The OTP Should Have Appealed the Palestine Decision

As readers no doubt know, Fatou Bensouda announced yesterday that the OTP is opening a formal investigation into the situation in Palestine. Doing so was a foregone conclusion, given the Pre-Trial Chamber’s recent decision that the ICC has jurisdiction over crimes committed in Gaza, the West Bank, and East Jerusalem. Regardless, even if the bulk of the work will fall to her successor, Karim Khan, Bensouda deserves credit for not being cowed by Israel’s ridiculous allegations of anti-semitism or by the US’s indefensible sanctions against her, which the Biden administration — to its great shame — has yet to remove.

All that said, I still believe the OTP should have appealed the PTC’s decision to the Appeals Chamber before opening the investigation.

“But Kevin,” I hear you muttering, “the OTP won! Why would the OTP appeal?”

I take the point. But consider this: the OTP didn’t need to ask the Pre-Trial Chamber (PTC) for a jurisdictional ruling in the first place. It could simply have opened the investigation and waited for a suspect to raise the jurisdictional issue when faced with an arrest warrant. Indeed, a number of scholars — including me and Patryk Labuda — have suggested the OTP should have done exactly that.

The OTP obviously disagreed. Here is why, according to the OTP’s request to the PTC:

5. However, notwithstanding [the Prosecutor’s own view that the Court does indeed have the necessary jurisdiction in this situation, the Prosecutor is mindful of the unique history and circumstances of the Occupied Palestinian Territory. Indeed, it is no understatement to say that determination of the Court’s jurisdiction may, in this respect, touch on complex legal and factual issues. Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed. The West Bank and Gaza are occupied and East Jerusalem has been annexed by Israel. The Palestinian Authority does not govern Gaza. Moreover, the question of Palestine’s Statehood under international law does not appear to have been definitively resolved. Although the Prosecutor is of the view that the Court may exercise its jurisdiction notwithstanding these matters, she is aware of the contrary views. Consequently, in order to seek judicial resolution of this matter at the earliest opportunity—and thus to facilitate the practical conduct of her investigation by placing it on the soundest legal foundation—the Prosecutor exercises her power under article 19(3) of the Statute and respectfully requests Pre-Trial Chamber I (“the Chamber”) to rule on the scope of the Court’s territorial jurisdiction in the situation in Palestine. Specifically, the Prosecution seeks confirmation that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza.

6. The resolution of this foundational issue is necessary now for several reasons. First, it will allow judicial consideration of an essential question before embarking on a course of action which might be contentious. The jurisdictional regime of the Court is a cornerstone of the Rome Statue, and it is therefore in the interests not only of the Court as a whole, but also of the States and communities involved, that any investigation proceeds on a solid jurisdictional basis. And it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking.

My point is this: the OTP’s concerns are just as valid now as they were before the PTC issued its decision. The PTC does not have final say over the scope of the Court’s jurisdiction. The Appeals Chamber (AC) does. The jurisdictional issue might not have reached the AC now, because the OTP and Palestine are obviously happy with the decision and Israel did not try to appeal it under Art. 82(1)(a). But it’s very likely the AC will eventually have its say: any suspect facing charges — Israeli or Palestinian — will have every incentive to contest the PTC’s decision. In fact, challenging jurisdiction will not only raise the possibility of the AC disagreeing with the PTC, it will also give a suspect a second bite of the PTC apple, given that there is no guarantee the PTC who hears the challenge will be the same as the one that recently decided in the OTP’s favour. It could be years before charges are brought against anyone in the Palestine situation. Will Judge Brichambaut and Judge Kovacs still be around at that point? Their terms end in 2024. If they are around, will they still be in the PTC?

It is also worth emphasizing that the PTC knew full well that its decision would not be the final word on jurisdiction. Here is paragraph 131 of the decision:

It is further opportune to emphasise that the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor pursuant to articles 13(a), 14 and 53(1) of the Statute. When 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.

To be clear, I am not suggesting that it’s likely a future PTC will reach a different conclusion, even a differently constituted one. But it’s certainly not impossible, especially given the vehemence with which Judge Kovacs disagreed with the majority’s reasoning. And, of course, we have no idea what the AC will say when it eventually faces the jurisdictional issue.

The OTP has always been extremely cautious with the Palestine investigation. Understandably so, given the stakes. It’s unfortunate, therefore, that the OTP didn’t continue its cautious approach by appealing its “win” to the AC. Until the AC weighs in on the jurisdictional issue, all of the considerations that led the OTP to invoke Art. 19(3) in the first place continue to apply.