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.
By John Dugard
December 11, 2019 "Information Clearing House" - 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.
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