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February 8th, 2021 
Awake Goy 
Following the International Criminal Court Pre-Trial Chamber’s Friday decision pushing closer to a full criminal war-crimes probe of Israelis, the punch line is that they will not ultimately decide whether to issue arrest warrants or indictments for Israelis some years down the line.Rather, it will be someone whose identity we still do not know: the next chief prosecutor of the ICC.Current ICC Prosecutor Fatou Bensouda steps down from her nine-year term on June 15, but her successor has not yet been selected.It is that successor who will be in power when the key decisions are made about Israel’s future in the six-year-long war-crimes controversy with the ICC.There may be an answer about the successor as soon as Monday, with key court officials meeting about the issue in New York.
But then again, it could drag out until much closer to June 15 since the whole process to date has been messy.Bensouda’s successor was supposed to be selected in December by a special committee and the ICC’s political-legislative body, the Assembly of State Parties.But despite around a year of vetting and selection processes, including narrowing the candidates to four finalists who all gave major public interviews last July, there was no consensus.It turns out that the ICC’s member states are having trouble deciding what they want most.The first ICC prosecutor, Luis Moreno-Ocampo, was a major figure and prosecutor in Argentina. He was also selected as being both acceptable to countries like the US, but not actually a citizen of those dominant world powers.Bensouda, his successor and the current prosecutor, was specifically selected from Gambia to build credibility with Africa by sending a message that the ICC was not a Western plot to just prosecute Africans.Going forward, ICC members wanted a prosecutor who would get more convictions, as the court has only nine convictions, four acquittals and many unresolved cases in 18 years of operation, despite billions of dollars spent.There is a sense that new blood is needed to shake up the system and the approach.Throughout the process to select the next prosecutor, a large cloud hanging over it was who would be able to cope with the US and the Trump administration, which had sanctioned the ICC’s top officials.In other words, who could both help gain trust from world powers like the US while also standing up to them.At first, the dozens of candidates were narrowed to 14, who were then narrowed to four.Yet during this vetting process, some of the candidates seen as the strongest were eliminated due to perceived potential ethics issues or concerns that they might be perceived as overly political (as opposed to concrete definitive ethics issues).
Many of the ICC’s members were underwhelmed by the four finalists’ interviews in July. They were squeaky clean but were not seen as having sufficient international stature. So additional candidates were brought back into the process, including some who had been disqualified earlier.One key candidate is Fergal Gaynor of Ireland, who is highly regarded for representing the victims of war crimes in the ICC’s major case against certain top Kenyan officials. He would fulfill the idea of finally having a prosecutor come from a more classic Western country and who seems more comfortable on the big stage than some of his more technocrat competitors.Another candidate is British lawyer Karim Khan, who has appeared in several international tribunals but is most remembered for being the key defense lawyer for top Kenyan officials before the ICC. He successfully got the charges dismissed, though there were also allegations of outside factors, such as Kenyan officials’ intimidating witnesses.In addition, Khan represented Bahar Idriss Abu Garda – a Sudanese rebel initially indicted by the ICC for war crimes in Darfur but whose case was later dismissed – and former Liberian leader Charles Taylor before the Special Court for Sierra Leone.
Picking Khan as chief prosecutor, now that he has spent many years on the defense, would be an unconventional choice.There are also candidates from Spain, Canada, France, Italy, Nigeria and Uganda, and there could always be a wild-card selection.
It seems very likely that Bensouda’s deputy, James Stewart, has been passed over.Some of the above candidates have said the ICC sometimes has acted too politically or embraced questionable evidence and must show greater restraint to only seek clear evidence.Israel would certainly prefer a candidate with such views, who might help it escape the ICC’s current direction. But it has stalwartly avoided any public hints about who it prefers.A candidate who is seeking to prove that the ICC will take on anyone, including the US and Israel, would concern Jerusalem.
Whoever is selected, it is that individual, not Bensouda or any of the ICC judges who grabbed headlines on Friday, who will make the most critical decisions impacting Israel’s fate.
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