What Is the Legal Base of the International Criminal Court Prosecutor’s Request from the Court’s Pre-Trial Chamber to Decide on the Court’s Territorial Jurisdiction in Palestine? And What is the Correct Application of Article 19(3) of the Statute?

Interpretive Papers Series – The International Criminal Court

By: Nasser Thabet

Introduction

On December 20, 2019, the Prosecutor of the International Criminal Court (the Court) declared its intention to move on with the case of Palestine by initiating an investigation into the possible war crimes in the Palestinian Territories after she had found reasonable base to initiate the investigation. The multiple questions and points of views concerning the Court’s authority to investigate the case of Palestine, made the Court’s Prosecutor appeal to the Court’s Pre-Trial Chamber to decide on the Court’s territorial jurisdiction in the Occupied Palestinian Territories; while also giving countries, Court’s friends, the forum of law representatives, the victims, the appealing country (Palestine) and Israel the chance to present to the Court their additional observations on the Court’s territorial jurisdiction, so that, in the future, the investigation will not violate during its course the real complex legal issues.

What Were the Grounds that the Court’s Prosecutor Relied on in Her Request from the Pre-Trial Chamber to Issue a Ruling on the Court’s Territorial Jurisdiction?

Based on the Court’s work course and the history of the cases it dealt with, it is unusual for the Court’s Prosecutor to request from the Pre-Trial Chamber to issue a ruling on the Court’s authority, including its territorial jurisdiction, before going further in the investigation. That is, what is usual in such cases is that the Court (e.g., the Pre-Trial Chamber) examines the issues of Court’s authority in an advanced stage as when the Prosecutor submits to the Pre-Trial Chamber an “arrest-order”.

So, on which legal base did the  Prosecutor rely on in her request from the Court’s Pre-Trial Chamber to issue a ruling on the  Court’s territorial jurisdiction – an early request compared to previous ones? To answer this question, we need to look at the “Request Document”, which the Prosecutor sent to the Chamber on January 22, 2020. In this document, we find that the Prosecutor relied on article19 (3) of the Rome Statute, which states that,

“The Prosecutor has the right to request the Court to issue a ruling on the jurisdiction or the admissibility and their procedures. Also, the referring party and the victim are allowed, pursuant to article 13, to present their observations on this issue to the court ”.

And so, the Prosecutor saw (paras 22-24 of the request) that the Court’s legal foundation allows the Chamber’s intervention at this stage to resolve the jurisdiction issue, as article 19 (3) permits the Prosecutor to raise this issue and obliges the Chamber to resolve it.

Consequently, the Prosecutor observed that it is necessary for the Chamber to issue an adjudication/ruling  at this stage to facilitate a quick and cost-effective investigation by the Prosecution, based on correct legal foundation, especially that the statement of article 19 (3), according to the Prosecutor, does not putt any time restriction on the ability of the Prosecutor to perform this investigation right, or on  the Court’s ability to issue a ruling on the issue. On the contrary, a context-reading of  Statute asserts that the Prosecutor is allowed to request an adjudication even before the existence of a “case”. That is before the Chamber issues  an “arrest-order” pursuant to article 58(3), or a “writ of summons” pursuant to Article 58(7).

 And based on this, the Prosecutor said (paras 5& 6 of the request) that she now seeks to establish/assert that the ‘territory’ the Court is allowed to perform its authority/jurisdiction on in the Occupied Palestinian Territories, i.e., the West Bank, including East Jerusalem and Gaza Strip. And hence she also observed that it is necessary to resolve the Court’s territorial jurisdiction issue at this early stage for the following reasons:

1. Issuing a ruling on the Court’s territorial jurisdiction – a core stone in the work of the Court – will allow for a Judicial consideration of an essential issue before the inception of a work process that might be problematic. And so, it is in the interest of the court, the countries and the concerned communities that any investigation on this issue takes place on a solid judicial/legal base.
2. It will be  a violation of the judicial economy to conduct an investigation in a jurisdictional context  that is not judicially tested, especially, if  the required  legal bases  for the investigation were later found to be absent. And so, the issuing of an adjudication at this stage will reinforce the Judicial Economy and its efficiency by assuring a more productive use of the court’s limited resources; and  it is  especially important considering the Court’s security commitments to its employees and the persons it deals with (para 38 of the request).
3. Issuing an early adjudication will make easy the practical procedure for the Prosecutor’s investigation by deciding the scope of her duties and authorities concerning Palestine and anticipating any possible/potential dispute/conflict over/on the legality of her cooperation requests [especially if Israel refuses cooperation].
4. It is possible that issuing an early adjudication will save the time and the efforts of all the parties concerned.
5. Considering the complexity of the emerging issues in this case, the Court will benefit from a judicial operation that will enable the Chamber to listen, within  a reasonable time frame, to the concerned opinions, which might help the Court in its making of an adjudication and therefore might reinforce the legitimacy of the Court’s decision, especially that the Palestinians and the Israelis have different opinions on the matter. And so, it is possible to correctly assess the concerned parties’ points of views on the matter through a judicial process that is subject to the correctly-applied standards (para 39).
6. The Prosecutor also noted that, through her request to the Pre-Trial Chamber  to issue a ruling on the Court’s territorial jurisdiction, she curbs any possible allegation of unjust bias with the victims, as her ruling request will show,  if the Court will be those victims’ refuge or not only after the Chamber has issued a ruling on the legality of  the Court’s territorial jurisdiction  in Palestine.

What was the Defense Submitted Before the Pre-Trial Chamber Concerning the Prosecutor’s Request from the Chamber to Issue a Ruling on the Court’s  Territorial Jurisdiction?

After the Prosecutor’s decision to request from the Pre-Trial Chamber to issue a ruling on the Court’s territorial jurisdiction concerning Palestine, several submissions were presented to the Chamber. Among these were the submissions submitted by a collection of Palestinian organizations,[1] the legal representative of the victims, Katherine Gallagher, and, last, the Submission presented by a group of legal consultants on behalf of the victims of the Gaza Strip.  These four submissions addressed the Prosecutor’s request from the Court’s Pre-Trial Chamber to issue a ruling on the Court’s territorial jurisdiction at that stage.  Also, these submissions demanded that the Chamber delay its ruling on the territorial jurisdiction of the Court until applications for arrest- orders or writ of summons have been submitted. The submissions also stated that the Prosecutor should proceed to initiate a direct investigation based on her conviction that war crimes have been committed in the Occupied Palestinian Territories; and as such, the submissions considered the Prosecutor’s request from the Chamber at this stage a too early request.

In what follows we present these four submissions’ objections to the mentioned Prosecutor’s request (see paras 4-6 in the first, 29-34 in the second, 16-32 in the third, and 62-65 in the fourth).

1. The request is not necessary, wrong and too early. Also there was never such a request in other investigations. In all past cases referred by countries, the Prosecutor moved directly to the investigation stage.
2. The condition of article 19 in the Statute,  its internal structure and its repeated  notices to the “Problem” suggests that it is applicable to the problem stage and is not therefore applicable at this stage. That is, the article is not related to the “cases” but  is narrowly related to the “problems” presented before the Court, as it allows appeals against a specific “lawsuit” but not against a whole case. And that the Prosecutor’s  reliance on article 19(3) to deal with the Court’s jurisdiction issue before the “Problem” stage is an “entirely controversial  matter”.  In addition, this was also the position of the Pre-Trial Chamber in the case of Bangladesh/ Myanmar, when the Prosecutor’s reliance on article 19(3) in this case was  considered  “ a controversial  matter to some extent”.
3.  Article 53(1) of the Statute reflects an anticipation that the Prosecutor initiates an investigation in the referred cases. And that after referral from the concerned country has been made to the Court, there exists no adjudication to the Prosecutor’s decision to initiate an investigation in those referred cases, as this article (53/1) requests from the Prosecutor to decide alone if there is a reasonable  foundation/reason to believe that crimes, which  are within the Court’s jurisdiction, have been committed. And after the referral to the Court has been made by a concerned country, and pursuant to article 53( 3), the only adjudication that the Statute states/ allows is the Prosecutor’s decision not to “initiate an investigation”. And it was that the Court’s Chamber of Appeal ruled that, if a concerned country or the Security Council referred a case,  in principle, article 53(1) of the Statute obliges the Prosecutor to initiate an investigation. And as the Prosecutor decided that there is “a reasonable foundation to initiate the investigation of the condition in Palestine”, it  becomes  a grounded expectation to now move from the primary/ Pre-Trial examination to the investigation.  Consequently, the Prosecutor’s view that, “she is ready to initiate an investigation once a ruling has been made on the Court’s territorial jurisdiction”,  is an incorrect interpretation of her role pursuant to article 53 of the Statute.
4. The statute includes many impeachment-guarantees for the accused, the suspected and the concerned؟ countries after the initiation of the investigation and prior to the trial. And so, after the initiation of the investigation, there will be many opportunities/ will be possible/ for Israel and Palestine, or any suspected or accused, to impeach the Court’s admissibility and authority/jurisdiction before the Chamber. In addition, it is a right, pursuant to articles 19(6) and 82(1), that any decision concerning the Court’s admissibility or jurisdiction be appealed for. And the evaluation of the Court’s jurisdiction by the Pre-Trial Chamber at this stage will not lead to the dismissal/cancelation of those equity/fairness?  means. And that the ruling on the Court’s jurisdiction at this stage and before the investigation, without any specific case, will most likely lead to an unnecessary duplication in the procedures before the Chamber and the Appeal Department, something that will harm the judicial economy.
5. A consequence of the Prosecutor’s request is the danger of transforming the issue/problem from a legal one, dealing with the fulfillment of the presumed criminal conduct, to a political one. And this is what could be observed in the other submissions that were presented to the Court, many of them even dealt with the issue of whether Palestine should be recognized/considered as a “state”.
6. Through this request, which came after a preliminary examination which  continued for five years, the Prosecutor will have unjustifiably delayed the initiation of the investigation, something that can unjustly harm the victims who have the right for a quick and comprehensive investigation.

What was the Prosecutor’s Response to these Objections and What Were Her Justifications?

Following the observations and defenses that were presented to the Pre-Trial Chamber, the Prosecutor clarified her response to the allegations made by the Court’s friends (Amici Curiae), the legal representatives of victims and the countries in a submission that she submitted to the Chamber on April 30, 2020.

In paras 5-10 of this submission, the Prosecutor presented her response to those previously mentioned claims and referred to what she had presented in her earlier request to the Pre-Trial Chamber on January 2020. Among that what she had said was that, following the reasons she explained in her request to the Pre-Trial Chamber, she had found no realistic foundation/reason to quickly initiate an investigation at this time; i.e., as long as the issue of the Court’s territorial jurisdiction was not resolved. And that, all what she had done was that she asked the Court to examine the scope of the territorial jurisdiction on which she is allowed to perform her specialty on and on whose territory she is also allowed to conduct an investigation.

And from the Prosecutor’s perspective: her initiation of an investigation in a specific territory is subject to the ruling of the Pre-Trial Chamber; and that she has moved in this direction knowing that she will be working under conditions that are unique to the Palestinian case; and that those conditions should be resolved before she starts the investigation so that she would be able to continue her investigation course on a solid legal base; and that the Palestinian case is a unique one that attracts the biggest actors in international politics.

 And so, the Prosecutor will not move further any step in her initiation of an investigation, send Pre-Trial Chamber’s arrest orders or writ of summons to investigate suspects,  listen to testimonies from the victims and the inflicted groups and possible witnesses,  or arrange the logistics pertinent to  their protection, until the judges of the Pre-Trial Chamber  has issued a ruling on the Court’s territorial jurisdiction, which will make clear to her the territory’s boundaries where she will be investigating the committed war crimes/ allegations of war crimes.  

Also, she does not want to spend in the investigation great effort and high financial resources only to later learn that the Court  has no territorial jurisdiction in the Palestinian Territories.

And the Prosecutor added that the Court is not required to  issue a ruling on whether Palestine is a state or not pursuant to the  decrees of the General International Law. And that the Court is not required to examine whether there is a reasonable foundation to believe that the Court’s specialty is to look at cases of war crimes, because, pursuant to article 53(1/a), this is the Prosecutor’s specialty. And this is a matter that the Prosecutor settled at the end of her study which she submitted  to the Chamber on January 2020.In this study, she pointed to the presence of several war crimes that were committed in the Occupied Palestinian Territories (see paras 94-96), and that all that is required from the Pre-Trial Chamber is to specify the  territorial  scope on which the Court’s investigation will take place.

The Prosecutor also asserted to the Court that, “even at the present time, if the Court has no correct/valid jurisdiction on the Palestinian Territories, there is no meaning for allowing an investigation because any trial that starts now will only be an opportunity for the defense to urge the issuing of the same judicial decision that the Prosecution, in its “impartial and independent capacity”, is now  seeking.

The Prosecutor  also reminded that,  it is true that it will be possible for any suspected or accused person to impeach the Court’s authority in the future, but this will anyway be subject to the authority of the law?  She also reminded that her request will allow the defense an enough opportunity to examine any gap in the previous ruling and raise any new argument based, for example, on any material change in the circumstances.

That said, the Prosecutor saw that “there is no foundation/base to ask her to postpone her request to issue a ruling on the Court’s territorial jurisdiction until she submits any application/request pursuant to article 58”. And that, in her request for a quick ruling, there is not that which causes unjust bias against the victims because victims will be able to fully participate and benefit either from a clear ruling on the Court’s territorial jurisdiction or  from their learning that the Court  will not/could not/ be their proper destination to reach justice.

The Pre-Trial  Chamber’s Decision  on the Issue

This paper will be updated with the Court’s Pre-Trial Chamber’s decision on the  issue once this decision has been made, as the case is still  pending/deliberated/ before the Chamber.

[1] These were the Palestinian Centre for Human Rights, al-Mizan Centre for Human Rights,  al-Haq- Defending Human Rights, and Adhameer for Human Rights.