ICC Prosecutor Is Not Pro- or anti-Israel: She Is Simply Upholding International Law

Netanyahu should not misinterpret the latest appeal to mean that Prosecutor Fatou Bensouda will have a pro-Israel bias in the investigation into the last Gaza war.

Solon Solomon
Solon Solomon
International Criminal Court Prosecutor Fatou Bensouda.
International Criminal Court Prosecutor Fatou Bensouda.Credit: Wikimedia Commons
Solon Solomon
Solon Solomon

“They will not bring Israel before the International Criminal Court. And even if this happens, there will be always ‘prudent’ voices inside the Court that will keep it from opening a case against Israel.”

This is one possible reading of the prosecutor’s decision to appeal the judgment of the court instructing her to reopen the investigation into the 2010 Mavi Marmara flotilla incident. Certain people in Prime Minister Benjamin Netanyahu’s government, including perhaps the prime minister himself, tend to view international law arguments as another anti-Israel political effort by the state’s enemies and divide the international law arena into “good guys” who understand Israel’s just causes and “bad guys” who want to condemn Israel at all cost. These people might be tempted to interpret the prosecutor’s latest move along these lines: The “bad” judges tried to impose an injustice on Israel, but the “good” prosecutor intervened to bring Israel’s justice to light.

Yet, nothing would be more erroneous.

First and foremost, the International Criminal Court does not work on such an informal, “good-bad” dichotomy; it functions along firm legal rules. Prosecutor Fatou Bensouda asked the ICC’s Appeals Chamber to look into the case based on this, not due to any impulsive, moral urge.

Second, Bensouda’s appeal comes after almost all voices in international law theory, including some not always favorable to Israel, have criticized the court’s judgment. In that sense, Bensouda’s appeal comes as a legal necessity.

If the Israeli political and military establishment thinks this particular decision means Bensouda will adopt the Israeli stance on the ICC investigation into the 2014 Gaza war and will not open any cases against Israelis on suspicion of possible war crimes or even regarding settlements, then this is a major fallacy. As prosecutor, Bensouda is pro-law, not pro-Israel. This does not mean she is anti-Israel, but rather to her compliment, she simply has demonstrated so far that she does not take these political considerations into account. She opens cases where she believes serious war crimes have been committed and closes cases where she believes the opposite.

Not by accident did Bensouda tell Haaretz that low and medium-ranking Israeli soldiers as well as Palestinians could be investigated on suspicion of having committed war crimes during the 2014 Gaza war. Not by accident has the ICC decided to dispatch a delegation to visit Israel and Gaza as part of the investigation into this war. This is a warning from Bensouda that Israeli and Palestinian relations with the court are taking a new turn. Inevitably, the Israeli-Palestinian conflict will find itself in judicial halls. Neither party should think it can exit unblemished.

Ultimately, in one way or another, either as witnesses, suspects or defendants, both Israelis and Palestinians will be dealing with the International Criminal Court. They will have to adjust their rhetoric to suit legal language, coming up with arguments that can stand in court rather than using the barren political slogans uttered until now. In this vein, Netanyahu was correct to instruct a group of Israeli senior officials to engage with the court and present Israel’s views and legal arguments as to why the Gaza cases should be dismissed.

Bensouda’s decision should not lead Netanyahu to misinterpret her intentions regarding the investigation into the Gaza war. Ultimately, Israel will be brought before the court. And when that moment comes, Jerusalem must be prepared to face it.

Solon Solomon teaches international human rights law at King’s College London. In the past he has served in the Knesset Legal Department.

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