On 30th April, the Prosecutor of the International Criminal Court (ICC) submitted to the Court’s Pre-Trial Chamber her “Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States.” In that document, Ms. Bensouda defends her view that the Court has jurisdiction to prosecute Israeli leaders for war crimes “in Palestine”. In so doing, she sweeps aside the arguments made by several highly regarded international lawyers, as well as seven States who are Parties to the ICC Statute of Rome, who had expressed serious concerns about the Prosecutor’s legal adventurism.
Two aspects of the Prosecutor’s Response are, in our view, problematic:
The conflicting duties of the Prosecutor
The ICC Prosecutor has conflicting duties under the ICC Statute. In a preliminary examination, the Prosecutor’s task is to determine whether there is a reasonable basis for initiating an investigation. During the examination, this Prosecutor worked closely with “the State of Palestine”, but largely ignored submissions made by Israeli victims of Palestinian crimes. Subsequently, when making a request to the Court for a ruling on jurisdiction under article 19(3), the Prosecutor must switch to an impartial advisory role to assist the Court to reach a determination whether it has jurisdiction. It is evident in her Response to amici curiae who challenge those views that the legal views of the “state of Palestine” and Palestinian victims have influenced Ms. Bensouda’s approach to territorial jurisdiction in the “Situation of Palestine”.
The Prosecutor’s expansionist approach
The Prosecutor’s expansionist approach to the Court’s role in the international community is troubling. Essentially, the Prosecutor advocates a trend away from State consent towards jurisdictional expansionism. However, the Rome Statute provides a State-centric mechanism to meet the moral challenge of preventing cases of war crimes falling through “accountability gaps”. The State-centric notion of jurisdiction dictates that States may only delegate to the ICC criminal jurisdiction that they themselves possess. A number of the amici submissions have voiced concerns about the Prosecutor’s universalist vision in this matter, which politicises the role of the ICC, when in fact no international tribunal is competent to declare without their consent which political entities have statehood or what the frontiers of various States are.
16 June 2020, Andrew Tucker, Director, thinc.