Responding to the Open Letter to the ASP Regarding Palestine

[As stated on the Contributors page and in my full profile, I serve as Special Adviser to the ICC Prosecutor on War Crimes. This post is written in my personal academic capacity.]

Introduction

A group of scholars and practitioners have published an open letter to the Assembly of States Parties (ASP) expressing their “grave concern over the integrity of the Office of the Prosecutor (OTP) of the International Criminal Court (ICC)” regarding its investigation into the situation in Palestine. The letter makes a number of serious allegations against Prosecutor Khan and asks the ASP to intervene in the Palestine investigation, including “ensuri[ng] that the Prosecutor disburses resources on the basis of investigative needs as opposed to politically-motivated prioritization” and investigating the actions of the Prosecutor himself.

The authors of the letter have every right to criticise Prosecutor Khan, and criticism is a healthy aspect of dialogue between the OTP and civil society. As the saying goes, however, everyone is entitled to their own opinion, but not to their own facts. Unfortunately, the open letter not only gets a number of important facts wrong about the history of the Palestine investigation, it also repeatedly and seriously misrepresents what the Prosecutor has said about it.

The History of the Palestine Investigation

The letter alleges that “[d]uring the course of Khan’s mandate thus far, there have been a number of questionable decisions on the Situation in Palestine,” including “considerable delays… as well as policies of understaffing and under-resourcing.” It also suggests that Khan’s supposedly dilatory approach to the investigation contrasts with the approach of his predecessor, Fatou Bensouda, who “allocated efforts [sic] and resources in an attempt to address the fierce criticisms of the OTP’s selective accountability.”

To say this is a misleading description of the Palestine investigation is an understatement. Start with the title of the relevant section in the Annex to the letter: “Nine Years at the ICC: Accountability Is Still Out of Sight.” In fact, it isn’t nine years — it’s 14. Palestine submitted its first Art. 12(3) declaration in January 2009, while Luis Moreno-Ocampo was Prosecutor, accepting the Court’s jurisdiction retractive to 1 July 2002. Moreno-Ocampo immediately opened a preliminary examination into the situation in Palestine, as he was legally required to do, but he did nothing else. He did not allocate a single dollar to the investigation. He did not create an investigative team. He did not recruit new staff. Instead, more than three years after the declaration was filed — and barely two months before his term as Prosecutor ended — Moreno-Ocampo simply released an eight-paragraph statement announcing that he was closing the preliminary examination because he believed the OTP should not determine whether Palestine qualified as a state for purposes of the Rome Statute.

Palestine filed a second Art. 12(3) declaration on 31 December 2014, three years into Bensouda’s tenure as Prosecutor, this time accepting the Court’s jurisdiction retroactive to 13 June 2014. Bensouda opened a new preliminary examination two weeks later — and then, similar to her predecessor, did nothing for more than four years. No budget. No team. No recruitment. Indeed, until December 2019, Bensouda did not act on either the Art. 12(3) declaration or Palestine’s May 2018 formal referral. And even then, despite having concluded that all of the statutory criteria had been met, she still did not open the investigation. Instead, she asked the Pre-Trial Chamber to determine whether the Court had jurisdiction over the Palestine situation. Only after receiving a positive response did Bensouda move forward — in March 2021, three months before the end of her term as Prosecutor.

Prosecutor Khan thus inherited a Palestine investigation that had been neglected for twelve years, had been open for only three months, and had neither funds nor staff allocated to it. Even worse, Bensouda had requested no money for the Palestine investigation in the 2022 budget she bequeathed to Khan. Because the budget needed to be finalized immediately, Khan did not have time to adjust priorities in order to fund the Palestine investigation in 2022. But that did not deter him from breathing life into the investigation. On the contrary, he quickly created a full investigative team for Palestine by — as he said in his recent remarks to the ASP — “stealing resources from other situations.” He also began recruiting new staff in anticipation of expanding the investigative team once it had a proper budget.

That budget materialized in 2023, with Prosecutor Khan dedicating €994,100 to the Palestine investigation — the first funds ever allocated to the situation. Since then, Khan has also appointed a P5 to the investigative team, the highest Professional ranking in the UN system, and he recently told the ASP that an even higher-ranking member of the OTP, a D1 (Director), will be “leading the Palestine investigations, reporting to me directly as the D1 in Ukraine reports to me directly, and this is because of the complexity of the situation.” Equally important, and similar to the situation in Ukraine, Khan asked the international community to provide him with additional funds to investigate the Palestine situation. That request quickly bore considerable fruit, with Belgium recently announcing that it is donating €5,000,000 to the Court. That amount represents more than 10% of the OTP’s entire 2022 budget.

The letter’s claim that Prosecutor Khan is responsible for the Palestine investigation being “significantly delayed and sluggish in pace,” in short, cannot be reconciled with the actual history of the investigation. In reality, the Palestine investigation was completely dormant before Khan took office and only moved forward because he insisted that it do so.

The Prosecutor’s Statements About the Investigation

Much of the letter is dedicated to criticising statements Prosecutor Khan has made about the Palestine investigation. Almost without exception, however, the scholars misrepresent what he has actually said in his four major speeches about Palestine: in Cairo on October 30; in The Guardian on November 10; in Ramallah on December 2; and to the ASP on December 4.

I want to begin with the letter’s most problematic statement of all:

Prosecutor Khan has mentioned nowhere in his statements any alleged crimes committed by Israel, including in relation to the West Bank and East Jerusalem. Instead, he consistently maintains that Israel, with its legal experts, “should be able to justify its actions.”

The first claim — that “Prosecutor Khan has mentioned nowhere in his statements any alleged crimes committed by Israel” — is categorically false. In Cairo, he mentioned both the war crime of starvation in Gaza and deliberate settler attacks on Palestinian civilians in the West Bank:

“Impeding relief supplies as provided by the Geneva Conventions may constitute a crime within the Court’s jurisdiction. I want to underline clearly to Israel that there must be discernible efforts, without further delay, to make sure civilians receive basic food, medicine, anaesthetics, morphine…. Civilians must receive basic food and water and the desperately needed medical supplies.”

“I’m also extremely concerned with the spike, the increase, in the number of reported incidents of attacks by Israeli settlers against Palestinian civilians in the West Bank. We will investigate these attacks and all further attacks must cease immediately.”

In his op-ed in The Guardian, Khan focused on attacks on humanitarian workers in Gaza:

“I also wish to underline that there can be no justification for attacks on humanitarian workers, in particular those of the International Committee of the Red Cross and Red Crescent. There is a specific prohibition under the Rome statute regarding any such attacks.”

In Ramallah, Khan returned to the war crime of starvation and settler attacks on Palestinian civilians in the West Bank:

“I emphasised again that humanitarian assistance must be allowed in at pace, at scale in Gaza…. I was crystal clear that this is the time to comply with the law. It’s already late. But if Israel doesn’t comply now, they shouldn’t complain later.”

“I emphasised settler violence is unacceptable. It’s something we are investigating, we have been investigating, and we are accelerating investigations. No Israeli settler armed with an ideology and a gun can think it’s open season on Palestinians.”

At the ASP, Khan singled out — now for the third time — the war crime of starvation:

“I was very clear that humanitarian relief, the denial of humanitarian relief is a matter that my Office is investigating. It is and may be an offense under the Rome Statute, and Israel must allow that humanitarian relief in on scale.”

Finally, although the statement post-dates the letter, it is worth noting that Khan responded to the UN Secretary-General’s historic invocation of Art. 99 of the Charter by mentioning one, and only one, potential crime in the Palestine situation: starvation.

“I have emphasised the imperative that humanitarian relief be allowed into Gaza immediately and at scale. I wish to reiterate in the clearest terms possible that wilfully impeding relief supplies to civilians may constitute a war crime under the ICC Rome Statute.”

The letter’s second claim — that Prosecutor Khan “consistently maintains that Israel, with its legal experts, should be able to justify its actions” — so fundamentally misrepresents Khan’s position it is difficult to avoid the conclusion that the authors are deliberately trying to mislead the ASP and the public. The letter links to Khan’s speech in Cairo, but the statement “should be able to justify its actions” appears nowhere in the transcript of the speech. Moreover, and more importantly, nothing Khan said in that speech (or in any other) suggests that he assumes Israel’s actions in Gaza have been lawful. On the contrary, he made inordinately clear in Cairo that, with regard to its bombings, Israel has the burden of proving that each and every attack complied with the principles of distinction and proportionality:

“They have lawyers advising on targeting decisions, and they will be under no misapprehension as to their obligations, or that they must be able to account for their actions. They will need to demonstrate that any attack, any attack that impacts innocent civilians or protected objects, must be conducted in accordance with the laws and customs of war, in accordance with the laws of armed conflict. They need to demonstrate the proper application of the principles of distinction, precaution and of proportionality. And I want to be quite clear so there’s no misunderstanding: In relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost. And I want to be equally clear that the burden of proving that the protective status is lost rests with those who fire the gun, the missile, or the rocket in question.”

Third, the letter claims that Prosecutor Khan is ignoring crimes potentially committed in Gaza and the West Bank prior to the attacks on October 7. The authors acknowledge and even commend the “noticeable acceleration in the work and activity of the Office of the Prosecutor since October 7.” But they nevertheless express concern “that the Prosecutor, in view of his consecutive statements, is acting according to a belief that crimes under the jurisdiction of the Court have taken place only since this date.”

This is false. Khan was explicit on this point in Cairo, his first public statement on the Palestine situation after October 7:

“As I stated just a few days after the events of the 7th of October, my Office has an ongoing investigation with jurisdiction over Palestine that goes back to 2014 and any crimes committed on the territory of Palestine by any party.”

Fourth, the letter claims that Prosecutor Khan describes only Israeli civilians as “innocent,” which in the authors’ view “insinuates that some civilians deserve more protection than others, and undermines the cardinal principles of international humanitarian law, including the principle of distinction and that civilians cannot be the target of an attack.”

This is false. In the Cairo statement, Khan specifically describe Palestinian civilians as innocent:

“And there’s no denying that any right-minded person would agree that beyond that crossing —  and I had those pictures we see on the television around the world in my mind — beyond that crossing are innocent Palestinians, innocent children, boys and girls who should be at school, who should be playing in parks or playing football or playing with their friends, learning and studying and hoping to build a better future.”

Moreover, Khan has left no doubt that Israel must abide by the principles of distinction and proportionality when ostensibly attacking Hamas in Gaza. As quoted above, he explicitly said in Cairo that Israel’s lawyers “will need to demonstrate that any attack, any attack that impacts innocent civilians or protected objects, must be conducted in accordance with the laws and customs of war,” including “the proper application of the principles of distinction, precaution and of proportionality.”

Fifth, the letter claims that although “[i]n references to Israeli victims, the Prosecutor has repetitively emphasized the necessity of holding those responsible for the crimes to account,” when “referring to Palestinian victims, he avoids using terms like ‘accountability’ or any equivalent.”

This is false. Khan has been unequivocal that there must be accountability for crimes committed by both sides of the conflict. As he said in Cairo:

“My primary and indeed my only objective must be to achieve justice for the victims and to uphold my own solemn declaration under the Rome Statute as an independent prosecutor, impartially looking at the evidence and vindicating the rights of victims whether they are in Israel or Palestine.”

And here is what he wrote in The Guardian:

“In Gaza, I wanted to meet those who are suffering such tremendous pain, to hear their experiences first hand and, crucially, to promise them, to give a commitment to them, that their birthright is justice. Palestinians deserve justice as much as any other human.”

Sixth, and finally, the letter claims that Prosecutor Khan “seems to have already concluded that international crimes have been committed by Palestinian armed groups, thereby undermining the fundamental rules, including on the presumption of innocence and relevant standards.”

This is false. He made clear in Cairo that allegations of criminality by Hamas (or by Israel) are just that — allegations (emphasis mine):

“[W]e have jurisdiction over crimes committed by the nationals of state parties. And therefore that jurisdiction continues over any Rome Statute crimes committed by Palestinian nationals or the nationals of any state parties on Israeli territory, if that is proven.”

In other statements, Khan correctly used conditional language concerning allegations of criminal acts by Hamas — ironically, the same kind of conditional language (“may”) that some prominent OTP critics have used to criticise his statements concerning Israel’s alleged crimes. Here, for example, is what Khan said in The Guardian (emphasis mine):

“I would also underline that the indiscriminate firing of rockets from Gaza into Israel may represent breaches of international humanitarian law subject to the jurisdiction of the ICC.”

Conclusion

All of the information necessary to understand the evolution of the Palestine investigation between 2009 and 2023 is available on the ICC’s website, and all of the statements by Prosecutor Khan quoted above were released to the public soon after he made them. The authors of the open letter, whoever they are, could have taken that information seriously and produced a thoughtful critique of the Palestine investigation. Instead, they have chosen to release a letter that fundamentally misrepresents Khan’s actions and statements concerning the situation in Palestine. That choice not only damages the project of international criminal justice in general, it does nothing to promote the interests of Palestinians in Gaza and the West Bank.