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Home EJIL Analysis Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Not Appropriate:  PTC I, Palestine and the Development of a Discriminatory ICC Jurisprudence

Published on July 26, 2018        Author:  and
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On 13 July, Pre-Trial Chamber I (PTC I) issued an unprecedented decision in which it ordered the Registry to establish unique public information and outreach activities for the “benefit of the victims in the situation in Palestine”, as well as to report on its situation activities on an ongoing basis.  No Pre-Trial Chamber has made the same orders with respect to victim outreach in a situation under preliminary examination before, and the legality, timing, and singular nature of the decision all give rise to concern. 

The decision singles out victims of one situation whilst ignoring others, reflecting a double standard which forms the basis of Israel’s complaints that its rights to equal treatment are systematically violated before 21st century international organisations and tribunals. In this sense, the decision is illuminating as it demonstrates to international criminal law practitioners how PTC I has substantiated Israel’s complaint of double standards in the Chambers’ first substantive engagement with the Situation in Palestine. Given the unique way that the Situation in Palestine has been singled out, PTC I’s decision will be viewed by many as a political one.  This is an accusation which, especially after the collapse of the Kenya cases, the ICC should be more wary of making itself susceptible to.

The Legality of the PTC Decision

Article 68(3) of the Rome Statute governs the protection of the victims and witnesses and their participation in proceedings before the ICC.  It mandates the Court to permit victims’ “views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial”. Given that Article 68(3), together with Article 21, forms the express statutory basis for PTC I’s decision, it follows that to be lawful PTC I’s orders must both be (a) at an appropriate stage of the proceedings, and (b) not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.

The Appropriateness of PTC I’s Decision at the Preliminary Examination Stage

PTC I’s decision reveals difficulties with respect to the appropriateness of Pre-Trial Chamber interventions of this nature at the preliminary examination stage.  It is well-known that OTP policy divides preliminary examinations into phases.  Phase 1 is the OTP’s initial assessment. In phase 2, the Office “focuses on whether the preconditions to the exercise of jurisdiction under article 12 are satisfied and whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court.”  Admissibility (encompassing complementarity) is not decided until phase 3.  As of today, the OTP has reached phase 2 in its preliminary examination of the Situation in Palestine

As a result, the OTP has been careful to clarify that its statements on the Situation in Palestine are “without prejudice to any future determinations by the Office regarding the exercise of territorial or personal jurisdiction by the Court.”  The issue of whether there is a reasonable basis to believe that crimes within the jurisdiction of the Court have been committed is a therefore a live and fundamental one which has yet to be determined by any of the Court’s organs.  

This is material because the Rules of Procedure and Evidence define “victims” (in Rule 85) as “natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court”.  It follows that there cannot be recognition of “victim” status at least until there has been a determination of jurisdiction under Article 53.  This presumably explains why outreach measures such as those contemplated by PTC I’s decision have historically not taken place at the preliminary examination stage.

PTC I pays little heed to such legal niceties.  Its decision refers to the “victims of the situation in Palestine” who are “residing within or outside of Palestine” (paras, 12, 14, 18).  Such statements carry an inherent presupposition that the harm suffered by these “victims” falls within the Court’s jurisdiction. After all, according to Rule 85, there can be no “victim” in the absence of jurisdiction.  PTC I’s decision therefore predetermines matters with which the OTP is currently seized.

By ordering the Registry to perform specific tasks with respect to outreach and victim communications at the preliminary examination stage, PTC I appears to be encouraging, at least tacitly, the Registry to play a supplementary role with respect to the determination of jurisdictional issues with which the OTP is seized. PTC I’s decision entreats the Registry’s outreach activities to “clearly indicate the parameters of the Court’s jurisdiction with respect to the Situation in Palestine” (paragraph 16) when those same parameters have yet to be determined by the OTP and include the question of Palestine’s status as a “state” for the purposes of the Rome Statute. 

To date, the basis for finding Palestine to be a state for Rome Statute purposes relies on the statutory effect of a UN General Assembly Resolution which, although material pursuant to the test Luis Moreno Ocampo’s OTP employed, contrasts with “the possible lack of complete fulfilment of the Montevideo criteria” which the situation – at a minimum – reflects.  These are sensitive issues subject to nuanced legal argument which it is not fair for the PTC to predetermine, and it follows that PTC I ’s timing cannot rationally be considered “appropriate” to the stage of proceedings reached in the Situation in Palestine.

A Lack of Reasoning Reflects the Decision’s Discriminatory and Prejudicial Nature

PTC I’s decision runs to 11 pages, seven of which are devoted to addressing why it was lawful and desirable for the Court to make the orders stated in its dispositif.  But nowhere does the Chamber explain why these orders are appropriate to the Situation in Palestine specifically.  The reasoning is entirely – 100% – abstract.  Based on the logic of its own reasoning, PTC I’s orders should either be applicable to victims in all the situations under preliminary examination at the ICC, or to none of them.  Why, for example, are the interests of the victims of the Situation in Palestine preferred over the victims of the Situation in Ukraine, the Situation in Iraq, or the Situation in the Philippines?  Why has a phase 2 situation been chosen for specific outreach activity when victims in phase 3 situations have not? PTC I’s decision is silent on these matters.

Unless it is the PTC’s intention to issue analogous decisions with respect to all the situations under ICC preliminary examination and investigation, the resource allocation PTC I’s decision contemplates would necessarily signal a shift towards outreach and communications with respect to the Situation in Palestine and away from other situations.  The decision provides no justification why such a specific allocation is merited, or why the victims of other situations are not equally entitled to share the same resources, and in so doing it fails to explain why the Situation in Palestine has been specifically selected for these “outreach” activities.  Taken together with the decision’s recognition of “victims” prior to any OTP determination with respect to jurisdiction, PTC I’s decision is prejudicial to the rights of suspects and accused to a fair and impartial Court.  Such courts do not predetermine the matters before them, or single out situations for individual treatment without explaining their reasons for doing so. 

Without Clarification, PTC I’s Decision will Lead to Familiar Undesirable Outcomes

The court’s statutory framework foreshadows different roles for the Pre-Trial Chambers, the OTP, and the Registry with respect to communications with victims, the assessment of information, and victim participation at the situation stage. PTC I’s decision envisages that outreach and communications activities should be coordinated by each of the different sections vested with responsibilities for victims.

According to PTC I, such an approach will help avoid “contradictions” and assist “streamlining”.  But PTC I’s intervention is flawed in operational terms.  While there is undoubtedly merit in measures which (for example) attempt to ensure that affected communities’ communications are properly handled and addressed to the appropriate organ (para 16), by referring to the “victims of the situation in Palestine” (and not its “affected communities”) PTC I appears to recognise victims’ status even before their complaints have been heard.  This approach is ripe to engender false complaints, distortion of facts, and instrumentalisation of the process; it will not achieve best evidence.  For these reasons too, the Court should not be slow to learn its lessons from Kenya. 

Conclusion

Through its decision, PTC I takes measures which are unique to the point of discriminatory without providing any explanation as to why they have been taken. Discriminatory measures in an international legal context are dangerous and inevitably will attract allegations of bias. The decision, falling as it does outside the parameters of Article 68(3) of the Rome Statute, is ultra vires and should be reversed.   At a minimum, PTC I should clarify immediately that its decision is without prejudice to any determination of jurisdictional issues, and that any outreach activities performed during preliminary examinations should be limited to describing the work of the Court to all affected communities, and not to soliciting complaints from “victims” whose status has yet to be recognised.

 

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5 Responses

  1. Victim outreach is an evolving area of international criminal justice; it is wholly implausible that the ICC should have to take the same steps in every situation, or that it could not use a particular situation to experiment with a novel approach to interacting with victims. The ICC has by no means said it would not offer a similar approach to victims in other situations, if this innovation is successful, lets say.
    Why should all innovation require an explanation as to why it has not been done before? Presumably that’s because the authors of the post regard treating all situations the same as a kind of default norm for non-discrimination, a crude idea that all departures from absolute formal equality create a burden of justification-but what is the basis for that understanding of equality as the relevant standard in international criminal justice? The idea that Israel is somehow the object of discrimination here is unwarranted; the remit of the outreach by the ICC includes victims outside of Palestine proper, which could include Israeli victims of Hamas war crimes, in principle.

    Utterly sophistical is the notion that to reach out to “victims” the ICC would need to first determine whether they are victims within the meaning of Article 53 of the Rome Statute, i.e. that they are natural persons who have actually suffered harm who are within the jurisdiction of the court. This definition may well be relevant to whether someone is a “victim” entitled to compensation after a trial, but proving whether and what kind of harm was suffered by a given individual of course is ultimately an issue for the merits at trial. Requiring that this be proven before the court reaches out to the potential victim class for purposes of determining whether to investigate and/or prosecute would of course would be entirely defeating of effective law enforcement. The idea of the authors that reaching out to victims in Palestine will lead to “false complaints, distortions of facts”, presented here without evidence, suggests a bias or preconception on the part of the authors about Palestinians Perhaps it is they who should be worried about being seen as discriminatory-not the ICC.

  2. Robert Howse Rob Howse

    I want to jcorrect the discussion of Art 53 above. As has been pointed out by a Twitter interlocutor I reached too far in suggesting that the definition of victim in 53 applies to matters such as compensation; indeeed sit has other functions earlier in the process as well. My basic point is that this definition cannot reasonably apply to outreach with a view to gathering information with a view to possible investigation or prosecution; under the blog authors’ unworkable understanding it would be necessary to establish that someone suffered harm and was under the court’s jurisdiction before one could even solicit their information about what happened to them. The activity of inviting possible victims to come forward so as to assess the case can hardly depend upon prior proof they actually are victims within the meaning of 52, for that one would need at the very least exactly the information one is seeking to determine what victims exist. Completely circular.

  3. Robert Howse Rob Howse

    Two obvious typos in the above: “jcorrect” should be “correct” and near end “52” should of course be “53”

  4. Yael Vias Gvirsman

    There is no dispute that this is a first. It is not unreasonable to support the view that adventuring in ‘firsts’, proactive and far-reaching unheard of interpretations and actions in this specific situations is unwarranted- seeing the extent to which this situation is politically charged. At the PE stage, ICC Outreach is general via public channels statements, such as Prosecutor reports, newspaper statements and policy papers. Actual field presence and victim outreach is justified only after an investigation has been opened. The Preliminary Examination stage is made of open and public sources. At times, individual complaints inform the preliminary examination. However, actively devoting ICC-Registry-Victim budget to a preliminary examination is unheard of and for sound reasons. I respectfully submit the PTC is putting ‘la charrue avant (devant) les boeufs’

  5. Robert W. Ash

    I agree with the arguments set forth by Messieurs Kay and Kern and appreciate their taking the time to make them so cogently.
    It seems to me that there are a number of challenges for the OTP in this matter that the PTC simply overlooked. Among these are the following:
    (1) the fact that Israel is not a party to the Rome Statute and, therefore, under customary international law, is not bound by the terms of a treaty to which it is not a party (the OTP must evaluate the implications that flow from that vis-à-vis determining the potential jurisdictional reach of the Court regarding Israeli nationals);
    (2) the fact that it is questionable whether Palestine meets even the minimal requirements under customary international law to qualify as a State at all (thereby placing into question whether its “officials” could even refer a situation to the OTP or accede to the Rome Statute);
    (3) the fact that there are no agreed-to international boundaries of the “State” of Palestine means that there is no sure way to determine over what territory, if any, a “State” of Palestine has authority to act as a sovereign in any capacity (Recall that Israel also has claims to the territories that Palestinian leaders claim are theirs (pursuant to the customary law principle, uti possidetis juris, for example, because Israel was the only state to emerge in Palestine upon the departure of the British in 1948, title to all territory of the former Mandate passed to it, the only State to emerge upon the Mandatory’s departure). Accordingly, it seems premature to identify who the alleged victims are); and
    (4) the fact that PLO/PA officials have entered into agreements with Israel that explicitly reserve the issue of borders to final talks, talks which have yet to take place (hence, once again, raising doubt as to what territory constitutes a Palestinian State), to raise but four serious legal issues of concern.
    In addition to the foregoing, I am also concerned that the language of para 4 of the PTC Decision seems to indicate that the PTC accepts as fact that a “State” of Palestine actually exists and appears to adopt the Palestinian claim that its territory is composed of “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.” That is a wholly conclusory statement by the Palestinians and indicates what the Palestinians want to possess, not what has been agreed-to by anyone with authority to make such a decision. Moreover, up until the 1967 Arab-Israeli War, the so-called “Palestinian Territory” was under belligerent military occupation by Egypt and Jordan. It had never been governed by Palestinian Arabs. Hence, to assert that it belongs to Palestinians (by which is meant Palestinian Arabs, since at one time all residents of the Mandate, including Jews, were called “Palestinians”) is questionable at best.
    At this point in time, the territorial extent of a “State” of Palestine has not yet been determined. When such a decision is taken, it will necessarily be a political decision. By raising the issue in its Decision using Palestinian verbiage, the PTC’s action appears wholly political and doubtless will be construed as such, thereby confirming one of the major fears of those nations—including Israel—that have declined to accede to the Rome Statute.
    The ongoing conflict between the Palestinians and the Israelis is one of the most intractable in the world today. Rather than proceed as the PTC has done, it would have been far better to allow the OTP the opportunity to deal with the many complex issues involved without the PTC engaging prematurely. The PTC, in my view, should withdraw its Decision as improvidently and prematurely made.