Israel has many detractors, real and imagined, but since Friday the country has a brand new public enemy number one: Fatou Bensouda, the chief prosecutor of the International Criminal Court.
Since announcing her intention to open an investigation into the “situation in Palestine” because she believes war crimes “have been or are being committed” there, the 58-year-old Gambia native has endured a massive wave of criticism.
Prime Minister Benjamin Netanyahu repeatedly accused her of “pure anti-Semitism,” comparing the legalistic argumentation she put forward to the anti-Jewish decrees by the villains of the Hanukkah story.
Bensouda, however, has also faced remarkable hostility from some unexpected corners of the Israeli media. This is not because the press is suddenly supportive of Netanyahu, but instead may have more to do with the fact that her war crime accusations are directed at Israeli soldiers. Since most Israelis have either served in the army or have close family members who served, many here feel personally attacked.
Israeli outlets spilled much ink trying to sully her name, including digging up her “stained past” as a senior official in the government of former Gambian president Yahya Jammeh.
“She served as a legal adviser for one of the most ruthless dictators in the world,” Yedioth Ahronoth — one of Israel’s leading newspapers, and no supporter of Netanyahu, — wrote in a front-page story Monday headlined “The devil from Gambia and the prosecutor from The Hague.”
The article, a brief teaser for the “full story” to be published in the paper’s upcoming weekend magazine, notes that Bensouda’s service for Jammeh’s regime earned her “a fair share of criticism, with many accusing her of turning a blind eye to the atrocities committed by the Gambian dictator.”
In the last paragraph, the authors, in an apparent contradiction of their own thesis, acknowledge that the ICC prosecutor is “continuously praised by many around the world, including human rights groups, as an adamant justice seeker, who works tirelessly to preserve the rights of people even when faced with a dictatorship.”
The hasbara war on the @IntlCrimCourt continues: Israel's largest newspaper @YediotAhronot publishes a front-page character assassination of Chief Prosecutor Fatou Bensouda for her "dark past" as Gambia's justice minister under dictator Yahya Jammeh. pic.twitter.com/5lFGHhlP3z
— Edo Konrad (@edokonrad) December 23, 2019
Later on Monday, Channel 13 aired another hit piece on Bensouda. The report by the station’s chief international affairs reporter, Nadav Eyal, briefly showed parts of testimonies from The Gambia’s Truth, Reconciliation and Reparations Commission. Inaugurated in October 2018, shortly after Jammeh was ousted, the 11-member panel has been tasked to investigate the crimes of the Jammeh era.
In one of the testimonies, Batch Sambo Jallow says he was tortured for organizing demonstrations. Bensouda, who served as a prosecutor for the case, “was the mastermind of everything we went through,” he charges.
A second short clip showed the testimony of Sainey Faye, who told the commission that he was tortured for possessing a photo of former president Dawda Jawara, who had been ousted by Jammeh in 1994.
“We thought she was hard on us,” Faye recalled later in an interview with JusticeInfo.net.
However, the Channel 13 report did not mention that Bensouda played only a very small role in Faye’s case, from which she was eventually forced to withdraw. It also failed to acknowledge that the accusations he cites date back to 1995, when Bensouda was a local prosecutor and not any sort of higher-up in the regime.
Several senior officials in today’s Gambia, including Justice Minister Abubacarr Marie Tambadou and the lead council of the Truth, Reconciliation and Reparations Commission, Essa Faal, agree that Bensouda likely had no more than a passing role in any atrocities.
Bensouda herself denies knowing about the torture of the two witnesses, claiming that she was responsible for eventually dropping the charges against them.
While Bensouda appeared at the inauguration of the commission last year, she has consistently refused to comment on her past involvement with the Jammeh regime.
“I do not think that it is right for me to start giving opinions about the human rights situation of any country, including Gambia, except when those crimes translate into the crimes that I have to investigate,” she told The New York Times in 2013.
The pro-Netanyahu Israel Hayom this week also dedicated an above-the-fold front page story to Bensouda. Her decision to investigate alleged Israeli war crimes, the tabloid charged, was partially based on the reports issued by dovish Israeli human rights group B’Tselem.
This organization was paid by European governments to shed light on Israeli courts’ treatment of Palestinians, which, the paper argued, helped convince Bensouda that the government in Jerusalem cannot be relied upon to sufficiently investigate alleged military war crimes.
Given the media onslaught on Bensouda, it seems just a question of time until an Israeli reporter “reveals” the long-known fact that she is a proud Muslim and once cited Islam as a source of strength.
Asked in a 2011 interview, given in honor of her becoming the ICC’s chief prosecutor, if her religion plays any role in helping her carry out her new duties, she replied: “Absolutely, definitely. Islam, as you know, is a religion of peace, and it gives you this inner strength, this inner ability and a sense of justice. Together with my experience, this will help a lot.”
Wrestling to the top
Bensouda was born in 1961 as Fatou Nyang into a polygamous family in The Gambia’s capital, Banjul. Her father, who had two wives, was a government driver and one of the tiny West African nation’s “most prominent wrestling promoters,” according to David Perfect’s “Historical Dictionary of The Gambia.”
She studied in Nigeria and Malta, specializing in international maritime law. In 1987, she was appointed state counsel by the Jawara government, and after Jammeh’s coup seven years later she became deputy director for public prosecution. In 1998, Bensouda became the regime’s attorney general and justice minister. However, she garnered praise from human rights advocates “for speedy prosecution of offenses against women and children,” Perfect wrote.
Despite the ostensibly revelatory nature of this week’s Hebrew media stories, Bensouda’s involvement with the Jammeh regime was no secret. Her official biography on the ICC website lists the many positions she held in Banjul, including that of “Chief Legal Advisor to the President and Cabinet of The Republic of The Gambia.”
After she was sacked by the dictator — with whom Israel had warm ties — during a trip abroad in 2000, Bensouda worked as a private lawyer and later as a manager in a commercial bank.
In 2001, she was hired as legal adviser and trial attorney at the International Criminal Tribunal for Rwanda, based in Tanzania. Three years later, she moved to The Hague, where she eventually climbed the ladder all the way to the top.
In December 2011, the ICC’s Assembly of States Parties elected the mother of three by consensus for a non-renewable nine-year term as chief prosecutor.
In a move that contradicted the often-quoted assertion that the ICC only targets small and weak former dictators from Africa, in 2017 she announced her intention to investigate war crimes committed by American soldiers and intelligence operatives in Afghanistan in 2003-2004.
But in April an ICC pretrial chamber rejected her request to open an investigation into the matter, arguing it would “not serve the interests of justice.” Bensouda’s appeal is ongoing.
Meanwhile, the US in March enacted a policy “restricting issuance of visas to any and all ICC officials” responsible for investigation of Americans “or of allied personnel without our allies’ consent,” as US Secretary of State Mike Pompeo said at the time.
On Friday — even before the Israeli press had published its critical pieces on the prosecutor — Pompeo issued a statement saying the administration “firmly” opposed her bid to open an investigation into the “situation in Palestine” or any other move “that seeks to target Israel unfairly.”
Mixed record on Israel
Her attempt to probe Israeli soldiers, as well as Palestinians terrorists, will to a great extent shape her legacy. Whether she gets to start an investigation will now depend on the three judges of the court’s pretrial chamber, whom she requested to determine within 120 days whether The Hague has jurisdiction over the case.
“Any person who takes on a senior post opens himself or herself up to journalists checking their past,” said Alan Baker, a former legal adviser to Israel’s Foreign Ministry, who was involved in drafting the Rome Statute, the ICC’s foundational document.
“But I’m not sure the stories we have read about her in the Israeli press will have any influence on the deliberations” of the pretrial chamber, he said. “It’s good to know these things, but blackening her name will make no difference at this point. But it might help sell newspapers.”
— Int'l Criminal Court (@IntlCrimCourt) December 20, 2019
Bensouda’s record on Israel is mixed.
The 112-page document she published on Friday appears to accept many Palestinian talking points. For instance, when weighing the question of whether “Palestine” is a sovereign state that can convey territorial jurisdiction to the court, she largely relies on United Nations resolutions. But in analyzing legal matters, critics in Jerusalem charge, a criminal prosecutor cannot base herself upon decisions made in political bodies.
It is also unclear why she deems Israeli settlements in the West Bank a war crime but appears unfazed by Turkish settlements in Northern Cyprus or Russian settlements in Crimea. (Ukraine is not a member state of the ICC but accepted the court’s jurisdiction over alleged crimes committed on its territory during the time of the Russian invasion.)
On the other hand, Bensouda steadfastly refused to open a probe into the deadly 2010 Gaza flotilla incident, saying any crimes allegedly committed during the commandeering of the Mami Marmara during its bid to breach the Gaza security blockade were not severe enough to merit such a probe. Just earlier this month, her office insisted, for the third time, that while Israel Defense Forces troops may have committed war crimes, there is no reason to launch an investigation into the matter “due to lack of gravity.”
Before Bensouda’s last day in office — June 15, 2021 — many more revelations about her past in Gambia may come to light, predicted Eyal, the Channel 13 reporter.
That’s a good thing, according to Eugene Kontorovich, a right-leaning American-Israeli professor of international law.
“I am not saying she was a Nazi. I don’t know what she did back there,” he said. “But whether the chief prosecutor of the world’s primary criminal court has herself been involved in human rights abuses is something that is of legitimate interest to Israelis.”
Bensouda seeks to exert the ICC’s jurisdiction over Israeli nationals, among other things for the war crime of transferring civilians, “directly or indirectly,” into occupied territory, he noted.
Even if she herself wasn’t actively engaged in atrocities but only played a passive role in Jammeh’s human rights abuses, “the people she now purports to prosecute have a right to know whether she applies the same standards on the facilitation of crimes to her own conduct.”
Michael Sfard, a prominent Israeli lawyer and human rights activists affiliated with the far-left, agreed that it was appropriate to inquire into Bensouda’s past but said it was being done wrong.
“Is she a proper choice for chief prosecutor? That’s a legitimate question, but it should be asked by human rights organizations, and certainly not by the State of Israel,” he said.
“This is an insane kind of hypocrisy,” Sfard continued. “Israel is selling weapons to all kinds of African dictatorships, and refuses to provide any information about it afterwards. And let’s not forget Israel’s support for South African apartheid.”
Israeli opinion makers are digging up Bensouda’s ostensibly checkered past only because she decided to investigate war crimes in Palestine, he posited.
“Had she decided to close the case, she would be getting the Israel Prize,” he went on. “This is all manipulation. No one here cares about who was tortured in Gambia.”
Joshua Davidovich contributed to this report.