The ICC Takes Time Limits Seriously! (If You’re Palestinian)

Last Thursday, Pre-Trial Chamber I issued its decision concerning which states, individuals ,and organizations will be permitted to submit observations on the OTP’s request for a jurisdictional ruling in the Palestine situation. The PTC granted leave to 43 of the 45 potential amicus curiae. It denied one request (para. 52) because the individual who submitted it did so on behalf of an organization he was not authorized to represent. And it denied a second request, submitted by the noted Palestinian legal analyst and activist Ata Hindi and UCL’s Ralph Wilde, because it had supposedly been filed after the 14 February 2020 deadline set in the PTC’s January 28 scheduling order. Here is what the PTC said about the Hindi/Wilde submission (para. 51):

The Chamber notes that the ‘Request for Leave to File a Submission Pursuant to Rule 103 of the Rules of Procedure and Evidence’ on behalf of Ralph Wilde and Ata Hindi was submitted on 15 February 2020 at 05:30 hours. Accordingly, the Chamber rejects this request considering that it was submitted after the deadline set by the Chamber in its 28 January 2020 Order.

The PTC decision to reject the Hindi/Wilde submission is troubling in a number of respects. To begin with, Hindi actually submitted the request to the Court on February 14. He simply did so at 11:30 Atlanta time, where he is based — 5:30 on February 15 in The Hague. The January 28 scheduling order did not specify either a time or a time zone (para. 17):

In addition, other States, organisations and/or persons may submit applications for leave to file written observations by no later than 14 February 2020.

If asked about why it chose The Hague as the relevant time zone for the submission deadline, the PTC would undoubtedly point to Regulation 33(2) of the ICC’s Regulations of Court, which is entitled “calculation of time limits.” Reg. 33(2) does mention The Hague as the applicable time zone:

Documents shall be filed with the Registry between 9am and 4pm The Hague time or the time of such other place as designated by the Presidency, a Chamber or the Registrar, except where the urgent procedure foreseen in regulation 24, sub-regulation 3 of the Regulations of the Registry applies.

Reg. 33(2) would justify rejecting the Hindi/Wilde submission. Given that the January 28 scheduling order did not designate a time zone different than The Hague, all submissions were in fact due no later than 16:00 Hague time on February 14.

But here is the problem — as the February 20 decision makes clear, the PTC granted number of other requests even though they were filed on February 14 after 16:00 in The Hague and thus also failed to comply with Reg. 33(2):

• The League of Arab States submitted on February 14 at 19:22 (n. 42)
• Yael Vias Gvirsman submitted on February 14 at 16:04 (n. 43)
• The Popular Conference of Palestinians Abroad submitted on February 14 at 16:10 (n. 44)
• The Israel Forever Foundation submitted on February 14 at 22:56 (n. 45)
• Frank Romano submitted on February 14 at 23:52 (n. 46)
• Uri Weiss submitted (to the wrong email address) on February 14 at 23:02 (n. 48)

(It is also worth noting that Uganda did not file its formal written request until February 19 at 18:08. It apparently (n. 49) sent a note verbale to the PTC on February 14 at 15:58 concerning its desire for amicus status — a method that, as the PTC acknowledges, was not consistent with the regular procedure for submitting a request. Regulation 35 does permit requests for an extension of time, though, so it seems likely that the PTC treated the note verbale as such a request.)

Given that the six requests mentioned above were granted, it is clear that the PTC did not uniformly enforce Reg. 33(2)’s time limits. It should thus have accepted the Hindi/Wilde submission as well, given that the January 28 order did not specify a time zone and Hindi submitted the request before midnight on February 14, Atlanta time.

Interestingly, the Registry seems to have been fully aware that the deadline for submissions was February 14 at 16:00 in The Hague. The PTC’s decision identifies a number of requests that were submitted and received on February 14 other than the six mentioned above. The PTC received those requests from the Registry, according to the decision (paras. 11-40), on February 14. By contrast, although all of the requests filed after the 16:00 deadline were also supposedly submitted on February 14, the decision indicates that the PTC did not receive them from the Registry (with the exception of the one by the League of Arab States) until February 17 or February 18 (see nn. 42-47). February 14 was a Friday, so it seems quite obvious what happened: the Registry forwarded all of the submissions it received by the 16:00 deadline to the PTC but waited until after the weekend to forward the six submissions that were filed late.

The PTC nevertheless decided to ignore the Reg. 33(2) deadline for all of the late submissions other than the one from Hindi/Wilde. That is bad enough — and would justify granting the appeal they intend to file. But it’s also important to note that the practice of the ICC’s judges concerning amicus deadlines has never been consistent. To take only the most recent example, the Appeals Chamber also set a deadline for requests to appear in the Afghanistan situation, requiring states to submit by 15 November 2019 and individuals and organizations to submit by 15 October 2019 (paras. 4-5; note the 16:00 deadline with no specified time zone) :

4. Interested States are invited to submit observations, not exceeding 35 pages in length, on issues arising from the above-mentioned appeals by 16h00 on Friday, 15 November 2019, and are invited to indicate whether they will attend the above-mentioned hearing.

5. Professors of criminal procedure and/or international law, including international human rights law, as well as organisations with specific legal expertise in human rights may, by 16h00 on Tuesday, 15 October 2019, file a request, not exceeding four pages, for leave to submit observations on the distinct legal issues described in paragraph 3 above.

The AC did not strictly enforce these limits. The State of Afghanistan did not submit a request to appear by the November 15 deadline and did not ask for an extension of time until November 25:

On 25 November 2019, the Islamic Republic of Afghanistan (hereinafter: ‘Afghanistan’) requested the Appeals Chamber to extend the time limit to permit its government to file written observations by ‘Monday 1 [sic] December 2019’ and to make oral submissions during the hearing scheduled from 4 to 6 December 20193 (‘Request’). In support of its Request, Afghanistan submitted that the present appeals affect its national security and vital interests, and that ‘extraordinarily difficult and complex circumstances due to the recent presidential elections and subsequent resignation of the Foreign Minister’ impeded its timely communication of its interest to make written and oral submissions in these appeals. It further submitted that no prejudice would be caused to the participants in these appeals as they could respond to its submissions in writing or during the hearing.

The AC granted Afghanistan’s request, even though the government had not bothered to communicate with it (unlike Uganda in the Palestine situation) concerning an extension of time prior to the deadline — waiting instead another 10 days.

Perhaps even more egregious, however, is the AC’s decision to grant the request to appear submitted by the European Center for Law and Justice (ECLJ), Jay Sekulow’s chop shop. As the AC itself noted, the ECLJ not only failed to submit its request until October 22, a week late, it actually backdated the request. Here are paragraph 29 and n. 32 of the decision (my emphasis):

On 22 October 2019, the European Centre for Law and Justice (‘ECLJ’) requested leave to file observations under rule 103 of the Rules.

‘Request for Leave to Submit Observations on behalf of the European Centre for Law and Justice’, dated 15 October 2019 and filed on 22 October 2019, ICC-02/17-95.

The AC should have sanctioned the ECLJ for submitting a backdated document — I assume in the hope that no one would notice. Instead, the AC granted the ECLJ’s request to appear in the Afghanistan situation.

So, to recap: in the Afghanistan situation, the AC does not apply Reg. 33(2) when it is ignored by a state and is knowingly violated by an ultra-right pro-Israel organization. In the Palestine situation, the PTC applies Reg. 33(2) inconsistently and in a manner that excludes — and only excludes — a leading Palestinian legal analyst and activist. Such selectivity and arbitrariness is unfair, unjustified, and unacceptable.

The PTC needs to right this wrong. The sooner the better.