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

On 20 Could 2024, the world of worldwide felony legislation shook with information introduced by Karim Khan KC, the Prosecutor of the Worldwide Felony Court docket (ICC), that he was making use of for arrest warrants within the State of affairs within the State of Palestine (the “State of affairs”). The Prosecutor’s announcement was supported by what he described as “an extra safeguard,” in that his Workplace (the “OTP”) had been assisted by the “recommendation of a panel of specialists in worldwide legislation” (the “Panel”). The Panel contains Lord Justice Fulford, Baroness Helena Kennedy KC, Elizabeth Wilmshurst CMG KC, Danny Friedman KC, Amal Clooney, His Excellency Choose Theodor Meron CMG, Professor Marko Milanovic, and Professor Sandesh Sivakumaran. The Prosecutor additional acknowledged “the contributions of quite a lot of [Mr Khan KC’s] different Particular Advisers to this assessment, significantly Adama Dieng and Professor Kevin Jon Heller.”

Mr Khan KC describes the Panel as an “neutral group” which was “convened to help the proof assessment and authorized evaluation” concerning the purposes for warrants. In keeping with the Prosecutor, the Panel’s “impartial professional evaluation” had “supported and strengthened” his purposes. Others have commented on the notion arising from the Prosecutor’s collection of sure panellists (see right here). At a extra granular degree, the Prosecutor’s choice to instruct the Panel, and its ensuing report (the “Report”), beg a number of questions concerning his choice to use for warrants.

In any state of affairs, the choice to use for ICC arrest warrants lies with the Prosecutor, as does duty and accountability for that call. The Prosecutor should take “acceptable measures to make sure the efficient investigation and prosecution of crimes throughout the jurisdiction of the Court docket” below Article 54(1)(a) of the Rome Statute, but it’s open to query whether or not outsourcing the OTP’s assessment operate is such a measure, or whether or not it displays uncertainty and a insecurity within the choice to proceed.

The Panel’s standing

The Report states that the “Panel has operated professional bono and independently.” [Report, para. 8]. The Prosecutor has described its members as specialists. Nevertheless, in basic respects, the Panel’s work doesn’t seem to adapt to the necessities for the admission of professional opinion in felony proceedings. As highlighted by Joshua Rozenberg KC:

“Was every candidate requested to supply an announcement of independence and impartiality? Have been they requested, as is customary in worldwide courts and tribunals, to reveal issues that might give rise to doubts about whether or not they had taken sides on the difficulty, for instance by supporting a Palestinian charity?”

Was the Panel’s choice, and the identification of sure of its members, merely an train in affirmation bias?

The Report is, in its personal phrases, expressed to be an opinion on the last word concern earlier than Pre-Trial Chamber I [see Report, para. 2].  Comprised fully of legal professionals, the Panel doesn’t embrace (as an illustration) specialists on evidential issues such because the supply of humanitarian help. As such, its mandate could also be construed as intruding on the judicial operate to be exercised by the Chamber. Mr Khan KC seems to acknowledge this drawback, noting that the “impartial judges of the Worldwide Felony Court docket are the only arbiters as as to if the required customary for the issuance of warrants of arrest has been met.” The Panel too states that it’s “cognisant” that “the choice on the issuance of warrants is for the honourable Judges of the Court docket” [Report, para. 36]. As such, what’s the Panel’s professional operate? It could be argued that its Report isn’t, in actual fact, an professional report in any respect; it’s merely a word of no evidentiary weight, contrived as a method to rubber stamp the OTP’s work, and to convey an look of broad consensus on authorized and factual points the place there may be, in actual fact, a lot uncertainty and controversy (as to the authorized characterisation of the information, see Shany and Cohen; Corn and Gillard).

The Report’s methodology

The Prosecutor claims that the Panel’s composition, and the Report’s content material, replicate impartial evaluation of a powerful evidential case. Nevertheless, the Report doesn’t footnote its evidential sources. This makes it unimaginable to differentiate between information which derive from the OTP’s directions, these which derive from testimonial proof, these which derive from documentary or video proof, and people which rely from second or third hand rumour contained throughout the testimonial and documentary materials relied upon.  Relatedly, it can’t be identified to what extent, if in any respect, the Panel both accepted at face worth or examined “authenticated movies and pictures obtained by investigators” [Report, para. 7], or whether or not it relied upon novel, but controversial, strategies of authentication of open-source info in lieu of reviewing testimonial proof from content material creators exhibiting the fabric. It’s unknown whether or not the Panel was introduced with exculpatory, alongside incriminating, info, together with with respect to the outcomes of any dialogue between the OTP and Israeli officers in the course of the interval of the Panel’s instruction between January and Could 2024.

The Panel’s Report subsequently supplies no substantive help in figuring out whether or not the OTP inter alia (a) used correct investigative strategies and practices when conducting its investigation; (b) made use of all accessible video and photographic proof, in addition to witness testimony; and (c) has sought to acquire, and has retained, materials able to exonerating the suspects (in line with the duty conferred by Article 54(1)(a) of the Rome Statute).

The premise of the Panel’s assertion that it “welcomes the Prosecutor’s assertion that the investigation of crimes dedicated in Israel and Palestine is ongoing and that purposes are more likely to be made in relation to extra prices and/or suspects within the close to future” [Report, para. 37] can also be open to query. For example, what customary of assessment did the OTP and Panel apply to those “extra prices” and suspects? And on what foundation has the Panel welcomed the Prosecutor’s assertion that future prices are more likely to be forthcoming?

The Panel’s evaluation of preconditions to the train of jurisdiction

The Panel states that it has set out “its key reasoning” in its Report however “notes that it can’t disclose any materials that’s at the moment confidential” [Report, para. 8]. Permitting for this disclaimer, it’s nonetheless open to query the Report’s reasoning and evaluation.

For example, and easily with respect to the difficulty of preconditions to the train of jurisdiction, the Panel states that it “agrees with the Prosecutor’s evaluation that the ICC has jurisdiction in relation to crimes dedicated on the territory of Palestine, together with Gaza, since 13 June 2014, below article 12(2)(a) of the ICC Statute.” The Report applies a “cheap grounds to imagine” customary of proof to the query of jurisdiction and states that “the purposes for arrest warrants, and materials submitted by the Prosecutor in help of every software, reveal cheap grounds to imagine that the Court docket has jurisdiction over the crimes set out within the purposes for arrest warrants” [Report, para. 38]. The Report notes that the “foundation for the Court docket’s jurisdiction is that Palestine, together with Gaza, is a State for the aim of the ICC Statute,” and the “ICC’s Pre-Trial Chamber has already dominated that the Court docket’s jurisdiction extends to Palestine, as a State Get together to the ICC Statute, on this foundation” [Report, para 10] (all emphasis added).

This evaluation reveals a few of the analytical and methodological flaws regarding the Panel’s method to simply one of many many points it tried to sort out. Firstly, the Report seems to conflate the excellence between the existence of jurisdiction (i.e. whether or not the ICC has jurisdiction below Article 5 of the Rome Statute, which pertains to materials jurisdiction, Article 11, which pertains to temporal jurisdiction, Article 25(1), which pertains to jurisdiction over pure individuals, and Article 26 which pertains to the age of the defendants) with its train (i.e. questions which come up below Articles 12 and 13 of the Statute).

Secondly, the usual for evaluation of jurisdictional questions at every stage of ICC proceedings is certainty. The “cheap grounds to imagine” customary required for assessments of proof or info pursuant to Article 58(1)(a) of the Rome Statute can’t be conflated with the diploma of certainty that’s required to determine jurisdiction. It’s because jurisdiction is a matter of legislation versus an evidentiary matter of reality (see additional right here, paras. 8-10). It could be questioned whether or not the Panel has assisted the Prosecutor’s evaluation or whether or not, by its reference to a “cheap grounds to imagine” customary, it has launched doubt to a jurisdictional query requiring certainty.

Thirdly, what consideration, if any, did the Panel give to the Minority choice of Choose Péter Kovaćs within the earlier spherical of litigation? Though the previous Prosecutor had sought “certainty” on the difficulty of preconditions to the train of jurisdiction, the Majority didn’t ship it in a number of methods. It emphasised that its conclusions associated solely to the initiation of an investigation, and jurisdictional objections could possibly be raised at subsequent phases (Majority, para 131), as may all points associated to the Oslo Accords (Majority, para. 139). Choose Kovaćs acknowledged: “I discover neither the Majority’s method nor its reasoning acceptable in answering the query earlier than this Chamber, and in my opinion, they haven’t any authorized foundation within the Rome Statute, and even much less so, in public worldwide legislation” (Kovaćs, para. 3). The strongly worded language advised the authorized legitimacy problem, affecting each the state of affairs and the Court docket, had not been averted (see right here). The Panel uncared for to handle this.

Disclosure

Additional down the road, suspects, if indicted, could want to apply for disclosure of all directions, communications and different non-confidential materials exchanged between the Panel and the OTP, in addition to between the OTP and its Particular Advisers. Such communications will arguably not be protected by litigation or authorized recommendation privilege contemplating the Panel’s impartial standing. All such communications will subsequently doubtlessly be disclosable to the defence pursuant to Article 67(2) of the Rome Statute.

Amal Clooney and His Excellency Choose Theodor Meron CMG are each Panel members in addition to Particular Advisers to the Prosecutor. Mr Khan KC acknowledged Professor Kevin Jon Heller, one other Particular Adviser, for his “contribution” to the Panel’s assessment. It’s open to query whether or not communications between the OTP and its Particular Advisers are subsequently protected by litigation or authorized skilled privilege on condition that they’re sufficiently impartial to take a seat on an impartial, professional, panel.

The Report doesn’t disclose what number of conferences the Panel had with the OTP, nor which Panel members attended every assembly. It doesn’t clarify the excellence between its practitioner members (who, by the way, put their names to an opinion piece printed by the Monetary Instances on the Report) and its educational members (who didn’t co-author the FT op-ed). It doesn’t disclose whether or not a word was taken of the supplies the Panel reviewed, and it doesn’t exactly report which supplies the Panel had been proven. It’s foreseeable that requests by the defence will likely be made sooner or later for disclosure of all such materials regarding the best way the Panel was instructed, and as to how in depth their very own inquiries had been (versus merely receiving factual summaries and rumour accounts ready by the OTP).

Conclusion

Given the Report’s obvious analytical and methodological flaws, and its lack of evidentiary weight, Pre-Trial Chamber I’ll want to exclude the Report from its consideration of the OTP’s request for warrants. It’s additional open to query the strategic and tactical knowledge of the Prosecutor’s choice to fee the Report. Moderately than offering him with an extra safeguard, his choice to instruct the Panel, and its subsequent work product, as an alternative reveal the looks of doubt and reliance on affirmation bias. These issues reveal what could later be recognized because the collateral objective mendacity behind instruction of the Panel, specifically, to supply diplomatic and public relations cowl for weak purposes which give rise to the legitimacy problem which impacts each the State of affairs, and the ICC as an entire. 

The editorial group notes that Professor Marko Milanovic was not concerned in reviewing or modifying this publish.