Extra safeguard or hostage to fortune? – EJIL: Speak! – Cyber Tech

On 20 Could 2024, the world of worldwide felony regulation shook with information introduced by Karim Khan KC, the Prosecutor of the Worldwide Legal Court docket (ICC), that he was making use of for arrest warrants within the State of affairs within the State of Palestine (the “State of affairs”). The Prosecutor’s announcement was supported by what he described as “an extra safeguard,” in that his Workplace (the “OTP”) had been assisted by the “recommendation of a panel of consultants in worldwide regulation” (the “Panel”). The Panel includes Lord Justice Fulford, Baroness Helena Kennedy KC, Elizabeth Wilmshurst CMG KC, Danny Friedman KC, Amal Clooney, His Excellency Choose Theodor Meron CMG, Professor Marko Milanovic, and Professor Sandesh Sivakumaran. The Prosecutor additional acknowledged “the contributions of various [Mr Khan KC’s] different Particular Advisers to this assessment, notably Adama Dieng and Professor Kevin Jon Heller.”

Mr Khan KC describes the Panel as an “neutral group” which was “convened to assist the proof assessment and authorized evaluation” relating to the purposes for warrants. In accordance with the Prosecutor, the Panel’s “unbiased knowledgeable evaluation” had “supported and strengthened” his purposes. Others have commented on the notion arising from the Prosecutor’s choice of sure panellists (see right here). At a extra granular degree, the Prosecutor’s choice to instruct the Panel, and its ensuing report (the “Report”), beg a number of questions relating to his choice to use for warrants.

In any state of affairs, the choice to use for ICC arrest warrants lies with the Prosecutor, as does duty and accountability for that call. The Prosecutor should take “acceptable measures to make sure the efficient investigation and prosecution of crimes throughout the jurisdiction of the Court docket” beneath Article 54(1)(a) of the Rome Statute, but it’s open to query whether or not outsourcing the OTP’s assessment perform is such a measure, or whether or not it displays uncertainty and a insecurity within the choice to proceed.

The Panel’s standing

The Report states that the “Panel has operated professional bono and independently.” [Report, para. 8]. The Prosecutor has described its members as consultants. Nevertheless, in elementary respects, the Panel’s work doesn’t seem to adapt to the necessities for the admission of knowledgeable opinion in felony proceedings. As highlighted by Joshua Rozenberg KC:

“Was every candidate requested to offer an announcement of independence and impartiality? Had been they requested, as is customary in worldwide courts and tribunals, to reveal issues that might give rise to doubts about whether or not they had taken sides on the difficulty, for instance by supporting a Palestinian charity?”

Was the Panel’s choice, and the id of sure of its members, merely an train in affirmation bias?

The Report is, in its personal phrases, expressed to be an opinion on the final word difficulty earlier than Pre-Trial Chamber I [see Report, para. 2].  Comprised solely of attorneys, the Panel doesn’t embrace (as an example) consultants on evidential issues such because the supply of humanitarian help. As such, its mandate could also be construed as intruding on the judicial perform to be exercised by the Chamber. Mr Khan KC seems to acknowledge this drawback, noting that the “unbiased judges of the Worldwide Legal Court docket are the only arbiters as as to if the mandatory normal for the issuance of warrants of arrest has been met.” The Panel too states that it’s “cognisant” that “the choice on the issuance of warrants is for the honourable Judges of the Court docket” [Report, para. 36]. As such, what’s the Panel’s knowledgeable perform? It might be argued that its Report is just not, in truth, an knowledgeable report in any respect; it’s merely a word of no evidentiary weight, contrived as a method to rubber stamp the OTP’s work, and to convey an look of broad consensus on authorized and factual points the place there’s, in truth, a lot uncertainty and controversy (as to the authorized characterisation of the information, see Shany and Cohen; Corn and Gillard).

The Report’s methodology

The Prosecutor claims that the Panel’s composition, and the Report’s content material, replicate unbiased evaluation of a robust evidential case. Nevertheless, the Report doesn’t footnote its evidential sources. This makes it not possible to tell apart between information which derive from the OTP’s directions, these which derive from testimonial proof, these which derive from documentary or video proof, and people which rely from second or third hand rumour contained throughout the testimonial and documentary materials relied upon.  Relatedly, it can’t be recognized to what extent, if in any respect, the Panel both accepted at face worth or examined “authenticated movies and pictures obtained by investigators” [Report, para. 7], or whether or not it relied upon novel, but controversial, strategies of authentication of open-source info in lieu of reviewing testimonial proof from content material creators exhibiting the fabric. It’s unknown whether or not the Panel was offered with exculpatory, alongside incriminating, info, together with with respect to the outcomes of any dialogue between the OTP and Israeli officers in the course of the interval of the Panel’s instruction between January and Could 2024.

The Panel’s Report due to this fact supplies no substantive help in figuring out whether or not the OTP inter alia (a) used correct investigative strategies and practices when conducting its investigation; (b) made use of all obtainable video and photographic proof, in addition to witness testimony; and (c) has sought to acquire, and has retained, materials able to exonerating the suspects (in line with the duty conferred by Article 54(1)(a) of the Rome Statute).

The idea of the Panel’s assertion that it “welcomes the Prosecutor’s assertion that the investigation of crimes dedicated in Israel and Palestine is ongoing and that purposes are prone to be made in relation to extra costs and/or suspects within the close to future” [Report, para. 37] can also be open to query. As an illustration, what normal of assessment did the OTP and Panel apply to those “extra costs” and suspects? And on what foundation has the Panel welcomed the Prosecutor’s assertion that future costs are prone to be forthcoming?

The Panel’s evaluation of preconditions to the train of jurisdiction

The Panel states that it has set out “its key reasoning” in its Report however “notes that it can’t disclose any materials that’s at the moment confidential” [Report, para. 8]. Permitting for this disclaimer, it’s nonetheless open to query the Report’s reasoning and evaluation.

As an illustration, and easily with respect to the difficulty of preconditions to the train of jurisdiction, the Panel states that it “agrees with the Prosecutor’s evaluation that the ICC has jurisdiction in relation to crimes dedicated on the territory of Palestine, together with Gaza, since 13 June 2014, beneath article 12(2)(a) of the ICC Statute.” The Report applies a “cheap grounds to consider” normal of proof to the query of jurisdiction and states that “the purposes for arrest warrants, and materials submitted by the Prosecutor in assist of every software, show cheap grounds to consider that the Court docket has jurisdiction over the crimes set out within the purposes for arrest warrants” [Report, para. 38]. The Report notes that the “foundation for the Court docket’s jurisdiction is that Palestine, together with Gaza, is a State for the aim of the ICC Statute,” and the “ICC’s Pre-Trial Chamber has already dominated that the Court docket’s jurisdiction extends to Palestine, as a State Get together to the ICC Statute, on this foundation” [Report, para 10] (all emphasis added).

This evaluation reveals among the analytical and methodological flaws regarding the Panel’s strategy to simply one of many many points it tried to deal with. Firstly, the Report seems to conflate the excellence between the existence of jurisdiction (i.e. whether or not the ICC has jurisdiction beneath Article 5 of the Rome Statute, which pertains to materials jurisdiction, Article 11, which pertains to temporal jurisdiction, Article 25(1), which pertains to jurisdiction over pure individuals, and Article 26 which pertains to the age of the defendants) with its train (i.e. questions which come up beneath Articles 12 and 13 of the Statute).

Secondly, the usual for evaluation of jurisdictional questions at every stage of ICC proceedings is certainty. The “cheap grounds to consider” normal required for assessments of proof or info pursuant to Article 58(1)(a) of the Rome Statute can’t be conflated with the diploma of certainty that’s required to ascertain jurisdiction. It’s because jurisdiction is a matter of regulation versus an evidentiary matter of reality (see additional right here, paras. 8-10). It might be questioned whether or not the Panel has assisted the Prosecutor’s evaluation or whether or not, by its reference to a “cheap grounds to consider” normal, it has launched doubt to a jurisdictional query requiring certainty.

Thirdly, what consideration, if any, did the Panel give to the Minority choice of Choose Péter Kovaćs within the earlier spherical of litigation? Though the previous Prosecutor had sought “certainty” on the difficulty of preconditions to the train of jurisdiction, the Majority did not ship it in a number of methods. It emphasised that its conclusions associated solely to the initiation of an investigation, and jurisdictional objections could possibly be raised at subsequent levels (Majority, para 131), as might all points associated to the Oslo Accords (Majority, para. 139). Choose Kovaćs acknowledged: “I discover neither the Majority’s strategy nor its reasoning acceptable in answering the query earlier than this Chamber, and in my opinion, they haven’t any authorized foundation within the Rome Statute, and even much less so, in public worldwide regulation” (Kovaćs, para. 3). The strongly worded language instructed the authorized legitimacy problem, affecting each the state of affairs and the Court docket, had not been averted (see right here). The Panel uncared for to handle this.

Disclosure

Additional down the road, suspects, if indicted, could want to apply for disclosure of all directions, communications and different non-confidential materials exchanged between the Panel and the OTP, in addition to between the OTP and its Particular Advisers. Such communications will arguably not be protected by litigation or authorized recommendation privilege contemplating the Panel’s unbiased standing. All such communications will due to this fact probably be disclosable to the defence pursuant to Article 67(2) of the Rome Statute.

Amal Clooney and His Excellency Choose Theodor Meron CMG are each Panel members in addition to Particular Advisers to the Prosecutor. Mr Khan KC acknowledged Professor Kevin Jon Heller, one other Particular Adviser, for his “contribution” to the Panel’s assessment. It’s open to query whether or not communications between the OTP and its Particular Advisers are due to this fact protected by litigation or authorized skilled privilege provided that they’re sufficiently unbiased to sit down on an unbiased, knowledgeable, panel.

The Report doesn’t disclose what number of conferences the Panel had with the OTP, nor which Panel members attended every assembly. It doesn’t clarify the excellence between its practitioner members (who, by the way, put their names to an opinion piece revealed by the Monetary Instances on the Report) and its tutorial members (who didn’t co-author the FT op-ed). It doesn’t disclose whether or not a word was taken of the supplies the Panel reviewed, and it doesn’t exactly file which supplies the Panel had been proven. It’s foreseeable that requests by the defence can be made in the end for disclosure of all such materials regarding the way in which the Panel was instructed, and as to how in depth their very own inquiries had been (versus merely receiving factual summaries and rumour accounts ready by the OTP).

Conclusion

Given the Report’s obvious analytical and methodological flaws, and its lack of evidentiary weight, Pre-Trial Chamber I’ll want to exclude the Report from its consideration of the OTP’s request for warrants. It’s additional open to query the strategic and tactical knowledge of the Prosecutor’s choice to fee the Report. Slightly than offering him with an extra safeguard, his choice to instruct the Panel, and its subsequent work product, as a substitute reveal the looks of doubt and reliance on affirmation bias. These issues show what could later be recognized because the collateral objective mendacity behind instruction of the Panel, particularly, to offer diplomatic and public relations cowl for weak purposes which give rise to the legitimacy problem which impacts each the State of affairs, and the ICC as a complete. 

The editorial group notes that Professor Marko Milanovic was not concerned in reviewing or modifying this submit.