‘State of Exception’: Judicial Discretion and the Amicus Curiae Mechanism in the ICC’s Palestine Proceedings

[Souheir Edelbi is a Lecturer in the School of Law at Western Sydney University]

Palestinian victims have faced double standards and unnecessary procedural hurdles at the ICC, leading to a ‘state of exception’ where standard legal procedures are either suspended or circumvented. Ardi Imseis has critically examined this phenomenon in relation to the Office of the Prosecutor (OTP), specifically Prosecutor Bensouda’s request on 22 January 2020 for a ruling on the Court’s territorial jurisdiction in Palestine. Despite her own finding that ‘the Court does indeed have the necessary jurisdiction in this situation’, Benouda sought Pre-Trial Chamber I’s (PTC I) ‘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’. In Prosecutor Bensouda’s view, it was necessary to put the investigation on ‘the soundest legal foundation’ – a standard that is not required by the Rome Statute. As Imseis argues, the Prosecutor’s request was unnecessary as she could have initiated the investigation without it, as was her obligation following Palestine’s referral on 22 May 2018. 

This cautious approach, likely aimed at insulating the Court from accusations of political bias, has led the Court down a troubling path of exceptionalising Palestine in its practices. The result has been the imposition of more burdensome legal standards in the Palestine Situation compared to situations like Ukraine and Georgia. I focus below on some of the procedural aspects of the PTC’s recent order on 27 June 2024 and subsequent decision on 22 July 2024, to permit amicus curiae observations in the Palestine proceedings, in the context of challenges to the Court’s jurisdiction.

Re-litigating Jurisdiction Through Amicus Curiae Observations

On 20 May 2024, six months into the unfolding genocide in Gaza, Prosecutor Khan sought arrest warrants against two Israeli officials – Prime Minister Benjamin Netanyahu and Minister of Defence Yoav Gallant – along with three senior members of Hamas. In response, the UK sought and was granted permission by PTC I on 27 June 2024 to submit amicus curiae observations under Rule 103(1) of the ICC’s Rules of Procedure and Evidence (RPE). The UK argued that ‘Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords’, and claimed that outstanding questions of jurisdiction ‘must now be addressed in determining the application for arrest warrants’. Legal scholars have already examined the implications of the Oslo Accords in relation to the ICC’s jurisdiction here, here and here. 

Following the UK’s lead, 19 other states applied and were granted permission on 22 July 2024 to submit amicus observations, including the US, a non-party state, on the Court’s jurisdiction. While the UK effectively withdrew its request by failing to submit observations by the 6 August 2024 deadline, other states such as the US, Germany, Hungary, Czech Republic, Argentina and the Democratic Republic of the Congo have submitted similar observations challenging the Court’s jurisdiction based on the Oslo Accords. Worth noting is that all intervening states except the US are parties to the Rome Statute and have legal obligations to prevent and punish war crimes and genocide. By virtue of the ICJ’s recent ruling on 19 July 2024 regarding Israel’s policies and practices in the Occupied Palestinian Territory (OPT), all states are under an obligation not to recognise Israel’s unlawful presence in the OPT and must not render aid or assistance in maintaining the situation created by Israel’s continued presence in the OPT. As for the Oslo Accords, the ICJ held ‘the Oslo Accords cannot be understood to detract from Israel’s obligations under the pertinent rules of international law applicable in the Occupied Palestinian Territory’.

Notwithstanding the ICJ’s ruling, it is far from clear whether the amicus curiae observations were permissible in the context of challenges to the Court’s jurisdiction, as the issue of jurisdiction was settled at the pre-trial level on 5 February 2021. The PTC’s 2021 ruling confirmed that the Court had territorial jurisdiction over the OPT. According to the PTC, ‘the arguments regarding the Oslo Agreements in the context of the present proceedings [were] not pertinent to the resolution of the issue under consideration, namely the scope of the Court’s territorial jurisdiction in Palestine’. While the PTC did not rule on the effect, if any, of the Oslo Accords, it left the door open for the issue of jurisdiction to be raised by interested states at a later stage:

[w]hen 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. 

The PTC was within its discretion to permit the 2024 amicus submissions. While there is no general right for states to intervene as amicus curiae in ICC proceedings, Rule 103(1) gives the PTC broad discretion to invite or allow such observations:

At any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate.

That Rule 103(1) gives the PTC discretion does not mean that discretion should be exercised. Looking at the practice of the Court, the exercise of judicial discretion under Rule 103(1) has typically been applied only in ‘exceptional circumstances’, as Sergey Vasiliev notes. In past cases, such as the Kenyatta and Ruto cases, the PTC rejected amicus briefs when they were not deemed necessary for determining the case. Apart from noting the ‘potential relevance’ of observations on whether the Court could exercise jurisdiction over Israeli nationals, the PTC gave no explanation for why it considered amicus submissions desirable for the proper determination of the case. It remains unclear why it allowed amicus observations on jurisdiction, given that relevant materials and arguments had already been submitted to the PTC in relation to its 2021 jurisdictional ruling. As Vasiliev aptly notes, the PTC could have referred to existing briefs instead of reopening jurisdictional debates:

If the Chamber felt it needed external legal advice from the ‘friends of the Court’, it could have gone back to the amicus briefs and pleadings on this issue already on the record for the purpose of the 2021 ruling, and prioritise the expeditious consideration of the Prosecutor’s applications. This approach would likely be adopted in any situation other than Palestine, the ‘exceptional’ character of which seems to have stripped the exceptional device of Rule 103 of a degree of its exceptionality.

Rule 103(1) of the RPE does not exist in a vacuum and must be read in conjunction with the relevant provisions of the Rome Statute. There are only two mechanisms for challenging the Court’s jurisdiction under the Statute: an Article 19 jurisdictional challenge or an Article 82 appeal. In this instance, neither Israel nor the accused appealed the 2021 decision, nor have they applied to challenge the Court’s jurisdiction under Article 19. Moreover, in the case of two Hamas leaders, Ismail Haniyeh and Mohammed Diab Ibrahim Al-Masri, such challenges are now moot, as both have been killed. In any other Situation, the PTC would have reaffirmed its jurisdiction without reopening jurisdictional objections outside the framework of an Article 19(2) challenge or an Article 82 appeal. Indeed, the decision to accept the amicus curiae requests, before issuing the arrest warrants is unprecedented in the PTC’s practice, further exceptionalising the Palestine Situation.

Bypassing Restrictions on Procedural Standing

In its 2021 ruling, the PTC acknowledged that jurisdictional issues arising from the Oslo Accords ‘may be raised’ by ‘interested States’ under Article 19 of the Rome Statute, which establishes the procedural rights for challenging the Court’s jurisdiction. While the Court must ‘satisfy itself’ that it has jurisdiction in any case brought before it, Article 19(4) makes clear that such challenges can be brought more than once only in ‘exceptional circumstances’ and solely by those with procedural standing under Article 19(2). Article 19(2) restricts the right to challenge jurisdiction to the following:

2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:

(a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58;

(b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted; or

(c) A State from which acceptance of jurisdiction is required under article 12.

During the negotiations to the Rome Statute, there was a broad consensus that the accused, states and the Prosecutor should have the right to challenge jurisdiction. However, there was significant debate over which states should be included in Article 19(2). A minority of states – including the US, Israel, Australia, Japan, and the UK – supported giving non-party states the right to challenge jurisdiction. In contrast, most states favoured limiting standing to states directly involved in investigating or prosecuting the case. For example, Germany, which is currently intervening as an amicus in the Palestine Situation, argued that ‘only the accused and any State which had jurisdiction over the crime on the ground that it was investigating or prosecuted the case, should be able to challenge the jurisdiction of the Court’. 

The US, not a party to the Rome Statute and not investigating or prosecuting Netanyahu or Gallant, does not have the requisite standing to challenge jurisdiction under Article 19(2). Additionally, no state is currently investigating Netanyahu or Gallant, and Palestine, which accepted the Court’s jurisdiction under Article 12(3), is seeking the Court’s support rather than challenging its jurisdiction. As the State of Palestine noted in its 2020 observations regarding the scope of the Court’s jurisdiction, and again in its recent observations to the PTC regarding the Oslo Accords:

[T]he need for Palestine to seek the jurisdictional assistance of the Court in order to bring to justice crimes committed on its territory results from the unlawful occupation of its territory by Israel, which has deprived Palestine of its full ability to bring a halt to these crimes and to punish these crimes without the help of others. An unlawful occupation founded in its design and purpose on the Commission of international crimes cannot impede either Palestine’s jurisdiction and sovereignty over its territory nor the Court’s jurisdiction over the territory of a state party.

Despite this, some states have attempted to circumvent these standing requirements by leveraging the amicus curiae mechanism under Rule 103(1) to block arrest warrants against Netanyahu and Gallant. Article 19(2) is crucial for maintaining the Court’s effectiveness in ending impunity for serious crimes, and the PTC’s decision to allow amicus briefs signals a troubling exception where states politicise the Court and circumvent the usual requirements of procedural standing for jurisdictional challenges. As the State of Palestine argues in its current observations to the PTC, ‘[t]he Court cannot do through the backdoor of Rule 103 what is not permitted by the text of the Rome Statute itself’. 

Exceptionalising the Arrest Warrant Procedure

The PTC should prioritise issuing the arrest warrants against Netanyahu and Gallant under Article 58(1) of the Rome Statute. In the Ukraine and Georgia Situations, arrest warrants were issued under this provision. For instance, in the Ukraine Situation, PTC II granted arrest warrants for Russian officials including Russian President, Vladimir Putin, within just 23 days of the Prosecutor’s request. Similarly, in the Georgia Situation, the PTC issued arrest warrants within 106 days. This suggests that the PTC can and should act swiftly on the Prosecutor’s requests for arrest warrants in the Palestine Situation, especially as the level of judicial discretion exercised by PTC I has not been seen in other ICC situations before the issuance of arrest warrants. The issuance of arrest warrants is not discretionary but required when the two conditions relating to jurisdiction and necessity under Article 58(1) are met. The Appeals Chamber has confirmed that these two requirements are exhaustive:

If the two prerequisites listed in article 58(1) of the Statute are met, the opening sentence of article 58(1) of the Statute gives the Pre-Trial Chamber clear and unambiguous instructions as to what the Chamber should do: “the Pre-Trial Chamber shall […] issue a warrant of arrest”. The use of the word “shall” indicates that the Pre-Trial Chamber is under an obligation to issue a warrant of arrest, provided that the prerequisites listed in article 58(1) of the Statute are met.

The standard of proof for issuing these warrants is low, requiring only reasonable grounds to believe that the person committed the crime. Once the PTC confirms the requirements under Article 58(1) are met, it must issue the arrest warrants as requested by the Prosecutor. If additional evidence is needed, then the PTC can request it from the Prosecutor rather than delay the process.

In contrast to the Ukraine and Georgia Situations where arrest warrants were issued promptly and solely based on the application of Article 58(1), the PTC has effectively introduced jurisdictional challenges as an additional requirement for issuing arrest warrants in the Palestine Situation. Legal representatives of victims have expressed concern that the resort to amicus curiae has caused unnecessary delay in holding perpetrators accountable for crimes against millions of Palestinians amid ongoing mass atrocities in Gaza. The slow progress at the ICC has left victims dismayed, particularly victims and survivors in Gaza, who are facing starvation, displacement and slaughter. As the legal representatives of 635 victims in the proceedings highlight:

[R]econsidering this matter [of jurisdiction] will likely cause the Victims further harm and prolong their suffering as it will delay the course of justice. This delay will further jeopardise their safety, well-being and dignity. Communication with the Victims has been extremely challenging due to power outages, closures, movement restrictions and displacement orders but it is abundantly clear from the interactions which are possible that the current situation of the Victims, particularly those in the Gaza Strip, is unimaginably difficult and perilous. “We are struggling with death, hunger and disease. Life is hard and the war exhausted everyone”, explained one victim…The Victims had long expressed their dismay and profound disappointment at the slow pace of progress in the Situation in the State of Palestine at the Court and simply wanted it to do its job. They cannot understand the apparent disconnect between the purpose and aspirations of the Court and its lack of action in response to Palestinian suffering. Now, more than ever, they look to the Court to act swiftly and decisively.

Palestinian civil society has also criticised the Prosecutor and powerful states. As Shawan Jabarin and Ahmed Abofoul from Al Haq argued in November last year, before the Prosecutor’s requests for arrest warrants:

It is long overdue for arrest warrants to be issued against Israeli officials at the highest level. It is time to bring justice closer to victims by prosecuting the international crimes that underline the settler colonial nature of Israel’s occupation and brutality, especially its transfer of population, whether directly or indirectly, into the oPt, including East Jerusalem (settlements), and other abundant war crimes and crimes against humanity, especially starvation, forced displacement, apartheid and persecution. The prosecutor must also consider investigating the serious allegations of genocide, including the worrisome numerous statements entailing a clear incitement and intent to commit genocide.

The arrest warrants against Netanyahu and Gallant scratch the surface but, as William Schabas argues in his observations, ‘[t]he Chamber could propose that the Prosecutor add charges of genocide and of the crimes against humanity of apartheid to the arrest warrants directed at the two Israeli leaders’. The present proceedings are taking place against the backdrop of the severe impact of the ongoing genocide on Palestinian lives. As the legal representatives of child victims and their families have pointed out:

Since 7 October 2023, Israeli forces have killed nearly 40,000 Palestinians in Gaza, including at least 14,000 Palestinian children, and at least 143 Palestinian children in the occupied West Bank. Over 20,000 Palestinian children in Gaza are estimated to be lost, disappeared, detained, buried under the rubble or in mass graves.

Time for a Course Correction

The very existence of the ICC creates a presumption of accountability for certain international crimes.  However, the PTC has signalled in relation to crimes committed against Palestinian people that accountability is not presumed; instead, it must be continuously argued, validated, struggled over, insisted upon and fought for by Palestinian victims. Palestine is and will remain the litmus test for the ICC. Allowing amicus curiae observations by states and organisations that lack procedural standing under Article 19(2) of the Rome Statute sets a troubling precedent for the handling of the Palestine investigation and for future ICC cases. This use of discretion not only politicises the Court’s practice but also imposes additional procedural hurdles that delay justice and enable bad faith attempts by states to obstruct accountability. To protect the legitimacy of the proceedings, the PTC should hold firm to its own procedural integrity and that of the Rome Statute and apply the Statute and the RPE in a consistent manner especially considering the structural impunity afforded to Israel by those states who are now attempting to block the investigation and prosecution of Israeli nationals.