The International Criminal Court's former chief prosecutor from 2012 to 2021 disclosed that she and her family faced threats over some of the most sensitive cases, including those alleging Israeli and U.S. war crimes.
Fatou Bensouda, a Gambian lawyer and maritime law expert who represents her nation in the United Kingdom, alluded to the personal battles she fought to uphold the international rule of law that she said is now at a dangerous and pivotal moment.
"As prosecutor, I tried my sincere and honest best, with the courage of my conviction, and at great personal cost and sacrifice, not to mention against the background of threats and all forms of pressure and intimidation, to execute my mandate independently, impartially and objectively, and applied the black letter of the law consistently without fear or favor," she said in a keynote address on Tuesday night to the The Bar Council of London, which represents the barrister profession in England and Wales.
In April 2002, diplomats cheered at the United Nations' headquarters in New York when the Rome Statute that underpins the world's first permanent war crimes tribunal gained enough support to take effect. Since then, its membership has grown to 124 nations – and, she argued, the court is needed more than ever. Israel and the U.S. are not members.
"We find ourselves increasingly confronted with gross and unfettered violations of human rights, total disregard for international law in many conflicts around the world, and threats to multilateralism and post-World War II rules-based global order," said Bensouda.
In an apparent reference to Donald Trump gaining a second White House term, she said the world is at "a defining moment when some of the most important architects of the post-World War II multilateral system" are either undermining their own creation or being tested to see if they will be guided by principles rather than short-term political calculations. Trump's hostility to multilateralism as the U.S. president extended to the ICC.
"When unchecked, Realpolitik calculations reign supreme, and the sanctity of sovereignty is misappropriated in the service of exceptionalism and a rejection of the international rule of law," she said.
Prosecutor undeterred by unspecified 'thug-style tactics'
Bensouda proudly pointed to the investigations her office opened in Mali, Georgia, Myanmar and Bangladesh, Afghanistan, and Palestine, and to the new policies it established to deal with sexual and gender-based crimes, crimes against and affecting children, and destruction of cultural heritage.
Among her pioneering cases was the launch of an investigation in March 2021 into alleged war crimes committed by Israel and the Palestinian militant group Hamas.
That was two and a half years before Hamas attacked Israel on Oct. 7, 2023, killing about 1,200 people and taking over 250 hostages, and sparking the latest war that unleashed Israeli's full destructive power in Gaza, the rest of the occupied Palestinian territory, and other nations in the region.
It's important that "the full extent of criminality" is fully investigated, she said, and that nations show full support for the ICC. "During my term, we undertook our statute-mandated responsibilities not withstanding unprecedented pressures, including direct threats to my person and my family, and some of my closest professional advisers," Bensouda recalled.
With the investigations involving Afghanistan and the Israel-Palestine conflict, she said, "the unacceptable thug-style tactics, threats, intimidation and even sanctions did not result in me or my office failing to fulfill our obligations under the Rome Statute or weaken our resolve and sincere devotion to the plight of victims under international rule of law."
"The ICC must continue to do its job without political interference. It must always apply the law as defined under the Rome Statute and its founding legal instruments," Bensouda said. "It must not allow political calculations to factor into its decision-making. In this, again, state party support is crucial to insulate the court from pressure and political manipulation of any kind."
References to Trump and the Israeli government
With the start of U.S. President Joe Biden's administration in January 2021, the ICC hailed Biden's decision to end retaliatory economic sanctions and visa restrictions targeting ICC staff investigating alleged war crimes in Afghanistan involving American forces.
In his first administration from 2017 to 2021, Trump imposed measures against Bensouda, ICC head of jurisdiction Phakiso Mochochoko and other personnel. Trump's executive order said all “individuals and entities that continue to support” Bensouda and Mochochoko will “materially risk exposure to sanctions.”
Bensouda and Mochochoko, a Lesothian lawyer, had lost their eligibility for U.S. visas. They were added to the U.S. Treasury Department’s list of “specially designated nationals” whose assets can be frozen if they are subject to U.S. jurisdiction.
The ICC, which is outside the United Nations system, prosecutes crimes against humanity, genocide, war crimes and aggression. It acts as a court as a last resort when nations are unable or unwilling to dispense justice themselves.
Trump's sanctions were a response to an ICC ruling in March 2020 that allowed Bensouda to launch an inquiry into whether war crimes were committed in Afghanistan by the Taliban, Afghan military or American-led forces going back almost 18 years earlier.
Bensouda alleged U.S. military and intelligence personnel illegally imprisoned, tortured and raped "conflict-related detainees" in Afghanistan and secret CIA facilities in Poland, Romania and Lithuania from 2003 to 2004.
The United States signed the Rome Statute, but the U.S. Senate never ratified it, arguing the court would infringe on U.S. sovereignty.
An investigation by the Guardian revealed in May that Israel’s then-spy chief, Mossad director Yossi Cohen, retaliated against Bensouda by stepping up his nation's covert campaign against the ICC since Palestine joined it in 2015.
Bensouda’s speech in London made no direct reference to that investigation, the newspaper noted on Wednesday, despite its findings that he had "allegedly threatened her in an attempt to prevent an investigation into war crimes and crimes against humanity in the occupied Palestinian territories."
"According to the investigation," it said, "the head of the Israeli intelligence agency the Mossad ran a covert operation against Bensouda as part of a broader campaign of surveillance and espionage by Israel against the ICC."
Israeli authorities rejected the newspaper's allegations, calling them “replete with many false and unfounded allegations meant to hurt the state of Israel," and denied surveilling the ICC.
Last week, the ICC – led by Bensouda's successor, Karim Kham – issued arrest warrants for Israel's Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant, alleging they committed crimes against humanity and war crimes during Israel's year-long war in Gaza against Hamas.
Despite having lifted the Trump-era sanctions against the ICC, Biden joined with Israel in rejecting the "outrageous" warrants and described the ICC as biased and discriminatory.
"Let me be clear once again: whatever the ICC might imply, there is no equivalence — none — between Israel and Hamas," Biden said. "We will always stand with Israel against threats to its security."
