ICC Prosecutor: Without Cooperation, Gaza War Probe Will Rely on Evidence From Just One Side

Fatou Bensouda tells AP that she has not received any information yet from either side regarding last summer's Gaza war.

ICC Prosecutor Fatou Bensouda
ICC Prosecutor Fatou Bensouda, November 2013. AP

The prosecutor of the International Criminal Court warned Israel on Tuesday that if it does not provide reliable information for her preliminary probe into possible war crimes in Palestinian territories, she may be forced to decide whether to launch a full-scale investigation based only on Palestinian allegations.

Fatou Bensouda told The Associated Press in an interview that she has not received any information yet from either side regarding last summer's Gaza war. She stressed that it was in "the best interest" of both sides to provide information.

Bensouda opened a preliminary examination in mid-January after the Palestinians accepted the court's jurisdiction dating back to just before last year's Gaza war in which more than 2,200 Palestinians, including hundreds of civilians, were killed. In Israel, 67 soldiers and six civilians were killed.

The Palestinians accepted the court's jurisdiction in mid-January and officially joined the ICC on April 1 in hopes of prosecuting Israel for alleged war crimes and crimes against humanity during the Gaza conflict so they are certain to provide Bensouda with information. Israel, however, has denounced the Palestinian action as "scandalous," with Prime Minister Benjamin Netanyahu warning that it turns the ICC "into part of the problem and not part of the solution."

Bensouda said her office is "making attempts" to contact the Israelis and to reach out to the Palestinians.

"If I don't have the information that I'm requesting," she said, "I will be forced to find it from elsewhere, or I may perhaps be forced to just go with just one side of the story. That is why I think it's in the best interest of both sides to provide my office with information."

She stressed repeatedly that a preliminary examination is not an investigation, calling it "a quiet process" to collect information from reliable sources and both sides of the conflict.

Bensouda said the prosecutor's office will then analyze the information to determine whether four criteria are met: Do the crimes come under ICC jurisdiction? Are there any national legal proceedings dealing with those crimes, which could take precedence over ICC action? Are the crimes grave enough to warrant the intervention of the world's permanent war crimes tribunal? Will it not be against the interest of justice if the ICC intervenes?

Once the analysis is made, she said, the prosecutor has three options — to open an investigation, not to open an investigation, or to seek additional information.

"It's really difficult to say this is going to take two months or three months, or one year or 10 years," Bensouda said, noting that in some instances like Libya the preliminary examination has been very short while in Afghanistan the preliminary probe has already taken 10 years.

Bensouda said she has already received information "from others regarding the preliminary examination," but refused to elaborate except to say that her office is also collecting information from confidential sources, identified groups and individuals and open sources.

A preliminary examination is not an investigation, but weighs information about possible crimes and jurisdiction issues to establish whether a full investigation is merited.

Immediately following Bensouda's establishment of the committee, sources in the Prime Minister's Office said that Netanyahu had decided to launch a media campaign directed against the ICC and its prosecutor.

According to the sources at the PMO, Netanyahu took this decision despite a specific recommendation by the Foreign Ministry not to refer to the prosecutor and court in negative terms and not to attack them directly.