September 2012

Palestine and the ICC: Some Notes on Why It Is Not a Closed Chapter

[Dr. Chantal Meloni works at the University of Milan and is a von Humboldt scholar in Berlin. She is the co-editor of Is there a Court for Gaza?, T.M.C. Asser 2012)] The question that many scholars are dealing with in the past months, following the 3 April 2012 update by the Office of the Prosecutor (OTP), is whether the Palestine-ICC chapter should be regarded as closed. In this short analysis I intend to delineate why, in my opinion, the Palestine-ICC chapter is far from over. The issue is of particular relevance in these very days for two reasons: as further explained below, over the next weeks both the UN General Assembly and the ICC Assembly of States Parties will have to deal (much depending on the choices of the Palestinian Authority) with the question of Palestine, which will ultimately have an impact on the possible opening of the investigation before the ICC. The starting point is that the 3 April 2012 update/memorandum/statement (as it has been variously called) by the OTP on the situation in Palestine is in fact a decision. This means that the preliminary examination on the situation is closed, as are the preliminary examinations of the situations of Iraq and Venezuela, which are indeed listed on the same ICC web page under the link "decision not to proceed” (which, by the way, is not the appropriate expression, since the decision not to proceed only comes at the end of the investigation stage, thus these cases should correctly be defined “decisions not to investigate”). According to internal OTP sources, the ambiguity contained in the “update”'s two pages and its deceptive title, was apparent to its authors. The final document - which was apparently issued in a rush notwithstanding 39 months of preliminary examination - was the result of diverging and irreconcilable positions inside the OTP, which allegedly led to the deletion of several arguments and the associated reasoning. I will refrain from criticizing again the poor content of these two pages, since other scholars have already well done it: see, among the others, the comments by Michael Kearney, and William Schabas. Irrespective of its merits, pursuant to article 15(6) of the Rome Statute, relevant actors, such as inter alia the victims’ representatives, who delivered information to the OTP and communicated with the office during the preliminary examination, should have been notified of the decision. The OTP alleges to have done so, and that more than 300 notifications were sent out, but apparently organizations like the PCHR, which represents hundreds of Gaza victims and provided information and documentation to the OTP, have not received any notification. Apart from these preliminary observations, some more substantial questions arise from the procedure which was adopted by the then Prosecutor – Luis Moreno Ocampo - to deal with the Palestine situation. These are more serious questions that go beyond the case at hand and touch upon the extent of the discretional powers of the Prosecutor and the judicial remedies provided before the ICC. Some of these questions are outlined below.