The ICC Opening of a Palestine Preliminary Examination: A Non-Event

Today’s announcement by the Prosecutor of the International Criminal Court that she is opening a “preliminary examination” into alleged crimes on Palestinian territory since June 13, 2014 is really a non-event and should not be seen in any way as an indication of what the ICC may or may not do in the future.  It is true that in opening the preliminary examination, the Prosecutor is accepting that Palestine is a state that can confer jurisdiction on the ICC for alleged past international crimes under Article 12(3) of the Rome Statute.  But she had long before signaled that she accepted that Palestine was a state for this purpose following the General Assembly’s 2012 vote to grant non-member observer state status to Palestine. So this is not news. The opening of a preliminary examination is also not a surprise. The Prosecutor’s policy is to open a preliminary examination whenever there is an Article 12(3) referral (meaning a referral from a non-State Party conferring jurisdiction on the Court) unless the situation referred is “manifestly outside the jurisdiction of the Court.” Whatever one thinks of the ultimate merits of the allegations regarding the war in Gaza last year, there is no question that these allegations are not “manifestly outside the jurisdiction of the Court”. Therefore the opening of the preliminary examination was a foregone conclusion. During the preliminary examination phase the Office of the Prosecutor will look, pursuant to Article 15 of the Statute, at information from “States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that … she deems appropriate.” This will not be an investigation and therefore the Prosecution will not have available to her the investigative tools provided under the Rome Statute (such as they are), except that she “may receive written or oral testimony at the seat of the Court,” a procedure that is in fact rarely used.  At the end of the day therefore, she will essentially rely during this phase on publicly-available information as well as material voluntarily provided by interested States and organizations. The Prosecutor will then assess all of this information to determine whether there is a “reasonable basis” to believe that the ICC has jurisdiction over the allegations (temporal, material, and either territorial or personal jurisdiction), that the cases are “admissible” (meaning they are not being genuinely prosecuted already by a State), and whether there are substantial reasons to believe that an investigation would not be in the interests of justice.  As I suggested previously in this Lawfare post, this process is likely to take many months if not years.  If at the end of the preliminary examination process she believes that all of criteria have been satisfied, then, and only then, will she open a formal investigation in order to collect evidence in order to determine whether or not individual charges should be brought. We are, therefore, just at the beginning of a long process and it is impossible at this stage to determine where that process might end up.

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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.  He there 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.