A Response to Mariniello About the Palestine Investigation

[I serve as Special Adviser to the ICC Prosecutor on War Crimes. This post is written solely in my academic capacity.]

Introduction

A few weeks ago, I wrote a long response to an Open Letter calling on the Assembly of States Parties to interfere in the Prosecutor’s investigation into the situation in Palestine. Opinio Juris has now published a new attack on the Prosecutor written by Triestino Mariniello, one of the signatories to the Open Letter. I did not oppose publishing the post, because Opinio Juris is committed to publishing a variety of different perspectives on important issues. But the post’s claims should not go unchallenged.

Contrast with Bensouda

The most significant problem with the post is that, like the Open Letter, it essentially ignores everything that happened in the Palestine situation prior to Khan becoming Prosecutor. There is not a single criticism of his predecessor, Fatou Bensouda, anywhere in the post’s nearly 3,000 words; on the contrary, Bensouda is mentioned solely to praise her for issuing preventative statements, something Khan has supposedly not done, and for her engagement with Palestinian human-rights groups. There is no mention of the fact that Palestine asked Bensouda to investigate the situation in January 2015 — when she had 6.5 years left in her term. There is no mention of the fact that it took Bensouda nearly five years, until the end of 2019, to determine that the (minimal) statutory criteria for opening an investigation were met. There is no mention of the fact that, having made the necessary determination, Bensouda still refused to open the investigation, choosing instead to ask the Pre-Trial Chamber to assess whether the Court even had jurisdiction. There is no mention of the fact that, when Bensouda did finally decide to open the investigation, she was three months away from being replaced by Khan.

All of this necessary background is absent from Mariniello’s post. Instead, this is how he describes the state of the Palestine investigation when Khan took office: “The Prosecutor… was sworn in on 16 June 2021, inheriting an opened investigation into the situation in Palestine from his predecessor.” That’s it. Unless readers know the history of the Palestine situation well, they will no doubt conclude that the OTP was actively investigating crimes in Palestine when Khan took over from Bensouda. And that was simply not the case.

Equally problematic is how Mariniello describes OTP budgeting for the Palestine investigation: “the Office of the Prosecutor (OTP) assigned no funds to the Palestine situation in 2022 (the budget was finalised on 16 August 2021).” Mariniello does not claim that Khan set the 2022 budget, to his credit, but he fails to mention that it was in fact set by Bensouda, not Khan. The document containing the 2022 budget (which is here; Mariniello links to the 2023 budget instead) is 251 pages long and, as the Forward says on p. 6, was presented to the ASP on 22 July 2021, not even five weeks after Khan became Prosecutor. The budget thus reflected Bensouda’s priorities, not Khan’s. It was Bensouda who chose to allocate no funds to the Palestine investigation for 2022. And it was Bensouda who decided — as noted on p. 226 of the Budget — that Palestine would not be one of the OTP’s eight priority investigations in 2022, but would instead be left at the “planning stage” for Khan:

The Office of the Prosecutor will prioritize a total of eight active investigations in 2022: Bangladesh/Myanmar, Burundi, Côte d’Ivoire, Darfur, Georgia and Libya (three cases)…. Investigations in the situations in Afghanistan and Palestine are at the planning stage.

As I noted in my response to the Open Letter, despite inheriting a just-opened, unbudgeted, and long-neglected investigation, Khan made the Palestine investigation a priority. He immediately created a full investigative team for Palestine by “stealing resources from other situations.” He began recruiting new staff in anticipation of expanding the investigative team once it had a proper budget. He included nearly 1,000,000 euros in the 2023 budget for the Palestine situation. He appointed a P5 to the investigative team and announced the investigation will be led by a Director (D1). And he asked the international community to provide him with additional funds to investigate the Palestine situation, leading Belgium to donate 5,000,000 euros to the Court. Every single one of those actions was a first for the Palestine situation — and nearly all of them came before the terrible events of October 7.

Contrast with Ukraine

With the exception of the 2023 budget request — which he faults for being too little — Mariniello acknowledges none of this. Instead, he criticises Khan for supposedly treating the Palestine investigation very differently than the Ukraine investigation:

The way in which the Prosecutor had approached the Palestine investigation appears to be in sharp contrast to the Ukraine situation. After the beginning of the Russian full-scale invasion, Khan undertook several visits to Ukraine, attended press conferences, opened the Court’s biggest field office, deployed 42 investigators, opened an online portal to collect evidence, and raised unprecedented amounts of funding from various states. These were the same measures Palestinian human rights groups have been requesting for a while, yet to little or no avail. According to civil society organizations in Palestine, despite repeated requests for a similar commitment to accountability, the Prosecutor ‘never sought outside money for the ICC’s Palestine investigation, never spoke about a “crime scene”…, never sought to visit Palestine’. Since June 2021, the Prosecutor had not provided any updates on the Palestine investigation.

There is no question the OTP has dedicated more resources to the Ukraine situation than to any other situation in its history — including Palestine. But the contrast is still vastly overstated. Khan has made several visits to Palestine (counting his visit to the Rafah gate). Khan has attended press conferences about the Palestine situation. Khan has announced plans to open a field office as part of the Palestine investigation. Khan has deployed investigators in the situation as part of the Unified Team he created. Khan has opened an online portal to collect evidence of crimes in Palestine. And Khan has raised significant amounts of money from states — more than 10% of the OTP’s entire budget from Belgium alone — that can be used for the Palestine investigation. (States cannot earmark funds for a particular investigation, as Khan has made clear. Not for Ukraine and not for Palestine.)

Updates and Preventive Statements

Even more problematic is Mariniello’s claim that “[s]ince June 2021, the Prosecutor had not provided any updates on the Palestine investigation.” This is false. Here is a list of public statements Khan has made about the Palestine investigation since October 12 alone:

Remarks by ICC Prosecutor Karim A.A. Khan KC at the opening of the 22nd Session of the Assembly of States Parties – 4 December 2023

Statement of ICC Prosecutor Karim A. A. Khan KC from Ramallah on the situation in the State of Palestine and Israel – 6 December 2023

ICC Prosecutor, Karim A. A. Khan KC, concludes first visit to Israel and State of Palestine by an ICC Prosecutor: “We must show that the law is there, on the front lines, and that it is capable of protecting all” – 3 December 2023

Statement of the Prosecutor of the International Criminal Court, Karim A.A. Khan KC, on the Situation in the State of Palestine: receipt of a referral from five States Parties – 17 November 2023

Prosecutor’s Op-Ed in The Guardian and various newspapers – 10 November 2023

Press statement from Cairo – 30 October 2023

Video statement from the Rafah Border Crossing between Egypt and the Gaza Strip – 29 October 2023

Interview with CNN from Cairo – 29 October 2023

Interview with BBC Radio 4 (starts at circa 26:16) – 13 October 2023

Interview with Reuters – 12 October 2023

OTP Annual Report for 2023

Why these statements — which include statements in official OTP documents and made directly to the ASP — do not count as “updates on the Palestine investigation,” Mariniello doesn’t say.

Mariniello also doesn’t explain why these statements do not count as “preventive.” Consider a few excerpts from Khan’s Cairo statement on October 30:

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.

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.

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.

Now compare those excerpts with the full text of the only preventive statement by Bensouda on Palestine that Mariniello links to:

I have been following with concern the planned eviction of the Bedouin community of Khan al-Ahmar, in the West Bank.  Evacuation by force now appears imminent, and with it the prospects for further escalation and violence.

It bears recalling, as a general matter, that extensive destruction of property without military necessity and population transfers in an occupied territory constitute war crimes under the Rome Statute.

I am similarly alarmed by the continued violence, perpetrated by actors on both sides, at the Gaza border with Israel.

As Prosecutor seized of the situation in Palestine, I therefore feel compelled to remind all parties that the situation remains under preliminary examination by my Office.

I continue to keep a close eye on the developments on the ground and will not hesitate to take any appropriate action, within the confines of the independent and impartial exercise of my mandate under the Rome Statute, with full respect for the principle of complementarity.

There is simply no substantive difference between the two statements. Both remind the parties that the Court has jurisdiction over the situation in Palestine. Both mention the possibility of specific crimes being or about to be committed. Both mention the Prosecutor’s concern at at that possibility. Both make clear that the OTP will investigate crimes committed in Palestine when appropriate.

Both are, in short, preventive statements.

There is, however, a significant procedural difference between the two: Khan’s preventive statement was made in the context of an ongoing investigation in Palestine, whereas Bensouda’s preventive statement was made in the context of a preliminary examination that was already three years old. And, of course, Bensouda’s concern at the planned eviction of the Bedouin community of Khan al-Ahmar was not enough to convince her to actually open the Palestine investigation. Instead, she waited another 15 months to even ask the PTC to determine whether the Court had jurisdiction over the situation — and then another 15 to open the investigation itself.

It is also important to note that, as the list above indicates, Khan has made a number of public statements about the situation in Palestine that can be considered preventive. Mariniello cites only one from Bensouda. Yet Mariniello still claims that, “in contrast to his predecessor Fatou Bensouda, the current Prosecutor had also failed to issue any preventive statement.”

Standard of Proof

Mariniello also accuses Khan of manipulating the standard of proof for arrest warrants and summons to appear. Here is what he says:

On various occasions, the Prosecutor stressed that he will not ‘hesitate to act pursuant to his mandate’ once the evidence reaches the threshold of ‘realistic prospect of conviction’. In setting out this threshold Khan appears to be creating a different standard of proof at the stage of applying for arrest warrants or summons to appear, which does not have any legal basis in the Rome Statute or the Rules of Procedure and Evidence (RPE) (see also here). Scholarship has emphasised how the ‘realistic threshold’ was not the standard used for the requests of arrest warrants in Georgia or Ukraine. As already highlighted, the word ‘realistic’ ‘seems –concerningly – more about pragmatism and realpolitik, rather than about the law itself.’ As a flexible and subjective concept, the word ‘realistic’ may affect the consistent application of the Rome Statute and the ‘uniformity and certainty in the administration of criminal justice’. For instance, one might question (inter alia) whether the threshold of ‘realistic prospect of conviction’ was satisfied when the Prosecutor requested the arrest warrant against the Russian President Putin.

This minute parsing of Khan’s words is neither helpful nor enlightening. To begin with, Khan did not invent the “realistic prospect of conviction” standard for use in the Palestine situation. On the contrary, he explicitly stated in December 2021 that his OTP applies the standard in all of its investigations and cases:

It is correct — and I think it was to be expected and indeed [it is] incumbent upon me to seek to review all the cases, situations, preliminary examinations that are in the court’s docket.

That doesn’t mean that there’s any predetermination. But, of course, I will only go forward in cases that have a realistic prospect of conviction.

I’ve already asked, in terms of the cases that are before the court, for the senior trial attorney to attest in writing, to me, their judgement that there is a realistic prospect of conviction.

To be sure, the “realistic prospect of conviction” standard is not mentioned in the OTP’s Policy Paper on Case Selection and Prioritisation, issued under Bensouda, which speaks instead of a “reasonable prospect of conviction” (see, e.g., para. 23). Mariniello seems to be arguing — like Shane Darcy before him — that there is a difference between the two standards, with “realistic” being a higher standard than “reasonable” and the latter more closely tracking the language of Art. 58 of the Rome Statute, which provides that, to issue an arrest warrant, the Pre-Trial Chamber must be satisfied that “there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.”

Even if that were true, it would not establish “double standards in the selection of cases,” as Mariniello alleges, given that  the standard applies to all of the OTP’s work. But it actually not true that the “realistic prospect of conviction” standard is more difficult to satisfy than the “reasonable prospect of conviction” standard. On the contrary, the OTP made clear in the Mokom case that the two standards are exactly the same. Here is the very first footnote in its Notice of Withdrawal of the Charges (my emphasis):

The Prosecution applies the standard of “reasonable prospect of conviction” when assessing the strength of the evidence against accused persons in cases at trial: Office of the Prosecutor Policy Paper on Case Selection and Prioritisation, 15 September 2016, para. 53. See e.g. Situation in Darfur, Sudan, Public Redacted Version of “Prosecution’s Response to ‘Order for clarification as to the Prosecutor’s statements before the United Nations Security Council’, 24 January 2022, ICC-02/05-253”, ICC-02/05-254-Red, 27 January 2022, para. 13; Prosecutor v. Mahamat Said Abdel Kani, Public Redacted Version of “Pre-Confirmation Brief”, ICC-01/14- 01/21-155-Conf, 30 August 2021, ICC-01/14-01/21-155-Red3, 8 December 2021, fn. 733; Prosecutor v. Francis Kirimi Muthaura and Uhuru Muigai Kenyatta, Prosecution notification of withdrawal of the charges against Francis Kirimi M uthaura, ICC-01/09-02/11, 11 March 2013, para. 1. The standard may also be expressed as a “realistic prospect of conviction.”

It is misleading, in short, for Mariniello to claim that “the word ‘realistic’ seems – concerningly – more about pragmatism and realpolitik, rather than about the law itself.” There is no legal difference between a “realistic” and a “reasonable” prospect of conviction, and the OTP applies the same standard of proof in all of its investigations and cases.

Conclusion

There are other problematic claims in Mariniello’s post — that Khan has focused on crimes allegedly committed by non-state actors (such as Hamas and Israeli settlers) more than on crimes allegedly committed by Israel; that Khan has suggested the evidence against Hamas is stronger than against Israel; that Khan has predetermined that Israel’s justice system is adequate to address alleged Israeli crimes. But this response is long enough, so I will simply refer readers to my earlier post responding to the Open Letter, where I address each of those claims.

As I said in that post, criticism of the Prosecutor and the OTP is both expected and desirable; there are many difficult legal and factual issues in the Palestine situation, and reasonable minds will disagree about many of them. There is also nothing sacrosanct about the various policy positions the OTP has taken, both past and present, concerning how it determines which perpetrators it will prosecute and what charges it will bring. Productive discussion and debate is impossible, however, unless critics not only accurately represent what the current Prosecutor has done in Palestine, but also fairly compare his efforts to those of his predecessor. Unfortunately, like the Open Letter that preceded it, Mariniello’s post falls far short on both counts.