World’s top war crimes prosecutor talks Palestine

NEW YORK - With only weeks to go before Palestine joins the International Criminal Court (ICC) on 1 April, Middle East Eye talked to the court’s prosecutor, Fatou Bensouda, about her work in a region that has seen more than its fair share of war crimes.

The Gambian lawyer spoke about bloodshed in Palestine, the Islamic State (IS) fighter known as “Jihadi John” and a US Senate report about torturing terrorism suspects that may prove useful in her examination of Afghanistan.

MEE: What information are you collecting about alleged atrocities in Palestine?

Bensouda: A preliminary examination is not an investigation. It is actually the gathering of information to determine certain things; such as whether crimes under our jurisdiction have been committed. We also look at the gravity situation of those crimes. We also look into whether it is in the interests of justice if we were to open an investigation into Palestine. 

We are collecting information to make a determination, and that determination can go in many ways. [I could decide] I have sufficient information analysed in my office to make me determine I would want to open investigations; or it could be that I cannot open investigations because the criteria have not been met. It could also be that I have collected information, but it’s not sufficient and I need to collect more information.

MEE: Some analysts point to Israeli settlements and the 2014 Gaza war as potential cases. Are they right?

Bensouda: The declaration that has been launched by Palestine under article 12(3) of the Rome Statute has given my office jurisdiction to look into alleged crimes that were committed from 13 June 2014 going forward. There is no limitation as such. I am looking at everything that is alleged to have been committed on the territory of Palestine. It would include the crimes that you have mentioned. 

MEE: There are allegations against Palestinians as well as Israelis – are you looking at both sides?

Bensouda: The declaration that has been made by the Palestinians is on crimes alleged to have been committed on the territory of Palestine or over the nationals of Palestine. This means looking into the territory; alleged crimes that have been committed by non-nationals on the territory of Palestine will also be looked at. So, it will be all sides on the conflict, in total independence and impartiality.

MEE: You’ve spoken about prosecuting foreigners fighting with IS. Now we know Mohammed Emwazi – or “Jihadi John” – is British, are you interested in him?

Bensouda: We don’t have jurisdiction in the territory of Iraq, or Syria for that matter. But we do have personal jurisdiction over these persons who are nationals of states parties to the Rome Statute. We are monitoring it very closely. We are asking for information. We’re trying to understand what has happened.

With respect to Jihadi John I believe the primary responsibility to investigate and prosecute him, if the allegations are true, is that of the United Kingdom. It is only when we see that crimes have been committed and nothing has been done by the state, having primary responsibility that my office will come in. The ICC’s jurisdiction complements national systems; it doesn’t replace them.

MEE: Can the US Senate report of CIA torture on terrorism suspects aid your work in Afghanistan?

Bensouda: We’re looking at the report. We’re looking at the report very, very closely. And we will determine what to do, especially if it relates to our jurisdiction in Afghanistan. This is what we’re doing now; we’re really looking at it very, very closely.

MEE: US officials say there will be no prosecutions as a result of the Senate report. Does that impact the ICC?

Bensouda: It’s important to look at the report carefully; it is important to take note of any other thing related to the report that has been done or said and at the end of it we shall decide which way to go. But it’s very early now for me to take a position.

MEE: Very few Middle East countries have joined the ICC. Are they missing out?

Bensouda: I have been calling on this region especially to ratify the Rome Statute and become part of the ICC family… We may not have jurisdiction over states that have not ratified the Rome Statute; but once we have territorial jurisdiction, that means any crime that is committed on the territory of that state, by whoever – whether you are from a states party or not – you will be able to have jurisdiction. I see this as is a form of protection … It is unfortunate that the Middle East has the least countries from that region that have ratified the statute; and I believe it is time that changed.