The Findings of the ICJ Advisory Opinion on the Oslo Accords and the Amici Curiae Proceedings before the ICC in the Situation of Palestine

This note draws on the Advisory Opinion rendered by the International Court of Justice (ICJ) on 19 July 2024, in particular the legal findings on the Declaration of Principles on Interim Self-Government Arrangements (Oslo I Accord) and the Interim Agreement on the West Bank and the Gaza Strip (Oslo II Accord) signed in 1993 and 1995, respectively (Oslo Accords). The note suggests that these findings could be of potential relevance to the current discussion on the jurisdiction of the International Criminal Court (ICC/Court) with respect to the situation in Palestine. The jurisdictional question concerning the Oslo Accords was initially submitted by the United Kingdom (UK) to the ICC through the avenue of an amicus curiae. Thus, taking heed of said recent developments before the ICJ and the ICC, this contribution contemplates and focuses only on the principled questions of whether amicus curiae observations under Rule 103 of the ICC’s Rules of Procedure and Evidence (RPE/Rules) concerning jurisdiction or a challenge to the jurisdiction of the Court should be permitted at the warrant of arrest stage under Article 58 of the Rome Statute (Statute/RS); as well as what, if any, are the alternative avenues thereto.

ICJ Legal Findings Concerning the Oslo Accords and their Potential Relevance to ICC Proceedings

In its Advisory Opinion the ICJ referred to different paragraphs of the Oslo Accords (para. 38, 65-66, 78, 102, 133, 140, and 263), addressing the two legal questions put forward by the General Assembly (para. 1, 27)¹⁾ by way of (i) setting out the general context regarding the request (para. 65-66) and (ii) whether the Court, on the basis of its discretionary powers, should decline to give an advisory opinion on these questions (para. 30). In fact, the Court not only made references to the Oslo Accords, but also drew a number of significant legal findings particularly on the basis of the Oslo II Accord, namely that this agreement should not be invoked in a manner that conflicts with Israel’s other obligations arising from the relevant rules of international law applicable in the Occupied Palestinian Territory (OPT), including international humanitarian and human rights law.

In particular, the ICJ referred to Article XVII of the Oslo II Accord (which regulates the jurisdiction of the Palestinian Council), but it did so only in respect to paragraph 4(b) in discussing the powers conferred on Israel under the law of occupation. In this context, the ICJ concluded that “Israel may not rely on the Oslo Accords to exercise its jurisdiction in the Occupied Palestinian Territory in a manner that is at variance with its obligations under the law of occupation” (Advisory Opinion, para. 140). The Court’s reliance on the two Oslo Accords in reaching a number of legal findings throughout the Advisory Opinion (para. 78, 102, 133, and 263) suggests their continuous relevance and legal validity, which in turn, sets aside contrary scholarly opinions (see Ambos).

This could be relevant for the current discussion before the ICC regarding the question of jurisdiction initially presented by the UK in the course of amici curiae proceedings under Rule 103 RPE, which is also premised on Article XVII of the Oslo II Accord. In the context of the ICC, the relevant part of Article XVII of the Oslo II Accord is paragraph (2)(c), which stipulates that “[t]he territorial and functional jurisdiction of the Council will apply to all persons, except for Israelis, unless otherwise provided in this agreement”.²⁾ Although the ICJ referred to paragraph 4(b) of Article XVII of the Oslo II Accord as opposed to paragraph 2(c), the ICJ’s findings in general could be relevant to the ICC if the respective Pre-Trial Chamber (PTC) re-visits its validity, relevance, legal effects, and, where applicable, its compatibility with the rules of international law applicable in the OPT. This, in turn, begs the question whether the approach, espoused by the UK by way of amicus curiae observations under Rule 103 RPE, requesting the ICC to consider if it “can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to [Article XVII (2)(c) of] the Oslo Accords” (see here, para. 1), is legally and procedurally correct.

Article 58 of the RS and Rule 103 RPE: Implications for Admitting Amici Curiae Submissions at the Warrant of Arrest Stage

According to Rule 103(1) RPE, “[a]t any stage of the proceedings, a Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization, or person to submit, in writing or orally, any observation on any issue that the Chamber deems appropriate”. The plain reading of the phrase “[a]t any stage of the proceedings” indicates that the Court may grant leave to a State or any other entity referred to in this rule to submit observations even at the stage of considering the issuance of a warrant of arrest or a summons to appear under Article 58 of the RS. This conclusion finds support in the recent order of PTC I “authorizing the [UK] to file written observations” and setting a deadline “for any other requests for leave to make observations” under that rule (para. 3, 8).

Although the UK subsequently withdrew its request, the latter triggered more than 70 amici curiae observations, including submissions from States’ representatives at the Article 58 RS stage (see, inter alia, here, here, here, and here) – a stage, where the Chamber is in the process of deciding on the Prosecutor’s applications for the issuance of warrants of arrest against Hamas leaders and Israeli officials. Arguably, PTC I’s approach to permit the submission of amici curiae observations at this stage of the proceedings may be considered as interfering with the procedural regime envisaged by the drafters of the Statute.

Article 58(1) RS reads:

“At any time after the initiation of an investigation, the Pre-Trial Chamber shall, on the application of the Prosecutor, issue a warrant of arrest of a person if, having examined the application and the evidence or other information submitted by the Prosecutor, it is satisfied that: (a) [t]here are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court; and (b) The arrest appears necessary […](emphasis added).”

Reading the phrase the “Pre-Trial Chamber shall […] issue a warrant of arrest” (emphasis added) followed by “if, having examined the application and the evidence or other information submitted by the Prosecutor,” makes it clear that the PTC decision is solely premised on the application and information provided by the Prosecutor. The usage of the mandatory language “shall” suggests that if the Chamber is satisfied that the requirements set forth in Article 58(1) and (2) RS have been met on the basis of the material submitted solely by the Prosecutor, the Chamber is duty-bound to issue a warrant of arrest (see, here)³⁾ without the need for any further submissions from any other party, participant or intervener in the proceedings. Thus, Article 58 RS is lex specialis with respect to the procedure governing the issuance of an arrest warrant or summons to appear. From this perspective, one may argue that any submission through the avenue of an amicus curiae has no place at this specific phase of the judicial process. In other words, Article 58 RS proceedings are ex parte, Prosecutor only, and there is no procedural standing or locus standi for any other party, participant, or external intervener such as an amicus curiae (El Zeidy, p. 754).

It follows that, in principle, any intervener should neither know about the existence of an application filed by the Prosecutor nor about its content (see for example, the most recent decision of PTCI to unseal six warrants of arrest in the Libya situation after more than a year since their issuance ex parte, Prosecution only). The handful of occasions where the Prosecutor revealed the existence of an application under Article 58 RS (as in the cases of Kenya, Ukraine, and Palestine) represent an exception, rather than the norm. Even in these exceptional circumstances, proceedings during the warrant of arrest stage should remain confined to the Chamber and the Prosecutor.

The ex parte nature of proceedings carried out under Article 58 RS also finds support in the early jurisprudence of the Court. In the situation in the Democratic Republic of the Congo (DRC), the Appeals Chamber stated, albeit in a slightly different context, that Article 58 RS “foresees that the Pre-Trial Chamber takes its decision on the application for a warrant of arrest on the basis of the information and evidence provided by the Prosecutor”(emphasis added). Five years later, PTC II followed the same path, and adhered to this precedent.

In the situation in the Republic of Kenya, Mr William Ruto’s counsel submitted an application to PTC II under Rule 103 RPE to be granted leave to submit observations on the Prosecutor’s application under Article 58 RS. In the relief sought, the applicant, inter alia, requested no summons to appear or warrant of arrest to be issued before being heard “on the issues raised in the Application” (para. 2). In responding to the several arguments put forward by the applicant, PTC II stated:

“[T]he proceedings triggered by the Prosecutor’s application for a warrant of arrest or a summons to appear are to be conducted on an ex parte basis. The only communication envisaged at the article 58 this stage is conducted between the Pre-Trial Chamber and the Prosecutor.” (para. 10)

Three weeks later, the Chamber denied a request for leave to appeal that decision and made clear that “until [it] has ruled on the Prosecutor’s applications for summons to appear, none of the persons under the Court’s investigation is allowed to participate even by way of submitting observations on the said applications” (see also here, para. 5). On the same date, the Chamber responded to a similar application submitted on behalf of Mr Mohammed Hussein Ali. Having recalled its previous ruling, PTC II further stated that “contrary to the Applicant’s argument, neither victims nor amici curiae have ever been allowed by any Pre-Trial Chamber to participate in the proceedings under article 58 of the Statute” (para. 6, 9; emphasis added).

It follows from the above that Rule 103(1) RPE is not meant to apply during proceedings conducted under Article 58 RS. Rather, this rule should be read and applied through the provisions of the Statute, which regulate the different stages of proceedings depending on their scope and nature. To do otherwise would result in a conflict between the Statute and the Rules, which should be resolved in favor of the former in accordance with Article 51(5) RS.⁴⁾

Alternative Avenue – Jurisdictional Challenge

The above does not suggest that the jurisdictional question, initially put forward by the UK, which triggered the subsequent lengthy process of amici curiae submissions, is not important to be considered. To the contrary, the Oslo II Accord is of particular relevance for the question whether Article XVII(2)(c) and Article I(1)(a) of Annex IV appended thereto could constitute a bar to the ICC’s exercise of jurisdiction over the situation of Palestine. This is particularly the case, given that PTC I in its earlier 2021 jurisdictional decision (for an analysis of this decision, see Ambos) under Article 19(3) RS seems to have left the door open when it found that

“[t]he 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.” (para. 129)

The Chamber considered that issues underlying the Oslo II Accord

“may be raised by interested States based on article 19 of the Statute, rather than in relation to a question of jurisdiction in connection with the initiation of an investigation by the Prosecutor arising from the referral of a situation by a State under articles 13(a) and 14 of the Statute.” (para. 129)

The Chamber concluded that

“[w]hen 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.” (para. 131)

Arguably, these quotes reveal that the Chamber decided not to take a final position on the relevance and effect of applying the jurisdictional clauses set out in the Oslo II Accord on the ICC’s jurisdiction. However, elsewhere in the decision, the PTC still considered the two main lines of argument concerning this question. The first concerns the delegation theory premised on the maxim nemo dat quod non habet, while the second disregarded the legal effect of the Oslo II Accord on the ICC’s jurisdiction (for an early discussion on the delegation theory and whether the Oslo II Accord can restrict the jurisdiction of the ICC, see Ambos and Stahn, at 450). According to the latter, this agreement could at best pose future problems of cooperation.

Quoting a judgment issued by the Appeals Chamber in the situation in the Islamic Republic of Afghanistan, the PTC considered that “pre-existing treaty obligations” such as the Oslo II Accord, should be resolved at that stage through provisions related to cooperation under Article 97 and 98 RS (see here, paras. 126-129). The Chamber’s approach suggests that it has implicitly rejected the delegation theory, which has been previously advocated by some of the parties, participants and certain amici curiae and recently reintroduced by the UK. This conclusion finds further support in the Chamber’s pronouncement that the inclusion of Article 97 and 98 in the Statute “appear to indicate that the drafters expressly sought to accommodate any obligations of a State Party under international law that may conflict with its obligations under the Statute” (para. 127).

Be that as it may, as suggested above, the PTC left the door open for relitigating the question of jurisdiction arising from the Oslo II Accord. While the Chamber should have decided this question once and for all in its above mentioned 2021 ruling, the current PTC should address its merits. The PTC should proprio motu satisfy itself whether it has jurisdiction at the current stage pursuant to Article 19(1) together with Article 58(1)(a) RS.

Notably, the last sentence of Article 58(1)(a) RS speaks of the Chamber being satisfied that there are reasonable grounds to believe that a person has committed “a crime within the jurisdiction of the Court” (emphasis added). In order to determine whether a crime falls within the jurisdiction of the Court, the Chamber should examine all facets of jurisdiction (see here, para. 21) and should not be confined to an assessment of jurisdiction ratione materiae. Consequently, the Chamber will also be obliged to satisfy itself of the fulfillment of all requirements relating to its jurisdiction or competence before ruling on the applications submitted by the Prosecutor under Article 58 RS, on the basis of the information provided by him or his office. The question posed by the UK representative is a jurisdictional question arising from the Oslo II Accord that could fall under the Chamber’s proprio motu review of its own competence.

This begs the question as to whether PTC I is entitled to invite amici curiae submissions in the course of its proprio motu assessment if it found this desirable for the proper determination of the case or more particularly the Prosecutor’s application under Article 58 RS. While it is inherent to its judicial function that any Chamber may request further information that it deems necessary or determinative for its case, regardless of the existence of Rule 103 RPE, PTC I should have respected the limited nature of Article 58 RS proceedings as envisaged by the drafters. In the event of missing information, the relevant Chamber may request it from the Prosecutor who is the dominus litis or triggering force in these proceedings and the only party entitled to take part in these proceedings by virtue of Article 58 RS. The Prosecutor is also best placed to furnish the relevant Chamber with the necessary information in support of the applications for a warrant of arrest (see, for example, here and here),⁵⁾

Aside from the proprio motu assessment, jurisdictional questions may also be addressed in the form of a challenge to the jurisdiction of the Court pursuant to Article 19(2)(a) RS, by an accused or a person for whom a warrant of arrest or a summons to appear has been issued under Article 58 RS, by a State which has jurisdiction over a case as specified in Article 19(2)(b) RS or by a State from which acceptance of jurisdiction is required under Articles 12(3) in conjunction with Article 19(2)(c) RS, after the decision of the PTC has been issued.

In this respect, on 4 October 2024, PTC I reclassified from secret to public an Israeli challenge to the jurisdiction of the Court under Article 19(2)(c) RS, which had been submitted to the Court on 23 September 2024. In the opening paragraph of its submission, Israel lodges this challenge “in the pending application concerning Benjamin Netanyahu and Yoav Gallant, or in any other investigative action on the same jurisdictional basis” (emphasis added). The formulation “in the pending application” suggests that the purpose of the challenge, inter alia, is that PTC I address it on the merits before making a ruling on the outstanding arrest warrant applications. This approach remains to be inconsistent with the RS procedural design due to the restrictive nature of Article 58 RS proceedings as explained above.

Moreover, this approach is also incompatible with the provisions governing jurisdictional challenges under the RS and the RPE. The conclusion that challenging the jurisdiction of the Court after a decision on a warrant of arrest or a summons has been issued is the legally and procedurally correct avenue to be pursued, is confirmed by a textual and contextual interpretation of Article 19(2)(a) and (9) RS/Rule 58 RPE, when read through the scope of Article 58 RS, and by the practice of the Court.

Article 19(2)(a) RS entitles “an accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58” (emphasis added) to challenge both jurisdiction and admissibility of the case (for a critical analysis of the German complementarity submission in that regard see Ambos). Paragraph 9 of Article 19 RS comes into play to emphasise that “[t]he making of a challenge [to the jurisdiction or admissibility] shall not affect the validity of […] any order or warrant issued by the Court prior to the making of the challenge”. This language also suggests that a challenge to the jurisdiction of the Court and any related submissions by the challenging State is envisaged to take place after a warrant of arrest has been issued by the Court and not during the Article 58 RS stage.⁶⁾

It follows that PTC I should dismiss in limine this challenge or any similar challenge at this stage. However, Israel or any other State meeting the requirements of Article 19(2) RS may still challenge the jurisdiction of the Court after a ruling under Article 58 RS has been made.

Conclusion

In conclusion, the initiative undertaken by the UK on 10 June 2024, although subsequently withdrawn, provoked a number of amici curiae submissions on issues that go beyond the Oslo II Accord. When PTC I allowed other States, organizations, and persons to submit observations under Rule 103 RPE during the Article 58 RS stage, it added an additional procedural layer which is not envisaged by the Court’s founders. It also led to a considerable delay in the proceedings concerning the decision whether or not to issue warrants of arrest. The same holds true with respect to the implications for permitting a challenge to the jurisdiction of the Court by Israel under Article 19(2)(c) RS during the Article 58 RS phase. If one compares the time it took the Court to decide on an application for a warrant of arrest emanating from previous situations such as Libya (Saif Al-Islam Gaddafi and Abdullah Al-Senussi: 41 days), Ukraine (Mr Vladimir Putin and Ms Maria Lvova-Belova: 23 days), Mali (Mr Al Hassan: one week), Central African Republic I (Mr Jean Pierre Bemba: two weeks), and Central African Republic II (Mr Alfred Yekatom: 18 days) with the situation in Palestine, it becomes clear that there is a large discrepancy and a considerable delay to decide on the Prosecutor’s applications. The situation in Darfur where the Chamber took more than seven months to issue the first warrant of arrest against Mr Omar Al-Bashir on 4 March 2009 represents a notable exception here. At the time of writing this note, more than four months have elapsed since the Prosecutor filed his applications before PTC I on 20 May 2024. These applications remain undecided until present.

Permitting amici curiae submissions and jurisdictional challenges at the Article 58 RS stage could also be considered problematic not only because it deviates from the procedural regime of the Statute and causes a considerable delay of the proceedings sub judice, but more importantly because it opens the door for potential abuse of the judicial process.

If one looks closely at the subject matter of the initial UK request to file observations under Rule 103 RPE, it becomes clear that it is effectively a challenge to the jurisdiction of the Court as provided under Article 19(2) RS through the avenue of an amicus curiae submission. Such a course of action should not be permitted by the PTC. The Court’s legal framework provides an avenue for the Chamber to check the jurisdiction proprio motu at any stage of the proceedings, including Article 58 RS, and it also regulates challenges to the jurisdiction of the Court at the appropriate phases. The jurisdictional challenge subsequently lodged by Israel under Article 19(2)(c) RS equally does not fall within the appropriate phase of the proceedings, as argued in this note. Accordingly, it should be procedurally dismissed in limine. However, said challenge may be resubmitted to the Chamber only after it has decided on the arrest warrant applications.

The particular, ex parte, nature of proceedings under Article 58 RS has been demonstrated by the jurisprudence referred to above. Both the PTC and the Appeals Chamber understood the limited scope of Article 58 RS proceedings, and as such, PTC II rejected any attempt to allow any party, participant, or an amicus intervener to interfere during this stage of the proceedings. But the current PTC decided differently. Despite the fact that under Article 21(2) RS Chambers are not obliged to follow “principles and rules of law as interpreted in its previous decisions”, it would have been preferrable if PTC I had followed the ICC’s precedents. As De Guzman eloquently put it, adhering to judicial precedents “contributes to the development of a consistent and predictable body of international criminal law” (see also Gbagbo & Blé Goudé).⁷⁾ By permitting the submission of observations under Rule 103 RPE and a jurisdictional challenge by Israel during the Article 58 RS stage, PTC I not only disregarded the Rome Statute’s procedural framework, but it departed with this practice from the settled PTC jurisprudence that has been in place for over a decade.

Since PTC I has already permitted and received many amici curiae observations that went beyond the question of the Oslo II Accord, the Chamber should only consider those submissions, which would be directly related to and determinative for deciding on the Prosecutor’s applications under Article 58 RS, including the question of jurisdiction. The German amicus curiae submission for instance, while raising relevant complementarity questions, has been rightly considered as an attempt to challenge admissibility through the scope of Rule 103 RPE (Ambos). Considered from this perspective, one should note that admissibility considerations are very limited in the Article 58 RS proceedings. At this stage, the assessment is confined to a proprio motu review by the relevant Chamber and under strict conditions only “when it is appropriate in the circumstances of the case, bearing in mind the interests of the suspect” (see here, para. 52).⁸⁾