Friendly Feast during the Plague: Is the Pre-Trial Chamber Losing its Way on the Palestine Arrest Warrant Proceedings?

Making progress in the politically divisive Situation in Palestine was never to be plain sailing for the International Criminal Court. Yet, when on 20 May 2024 the ICC Prosecutor announced the filing of applications for the warrants for the arrest of five individuals, the path lying ahead of the Court was straightforward – or so it appeared. Pre-Trial Chamber I, composed of Judges Motoc, Alapini-Gansou, and Guillou (replacing Judge Flores), would decide whether the ICC Statute’s Article 58(1) requirements (‘reasonable grounds to believe’ and the necessity of arrest) are met. The jurisdictional stumbling blocks to the ICC investigation had been cleared by the differently-composed PTC I’s 5 February 2021 decision, confirming the Court’s jurisdiction extended to the Palestinian territories Israel occupied since 1967. Considering that it took judges three weeks to under five months to issue the six warrants in the Situation in Ukraine, a comparable timeline was expected for Palestine since the fateful 20 May announcement. However, it transpired soon that the road to Palestine warrant decisions would not be without unexpected twists.

Enter the UK…

On 27 June 2024, PTC I allowed the UK to provide written amicus curiae submissions under Rule 103 on ‘[w]hether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise [it] pursuant to the Oslo Accords.’ In its request, filed on 10 June as ‘secret’ per Chamber’s instruction, the UK submitted that this issue fell to the present PTC to resolve because the 2021 PTC I majority (Judge Kovacs dissenting) left it for future determination. Reaffirming its commitment and recalling levels of financial assistance it provided to the Court, the UK motivated its plea by the wish ‘to ensure that arrest warrants are not issued without a solid jurisdictional basis’.

Indeed, during Article 19(3) proceedings in 2020, interested States, victims, and amici curiae made submissions on the consequences of the Oslo Accords for ICC territorial jurisdiction, including on whether Palestine could ‘delegate’ to the Court jurisdiction over Israeli nationals which it itself did not have. The PTC acknowledged but did not rule on this issue because ‘the arguments regarding the Oslo Agreements in the context of the present proceedings [were] not pertinent to the resolution of the issue under consideration, namely the scope of the Court’s territorial jurisdiction in Palestine.’ It also emphasized that its conclusions were limited to the stage of initiating an investigation, so that

[w]hen the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.

Accepting that such ‘pre-condition has now occurred’, the 2024 PTC found jurisdictional issues arising from the Accords ‘potentially relevant’ and authorised the UK to file public Rule 103 observations.

Did the PTC do the right thing?

Considering the terms of PTC 2021 ruling, its treatment of the issue raised by the UK was plausibly not res judicata and PTC I could be requested to rule on it. (That said, I do not find 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 prevent the Netanyahu and Gallant warrants and question how principled its commitment to accountability and to the Court is. But States will be States, and the room to re-litigate this matter was there. The question is still whether the Chamber’s acceding to the UK’s request and its handling of related process have been correct.

Firstly, it is debatable whether re-opening the Oslo Accords jurisdictional question prior to the issuance of the arrest warrants was appropriate. By contrast with the UK’s claim (para. 19), this was not the only approach consistent with the 2021 19(3) Article ruling. There are good reasons, including the imperative to ensure the expeditiousness and integrity of the procedure, to consider that bringing a jurisdiction/admissibility challenge under Article 19(2) in due course—one option the 2021 PTC I envisaged (para. 129)—would have been the proper avenue. Smuggling this challenge through the backdoor of an amicus intervention was rather a stratagem for the UK to show support for the Israeli government and shield Netanyahu and Gallant from the dishonour of getting downgraded to ICC suspects. Possibly, the UK (and Israel) assessed the chance of any such challenge 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 serious step because it affects the liberty of the individual concerned’ holds for every individual ordered to be arrested by the ICC. It does not follow that Netanyahu and Gallant should be entitled to special treatment. It is understandable if the PTC considered it appropriate to show deference to a State Party whose concerns appeared legitimate in such a politically sensitive situation: a way to sweeten the pill, it could facilitate States’ acceptance of its future decision and minimise backlash. However, the judges may have also gone too far in accommodating the UK in the charged context of reported political interference and intimidation of the Court officials in connection with this situation, while setting a bad precedent that could come back to bite it in other situations.

Secondly, even if there was room to examine the jurisdictional question prior to the warrant decisions under Articles 19(1) and 58(1), it is still questionable from a procedural viewpoint whether the UK’s Rule 103 request should have been granted. It is true that, as PTC I stated, the Rule accords Chambers with broad discretion. However, 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 consistently held that the Chamber

will resort, at its discretion, to amicus curiae observations only on an exceptional basis, when it is of the view that such observations providing specific expertise are needed on particular topics, and subject to the Chamber’s consideration that this is desirable for the proper determination of the case.

Therefore, rule 103 consultations are normally reserved for exceptional circumstances. The discretionary power to allow amicus observations should be exercised sparingly. They should feature specific expertise the Chamber itself does not (sufficiently) possess while receiving them should be desirable for the proper determination of the case. In line with the iura novit curia principle, PTCs have typically denied leave to file Rule 103 observations when those would add little value, for example, by seeking to address issues of law and its application (the Article 58(1) test being one example). Due to the exceptional character of the Rule 103 instrument, the judges’ discretion has been operationalised mostly to reject, not to allow requests. As the UK acknowledged (para. 20), no past arrest warrant proceedings at the ICC had been preceded by amicus consultations meant to help the PTC apply Article 58(1). Rule 103 applications had been invariably rejected due in part to the ex parte, non-adversarial character of the Article 58 procedure, although there may be limited cases when hearing other voices could enhance the quality of judicial decision-making. That said, the rejection of amicus observations at the Article 58 stage also has to do with the exceptional function of the Rule 103 device.

The UK (understandably) and PTC I (less understandably) omitted to mention Pre-Trial Chambers and single judges’ longstanding practice related to Rule 103. Nor did they address what specific gap in (legal) expertise the amicus submissions would help the PTC fill or why receiving them would be desirable for the proper determination of the case. In my view, neither was there an (international law) expertise gap within a Chamber with two judges elected from List B, nor was receiving the UK’s submissions on the jurisdictional consequences, if any, of the Oslo Accords evidently desirable for the proper determination of the matter at hand. If the Chamber felt it needed external legal advice from the ‘friends of the Court’, it could have gone back to the amicus briefs and pleadings on this issue already on the record for the purpose of the 2021 ruling, and prioritise the expeditious consideration of the Prosecutor’s applications. This approach would likely be adopted in any situation other than Palestine, the ‘exceptional’ character of which seems to have stripped the exceptional device of Rule 103 of a degree of its exceptionality.

For reasons one is left to speculate about, the Office of the Prosecutor did not seek to appeal the PTC’s decision on the UK’s request. Although the PTC would have possibly denied leave (Article 82(1)(d) and Rule 155), it may have still been worth the effort. The UK amicus ruling certainly involved ‘an issue that would significantly affect the fair and expeditious conduct of the proceedings … for which … an immediate resolution by the Appeals Chamber could materially advance the proceedings.’ Yet, it is possible that the prosecution agreed with, or at least did not wish to oppose, the receipt by the Chamber of the amicus observations on this topic.

Secret Amicus Party

The decision to grant the UK’s Rule 103 request was bound to open the floodgate to multiple other requests. Aware of that, the PTC issued a (futile) warning (‘the following must not be understood as an open call by the Chamber for amicus curiae submissions’). To contain unavoidable delays, it set the same deadline for further requests as the one it imposed on the UK for its observations (12 July). But it failed to delineate the subject-matter the proposed submissions could address. This sits uncomfortably with established practice and the exceptional character of the Rule 103 procedure. The judges authorised the prosecution to submit a response to observations, yet without specifying a deadline – another sign that the timeline was likely to shift, causing further delays in what was supposed to be a straightforward process.

On 4 July the PTC granted the UK’s request to postpone the deadline due to the general election scheduled on the same day. But the UK never made use of the opportunity since the Labour cabinet that came to power abandoned the Tory government’s jurisdictional challenge in order to signal a principled position on accountability. But the Pandora’s box had already been opened; the Chamber’s warning was taken for an open call. Rumours surged that states (in particular, Germany, as Stefan Talmon reported in detail) would follow the UK’s lead and throw its hat into the ring. In its 22 July decision, the PTC made known that it had received over 70 Rule 103 requests from States Parties (but also the US), academics, CSOs, and even one senior US Senator invested in select ICC situations.

The Rule 103 requests were filed confidentially per judicial instruction, and the projected content of the briefs has not yet been made public. But the information circulated about Germany’s request indicates that at least some of the proposed submissions would stray beyond the topic championed by the UK. Nevertheless, the PTC acceded to the majority of those requests and allowed the filing of (joint) submissions of maximum 10 pages by 6 August (their consideration would have to wait until the end of judicial recess). I assume that the PTC vetted their purported subject-matter to ensure eligibility under Rule 103 or at least instructed the potential amici to stick to the topic of jurisdiction in relation to the Oslo Accords (see e.g. 2020 Decision). Problematically, secrecy imposed by the PTC on all Palestine filings (except for the UK’s following its successful reclassification request) makes this hard to verify. Neither the 27 June nor the 22 July decisions provide any indications the Chamber sought to ensure strict compliance of further requests with Rule 103. Now that the initiator State withdrew altogether from the amicus procedure, the public cannot be sure whether other amici intend to pick up the Oslo Accords baton or argue against this stance (one indicated it would), or bring other issues suitable under Rule 103. The risk is high that some, if not most, submissions would go to matters that should not have passed muster.

Why not ‘let thousand flowers bloom’? Under Rule 103(2), the prosecution has the right to respond to the amicus submissions, requiring time and additional resources. The Chamber will have to examine over 650 pages of briefs before issuing its Article 58(1) decision and/or a separate jurisdictional decision under Article 19(1). In any event, the process will—regrettably—be dragged out for an additional several months, against the PTC’s professed goal.

Lastly, it is tragically ironic that the only actors disinvited from the ‘amicus party’ were the Palestinian victims. All four of their legal representatives’ Rule 103 requests were denied. The Chamber ruled Rule 103 to be ‘not the proper venue’ [sic] and that ‘potential’ victims could seek to provide their ‘views and concerns’ under Article 68(3) of the Statute. Accordingly, legal representatives of 635 victims sought leave to file observations on the matter raised by the UK and on why it should not cause delays:

The Victims have long expressed their dismay and profound disappointment at the slow pace of progress in the Situation …. The Victims, some of whom are at death’s doorstep in the Gaza Strip, simply cannot endure any further delay. The Victims emphasise that any consideration of the issues raised by the United Kingdom or by others is unwarranted under the Statute at this stage and will likely cause the Victims further harm.

The lawyers representing another group sought to contest the ability of the Accords to affect 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 remark:

any delay in the proceedings … exacerbates the Victims’ ongoing suffering, obstructs accountability, and unjustifiably delays justice for over two million people who are trapped in Gaza and at imminent risk of losing their life. In the regard, the Victims are very worried by the number of Amici Curiae that have been authorised to file observations, and the impact this is going to cause on the length of the proceedings for the issuance of the warrants of arrest.

Silver linings?

Not many. Developments since the Prosecutor’s 20 May applications give rise to concerns that not only would the issuance of PTC decisions be delayed for many months, but also that the PTC determination on the merits would be derailed by the resuscitation of the zombie jurisdictional objection arising from the Oslo Accords (or whatever might transpire from further Rule 103 briefs). Instead of the anticipated Article 58(1) decision, the PTC could return an Article 19(1) ruling finding a deficit of jurisdiction over Israeli nationals identified by the Prosecutor. That said, the game won’t be over just yet: the matter would go directly to the Appeals Chamber (Article 82(1)(a) of the Statute).

Secrecy as a rule, when not justified by the interests of protecting the integrity of the investigation or the safety of victims and witnesses, is problematic in terms of transparency and accountability. This is felt not only by scholars, but possibly also by States who chose to leak information about their engagement in the Situation. Subject to the caveat that not all information is in the public domain, PTC I’s current handling of the Palestine amicus process does not inspire much confidence. The PTC showed excessive deference to the UK by allowing a guised jurisdictional challenge to be brought under the pretext of Rule 103, having stretched it beyond its established limits, to then loosen up (if not drop) the reins of the process. The PTC risks being snowed under an array of briefs carrying little relevance and possibly not meeting the eligibility threshold as per established case law. This means a waste of resources, particularly time, being the most precious one to the victims in the ravaged Gaza.

If one were to focus on the positives, the PTC’s detour enables it to gather (and ignore or dismiss, as appropriate) the views of the most invested stakeholders and, by virtue of having had a broad consultation, shore up the legitimacy of the decision on arrest warrants it will render in due course. The amicus submissions could also contribute to enhancing the quality of judicial reasoning. The outcome would still be unsavoury to some States, but it would have been even more antagonising and unacceptable to them had the Chamber bypassed the Rule 103 consultation altogether. Putting the jurisdictional contentions on Palestine at the ICC to rest for good, be it in relation to the Oslo Accords or other red herrings, might still be worth the price. Could this be the long game here?