On 20 July 2020 thinc. released a report entitled “The ICC Prosecutor’s Response to Amici Curiae Observations in the “Situation in Palestine””. In this report the authors, Prof. Gregory Rose and Andrew Tucker, analyze the Response of 30 April 2020 by the Prosecutor of the International Criminal Court (ICC) to amici curiae ‘observations’ submitted in March 2020, concerning the ‘Situation in Palestine’ (ICC-01/18). In particular, they review the way in which the Prosecutor deals with the ‘observations’ submitted to the Court by external amici curiae in relation to the question if the ICC has territorial jurisdiction in ‘Palestine’.
The report covers a brief description and analysis of the Prosecutor’s Response of 30 April 2020, followed by summaries of fourteen Observations submitted by amici curiae, including seven States Parties, to the ICC.
The authors address inter alia the question if the Prosecutor has acted ‘independently’ and ‘impartially’, and if she takes seriously the arguments of those who disagree with the positions she adopted in her Request for a ruling re. territorial jurisdiction to the Pre-Trial Chamber.
They also signal a conflict of interests inherent to the dual role of the Prosecutor of the ICC. The task of the Prosecutor in an examination stage is to determine whether or not there is a “reasonable basis” for initiating an investigation. However the proceedings to determine whether the Court has territorial jurisdiction are of a different character. In the former the Prosecutor has the victims’ interests primarily in mind. In the latter, her task is to assist the Pre-Trial Chamber. The Prosecutor is thus placed in the invidious position of serving two masters in the one case.