Is the Pre-Trial Chamber Dropping its Means on the Palestine Arrest Warrant Proceedings? – EJIL: Discuss! – Cyber Tech

Making progress within the politically divisive State of affairs in Palestine was by no means to be plain crusing for the Worldwide Prison Court docket. But, when on 20 Might 2024 the ICC Prosecutor introduced the submitting of purposes for the warrants for the arrest of 5 people, the trail mendacity forward of the Court docket was easy – or so it appeared. Pre-Trial Chamber I, composed of Judges Motoc, Alapini-Gansou, and Guillou (changing Decide Flores), would determine whether or not the ICC Statute’s Article 58(1) necessities (‘affordable grounds to imagine’ and the need of arrest) are met. The jurisdictional obstacles to the ICC investigation had been cleared by the differently-composed PTC I’s 5 February 2021 choice, confirming the Court docket’s jurisdiction prolonged to the Palestinian territories Israel occupied since 1967. Contemplating that it took judges three weeks to underneath 5 months to challenge the six warrants within the State of affairs in Ukraine, a comparable timeline was anticipated for Palestine because the fateful 20 Might announcement. Nevertheless, it transpired quickly that the highway to Palestine warrant choices wouldn’t be with out sudden twists.

Enter the UK…

On 27 June 2024, PTC I allowed the UK to supply written amicus curiae submissions underneath Rule 103 on ‘[w]hether the Court docket can train jurisdiction over Israeli nationals, in circumstances the place Palestine can’t train [it] pursuant to the Oslo Accords.’ In its request, filed on 10 June as ‘secret’ per Chamber’s instruction, the UK submitted that this challenge fell to the current PTC to resolve as a result of the 2021 PTC I majority (Decide Kovacs dissenting) left it for future dedication. Reaffirming its dedication and recalling ranges of monetary help it supplied to the Court docket, the UK motivated its plea by the want ‘to make sure that arrest warrants usually are not issued and not using a stable jurisdictional foundation’.

Certainly, throughout Article 19(3) proceedings in 2020, States, victims, and amici curiae made submissions on the implications of the Oslo Accords for ICC territorial jurisdiction, together with on whether or not Palestine might ‘delegate’ to the Court docket jurisdiction over Israeli nationals which it itself didn’t have. The PTC acknowledged however didn’t rule on this challenge as a result of ‘the arguments relating to the Oslo Agreements within the context of the current proceedings [were] not pertinent to the decision of the difficulty into account, particularly the scope of the Court docket’s territorial jurisdiction in Palestine.’ It additionally emphasised that its conclusions had been restricted to the stage of initiating an investigation, in order that

[w]hen the Prosecutor submits an software for the issuance of a warrant of arrest or summons to seem underneath article 58 of the Statute, or if a State or a suspect submits a problem underneath article 19(2) of the Statute, the Chamber will likely be ready to look at additional questions of jurisdiction which can come up at that cut-off date.

Accepting that such ‘pre-condition has now occurred’, the 2024 PTC discovered jurisdictional points arising from the Accords ‘probably related’ and authorised the UK to file public Rule 103 observations.

Did the PTC do the appropriate factor?

Contemplating the phrases of PTC 2021 ruling, its remedy of the difficulty raised by the UK was plausibly not res judicata and PTC I could possibly be requested to rule on it. (That stated, I don’t discover the Oslo Accords argument and underlying ‘delegation thesis’ compelling; see e.g. Leila Sadat and Adil Haque). One can disagree with the UK’s politics of exploiting this ‘loophole’ to stop the Netanyahu and Gallant warrants and query how principled its dedication to accountability and to the Court docket is. However States will likely be States, and the room to re-litigate this matter was there. The query remains to be whether or not the Chamber’s acceding to the UK’s request and its dealing with of associated course of have been right.

Firstly, it’s debatable whether or not re-opening the Oslo Accords jurisdictional query prior to the issuance of the arrest warrants was acceptable. Against this with the UK’s declare (para. 19), this was not the one method in step with the 2021 19(3) Article ruling. There are good causes, together with the crucial to make sure the expeditiousness and integrity of the process, to think about that bringing a jurisdiction/admissibility problem underneath Article 19(2) sooner or later—one possibility the 2021 PTC I envisaged (para. 129)—would have been the correct avenue. Smuggling this problem by way of the backdoor of an amicus intervention was moderately a stratagem for the UK to point out assist for the Israeli authorities and protect Netanyahu and Gallant from the dishonour of getting downgraded to ICC suspects. Presumably, the UK (and Israel) assessed the prospect of any such problem succeeding after the issuance of the warrants to be too low. The UK’s argument (para. 22) that ‘[t]he issuance of an arrest warrant … is a severe step as a result of it impacts the freedom of the person involved’ holds for each particular person ordered to be arrested by the ICC. It doesn’t observe that Netanyahu and Gallant needs to be entitled to particular remedy. It’s comprehensible if the PTC thought-about it acceptable to point out deference to a State Social gathering whose issues appeared reliable in such a politically delicate scenario: a method to sweeten the capsule, it might facilitate States’ acceptance of its future choice and minimise backlash. Nevertheless, the judges might have additionally gone too far in accommodating the UK within the charged context of reported political interference and intimidation of the Court docket officers in reference to this example, whereas setting a nasty precedent that would come again to chew it in different conditions.

Secondly, even when there was room to look at the jurisdictional query previous to the warrant choices underneath Articles 19(1) and 58(1), it’s nonetheless questionable from a procedural viewpoint whether or not the UK’s Rule 103 request ought to have been granted. It’s true that, as PTC I acknowledged, the Rule accords Chambers with broad discretion. Nevertheless, Pre-Trial Chambers’ established jurisprudence (ICC-01/09-02/11-54; ICC-01/09-01/11-84; ICC-01/04-02/06-259; ICC-02/05-01/20-398; ICC-01/14-01/22-286) has constantly held that the Chamber

will resort, at its discretion, to amicus curiae observations solely on an distinctive foundation, when it’s of the view that such observations offering particular experience are wanted on explicit subjects, and topic to the Chamber’s consideration that that is fascinating for the correct dedication of the case.

Subsequently, rule 103 consultations are usually reserved for distinctive circumstances. The discretionary energy to permit amicus observations needs to be exercised sparingly. They need to function particular experience the Chamber itself doesn’t (sufficiently) possess whereas receiving them needs to be fascinating for the correct dedication of the case. According to the iura novit curia precept, PTCs have sometimes denied depart to file Rule 103 observations when these would add little worth, for instance, by looking for to handle problems with legislation and its software (the Article 58(1) check being one instance). As a result of distinctive character of the Rule 103 instrument, the judges’ discretion has been operationalised principally to reject, to not enable requests. Because the UK acknowledged (para. 20), no previous arrest warrant proceedings on the ICC had been preceded by amicus consultations meant to assist the PTC apply Article 58(1). Rule 103 purposes had been invariably rejected due partially to the ex parte, non-adversarial character of the Article 58 process, though there could also be restricted circumstances when listening to different voices might improve the standard of judicial decision-making. That stated, the rejection of amicus observations on the Article 58 stage additionally has to do with the distinctive perform of the Rule 103 machine.

The UK (understandably) and PTC I (much less understandably) omitted to say Pre-Trial Chambers and single judges’ longstanding follow associated to Rule 103. Nor did they handle what particular hole in (authorized) experience the amicus submissions would assist the PTC fill or why receiving them could be fascinating for the correct dedication of the case. For my part, neither was there an (worldwide legislation) experience hole inside a Chamber with two judges elected from Record B, nor was receiving the UK’s submissions on the jurisdictional penalties, if any, of the Oslo Accords evidently fascinating for the correct dedication of the matter at hand. If the Chamber felt it wanted exterior authorized recommendation from the ‘associates of the Court docket’, it might have gone again to the amicus briefs and pleadings on this challenge already on the document for the aim of the 2021 ruling, and prioritise the expeditious consideration of the Prosecutor’s purposes. This method would possible be adopted in any scenario apart from Palestine, the ‘distinctive’ character of which appears to have stripped the distinctive machine of Rule 103 of a level of its exceptionality.

For causes one is left to invest about, the Workplace of the Prosecutor didn’t search to enchantment the PTC’s choice on the UK’s request. Though the PTC would have presumably denied depart (Article 82(1)(d) and Rule 155), it might have nonetheless been definitely worth the effort. The UK amicus ruling definitely concerned ‘a difficulty that might considerably have an effect on the honest and expeditious conduct of the proceedings … for which … a right away decision by the Appeals Chamber might materially advance the proceedings.’ But, it’s doable that the prosecution agreed with, or a minimum of didn’t want to oppose, the receipt by the Chamber of the amicus observations on this subject.

Secret Amicus Social gathering

The choice to grant the UK’s Rule 103 request was sure to open the floodgate to a number of different requests. Conscious of that, the PTC issued a (futile) warning (‘the next should not be understood as an open name by the Chamber for amicus curiae submissions’). To include unavoidable delays, it set the identical deadline for additional requests because the one it imposed on the UK for its observations (12 July). However it didn’t delineate the subject-matter the proposed submissions might handle. This sits uncomfortably with established follow and the distinctive character of the Rule 103 process. The judges authorised the prosecution to submit a response to observations, but with out specifying a deadline – one other signal that the timeline was more likely to shift, inflicting additional delays in what was presupposed to be an easy course of.

On 4 July the PTC granted the UK’s request to postpone the deadline as a result of normal election scheduled on the identical day. However the UK by no means made use of the chance because the Labour cupboard that got here to energy deserted the Tory authorities’s jurisdictional problem to be able to sign a principled place on accountability. However the Pandora’s field had already been opened; the Chamber’s warning was taken for an open name. Rumours surged that states (particularly, Germany, as Stefan Talmon reported intimately) would observe the UK’s lead and throw its hat into the ring. In its 22 July choice, the PTC made recognized that it had obtained over 70 Rule 103 requests from States Events (but additionally the US), lecturers, CSOs, and even one senior US Senator invested in choose ICC conditions.

The Rule 103 requests had been filed confidentially per judicial instruction, and the projected content material of the briefs has not but been made public. However the data circulated about Germany’s request signifies that a minimum of a number of the proposed submissions would stray past the subject championed by the UK. Nonetheless, the PTC acceded to nearly all of these requests and allowed the submitting of (joint) submissions of most 10 pages by 6 August (their consideration must wait till the tip of judicial recess). I assume that the PTC vetted their purported subject-matter to make sure eligibility underneath Rule 103 or a minimum of instructed the potential amici to stay to the subject of jurisdiction in relation to the Oslo Accords (see e.g. 2020 Determination). Problematically, secrecy imposed by the PTC on all Palestine filings (aside from the UK’s following its profitable reclassification request) makes this difficult to confirm. Neither the 27 June nor the 22 July choices present any indications the Chamber sought to make sure strict compliance of additional requests with Rule 103. Now that the initiator State withdrew altogether from the amicus process, the general public can’t be positive whether or not different amici intend to select up the Oslo Accords baton or argue in opposition to this stance (one indicated it will), or convey different points appropriate underneath Rule 103. The danger is excessive that some, if not most, submissions would go to issues that ought to not have handed muster.

Why not ‘let thousand flowers bloom’? Beneath Rule 103(2), the prosecution has the appropriate to reply to the amicus submissions, requiring time and extra sources. The Chamber should look at over 650 pages of briefs earlier than issuing its Article 58(1) choice and/or a separate jurisdictional choice underneath Article 19(1). In any occasion, the method will—regrettably—be dragged out for a further a number of months, in opposition to the PTC’s professed objective.

Lastly, it’s tragically ironic that the one actors disinvited from the ‘amicus social gathering’ had been the Palestinian victims. All 4 of their authorized representatives’ Rule 103 requests had been denied. The Chamber dominated Rule 103 to be ‘not the correct venue’ [sic] and that ‘potential’ victims might search to supply their ‘views and issues’ underneath Article 68(3) of the Statute. Accordingly, authorized representatives of 635 victims sought depart to file observations on the matter raised by the UK and on why it shouldn’t trigger delays:

The Victims have lengthy expressed their dismay and profound disappointment on the sluggish tempo of progress within the State of affairs …. The Victims, a few of whom are at loss of life’s doorstep within the Gaza Strip, merely can’t endure any additional delay. The Victims emphasise that any consideration of the problems raised by the UK or by others is unwarranted underneath the Statute at this stage and can possible trigger the Victims additional hurt.

The attorneys representing one other group sought to contest the flexibility of the Accords to have an effect on Palestine’s prescriptive jurisdiction, the validity of the delegation thesis, and the circumvention of Article 19(2) by guised jurisdictional challenges, prefacing their pleas with an alarming comment:

any delay within the proceedings … exacerbates the Victims’ ongoing struggling, obstructs accountability, and unjustifiably delays justice for over two million people who find themselves trapped in Gaza and at imminent danger of shedding their life. Within the regard, the Victims are very anxious by the variety of Amici Curiae which have been authorised to file observations, and the influence that is going to trigger on the size of the proceedings for the issuance of the warrants of arrest.

Silver linings?

Not many. Developments because the Prosecutor’s 20 Might purposes give rise to issues that not solely would the issuance of PTC choices be delayed for a lot of months, but additionally that the PTC dedication on the deserves could be derailed by the resuscitation of the zombie jurisdictional objection arising from the Oslo Accords (or no matter would possibly transpire from additional Rule 103 briefs). As a substitute of the anticipated Article 58(1) choice, the PTC might return an Article 19(1) ruling discovering a deficit of jurisdiction over Israeli nationals recognized by the Prosecutor. That stated, the sport received’t be over simply but: the matter would go on to the Appeals Chamber (Article 82(1)(a) of the Statute).

Secrecy as a rule, when not justified by the pursuits of defending the integrity of the investigation or the security of victims and witnesses, is problematic when it comes to transparency and accountability. That is felt not solely by students, however presumably additionally by States who selected to leak details about their engagement within the State of affairs. Topic to the caveat that not all data is within the public area, PTC I’s present dealing with of the Palestine amicus course of doesn’t encourage a lot confidence. The PTC confirmed extreme deference to the UK by permitting a guised jurisdictional problem to be introduced underneath the pretext of Rule 103, having stretched it past its established limits, to then loosen up (if not drop) the reins of the method. The PTC dangers being snowed underneath an array of briefs carrying little relevance and presumably not assembly the eligibility threshold as per established case legislation. This implies a waste of sources, notably time, being essentially the most valuable one to the victims within the ravaged Gaza.

If one had been to give attention to the positives, the PTC’s detour permits it to assemble (and ignore or dismiss, as acceptable) the views of essentially the most invested stakeholders and, by advantage of getting had a broad session, shore up the legitimacy of the choice on arrest warrants it is going to render sooner or later. The amicus submissions might additionally contribute to enhancing the standard of judicial reasoning. The end result would nonetheless be unsavoury to some States, however it will have been much more antagonising and unacceptable to them had the Chamber bypassed the Rule 103 session altogether. Placing the jurisdictional contentions on Palestine on the ICC to relaxation for good, be it in relation to the Oslo Accords or different purple herrings, would possibly nonetheless be definitely worth the worth. Might this be the lengthy sport right here?