posed. No, there is no prospect of such an investigation under the watch of the present Prosecutor of the ICC, Fatou Bensouda, whose term of office expires in 2021.
Why do I say this?
It has become abundantly clear that the Office of the Prosecutor (OTP) is determined not to open an investigation into crimes committed by Israel in Palestine and against the Palestinian people. On 16 January 2015 the Prosecutor commenced a preliminary examination into the situation in Palestine. On 15 May 2018 Palestine itself referred the matter to the ICC.
However, the Prosecutor had already conducted a preliminary examination into the situation in Palestine in 2009, which was discontinued in April 2012, and into the Gaza Flotilla situation from 2013. This means that the OTP has been conducting a preliminary examination for ten years into a situation on which there are four Human Rights Council independent fact-finding mission reports, an advisory opinion of the International Court of Justice, resolutions of the Security Council and General Assembly, numerous Israeli, Palestinian and international NGO reports, extensive TV coverage and video recordings depicting and testifying to war crimes and crimes against humanity.
And to date it has found no basis to proceed to the next stage of an investigation – which has been reaffirmed by the Prosecutor in her latest report on preliminary examinations. A report which, as usual, fails to give a straight and reasoned explanation for her failure to commence an investigation.
Coupled with this is the persistent refusal of the Prosecutor to open an investigation into the Comoros case [Mavi Marmara – ed.], despite urgings from the judges of the Court.
In my view the only explanation for this refusal to investigate the situation in Palestine and that of the Comoros is that the Prosecutor’s office is guided by extra legal, political considerations in its decision-making.
I am satisfied that there is more than sufficient evidence to support a finding that Israel has committed war crimes by using excessive and disproportionate force and violence against civilians in Gaza and the West Bank. I am also convinced that the evidence is clear that Israel’s settlement enterprise constitutes apartheid and has resulted in the forcible displacement and transfer of thousands of Palestinians from their homes, meaning that it has committed crimes against humanity.
I am, however, reluctantly willing to accept that there may conceivably, possibly be some debate about the law and the evidence relating to the commission of these crimes.
So instead let me base my claim that extra-legal factors guide the OTP on the crime of the transfer by the Occupying Power – Israel – of parts of its civilian population into the occupied territories of the West Bank and East Jerusalem.
Here the law and facts are clear and permit no possibility whatsoever of dispute or debate.
The law is clear. Article 8(2)(viii) of the Rome Statute makes such conduct a war crime. So do articles 49(6) of the Fourth Geneva Convention and 85(4)(a) of the 1977 Protocol to the Geneva Conventions. So does customary international law.
The facts are clear. Some 700,000 Jewish Israeli settlers live in some 130 settlements in the West Bank and East Jerusalem. These settlements are clearly within occupied Palestinian territory – as held by the International Court of Justice in 2004. Israel continues to expand its settlement empire. These facts have been repeatedly drawn to the attention of the OTP by the Government of Palestine and NGOs.
The evidence clearly provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed as required by the Statute of the ICC. Failure to act in these circumstances, when the evidence of Israel’s criminality relating to the expansion of settlements grows, not only removes any pretence of deterrence, but in addition contributes to the commission of the crime. Culpable failure to take steps to suppress a crime when under a duty to do so makes the Prosecutor complicit in the commission of the crime.
There is overwhelming authoritative support for the conclusion that Israel’s settlements are illegal under international law. The International Court of Justice unanimously held the settlements have been established in breach of international law. The Security Council has on many occasions condemned settlements as illegal, most recently in 2016 in resolution 2334. The General Assembly has annually condemned settlements as illegal. The EU and almost all states have condemned settlements as illegal. The International Committee of the Red Cross agrees. Even Israel’s own legal adviser: Theodor Meron advised that they were illegal when Israel embarked upon this colonial enterprise. (Of course President Trump has a different opinion, but this is only evidence in favour of a contrary position.)
This all leads me to conclude that non-legal, political factors guide the decision-making of the OTP. But how have these factors determined the decision-making of the OPT? As I see it, there are two possibilities: a deliberate collective decision by the Prosecutor, her deputy and senior officers not to prosecute; or inarticulated factors that have led the Prosecutor and her staff to a bias in favour of Israel.
The first explanation envisages a deliberate, collective decision on the part of the Prosecutor and her senior staff not to open an investigation. The most likely reason for such a decision would be fear of retaliation from Israel and the United States. Or it might be sensitivity to the widespread view, prevalent among European states, that the ICC is too fragile an institution to withstand the backlash that might follow such an investigation. While such a collective decision is possible I do not think it is the likely explanation.
The second explanation, that inarticulated factors have determined the decision requires some explanation.
The American legal realists, a respectable school of jurisprudence, argues that the judicial decision is the outcome of the entire life-history of the judge; that rules of law and concealed stimuli such as the judge’s political and moral prejudices interact to produce the judicial decision. US Supreme Court Justice Benjamin Cardozo warned that ‘Deep below the consciousness are … forces, the likes and dislikes, the predilections and prejudices, the complex of instincts and emotions and habits and convictions’ of a judge which contribute to the judicial decision.
Such inarticulated factors contribute even more to the decision-making of prosecutors. Inarticulate factors are more significant in the context of prosecutorial discretion – a broad grant of discretionary authority with little oversight and limited transparency. It is far easier for a prosecutor to succumb to improper inarticulated influences when she believes that she will not have to publicly justify her position.
Although the decision to investigate is primarily that of the Prosecutor it is strange that no member of her staff has publicly raised objections to the decision not to investigate. One would have expected a whistleblower to expose the decision making of the Prosecutor and her senior staff. The only explanation for this is that they too have reasons, inarticulated, to acquiesce in the decision.
As most members of the OTP staff have limited tenure and are required to consider their next professional post there is inevitably the fear that future job opportunities may be jeopardized by a decision to investigate Israel which will be interpreted by potential employers as a sign of anti-Semitism. There is also the fear that this may result in refusal of entry to the United States. Most European states view Israel as part of the European alliance (hence its inclusion in WEOG, the group of Western European and Others Group in the United Nations) and therefore as a state exempt from investigation by the ICC. Failure to respect this ‘given’ may understandably be seen as an obstacle to future employment.
The inarticulate premise of the Prosecutor is of paramount importance. Are there factors in her life-history, particularly in The Gambia, that may provide some indication of inarticulated reasons for her decision to protect Israel from investigation?
Between 1987 and 2000 Fatou Bensouda was Principal State Counsel, Deputy Director of Public Prosecutions, Attorney General and Minister of Justice, and Chief Legal Advisor to the President and Cabinet of the Republic of The Gambia. From 1994 to 2016 The Gambia was under the brutal dictatorship of Yahya Jammeh. Repression was the order of the day as human rights were vigorously suppressed. The Minister of Justice could not remain aloof from this. That she was involved in this process of repression has become clear from evidence before The Gambian Truth, Reconciliation and Reparations Commission (TRRC). Two men, Batch Samba Jallow and Sainey Faye have recently testified that she was complicit in their brutal torture, long detention without trial and denial of legal representation. This has led two Venezuelan lawyers to lay a complaint with the head of the Independent Oversight Mechanism (IOM) of the ICC that claims that she is unfit to hold the office of Prosecutor. Fatou Bensouda is not on record as having criticized or distanced herself from Yahya Jammeh.
These complaints call for a serious and urgent investigation into the fitness of the Prosecutor to hold office. It is the fear that further abuses may be revealed by Israel if she initiates an investigation may well be the inarticulate factor in her decision not to investigate Israel.
In South Africa, during the apartheid era, legal scholars invoked the methods of the American legal realists to expose the inarticulate premises of white judges who routinely delivered racist and pro-executive decisions. This led to a heightened awareness on the part of judges of the nature of the judicial decision and resulted in more fair and independent decisions. American legal realism is a powerful antidote in an unjust and corrupt system. It might profitably be employed in an examination of the work of the Office of the Prosecutor of the ICC.
The purpose of my talk tonight is to make the Prosecutor and her staff aware of the dangers of being guided by their inarticulate premises; premises that have led to a failure to deliver justice for the Palestinian people. I have attempted to expose the kind of extra-legal factors that have probably led the Prosecutor and her staff to show bias in favour of Israel. I hope that they will seriously examine their consciences and question their inarticulate motives for failure to do justice for the Palestinian people.
The above text was presented by John Dugard at a side event to the Assembly of States Parties to the Rome Statute; The Hague, December 5th, 2019. Dugard is a member of the Advisory Council of The Rights Forum
John Dugard is Emeritus Professor of Law at the universities of Leiden and the Witwatersrand; Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territory, 2001 to 2008; Former Judge ad hoc International Court of Justice; and a member of the Advisory Board of The Rights Forum.
 J-M Henkaerts and L Doswald-Beck, Customary International Humanitarian Law, Vol I: Rules, ICRC, CUP, 2005, Rule 130, p 462.
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ Reports 136, paras 78, 122.
 Article 53(1)(a) of the Rome Statute.
 Ibid, para 120. Judge Buergenthal of the United States concurred in this finding.
 Thierry Cruvellier and Mustapha K Darboe, ‘Will Fatou Bensouda Face the Truth Commission in Gambia?’, JusticeInfo.Net, Fondation Hirondelle, https://www.justiceinfo.net/en/truth-commission/4/1906-will-fatou-bensouda-face-the-truth- commission-trrc-gambia.html
 Carlos Ramirez Lopez and Walter Marquez, retired deputy of the Nationl Assembly of Venezuela and President of the AEl Amparo Foundation. Complaint of 2 August 2019.
 See J Dugard, Human Rights and the South African Legal Order, Princeton University Press, 1978, pp 366-388; J Dugard, ‘The Judicial Process, Positivism and Civil Liberty’ (1971), South African Law Journal 181; J Dugard, Confronting Apartheid. A Personal History of South Africa, Namibia and Palestine, Jacana 2019, pp 52-53.