Prosecutor at war
Karim Khan KC tells his judges — and his country — they have got the law wrong
The prosecutor of the International Criminal Court has criticised the way judges have handled his request to issue arrest warrants for members of the Israeli government and Hamas leaders.
In a 49-page response published on Friday, Karim Khan KC told the court’s pre-trial chamber it “should not anticipate in its decision matters which might subsequently be raised” under article 19 of the court’s governing statute. Article 19 permits challenges ahead of a trial to the jurisdiction of the court or the admissibility of a case.
Khan argued that an application for an arrest warrant under article 58 of the statute was an ex parte process “to which the prosecutor is the only party”. That meant, he emphasised, “that the chamber must decide solely on the basis of the information provided by the prosecution”.
In a warning to the three judges1 hearing his application, he said:
The chamber must exercise care not to predetermine matters which do not arise from the prosecution’s submissions under article 58 and which can be properly raised at other stages of the proceedings.
That meant the pre-trial chamber “should generally refrain from addressing matters, such as complementarity, which might subsequently be raised under article 19(2) of the statute before the same chamber”.
Complementarity is the principle that a case is inadmissible if it “is being investigated or prosecuted by a state which has jurisdiction over it”. A state’s investigation of its own alleged war crimes does not normally take place while it is still at war.
Defence submissions
Some of Khan’s arguments responded to submissions filed by the court’s own independent defence counsel. The office of public counsel for the defence is responsible, among other things, for representing and protecting the rights of the defence during the initial stages of an investigation by the prosecutor.
Marie O’Leary, acting principal defence counsel, said she was intervening in circumstances where hundreds of pages of submissions on innumerable issues had been put before the pre-trial chamber by scores of states, non-governmental organisations, international bodies, student and professional organisations, applicant victims, and other individuals.2 And yet, as she pointed out, the intended defendants whose arrest was being sought had no standing before the International Criminal Court.
O’Leary continued:
This massive yarn of litigation is being threaded through a small needle of time — a time when ex parte article 58 applications for arrest warrants are before Pre-Trial Chamber I.
While the ex parte nature of the arrest warrants is routine, the public announcement of them is not. The office of public counsel for the defence submits that this act of revealing the existence of the article 58 applications [for arrest warrants], in advance of any article 58 decision [on whether to issue them], necessarily impacts the fair trial rights of those named.
First, publicly announcing their identities opens the door for “prejudicial publicity” against any person named and implicates their presumption on innocence in public fora.
Second, it has the potential to attract litigation of third parties, especially jurisdictional or admissibility litigation, in which the named person will have no standing to intervene, undermining the individual’s right to be heard.
Finally, the inconsistent practice of revealing the existence of some arrest warrant applications and not others at the discretion of the prosecutor creates conditions for potential suspects to receive unequal treatment before the law.
Khan announced on 20 May that he was seeking arrest warrants for the Israeli prime minister Benjamin Netanyahu and Israel’s defence minister Yoav Gallant — as well as three Hamas leaders, two of whom have since been killed. O’Leary suspected that the prosecutor’s announcement had not been judicially authorised and was likely to have contravened the classification given to the arrest warrant application itself. That application has not been published but, in her view, it was likely to have been “‘confidential’ (at least); ‘under seal’ (more likely); or possibly ‘secret’.”
O’Leary said there was no remedy that could fully address the issues at this stage because “that which has been made public cannot be made confidential again”. But she invited the judges to choose between two options:
disregard at the outset any arguments they had received that fall outside the narrow scope of the initial issue for which leave was granted; or
permit the persons named in the arrest warrant applications the right to intervene and invite them to do so.
In limine
Khan went for the first option. To understand his reasons, we need to recall the UK’s initial involvement in this case.
The court’s rule 103 says a chamber of judges may permit a state, organisation or person to make observations on any appropriate issue at any stage of the proceedings. A non-party making these submissions is referred to as an amicus curiae — friend of the court.
On 10 June, Rishi Sunak’s government asked the chamber for permission to make observations under rule 103 on “whether the court can exercise jurisdiction over Israeli nationals in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo accords”. This was the “initial issue” referred to by O’Leary and I’ll come to it later on.
Noting the “potential relevance” of this issue, the chamber allowed the UK until 12 July to make submissions — as I reported at the time.
The UK’s 15-page request for permission had been signed by Sally Langrish, legal adviser to the Foreign, Commonwealth and Development Office. It was originally classified by the court as secret but, at the UK’s request, it was made public on 27 June.
Given that a general election was to be held on 4 July — and perhaps suspecting that Labour might take a different position — the Foreign Office subsequently asked for more time to file its substantive submissions.
Sir Keir Starmer’s government decided not to file any observations by the new deadline of 26 July. But we still have the arguments put by Langrish in the Conservative government’s successful application for permission. I shall be turning to these shortly.
Meanwhile, after receiving over 70 applications from individuals, organisations and states, the judges allowed most of them3 to make short written submissions.
Responding to these submissions last Friday, Khan pointed out that the Oslo accords issue was the only one that the chamber had so far described as being of “potential relevance”. Because the judges had not expressly decided which other issues were of potential relevance to its decisions about arrest warrants, “the prosecution respectfully submits that observations relating to matters other than the Oslo accords should be dismissed in limine”.
The phrase in limine — at the threshold — means at a preliminary stage, before the main hearing. Khan appears to arguing that all the other arguments raised in hundreds of pages of submissions — including legal issues such as complementarity and factual disputes such as the prosecutor’s claim that Netanyahu and Gallant had used “starvation as a method of warfare” — should simply be ignored by the pre-trial chamber.
Before allowing applicants to make submissions under rule 103, the chamber had — as Khan acknowledged — evaluated their requests for permission to see whether what they wanted to say would help the chamber decide the case. But because that chamber “did not explain which other topics could also be of potential relevance to its decisions”, he maintained that “the scope of the allowed observations remained limited to the Oslo accords”.
In other words, the chamber couldn’t take account of any argument — however powerful — unless it had correctly predicted that the issue would be raised by those it had allowed to make submissions. But how could it know in advance which arguments it would find persuasive and what topics they would illuminate?
Absurd
Dealing with points raised by O’Leary and others, Khan said that
proceedings can be ex parte (prosecutor only), yet… made public. Nor did the prosecutor’s decision to consult with external experts affect the ex parte nature of these proceedings.
He referred to the chambers practice manual, which confirms that an application for an arrest warrant and the decision of the pre-trial chamber “are submitted and issued ex parte”.
The handbook continues:
Even if the proceedings are public (which is however not recommended), the person whose arrest/appearance is sought does not have standing to make submissions on the merits of the application.
On this, Khan observed:
Any other approach would not only undermine the ex parte nature of the proceedings, it would also lead to the absurd result that third parties possess greater procedural rights than the suspect. Such an approach might enable persons or entities to approach the court providing unwanted and unhelpful observations without full candour as to their connections to the suspects or the situation.
The prosecutor was not only arguing that a suspect has no right to be heard by the court before issues a warrant for that individual’s arrest. He appears to be saying that nobody else should be able to argue against the issue of an arrest warrant either, just in case they say something helpful on behalf of a suspect.
Khan takes a narrow view of procedure and his argument relies heavily on his reading of the court’s statute and decided cases. The issue of principle that he does not appear to have addressed is why a court should take a decision — any decision — without first hearing from the other side.
Of course, there will be circumstances in which the interests of justice may require this. At national level as well as at international level, suspects who pose a flight risk are not told that they are about to be arrested. Others, though, may be arrested by appointment and then bailed.
If Khan had thought that Netanyahu and Gallant might try to evade arrest, he would have followed the recommendation in the practice manual and kept his plans to himself. But if there is no risk that a suspect will escape, what’s to be lost by considering the question of jurisdiction before an arrest warrant is issued? And why not hear full argument from both sides?
Jurisdiction
The only substantive issue dealt with in the prosecutor’s submissions is the one that was raised by Rishi Sunak’s government — and which I have alluded to several times but not so far explained. On the two Oslo accords, according to Khan, the UK government’s most senior international lawyer has got the law wrong.
These agreements, signed in 1993 and 1995, were part of an intended peace process that led to the establishment of the Palestinian Authority. They allow for a measure of autonomy in security matters.
It was clear from the wording of the order issued by the chamber in June that the Conservative government was questioning the court’s jurisdiction to order the arrest of Israeli citizens. The Foreign Office was arguing that because the Palestinian authorities have no jurisdiction over Israeli nationals under the Oslo accords they could not transfer any such jurisdiction to the International Criminal Court. This principle was referred to by the court in an earlier ruling as nemo dat quod non habet — you can’t give what you don’t have.
In 2021, the International Criminal Court decided that Palestine was a state party to the court’s statute. A majority of the court also held that the court’s territorial jurisdiction extended to “the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem”.
The question of the Oslo accords had been raised in argument but it was not addressed by the judges when they ruled in 2021. As they explained,:
The chamber finds that the arguments regarding the Oslo agreements in the context of the present proceedings are not pertinent to the resolution of the issue under consideration, namely the scope of the court’s territorial jurisdiction in Palestine.
In other words, the accords made no difference to the court’s decision on what territory it regarded as “Palestinian”. However, added the court, the accords might be relevant to a request for a suspect to be handed over by a state (under articles 97 and 98 of the statute) or as part of a challenge to jurisdiction or admissibility (under article 19).
Khan argued that neither of those exceptions applied here: “no material request for cooperation has been made, nor have the Oslo accords been raised by a requested state as an obstacle to such cooperation”.
He wrote:
In its original request, the United Kingdom misinterpreted the [court’s] reasoning in the [2021] decision on the Oslo accords and appears to have erroneously taken into account in this regard a concluding and unrelated paragraph.
The concluding sentence of that paragraph said:
When the prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the statute, or if a state or a suspect submits a challenge under article 19(2) of the statute, the chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.
Kahn argued that nothing in that paragraph “suggests that the Oslo accords raise any questions of jurisdiction”. He also said the reference to “further questions” meant that matters previously addressed by the court should be regarded as settled.
The court may not regard this as much of an answer to the issues raised by the former UK government in their application for permission to intervene. Langrish’s submissions — which have not been widely reported — are worth quoting at length.
The UK said:
As the majority of the pre-trial chamber clearly considered in the [2021] jurisdiction decision, the Oslo accords issue is a live matter before the pre-trial chamber on the prosecutor’s application for arrest warrants. Article 19(1) of the statute provides, in part, that “the court shall satisfy itself that it has jurisdiction in any case brought before it”.
Pre-trial chambers have consistently relied upon article 19(1) to hold that an initial determination as to whether the case falls within the jurisdiction of the court is a prerequisite for the issuance of warrants of arrest. As a result, the pre-trial chamber is required to make an initial determination of jurisdiction in resolving the application for arrest warrants.
The Oslo accords issue necessarily forms part of that initial determination. This is because the Oslo accords issue concerns whether Palestine could delegate criminal jurisdiction over Israeli nationals to the court in circumstances where the Oslo accords themselves make it clear that Palestine itself does not have criminal jurisdiction over Israeli nationals.
The pre-trial chamber did not need to resolve this issue in the jurisdiction decision since it was only called upon to adjudicate territorial jurisdiction. However, since the prosecutor’s statement confirms that the arrest warrants have been applied for in relation to two Israeli nationals, an initial determination on the Oslo accords issue does now need to be made.
Furthermore, it is submitted that addressing the Oslo accords issue now is the only approach consistent with the [2021] jurisdiction decision. The majority of Pre-Trial Chamber I, in holding that the Oslo accords were not pertinent to territorial jurisdiction, expressly stated that it “will be in a position to examine further questions of jurisdiction” either on an application for an arrest warrant or on an article 19 challenge. That pre-condition has now occurred; an application for an arrest warrant has been made.
The majority of the pre-trial chamber has therefore already indicated that it will “examine further questions of jurisdiction” at this stage. Not to give proper attention to the Oslo accords issue would thus be inconsistent with the jurisdiction decision.
The United Kingdom notes that prior applications to submit written observations on article 58 proceedings have been rejected, in part on the basis that article 58 proceedings are ex parte. There are vital distinctions between these prior cases and the instant application which justify the pre-trial chamber in permitting rule 103 observations on this occasion.
First, the pre-trial chamber’s obligation to satisfy itself that it has jurisdiction is triggered by article 19(1). Where this article applies, rule 58(2) of the rules of procedure and evidence provides that the chamber “shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings”, including holding a hearing.
It is for the chamber to define the procedure which should be followed on the issue of jurisdiction. Although the article 58 procedure is normally ex parte, rule 58(2) gives the chamber the discretion to allow written observations to be made (limited, of course, to the jurisdiction issue).
Second, whilst chambers have previously exercised this discretion to maintain an ex parte proceeding, the circumstances of this case are different. The prosecutor has made it public that applications for arrest warrants have been made. The prosecutor’s statement includes a significant amount of factual detail about the identity of the suspects, the charges, the modes of responsibility and the circumstances alleged in support of them. There is no need for confidentiality or secrecy on the jurisdiction issue.
The United Kingdom’s observations, if permitted, would be limited to this legal issue and would not touch on the substantive evidence in support of the charges. Hence no concern regarding the protection of victims or witnesses would arise from granting this application.
Further, the detail contained in the prosecutor’s statement will enable rule 103 observations to make a meaningful contribution to the relevant issues, even though the prosecutor’s actual application remains confidential.
Third, the Oslo accords issue is already known, having been identified in the prosecution request, multiple previous rule 103 observations and the jurisdiction decision. The dissenting opinion alone makes it clear that the Oslo accords issue is a substantial one, which is capable of affecting the pre-trial chamber’s initial determination of jurisdiction.
The issuance of an arrest warrant pursuant to article 58(1) is a serious step because it affects the liberty of the individual concerned. The significance of the Oslo accords issue thus makes it desirable, even on an initial determination of jurisdiction, that the pre-trial chamber receives observations from a range of participants rather than proceeding only on the basis of the prosecutor’s application…
Early resolution of the Oslo accords issue is desirable. The prosecution request submitted that it would not be in the interests of judicial economy to carry out investigations in a judicially untested jurisdictional context only to find, too late, that relevant legal bases were lacking. Exactly the same reasoning supports addressing the Oslo accords issue in the course of determining the application for arrest warrants.
That the Oslo accords issue was not resolved in the jurisdiction decision has preserved a risk of an arrest warrant being issued when relevant legal bases may be lacking. It would be wrong to resolve the article 58 applications and hence trigger further proceedings, potentially including the arrest and deprivation of liberty of individuals, without addressing this fundamental issue.
In response, Khan insisted that the Oslo accords “cannot bar the court’s exercise of jurisdiction over Israeli nationals for crimes committed in the occupied Palestinian territories”.
To say the court has no jurisdiction is “inconsistent with the [court’s] statute when interpreted in accordance with ordinary modes of treaty interpretation”, he said. It wrongly seeks to treat Palestine differently from every other state party. “The Oslo accords objection is without merit.”
He added:
The argument that the Oslo accords bar jurisdiction is premised on a misunderstanding of foundational concepts of jurisdiction under international law, including under the law of occupation, as well as their implications for the court’s exercise of jurisdiction under the statute.
Comment
It’s not for me to say whether the prosecutor of the International Criminal Court has given a more accurate summary of the law than the legal adviser to the Foreign, Commonwealth and Development Office — who, of course, remains in post despite the change of government.
But I note that there has been no attempt by the new foreign secretary to resile from the submissions Langrish made on 10 June. In what was seen by all concerned as a purely political decision, David Lammy merely made no observations at all.
If I was a member of the pre-trial chamber, I would take Langrish’s arguments very seriously indeed — not because she was speaking on behalf of the United Kingdom but because, as she suggests, it makes obvious sense on this occasion to decide questions of jurisdiction at the earliest possible stage.
It seems to me that the chamber can see the force of that. Why else would it have invited submissions from such a wide range of international lawyers?
In his response to their arguments, Khan “requests the chamber to decide with the utmost urgency the prosecution’s article 58 applications on the basis of its submissions and the [court’s 2021] decision”.
Issuing an arrest warrant for serving ministers of a democratic state is something the International Criminal Court has never done before. It would have major repercussions, not just for the individuals facing arrest but also for the court itself.
Now that Khan has deliberately put his request into the public domain, there is no justification for taking a decision as far-reaching as this without hearing all the arguments.
Instead of basing its decision on one lawyer’s submissions and one lawyer’s interpretation of a single judgment, the chamber should proceed to consider — calmly, carefully and ideally with the benefit of oral argument from both sides — all the submissions it has now received.
Judges Iulia Motoc, Reine Adélaïde Sophie Alapini-Gansou and Nicolas Guillou.
The chamber received submissions from some 11 victims’ groups; 31 states parties (eight states directly and two international organisations representing more than 20 states); more than 30 other non-states parties; and 34 academics or non-governmental organisations (individually or in groups).
Eli M Rosenbaum; Professor David Chilstein; Professor John Quigley; High Level Military Group; European Centre for Law & Justice; Professor Steven E Zipperstein; Serge and Beate Klarsfeld; Professors Yuval Shany and Amichai Cohen; the State of Palestine; Professor William Schabas; the Jerusalem Center for Public Affairs and the Institute for NGO Research; the Kingdom of Norway; the Organisation of Islamic Cooperation; Hungary; Republic of Argentina; the Touro Institute on Human Rights and the Holocaust; Canadian Union of Jewish Students and the World Union of Jewish Students; Arab Organisation for Human Rights UK; Assistant Professor Halla Shoaibi and Professor Asem Khalil; Centre for Israel and Jewish Affairs; the Palestine Independent Commission for Human Rights; Law for Palestine; Professor Sascha Dominik Dov Bachman, Dr Deborah Mayersen, Professor Gregory Rose and Dr Colin Rubenstein; US Senator Lindsey O Graham; Lawyers for Palestinian Human Rights; Israel Bar Association; Czech Republic; International Centre of Justice for Palestinians and the Centre for Human Rights Law (SOAS University of London); Jerusalem Institute of Justice; Chile and Mexico; Centre for European Legal Studies on Macro-Crime; Dr Robert Heinsch and Dr Giulia Pinzauti; The Hague Initiative for International Cooperation; ICJ Norway and Defend International Law; UN Special Rapporteurs and Working Groups; the United States of America; Professor Neve Gordon; Al-Quds Human Rights Clinic and Al-Quds University; the League of Arab States; L’association des Juristes pour le respect du droit international and la Fédération internationale pour les droits humains; University Network for Human Rights, the International Human Rights Clinic, Boston University School of Law, the International Human Rights Clinic, Cornell Law School and the Lowenstein Human Rights Project, Yale Law School; Professor Richard Falk and Professor Michael Lynk; Professor Adil Ahmad Haque; Open Society Justice Initiative, European Center for Constitutional and Human Rights, REDRESS Trust, Human Rights Watch and Amnesty International; Republic of Colombia; Hostages and Missing Families Forum and the Raoul Wallenberg Centre for Human Rights; Addameer Prisoner Support and Human Rights Association; International Association of Jewish Lawyers and Jurists; Kingdom of Spain; UK Lawyers for Israel, B’nai B’rith UK, the International Legal Forum, the Jerusalem Initiative and the Simon Wiesenthal Centre; International Commission of Jurists; The Palestinian Association for Human Rights (Witness); Guernica 37 Chambers; the Federative Republic of Brazil; ALMA – Association for the Promotion of International Humanitarian Law; Ireland; Avocats pour la Justice au Proche-Orient; Federal Republic of Germany; Dr Shahd Hammouri; Al-Haq Law in the Service of Mankind, Al-Mezan Center for Human Rights and the Palestinian Center for Human Rights; République Démocratique du Congo; Arpit Batra; South Africa, Bangladesh, Bolivia, Comoros, Djibouti.
Once again Joshua, you choose to attack the International Criminal Court, and the Prosecutor, because of your perceived belief that the Prosecutor is seeking warrants against the “wrong” (i.e. Israeli) defendants
A lawyer in a hurry? Unheard of.