By Andrew Tucker, Director at thinc.
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.
1. 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 appears to adopt the legal views of “the State of Palestine” and Palestinian victims and advocates regarding territorial jurisdiction in the “Situation in Palestine”. This is evident in the way she deals in her Response with amici curiae. No doubt the Prosecutor was surprised that so many States, organizations and leading academics took issue with her Request. But these amici were invited by the Court – not the Prosecutor. Some of those who submitted observations in this case even qualify as “highly qualified publicists” whose writings are even a “subsidiary means for the determination of international law” (Article 38 of the Statute of the International Court of Justice). Their views are potentially sources of law, and therefore should be treated with the greatest of respect. Yet instead of impartially analysing and assessing the probative weight of the arguments presented by amici who disagreed with the positions adopted in her Request, the Prosecutor adopted a defensive mode. In so doing, she failed in our estimation to seriously engage with many of the concerns raised. Three examples will suffice.
First, the Prosecutor’s disregard of arguments made by several amici (as well as Israel’s Attorney-General in a public memorandum of 20 December 2019) that sovereignty is “in abeyance” and that Israel has valid competing entitlements with respect to the disputed territories based on the League of Nations Mandate for Palestine and the doctrine of uti possidetis juris (see paragraphs 92 to 95 of the Response) were rejected without any serious factual or legal analysis. For example, in framing the Mandate as intended to ensure that the territory of Palestine became an independent State “for all inhabitants”, the Prosecutor simply ignored the unique terms of the Mandate specifying that its primary objective was the establishment of “a homeland for the Jewish people in Palestine” and providing a basis for Jewish national claims over the disputed territory. Instead, the Prosecutor adopts the legally controversial propositions that (a) the territories “must have a sovereign”, and (b) sovereignty resides with the Palestinian people (or “Palestine”, as she often conflates).Second, the Response ignores the submissions made by Israeli victims that the Prosecutor should have taken account of the PLO’s systematic promotion of terror as one of the causes of the fact that Israel has not reached a final status agreement with the PLO under the Oslo Accords (see for example the amicus brief of Shurat HaDin).
Third, she sweeps aside submissions by several States, and by Professors Eyal Benvenisti and Malcolm Shaw and other “highly qualified publicists” arguing for an orthodox interpretation and application of international law regarding sovereignty and statehood (and warning of the consequences of failing to do so). Instead of engaging seriously with these legal authorities, the Prosecutor defends her novel “multi-layered assessment”, thus insisting on departure from conventional legal reasoning, and lacking authoritative support.
2. 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, including ours, 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.
The Prosecutor’s preference for a “universalist” interpretation of the Statute is particularly apparent in her subsidiary argument that the Montevideo criteria should be “flexibly applied” (paragraph 141 of the Request and paragraph 41 of the Response) so that the “Court can operate in the territory of “less effective” States in order to … put an end to impunity and guarantee lasting respect for and the enforcement of international justice” (paragraph 56 of the Response).To support this expansive view of the Court’s role, the Prosecutor places undue weight on UN resolutions as a supranational source of legal rights and obligations (paragraph 124 of the Response). In particular, UNGA Res 67/19 and other UNGA resolutions are cited as constitutive evidence that the Palestinian people have a “right to an independent state” (paragraphs 47 and 95 of the Response).
However, UNGA resolutions are exercises of recommendatory powers only (Article 18(2) of the UN Charter). At best they may provide evidence establishing the existence of a rule or the emergence of an opinio juris, but this depends on a rigorous analysis of many factors – an exercise the prosecutor does not undertake.The Prosecutor’s disregard for State consent is also reflected in the fact that she does not deal seriously with the arguments raised by seven State Parties: Australia, Austria, Brazil, Czech Republic, Germany, Hungary and Uganda. Each of these States reaffirmed that it does not recognize Palestine as a State or consider “Palestine” to be a State for the purposes of article 12. The Prosecutor not only dismisses their arguments, she accuses them of failure to take sufficient action within the Assembly of States to object to Palestine’s accession to the Statute (Response para 27).
Finally, the Prosecutor considers that the Oslo Accords have been overridden by the right of the Palestinians to statehood and the alleged decisions of the (undefined) “international community” to limit Israel’s rights. This conflates lex lata and lex feranda, and suggests a universality of States’ views that does not exist (as demonstrated by the submissions of the above-mentioned States). It also ignores the fact that UN General Assembly and Security Council resolutions on their own terms emphasize the necessity of negotiations as the route to possible statehood.