New ICC rule puts Israeli leaders in real danger
THIS YEAR, the Palestinian Authority joined the International Criminal Court and submitted what it describes as evidence of Israeli war crimes committed during the 2014 Gaza conflict.
Israel is not a signatory to the Rome Statute, the international treaty that empowers the ICC. But this is not stopping the court’s prosecutor, Fatou Bensouda — a former minister of justice from The Gambia, a tiny West African country with one of the world’s worst human rights records — from already having begun a preliminary investigation into the Gaza conflict. If taken forward, this will encroach on Israel’s sovereignty. Indeed, as Ms Bensouda made clear, Israelis will be liable for prosecution even if the state of Israel is not a signatory.
But the biggest threat to Israel does not come from any potential trial; rather, it comes from a recent change by the ICC to allow as evidence any witness testimony available to them, even if this has later been recanted, including witness statements that have not been made under oath, or even directly made to the ICC.
This astonishing power has been granted by three judges in a case against the Deputy President of Kenya William Ruto. The case concerns Kenya’s post-election violence in 2007-8. Mr Ruto and a Kenyan journalist, Joshua Arup Sang, are accused of co-ordinating sectarian violence during the election. The case against them was based on the written testimony of six witnesses, known as the “Confirmation Six”.
None of the testimony given by these six witnesses was made under oath; nor was it originally provided to ICC investigators. Rather, it was gathered by NGOs in Kenya that received foreign funding as part of a previous Kenyan government commission of inquiry into post-election violence.
Now, with the trial of Mr Ruto and Mr Sang under way, three of these witnesses have publicly recanted their testimonies, with two others discrediting and contradicting what they had previously said
while under oath in court, and another refusing to testify at all.
In most reputable courts, this case would be considered collapsed, and the accused acquitted. But the ICC is no ordinary court and the judges are allowing the prosecutor to go ahead.
This new power, known as “Rule 68”, has serious implications for Israel. Imagine a scenario where Fatah or Hamas-supporting, foreign-funded NGOs are allowed to gather witness statements against Israelis, without the need for them to be made under oath, and for this “evidence” to be considered all that is needed to mount a successful prosecution. Then, even if witnesses later recant their statements, what they say can be disregarded.
The fact is that Ms Bensouda is in desperate need of this new rule. The ICC has an abysmal track record of successful prosecutions, with only two during its entire 13-year history.
This puts Israel in real danger. Israel needs to lobby its allies, who are funders of the ICC, to force it to reverse Rule 68. It should also come to the defence of Kenya, and make it clear that evidence gathered by politically motivated opponents should never be admissible in a courtroom.