ICC prosecutor Fatou Bensouda. (AP/Peter Dejong) (AP/Peter Dejong)
ICC prosecutor Fatou Bensouda

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Has the ICC prosecutor secretly colluded with the Palestiian Authority and already decided to prosecute Israel? A Jordanian news site says so.

By Itamar Marcus and Maurice Hirsch, Adv., Palestinian Media Watch

In response to Palestinian complaints against Israel, the prosecutor for the International Criminal Court (ICC), submitted in December 2019 a request to the ICC’s Pre-Trial Chamber ostensibly asking the Chamber to confirm that the ICC has jurisdiction over “the situation of Palestine” and to confirm that the territory “comprises the West Bank, including East Jerusalem, and Gaza.”

Palestinian Media Watch (PMW) and dozens of other organizations and governments submitted Amicus Curaie (Friends of the Court) briefs showing that according to international law there is no “State of Palestine” and therefore the court has no jurisdiction. The prosecutor is meant to respond to the Amicus briefs by the end of the month.

Now it turns out, according to the Jordanian Jafra News, that this entire pre-trial legal process to determine if the court has jurisdiction and its scope is actually a mere charade with the puppeteer pulling the strings of deception being the General Prosecutor of the ICC herself, Fatou Bensouda.

A Palestinian Authority (PA) source in contact with the general prosecutor’s office told the Jordanian site that the request of the Prosecutor to the Pre-Trial Chamber was only initiated in order to protect “the ICC’s public image… in a sensitive investigation such as this,” but in fact the decision of the court already is that there is jurisdiction:

“The general prosecutor’s office explained to the Palestinian side that it did not wait for the Preliminary Department’s (i.e., Pre-Trial Chamber–Ed.) decision in order to begin preparations to open an investigation. This is because the aforementioned decision [that the ICC has jurisdiction] is a foregone conclusion, and a petition to this [Pre-Trial] Chamber was only done in the first place out of considerations related to protecting the ICC’s public image and its proper activity, in the framework of its official authorities in a sensitive investigation such as this.” [Jordanian news website jfranews.com.jo, March 5, 2020]

This behind-the-scenes collusion led, according to the Jordanian report, to information being given by “the ICC General Prosecutor Fatou Bensouda and her staff” to the PA, indicating “that the prosecutor’s office has taken the necessary steps towards launching a comprehensive investigation of the Israeli occupation’s crimes in the Palestinian West Bank,” even prior to the decision whether the court has jurisdiction at all. This report by Jafra News suggests that the ICC prosecutor is biased, lacks integrity, and therefore is incapable of conducting a fair proceeding concerning Israel.

Considering the collusion between the PA and the ICC prosecutor, who initiated sham proceedings merely to protect the ICC’s image, it is no wonder that the PA is optimistic. According to Jafra News:

“PLO Executive Committee Secretary Saeb Erekat expressed confidence that a judicial investigation of Israeli senior officials on the issue of the settlements and other war crimes against the Palestinian people will soon be launched.” [Jordanian news website jfranews.com.jo, March 5, 2020]

ICC-PA Contacts at the Highest Level

PMW has corroborated that there have been contacts at the highest level between the ICC and the Palestinian Authority, although the content of the meetings have not been publicized. For example, this picture published by WAFA, the official PA news agency, shows PA Prime Minister Muhammad Shtayyeh meeting with ICC’s Chief Prosecutor Fatou Bensouda in February this year. [WAFA, Feb. 15, 2020]

The Jordanian news site’s exposure of the collusion between the PA and the ICC Prosecutor explains the confidence of PA/PLO officials such as Erekat in the outcome on the pretrial request to determine if there is “territorial jurisdiction,” already months ago:

“The step taken by the prosecutors represents a confirmation of her position that the ICC has territorial jurisdiction to examine the ongoing crimes that are committed by Israel, the Occupying Power. It is the final step towards opening a criminal investigation, and it is a message of hope to our people, the victims of those crimes, that justice is indeed possible.” [Wafa, official PA News Agency (English) Dec. 20, 2019]

Soon after the ICC Prosecutor submitted her request to the court intended to “protect the ICC’s public image,” Erekat told PA TV that not only the PA had been involved in preparing the case for the ICC but that internationally designated terror groups, such as Hamas and the Popular Front for the Liberation of Palestine (PFLP), also participated.

PLO Executive Committee Secretary Saeb Erekat: “After our acceptance as members of the ICC, His Honor [PA] President [Mahmoud Abbas] established a supreme national committee responsible for following up with the court. I have the honor of chairing it. [PA Minister of Foreign Affairs] brother Riyad Al-Malki is the official link connecting to the ICC, and he is the rapporteur to the committee…This committee included [factions] from all ends of the Palestinian political spectrum, without any exceptions… The number of committee members was 45 and we all worked as a team. Dr. Ghazi Hamad of [Hamas] was even elected the committee’s spokesman.”

Official PA TV interviewer: “He is a senior Hamas official.”

Erekat: “There were six from the Hamas Movement. And sister Khalida Jarrar who represented the Popular Front [for the Liberation of Palestine], Allah willing may she be released; and there was [Deputy Secretary-General of the Democratic Front for the Liberation of Palestine] brother Qais [Abd Al-Karim] ‘Abu Laila.’” [Official PA TV, Dec. 21, 2019]

In other words, when she worked with the PA to submit her sham request, the ICC Prosecutor actually had worked with a committee comprised of many of the organizations that would all, factually and legally, be potential suspects in the ICC. Hamas and the PFLP both engage in “widespread or systematic attack[s]” directed against Israel’s civilian population (Article 7, Rome Statute).

As regards the PA, the ICC Prosecutor herself has noted that the “PA have encouraged and provided financial incentives for the commission of violence through their provision of payments to the families of Palestinians who were involved, in particular, in carrying out attacks against Israeli citizens, and under the circumstances, the payment of such stipends may give rise to Rome Statute crimes.” (ICC Prosecutor Report on Preliminary Examination Activities, 2019)

A Sham Request

The close contacts exposed by the PA official to Jafra News between the ICC prosecutor and the PA, together with her submission of a sham request merely to protect the ICC image, fundamentally undermines the professionalism, impartiality and ethics of the ICC prosecutor, and is a clear abuse of her position.

If the ICC indeed wishes to protect its image, it should immediately terminate further activity regarding the sham request of the prosecutor. In addition, it should initiate a thorough investigation of the contacts between the prosecutor and the PA committee comprised of Palestinian terror organizations who have undeniably committed crimes, the nature of which the court would deal with, if it had jurisdiction.

Jafra News is a Jordanian news site that is close to and supportive in its writing of the Jordanian government. At its 10-year anniversary celebrations last year many senior government officials attended:

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