There has been considerable speculation about how the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) might react to the State of Palestine’s move to join the ICC. Some have suggested that the OTP will jump at the chance to do a case outside of Africa. Others believe that the Prosecutor will move more cautiously. Since I worked as the Investigations Coordinator and then Prosecution Coordinator in the OTP for nearly three years, I will offer my insights into how I think the OTP might proceed in this case.
First, I have to imagine that the OTP is a little surprised by the vehement reactions to the Palestinians’ move to join the ICC. The Court already has 122 States Parties, including many close allies of the United States. The Court embodies principles that have been embraced by the U.S., even if at times unevenly, throughout its history (before Nuremberg, at Nuremberg, and since Nuremberg). Although the U.S. initially took a very hostile stance towards the ICC, at the end of the Bush administration and throughout the Obama administration it has engaged constructively with the Court and has allowed two situations (Sudan and Libya) to be referred to the ICC and has voted to refer a third situation, Syria, as well. There have been no serious accusations that the ICC has pursued political or frivolous cases, as some feared when the Rome Statute was adopted. Further, as many have pointed out, the move by the Palestinians is double-edged: by joining the Court and extending jurisdiction retroactively to the war in Gaza, the Palestinians are accepting that the Court may investigate and prosecute individuals on the Palestinian side for war crimes or crimes against humanity. Kevin Jon Heller has even suggested that the ICC might start by prosecuting members of Hamas. For all of these reasons, I am sure that people within the ICC are wondering why the Palestinian decision to join is not being celebrated rather than denounced.
There is also likely surprise within the OTP because in the months leading up to the Palestinian move, the OTP suffered some setbacks in its cases, including the collapse of the Kenyatta case and the Prosecutor’s announcement that she is suspending further investigation in Sudan because of the lack of any action by the UN to enforce the Court’s arrest warrants. These events caused some to question whether the ICC as an institution can be effective or relevant, particularly when it comes to prosecuting senior state officials. The Washington Post even declared the ICC to be on “shaky ground.” In light of these assessments, one might have expected that Israel and its allies would greet the Palestinian embrace of the ICC with a shrug. But the strong reactions to the Palestinian move to join the Court show something else: that the ICC still matters. A lot. Although the ICC can prosecute only a small number of cases and so far it has had mixed results, states seem to care enormously about the potential reputational and diplomatic consequences if they become the subject of an ICC investigation. As Mark Kersten has explained, the same concerns caused North Korea (a country that often thumbs its nose at the international community) to unleash a diplomatic offensive to dissuade the Security Council from referring North Korean crimes to the ICC.
So going forward, how will the OTP manage cases referred by the State of Palestine? The Prosecutor has made it clear that in her view, the question of whether Palestine qualifies as a State allowing it to sign the Rome Statute was settled by the General Assembly’s 2012 decision to grant non-member observer state status to Palestine. Therefore, the Prosecutor will likely soon be faced with two potential investigations arising from Palestine’s decision to join the Court: the first into alleged war crimes committed by either side during last year’s fighting in and around Gaza and the second into Israeli settlements in the Occupied Territory to see if they constitute a violation of Article 8(2)(b)(viii) of the Rome Statute which makes it a crime in an international armed conflict for an “Occupying Power” to “transfer, directly or indirectly, . . . parts of its own civilian population into the territory it occupies.” The first potential investigation would arise from Palestine’s declaration pursuant to Article 12(3) of the Statute accepting retroactive jurisdiction back into last year, while the second would arise from Palestine’s decision to join the Court (and therefore will not arise for another 60 days when the Statute enters into force in Palestine pursuant to Article 126 of the Statute). In both cases, a potential investigation has to be triggered, either by a State (including Palestine), or by the Prosecutor herself (which then requires approval from the Pre-Trial Chamber of the Court). Statements by the Palestinian Ambassador to the UN make it clear that Palestine intends to ask (and may have already requested for Gaza) that both investigations be pursued.
I agree with both David Luban and David Bosco that the OTP will proceed cautiously and deliberately in both cases. There is absolutely no chance that the Office will jump on this opportunity simply as a way to do a case outside of Africa. The Prosecutor and other senior officials in the Office do not think that way, and if they were so motivated they could have long ago opened investigations in other places, such as Georgia, Afghanistan, or Ukraine.
The Office will likely quickly open preliminary examinations into both cases, a step that precedes the opening of an actual investigation, but as outlined in its “Policy Paper on Preliminary Examinations,” that process is involved and deliberate and requires the Office to assess, on the basis of information that is either publicly available or submitted to the Court, whether there is a “reasonable basis” to believe that the alleged crimes fall within the jurisdiction of the Court and are admissible (meaning they aren’t already being investigated or prosecuted by a national jurisdiction and are sufficiently grave to warrant ICC investigation or prosecution), and whether there are substantial reasons to believe that an investigation would not be in the interests of justice. With respect to both potential investigations, there are issues that will likely require extensive information gathering and deliberation and therefore it will take months and more likely years before the OTP decides whether to open an actual investigation.
Regarding the potential Gaza investigation, the OTP will want to determine whether investigations by Israel might be sufficient to account for alleged crimes committed on the Israeli side and whether there is any chance that Palestine will investigate and prosecute cases on its side. If Israel and Palestine undertake genuine investigations and prosecutions of alleged crimes on each of their respective sides, then the ICC will no longer have jurisdiction under Article 17 of the Statute. There is precedent for the OTP giving parties considerable time to pursue cases. In the case of Georgia, the OTP has had a preliminary investigation open since 2008, monitoring both sides to see if either will bring forward investigations and prosecutions. As the OTP reported in December 2014, neither Georgia nor Russia has brought forward an actual prosecution during the six years of the ICC’s preliminary investigation.
Regarding the potential settlements case, the Court will want to consider arguments from both sides about the Court’s jurisdiction in the Occupied Territory (as discussed by David Luban in his Just Security post and debated by Eugene Kontorovich and Yaël Ronen in the Journal of International Criminal Justice). These issues are novel and will require time to resolve.
Aside from the specific legal issues that will require deliberation in both potential investigations, the OTP will likely adopt a cautious and slow approach to all cases arising from the Israeli-Palestinian conflict, not because they are politically sensitive, but because critical support for its work on these cases is far from assured. The principal lesson to be drawn from the ICC’s first decade plus of work, and in fact from the success and failures of all of the ad-hoc tribunals established since 1993 (the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia), is that international criminal investigations and prosecutions will succeed only if there is sustained support either within the country where the cases arose or from the international community at large. This insight was behind the ICC Prosecutor’s recent decision to hibernate the Sudan investigations. Sudan’s complete lack of cooperation, and years of refusals by the Security Council and key countries in the region to support the ICC’s cases, meant zero progress on the ICC’s investigations and arrest warrants. In making her announcement on Sudan, the Prosecutor simply recognized this reality and moved to focus her limited resources on cases that are more likely to move forward and succeed. This pragmatism has also likely contributed to the OTP’s extended preliminary examinations in places like Georgia and Afghanistan.
But while the OTP is pragmatic, it is not only pragmatic. There is a strong (and proper) adherence to principle within the Office. Difficult cases constantly require the Prosecutor to strike hard and nuanced balances between these competing impulses: pragmatism to use resources wisely and build the capacity and strength of the institution slowly over time, and principle to apply the law and the rules consistently and uniformly. I have no doubt that the challenges of the cases arising out of the Israeli-Palestinian will cause the OTP to move slowly and cautiously, and the Office will likely stay at the preliminary examination phase for a number of years. But that pragmatism will not last forever, and eventually, if there is a reasonable basis to believe that crimes within the jurisdiction of the Court may have been committed and the allegations have not been investigated or prosecuted by one side or the other, the ICC will be compelled to move forward and commence its own investigation. Where that leads will raise many new questions.
Alex Whiting is a Professor of Practice at Harvard Law School where he teaches, writes and consults on domestic and international criminal prosecution issues. From 2010 until 2013, he was in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague where he served first as the Investigations Coordinator, overseeing all of the investigations in the office, and then as Prosecutions Coordinator, overseeing all of the office’s ongoing prosecutions.