The ICC’s announcement of an investigation into Israeli war crimes raised questions of the organization’s longstanding anti-Israel bias. In addition, some media question the shady past of the ICC Chief Prosecutor who held a prominent position in the Gambian military regime that routinely used torture to elicit confessions from political opponents.

Last Friday, Chief Prosecutor of the International Criminal Court Fatou Bensouda announced her intention to launch an investigation into possible war crimes committed by Israel in the sections of Israel currently under the administration of the Palestinian Authority. The announcement was accompanied by a 112-page report.

“I am satisfied that there is a reasonable basis to proceed with an investigation into the situation in Palestine,” prosecutor Bensouda said.

The decision came five years after the ICC first opened a preliminary examination at the request of the Palestinians.

Bensouda noted that an emphasis would be placed on the IDF incursion into Gaza in 2014.

“There is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza,” she said. 

The military operation lasted seven weeks and was initiated in response to Hamas, Islamic Jihad and other militant groups firing 4,564 rockets and mortars from Gaza into Israel. The IDF attacked 5,263 targets in Gaza; at least 34 known tunnels were destroyed and two-thirds of Hamas’s 10,000-rocket arsenal was used up or destroyed.

She stated that the investigation would determine whether the IDF launched attacks with the intention of “wilful killing and wilfully causing serious injury to body or health… and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions.”

The investigation will also delve into whether Jews living in Judea and Samaria constitute a crime by international law and whether war crimes were committed in Israel’s response to weekly riots along its southern border. 

Bensouda also claimed that there was a “reasonable basis to believe that members of Hamas and Palestinian armed groups committed… war crimes” by targeting civilians and torturing individuals.

Israeli Prime Minister Benjamin Netanyahu responded to the announcement on Sunday, calling it “anti-Semitic.”

The first stage of the investigation will be a ruling by the Hague to determine if the court has jurisdiction to rule on the issues. The ICC can only open proceedings if a country’s government fails to properly investigate the allegations. In her report, Bensouda noted that she will be reviewing Israel’s internal investigations. She also noted that the allegations against the Palestinian groups are not being investigated.

Israeli Attorney General Avichai Mandelblit published a 34-page-long legal opinion challenging this point.

“The principled legal position of the State of Israel, which is not a party to the ICC, is that the Court lacks jurisdiction in relation to Israel and that any Palestinian actions with respect to the Court are legally invalid,” Mandelblit wrote in the report. The report also noted Israel’s “valid legal claims over the same territory,” noting that it was inappropriate for the Palestinians to bring a claim to the court.

“Israel and the Palestinians agreed, with the support of the international community, to resolve their dispute over the future status of this territory in the framework of negotiations,” the report stated.

The validity of the investigation is further exacerbated by other legal questions. It is a matter of debate as to whether the Palestinian Authority is, in fact, a state and a valid complainant in the international court. This point is raised though not resolved in Bensouda’s document. The investigation into the settlements constituting a war crime is predicated on the assumption that they are illegal according to international law – a point that contradicts the international agreement to resolve this issue through direct negotiations between the Palestinians and Israel. 

Questions have been raised concerning the prosecutor by Ynet News. Originally from the Gambia, Fatou Bom Bensouda has been the  International Criminal Court‘s chief prosecutor since June 2012. 

She played a central role in the early years of Gambian president Yahya Jammeh’s military regime, being chosen as his solicitor general and legal adviser after his 1994 putsch in 1996, before becoming his Minister of Justice in August 1998. Jammeh’s rule had been recurrently denounced for its disrespect of human rights and was considered as one of the “worst dictatorships in the world”. There are currently claims that under her direction, Gambia’s judicial system was marked by multiple and serious violations of the law, the systematic practice of torture, the fabrication of evidence, illegal detentions, enforced disappearances and deaths in custody. 

Bensouda left the Gambia in 2002 but has never denounced the military regime she served under. Ynet has come under fire for producing what others call a “character assassination” targeting Bensouda but her role in a despotic government in which torture was used within the legal system is a matter of public record.

The ICC investigation was criticized by both the United States and Australia. On Friday, Secretary of State Mike Pompeo said in a statement “We firmly oppose this and any other action that seeks to target Israel unfairly.”

“We do not believe the Palestinians qualify as a sovereign state, and they, therefore, are not qualified to obtain full membership, or participate as a state in international organizations, entities, or conferences, including the ICC.”

Today, the #ICC prosecutor raised serious questions about the ICC’s jurisdiction to investigate #Israel. Israel is not a state party to the ICC. We firmly oppose this unjustified inquiry that unfairly targets Israel. The path to lasting peace is through direct negotiations.

— Secretary Pompeo (@SecPompeo) December 21, 2019

This statement was echoed by former US national security adviser John Bolton who said the impending investigation “proves yet again that the ICC is lawless and unaccountable. US sovereignty is at stake here as well as Israel’s… There can be no compromise and no surrender on this point.”

A Department of Foreign Affairs and Trade spokesperson explained the Australian government’s position to J-Wire

“Australia is concerned by the ICC Prosecutor’s proposal to consider the situation in the Palestinian Territories, subject to a ruling by the Court’s Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction in the matter.”

“Australia’s position is clear – we do not recognize a so-called ‘State of Palestine’ and we do not recognize that there is such a State Party to the ICC’s Rome Statute. We consider that the question of territory and borders can be resolved only through direct negotiations between Israel and the Palestinians.  This is the only way to ensure a durable and resilient peace.”

Several pro-Israel groups have claimed that Bensouda refused to meet with them while at the same time she met with Palestinian groups. Channel 13 reported on Sunday that the International Association of Jewish Lawyers and Jurists, a human rights group with representatives in Israel, the US and the UK, attempted several times over the past year to contact Bensouda but she refused to respond. 

Conversely, a video of the prosecutor’s meeting with the Palestinian Center for Human Rights (PCHR) was posted on YouTube. Ironically, despite the very fact of the meeting being proof of anti-Israel bias, the PCHR criticized the ICC for being unfairly biased in favor of Israel.