Fatou Bensouda, the Prosecutor of the International Criminal Court (ICC), has dared to take on the US, Israeli impunity and opened investigations in Afghanistan and the Israeli-occupied territories of Gaza and the West Bank. In March 2020, the ICC authorized the Prosecutor to investigate whether the US troops and contractors committed war crimes and crimes against humanity in Afghanistan since May 2003. In February 2021, the ICC decided that it has jurisdiction over the West Bank and Gaza, facilitating the Prosecutor to investigate whether the Israeli troops and Jewish settlers have committed international crimes in the occupied territories.
Pro-establishment sovereigntists (pests)—political elites, the corporate media, money-pouring lobbyists, and conservative think tanks—operate in unison to claim sovereign immunity for the international crimes that the US and Israeli nationals perpetrate in the Middle East and Asia. However, the same Pests work overtime to undermine other nations’ sovereignty through invasions and air attacks, champion spiteful sanctions against countries that confront the US-Israel hegemony, and propose to criminalize, overthrow, and kill the “terrorist” leaders of defiant nations.
Undoubtedly, the Pests will join hands, as they have done before, to resist and disrupt the prosecutorial investigations under the ICC’s auspices.
The Rome Statute, consisting of 128 Articles, is a global treaty that founded the ICC in 2002. The States Parties elect the ICC’s 18 judges, serving the Court’s different chambers: Pre-Trial, Trial, and Appeals. The Statute grants the Court jurisdiction over four gravest international crimes of concern to humanity: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The crimes against humanity are perpetrated when a civilian population suffers widespread or systematic attack in times of war or peace, including murder, rape, forced disappearance, enslavement, torture, apartheid, deportation.
One hundred twenty-three states (123), including Afghanistan and Palestine, accept the ICC jurisdiction to investigate and prosecute individuals who perpetrate international crimes on their territory. Along with nearly 75 other states, the US and Israel do not accept the Court’s jurisdiction, nor do they intend to do so. Among influential states, India, Russia, and China do not subscribe to the Court’s jurisdiction, but France, Germany, and the United Kingdom do. The prominent Arab states, advocating the cause of the Palestinians, such as Egypt, Saudi Arabia, UAE, Qatar, Morocco, and Lebanon, do not subscribe to the ICC jurisdiction over international crimes.
Note that the Court prosecutes individuals, not states or corporations, for committing the listed offenses. The Rome Statute allows national courts to prosecute and punish persons who commit international crimes. However, most national courts are unable or unwilling to prosecute prime ministers, presidents, generals, and other influential persons who authorize international crimes. In such matters, the ICC furnishes the means to investigate, charge, prosecute, convict, and punish individuals. No perpetrator of crimes occupying any rank or office enjoys immunity under the Rome Statute.
As of 2021, the ICC has processed 32 criminal cases and opened 13 investigations, including in Afghanistan. However, for years, most countries under investigation have been African states. An overwhelming majority of defendants facing criminal charges have also been o Africans. Presently, thirteen defendants, charged with various crimes under the Rome Statute, are the nationals of Libya, Sudan, Kenya, Ivory Coast, and Rwanda. They are absconding for multiple reasons, including that the ICC acts exclusively against Africans. Some African states revoked the ICC’s jurisdiction.
It seemed as if the ICC was indeed a colonial court, headquartered in a Dutch city, prosecuting African leaders. However, Prosecutor Bensouda has made effective moves to alter the Court’s image, as the ICC’s reach extends to other continents and countries, including the Philippines, Ukraine, Bolivia, Venezuela, and Palestine.
Fatou Bensouda, a national of Gambia, studied law in Nigeria, served her home country in various positions, and rose to international prominence when working for the International Criminal Tribunal for Rwanda. In 2011, the States Parties of the ICC elected Bensouda as the Prosecutor, a powerful office to launch investigations into international crimes and bring the perpetrators to accountability before the ICC.
By opening an investigation in Afghanistan and paving the way for a preliminary examination in Israeli-occupied Gaza and West Bank, Bensouda is treading an uncharted path.
Article 15 of the Rome Statute allows the Prosecutor to initiate investigations into the listed crimes upon receiving incriminating information from states, international agencies, NGOs, or other reliable sources. However, the law requires that the Prosecutor determine whether the investigation has a reasonable basis to proceed and, accordingly, seek authorization from the Pre-Trial Chamber (trial judges) of the ICC. Thus, an investigation begins when the ICC trial judges and the Prosecutor both determine the evidence to be credible. The Prosecutor may appeal an adverse decision of the Pre-Trial Chamber.
Going after weak nations is much easier for international institutions than holding influential countries accountable for their international crimes. The Pests launch media campaigns to safeguard the US and Israeli nationals from accountability in domestic and international courts. They unleash tremendous pressure on the ICC judges and the Prosecutor not to initiate criminal investigations to determine whether the Mossad, IDF, CIA, and Pentagon officials committed war crimes and crimes against humanity.
In 2019, a Pre-Trial Chamber rejected the request of Prosecutor Bensouda to proceed with an investigation for alleged crimes against humanity and war crimes on the territory of the Islamic Republic of Afghanistan. Some observers argued that the Pre-Trial Chamber got scared by the strong US reaction to any such investigation. John Bolton, a Pest, who had served as the National Security Adviser under President Trump, hurled threats at the ICC. However, a determined Bensouda appealed the rejection to the Appeals Chamber, which, in March 2020, overruled the Pre-Trial Chamber and granted permission to investigate.
Retrospectively, it was prudent on the part of Afghanistan to accept the Court’s jurisdiction in 2003, despite the US pressure not to do so. Prosecuting the Taliban or Afghan tribal lords had not been the barrier to the investigation. Much like African countries, Afghanistan has no clout to defy or undermine the ICC. At stake in the prosecutorial investigation is laying bare the war crimes and crimes against humanity involving the US nationals, including the CIA, Pentagon officials, drones’ operators, troops on the ground, and several thousand private contractors.
The Trump administration reacted harshly when the Appeals Chamber granted the prosecutorial request to investigate international crimes in Afghanistan. President Trump imposed economic and travel sanctions against the ICC employees involved in the investigation, freezing their accounts, and prohibiting their families from visiting the US. Secretary of State Mike Pompeo, a Harvard law graduate, called the ICC “a kangaroo court.” Other Pests blamed Russia for manipulating the Court to investigate international crimes committed in Afghanistan. Attorney General William Bar, a lesser lawyer by all standards but a pest, accused the ICC of “financial corruption,” which means that the Prosecutor’s office was taking bribes for its decisions.
A determination that the US nationals perpetrated war crimes and crimes against humanity in Afghanistan’s armed conflict will unlikely result in any successful prosecution. The US will not surrender its citizens to the ICC for prosecution. At best, the Prosecutor might be able to identify the US individuals and declare them absconders. The stigma of committing war crimes and crimes against humanity will rattle the Pests.
Evidence alone does not prosecute criminals; the criminal justice system needs powerful prosecutors who can muster the courage to bring the criminal bosses to justice. Most prosecutors, national and international, hunt for soft targets and look for self-promotion rather than defending the rule of law. Prosecutors who challenge the mighty and the powerful are a rare breed.
Prosecutor Bensouda did not stop with Afghanistan. She dared more. The information on Israeli crimes in the occupied territories of Palestine has been more than adequate, putrefying in the wastebasket for years. Bringing the Mossad and IDF operators under an international investigation required courage and grit. Bensouda requested the Pre-Trial Chamber to open a preliminary examination of war crimes and crimes against humanity in Gaza and the West Bank.
Like Afghanistan, Palestine, too, in 2015, subscribed to the Rome Statute and accepted the ICC jurisdiction to investigate, prosecute, and convict persons who perpetrated international crimes in the territory called Palestine. The status of Afghanistan as a state was beyond doubt. However, whether Palestine is a state under international law has been controversial. Alan Dershowitz, an unabashed Pest, who called the Justices of the International Court of Justice thugs because they did not support the Israeli wall, argues that Palestine is not a state.
Following the law, Prosecutor Bensouda requested the Pre-Trial Chamber to determine whether the ICC has jurisdiction over international crimes in the occupied Gaza and the West Bank, including East Jerusalem. Without entering the thicket of statehood and the future borders of Palestine, the Pre-Trial Chamber ruled that the Prosecutor may initiate a preliminary examination of the crimes, a forerunner to the investigation.
Much like the US, the Israeli reaction to the ICC decision was adverse. Prime Minister Netanyahu, a persistent tormentor of Palestinians and a likely perpetrator of international crimes, condemned the ICC’s ruling as “pure anti-Semitism.” In less forceful words, the US State Department under President Biden sided with Israel, saying that the ICC should not exercise jurisdiction over the non-consenting states’ personnel. Australia, another abode of the Pests, whose troops have committed heinous war crimes in Afghanistan, also came to Israel’s defense.
Once considered a colonial court that only prosecutes African nations’ leaders, the ICC has begun to establish its legitimacy by opening investigations of international crimes that powerful states perpetrate in states that have accepted the Court’s jurisdiction. Much credit goes to Bensouda, a fearless African woman of impeccable character, who dared to open the way for scrutinizing the evidence of international crimes that the CIA, Pentagon, Mossad, and the IDF have committed in Afghanistan and Palestine. The Pests—the political elites, the corporate press, money-pouring lobbyists, and conservative think tanks—have been doing everything in their reach to discredit the ICC, block investigations, put pressure on the ICC judges to abandon the US, Israeli criminal cases.
For years, Bensouda has frustrated the Pests’ claims for impunity and set the ICC on the right track to enforce the rule of law. Unfortunately, Bensouda is stepping down in June 2021.