The OTP’s expert panel in the Situation in the State of Palestine: Additional safeguard or hostage to fortune?

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On 20 May 2024, the world of international criminal law shook with news announced by Karim Khan KC, the Prosecutor of the International Criminal Court (ICC), that he was applying for arrest warrants in the Situation in the State of Palestine (the “Situation”). The Prosecutor’s announcement was supported by what he described as “an additional safeguard,” in that his Office (the “OTP”) had been assisted by the “advice of a panel of experts in international law” (the “Panel”). The Panel comprises Lord Justice Fulford, Baroness Helena Kennedy KC, Elizabeth Wilmshurst CMG KC, Danny Friedman KC, Amal Clooney, His Excellency Judge Theodor Meron CMG, Professor Marko Milanovic, and Professor Sandesh Sivakumaran. The Prosecutor further acknowledged “the contributions of a number of [Mr Khan KC’s] other Special Advisers to this review, particularly Adama Dieng and Professor Kevin Jon Heller.”

Mr Khan KC describes the Panel as an “impartial group” which was “convened to support the evidence review and legal analysis” regarding the applications for warrants. According to the Prosecutor, the Panel’s “independent expert analysis” had “supported and strengthened” his applications. Others have commented on the perception arising from the Prosecutor’s selection of certain panellists (see here). At a more granular level, the Prosecutor’s decision to instruct the Panel, and its resulting report (the “Report”), beg several questions regarding his decision to apply for warrants.

In any situation, the decision to apply for ICC arrest warrants lies with the Prosecutor, as does responsibility and accountability for that decision. The Prosecutor must take “appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court” under Article 54(1)(a) of the Rome Statute, yet it is open to question whether outsourcing the OTP’s review function is such a measure, or whether it reflects uncertainty and a lack of confidence in the decision to proceed.

The Panel’s status

The Report states that the “Panel has operated pro bono and independently.” [Report, para. 8]. The Prosecutor has described its members as experts. However, in fundamental respects, the Panel’s work does not appear to conform to the requirements for the admission of expert opinion in criminal proceedings. As highlighted by Joshua Rozenberg KC:

“Was each candidate asked to provide a statement of independence and impartiality? Were they asked, as is customary in international courts and tribunals, to disclose matters that could give rise to doubts about whether they had taken sides on the issue, for example by supporting a Palestinian charity?”

Was the Panel’s selection, and the identity of certain of its members, merely an exercise in confirmation bias?

The Report is, in its own terms, expressed to be an opinion on the ultimate issue before Pre-Trial Chamber I [see Report, para. 2].  Comprised entirely of lawyers, the Panel does not include (for instance) experts on evidential matters such as the delivery of humanitarian assistance. As such, its mandate may be construed as intruding on the judicial function to be exercised by the Chamber. Mr Khan KC appears to acknowledge this problem, noting that the “independent judges of the International Criminal Court are the sole arbiters as to whether the necessary standard for the issuance of warrants of arrest has been met.” The Panel too states that it is “cognisant” that “the decision on the issuance of warrants is for the honourable Judges of the Court” [Report, para. 36]. As such, what is the Panel’s expert function? It may be argued that its Report is not, in fact, an expert report at all; it is simply a note of no evidentiary weight, contrived as a means to rubber stamp the OTP’s work, and to convey an appearance of broad consensus on legal and factual issues where there is, in fact, much uncertainty and controversy (as to the legal characterisation of the facts, see Shany and Cohen; Corn and Gillard).

The Report’s methodology

The Prosecutor claims that the Panel’s composition, and the Report’s content, reflect independent analysis of a strong evidential case. However, the Report does not footnote its evidential sources. This makes it impossible to distinguish between facts which derive from the OTP’s instructions, those which derive from testimonial evidence, those which derive from documentary or video evidence, and those which rely from second or third hand hearsay contained within the testimonial and documentary material relied upon.  Relatedly, it cannot be known to what extent, if at all, the Panel either accepted at face value or tested “authenticated videos and photographs obtained by investigators” [Report, para. 7], or whether it relied upon novel, yet controversial, techniques of authentication of open-source information in lieu of reviewing testimonial evidence from content creators exhibiting the material. It is unknown whether the Panel was presented with exculpatory, alongside incriminating, information, including with respect to the results of any dialogue between the OTP and Israeli officials during the period of the Panel’s instruction between January and May 2024.

The Panel’s Report therefore provides no substantive assistance in determining whether the OTP inter alia (a) used proper investigative methods and practices when conducting its investigation; (b) made use of all available video and photographic evidence, as well as witness testimony; and (c) has sought to obtain, and has retained, material capable of exonerating the suspects (consistent with the obligation conferred by Article 54(1)(a) of the Rome Statute).

The basis of the Panel’s assertion that it “welcomes the Prosecutor’s statement that the investigation of crimes committed in Israel and Palestine is ongoing and that applications are likely to be made in relation to additional charges and/or suspects in the near future” [Report, para. 37] is also open to question. For instance, what standard of review did the OTP and Panel apply to these “additional charges” and suspects? And on what basis has the Panel welcomed the Prosecutor’s statement that future charges are likely to be forthcoming?

The Panel’s analysis of preconditions to the exercise of jurisdiction

The Panel states that it has set out “its key reasoning” in its Report but “notes that it cannot disclose any material that is currently confidential” [Report, para. 8]. Allowing for this disclaimer, it is still open to question the Report’s reasoning and analysis.

For instance, and simply with respect to the issue of preconditions to the exercise of jurisdiction, the Panel states that it “agrees with the Prosecutor’s assessment that the ICC has jurisdiction in relation to crimes committed on the territory of Palestine, including Gaza, since 13 June 2014, under article 12(2)(a) of the ICC Statute.” The Report applies a “reasonable grounds to believe” standard of proof to the question of jurisdiction and states that “the applications for arrest warrants, and material submitted by the Prosecutor in support of each application, demonstrate reasonable grounds to believe that the Court has jurisdiction over the crimes set out in the applications for arrest warrants” [Report, para. 38]. The Report notes that the “basis for the Court’s jurisdiction is that Palestine, including Gaza, is a State for the purpose of the ICC Statute,” and the “ICC’s Pre-Trial Chamber has already ruled that the Court’s jurisdiction extends to Palestine, as a State Party to the ICC Statute, on this basis” [Report, para 10] (all emphasis added).

This assessment reveals some of the analytical and methodological flaws concerning the Panel’s approach to just one of the many issues it attempted to tackle. Firstly, the Report appears to conflate the distinction between the existence of jurisdiction (i.e. whether the ICC has jurisdiction under Article 5 of the Rome Statute, which relates to material jurisdiction, Article 11, which relates to temporal jurisdiction, Article 25(1), which relates to jurisdiction over natural persons, and Article 26 which relates to the age of the defendants) with its exercise (i.e. questions which arise under Articles 12 and 13 of the Statute).

Secondly, the standard for assessment of jurisdictional questions at each stage of ICC proceedings is certainty. The “reasonable grounds to believe” standard required for assessments of evidence or information pursuant to Article 58(1)(a) of the Rome Statute cannot be conflated with the degree of certainty that is required to establish jurisdiction. This is because jurisdiction is a matter of law as opposed to an evidentiary matter of fact (see further here, paras. 8-10). It may be questioned whether the Panel has assisted the Prosecutor’s assessment or whether, by its reference to a “reasonable grounds to believe” standard, it has introduced doubt to a jurisdictional question requiring certainty.

Thirdly, what consideration, if any, did the Panel give to the Minority decision of Judge Péter Kovaćs in the previous round of litigation? Although the former Prosecutor had sought “certainty” on the issue of preconditions to the exercise of jurisdiction, the Majority failed to deliver it in several ways. It emphasised that its conclusions related only to the initiation of an investigation, and jurisdictional objections could be raised at subsequent stages (Majority, para 131), as could all issues related to the Oslo Accords (Majority, para. 139). Judge Kovaćs stated: “I find neither the Majority’s approach nor its reasoning appropriate in answering the question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law” (Kovaćs, para. 3). The strongly worded language suggested the legal legitimacy challenge, affecting both the situation and the Court, had not been averted (see here). The Panel neglected to address this.

Disclosure

Further down the line, suspects, if indicted, may wish to apply for disclosure of all instructions, communications and other non-confidential material exchanged between the Panel and the OTP, as well as between the OTP and its Special Advisers. Such communications will arguably not be protected by litigation or legal advice privilege considering the Panel’s independent status. All such communications will therefore potentially be disclosable to the defence pursuant to Article 67(2) of the Rome Statute.

Amal Clooney and His Excellency Judge Theodor Meron CMG are both Panel members as well as Special Advisers to the Prosecutor. Mr Khan KC acknowledged Professor Kevin Jon Heller, another Special Adviser, for his “contribution” to the Panel’s review. It is open to question whether communications between the OTP and its Special Advisers are therefore protected by litigation or legal professional privilege given that they are sufficiently independent to sit on an independent, expert, panel.

The Report does not disclose how many meetings the Panel had with the OTP, nor which Panel members attended each meeting. It does not explain the distinction between its practitioner members (who, incidentally, put their names to an opinion piece published by the Financial Times on the Report) and its academic members (who did not co-author the FT op-ed). It does not disclose whether a note was taken of the materials the Panel reviewed, and it does not precisely record which materials the Panel were shown. It is foreseeable that requests by the defence will be made in due course for disclosure of all such material relating to the way the Panel was instructed, and as to how extensive their own inquiries were (as opposed to merely receiving factual summaries and hearsay accounts prepared by the OTP).

Conclusion

Given the Report’s apparent analytical and methodological flaws, and its lack of evidentiary weight, Pre-Trial Chamber I may wish to exclude the Report from its consideration of the OTP’s request for warrants. It is further open to question the strategic and tactical wisdom of the Prosecutor’s decision to commission the Report. Rather than providing him with an additional safeguard, his decision to instruct the Panel, and its subsequent work product, instead reveal the appearance of doubt and reliance on confirmation bias. These problems demonstrate what may later be identified as the collateral purpose lying behind instruction of the Panel, namely, to provide diplomatic and public relations cover for weak applications which give rise to the legitimacy challenge which affects both the Situation, and the ICC as a whole. 

The editorial team notes that Professor Marko Milanovic was not involved in reviewing or editing this post.

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Kevin Jon Heller says

June 7, 2024

The authors' claim that "Mr Khan KC acknowledged Professor Kevin Jon Heller, another Special Adviser, for his “contribution” to the Panel’s review" is false. I was involved in the Office's in-house evidence review as Special Adviser on War Crimes; I played no role whatsoever in the Panel's review or deliberations. The Prosecutor's written statement makes no claim to the contrary.

Martin Holterman says

June 7, 2024

Is the Expert Panel Report part of the Prosecutor's case before the pre-trial chamber? I had understood it as a report that the prosecutor had commissioned to advise him on the decision he had to make, and as an outward-facing document. That is presumably why the Panel was full of British and American jurists: those are people Karim Khan knows well, whose opinion he values, and who are most likely to be influential in the public debate in the places that he would have been most worried about: The US and the UK.

It was not my understanding that the Prosecutor intended to send the report to the PTC, much less that the PTC was expected to put weight on it. How could that be otherwise? As you say, the report speaks exactly to the question that is before the PTC. What expertise does it add to the expertise of the Chamber?

João Pedro Couto Cruz says

June 7, 2024

The last part of the conclusion is rather appalling: "These problems demonstrate what may later be identified as the collateral purpose lying behind instruction of the Panel, namely, to provide diplomatic and public relations cover for weak applications which give rise to the legitimacy challenge which affects both the Situation, and the ICC as a whole".

Leaving the discussion on the Panela for a while, why would the applications be weak? On what grounds?

The announcements by the OTP last May relate to Israeli and Palestinians persons. The situation involves, unsurprisingly, Israel and Palestine (and long before 2023, one might add). Also, taking only a few crimes as examples, we've seen >plenty< of evidence of IDF's and PAGs misconduct. So, what is weak? One might also reminder that the OTP won't pursue genocide charges for now even though pretty much all genocide scholars think they should.

And as for the legitimacy challenge, that's simply a badly written joke. Who's challenging, the US?

Kevin Jon Heller says

June 7, 2024

The Panel Report was not produced for submission to the Pre-Trial Chamber nor was it submitted to the Pre-Trial Chamber as part of the applications for arrest warrants. As the Panel Report says in paragraph 2, "The Panel’s mandate was to advise the Prosecutor on whether his applications for arrest warrants met the standard provided in article 58 of the Rome Statute of the International Criminal Court." The authors' assertion that "Pre-Trial Chamber I may wish to exclude the Report from its consideration of the OTP’s request for warrants" is thus misleading, because the PTC has nothing to exclude.