Fatou Bensouda
Fatou BensoudaReuters

Last Friday the International Criminal Court (ICC) became the latest UN body that chose to side with the Palestinian Arabs and to go after Israel.

After finishing her preliminary investigation into Israeli and Palestinian actions in Gaza, eastern Jerusalem, and the so-called ‘West bank’ - Israel’s ancestral homeland Judea and Samaria -, ICC chief-prosecutor Fatou Bensouda decided she wanted to open an investigation into “the situation in Palestine”.

The investigation will focus on war crimes allegedly committed by the Israeli military since the 2014-war between Hamas and Israel but will also include research into Palestinian war crimes such as torture, random killings and rocket fire at Israeli population centers.

The war crimes investigations into Israel’s actions encompass the establishment of the so-called ‘settlement enterprise’ and the reality that Jews are settling in east Jerusalem including the Old City which has seen a continuous Jewish presence since Biblical times.

Israeli Prime Minister Binyamin Netanyahu called Bensouda’s announcement “absurd” and “pure anti-Semitism” and, as we will see, he’s right.

New edicts are being cast against the Jewish people—anti-Semitic edicts by the International Criminal Court telling us that we, the Jews standing here next to this wall … in this city, in this country, have no right to live here, and that by doing so, we are committing a war crime,” Netanyahu said referring to the Western Wall the last remaining wall of the Jewish Temple in Jerusalem.

Prior to the announcement she would like to open a war crimes investigation against Israel Bensouda refused to meet with Israeli organizations which wanted to present her evidence of Palestinian war crimes or legal papers showing the ICC has no jurisdiction to conduct the investigation.

The ICC prosecutor, a Muslim, did repeatedly meet with Palestinian groups, however, and this explains why Bensouda used language that sounded like a page taken out of the Palestinian propaganda playbook.

She was apparently bullied by representatives of the Palestinian Center for Human Rights who during a meeting early December harshly criticized the ICC for being biased toward Israel.

Bensouda already sees an existing Palestinian state and views the so-called settlement enterprise as a war crime. Palestinian self-determination is for the ICC prosecutor “jus cogens” a universal principle of international law that trumps everything.

She, furthermore, used a speech by former US Secretary of State John Kerry, who was highly critical of the Israeli communities in Judea and Samaria, to build the case for Israeli war crimes while practically ignoring the opinion of the current US administration.

Bensouda also made clear that she bases her legal opinion on UN resolutions which especially in the case of resolutions adopted by the UN General Assembly were the result of the voting patterns of the large anti-Israel block in the UNGA.

The former adviser of Gambia’s controversial President Yahya Jammeh, who oppressed journalists, members of the LGBT community and opposition parties made clear she has adopted the opinion of the anti-Israel community which blames all Palestinian woes on the ‘Israeli occupation’.

In order to start the investigation Bensouda first had to ask the pre-trial chamber of the ICC to rule within 120 days if Palestine is indeed a state and what the territory of this state is.

She told the pre-trial chamber that she believes ‘Palestine’ is a state and based this opinion solely on the fact that the Palestinian Authority signed the Rome Statute on which the ICC is based and because the UNGA recognizes the PA as a non-member state.

‘Palestine’ is not a state, however, at least when one takes in account international law principles about statehood such as the principles of the Montevideo Convention.

Professor Eugene Kontorovich of the Kohelet Forum and an expert in the field of international law says that Bensouda “ignores international law by inventing a Palestinian state that does not exist and creates a crime that no one in international law has ever been charged with before: the crime of people living in places.”

Kontorovich also pointed to Bensouda’s hypocrisy when he recalled how she “pretended, in the interest of evenhandedness, to investigate 150,000 Russians being moved into Crimea and concluded without any fanfare that is not a war crime.”

Kontorovich now calls for the “complete delegitimization” of the ICC and its chief-prosecutor and said that Israel must lead this effort.

Chances are high , however, that at least the delegitimization of Bensouda will come from within Gambia.

People who were tortured and deprived of lawyers during unlawful detention in Gambia ask the nation’s Truth, Reconciliation and Reparations Commission to question Bensouda about her role in the atrocities committed during her years as a state prosecutor in the African country.

Two witnesses who were held on trumped-up charges and were severely tortured in Gambia’s jails have already publicly challenged her before the Truth, Reconciliation and Reparations Commission and say so should be called in to testify before the Commission.