On this publish I’ll talk about the complementarity objections expressed by Germany and another members within the ongoing ICC arrest warrant proceedings within the Palestine scenario. These objections solely consult with the arrest warrant requests of 20 Might 2024 regarding Prime Minister Netanyahu and Defence Minister Gallant. I’ll begin with a critique of the dearth of transparency relating to the amicus curiae process. I’ll then current some procedural issues earlier than discussing the precise complementarity points. After summarizing the German place, I’ll supply a crucial evaluation, making an allowance for different related submissions. In a nutshell, whereas presenting some worthwhile and fascinating arguments which need to be rigorously weighed by the Pre-Trial Chamber (‘PTC’) I, on a extra principled stage, the German place is consistent with the notorious Staatsräson doctrine representing Germany’s international coverage in the direction of Israel. There may be robust, virtually unconditional help, coming near a primacy of politics over legislation, which entails decoding worldwide (felony) legislation in a type of most-favored-nation therapy of Israel.
Lack of Transparency
The standard apply on the ICC is to publish amicus curiae submissions – as, in precept, all fillings consistent with the precept of publicity – instantly on the web site, particularly in the event that they, as right here, solely take care of authorized points. However, the PTC I has initially labeled all filings in these proceedings as secret (see UK Request for Go away, para. 29), and this has rightly been criticized by the UK as pointless which subsequently requested a reclassification as public (ibid.). The PTC I granted this request (right here, para. 7) and later determined that the precise submissions (“observations”) must be filed publicly (right here, Disposition). Thus, PTC I initially distinguished between the requests for depart, classifying them initially as secret, and the precise amicus curiae submissions that, from the beginning, needed to be filed publicly. This lack of transparency and inconsistency appears bizarre and requires a proof. It’s hoped that PTC I’ll reclassify all requests for depart as public as quickly as doable.
Germany has filed its unique amicus curiae submission, as is clear from its title, as “public” with the date of 6 August 2024, and it was obtained by the Courtroom on 7 August (see prime proper of every web page of the submission). It was then publicly obtainable on the Courtroom’s web site on 9 August. Hypothesis concerning the content material of the submission has been circulating since mid-July (see right here and Talmon), however the Federal International Workplace (because the accountable Ministry) didn’t inform the public of the above-mentioned procedural intricacies. It is usually unusual that the submission seems within the “Courtroom Information” with none indication of the supply – merely as “Observations pursuant to Rule 103(1) of the Guidelines of Process and Proof”; solely by downloading the precise submission, it turns into clear that it’s from Germany. Within the case of different submissions, the supply normally seems already within the “Courtroom Information” listing (see, for instance, the statements from the USA, the Israel Bar Affiliation or Adil Ahmad Haque). Lastly, it additionally must be defined why Germany mirrored the scenario title on the duvet web page as “State of affairs in Palestine” as an alternative of “State of affairs within the State of Palestine” (as within the submission from 2020). Does Germany need to make its non-recognition of a Palestinian State specific?
Procedural Issues
Procedurally, a Chamber “might” admit such a submission “at any stage of the proceedings” if it considers this to be “fascinating for the right dedication of the case” (Rule 103(1) of the ICC Guidelines of Process and Proof, ‘RPE’). In our context, nevertheless, two limitations should be taken under consideration. First, complementarity challenges beneath Articles 18 and 19 of the ICC Statute (‘ICCS’) can solely be introduced by a State that “would usually train jurisdiction” or “which has jurisdiction” with regard to the respective scenario or case (Articles 18(1), 19(2)(b) ICCS). Thus, strictly talking, solely such a State has a proper to intervene on the idea of complementarity arguments, no less than if it intends to problem admissibility (the counterargument would then be {that a} State submitting amicus curiae observations doesn’t problem admissibility however simply current its views on the matter). Secondly, there’s solely restricted room for complementarity issues inside the framework of arrest warrant proceedings. Article 58(1) ICCS requires “affordable grounds to consider that the individual has dedicated against the law inside the jurisdiction of the Courtroom” and that the arrest “seems obligatory”. Complementarity is, in precept, not a problem right here, however it might be addressed by a PTC proprio motu (for a wonderful early dialogue, see El-Zeidy). We’ll return to a PTC’s restricted discretion in that regard under when assessing the German complementarity objections.
Within the current case, the UK (nonetheless beneath a Conservative authorities) initially submitted such an software on 10 June 2024 (see right here the model made public per order of Pre-Trial Chamber [‘PTC’] I on 27 June 2024) and PTC I granted the applying on 27 June 2024 with a submitting deadline of 12 July 2024 (see right here). This triggered a flood of statements (see Courtroom Information), though the UK itself (now beneath a Labour authorities) later withdrew from the proceedings (see right here). For the reason that Chamber didn’t restrict the subject material of the submissions to the query of jurisdiction (in reference to the Oslo Peace Accords), as initially raised by the UK, quite a few submissions went past this. Additionally, Germany, which requested its participation (“request for depart”) on the final day (!) of the above-mentioned deadline (12 July 2024), didn’t deal in any respect with the query of jurisdiction (not like in 2020, see critically Schabas, para. 12 ff.). The Chamber granted depart on 22 July 2024 with a deadline of 6 August 2024 (see Submission, para. 2-3). Germany then submitted on precisely that day.
Within the Courtroom’s earlier apply, no exterior (amicus curiae) statements have been permitted within the context of an arrest warrant software process (see Vasiliev with references; see additionally right here, para. 6 relating to the suspect’s lack of standing). A key motive for that is the ex parte nature of those proceedings (see, e.g., right here, para. 6, 18 and right here, para. 9) and, in all probability, the procedural delay attributable to such statements. Within the current case (critically additionally Roth and Vasiliev), the PTC not solely needed to prolong the submitting deadlines for post-UK requests to depart (and a few, like Germany, have exhausted the deadlines granted), however it’s now additionally obliged to course of a whole bunch of pages of statements and no less than give the prosecution the chance to answer (Rule 103(2) RPE; completed per Order of 9 August till 26 August, para. 8). Recall that normally, the interval between the applying and the issuance of an arrest warrant quantities to a number of weeks, for instance within the case of Al-Werfalli about two weeks (see right here), within the case of Saif Al-Islam Gaddafi just below six weeks (right here), within the case of the insurgent chief Joseph Kony round eight weeks (right here), and the case of Russian President Putin solely three weeks (right here). The case of former Sudanese President Omar Al-Bashir, the place the interval was eight months (see the applying right here and the issuance right here), is the exception to the rule.
The (German) Complementarity Objections
In a nutshell, the German Federal Authorities argues – invoking the precept of complementarity that governs the connection between the ICC and nationwide felony justice techniques (Articles 17-19 ICCS) – that Israel should be given an actual alternative and extra time to pursue felony investigations and prosecutions itself. 4 arguments are introduced:
(1) The complementarity take a look at should keep in mind whether or not the State in query is a Rechtsstaat (complies with the rule of legislation) and has an unbiased judicial system that investigates and tries statutory crimes:
“… the Courtroom ought to keep in mind whether or not the State is dedicated to the rule of legislation, whether or not it has a sturdy and unbiased authorized system and whether or not that system is actively analyzing, investigating and reviewing a variety of points and allegations referring to potential violations of worldwide humanitarian legislation.” (para. 9).
(2) Moreover, a State that’s at present engaged in an armed battle needs to be handled with better leniency:
“… the place a State – resembling Israel – is topic to an ongoing armed assault and faces severe threats from further actors, this State needs to be given an applicable and real alternative to place its accountability mechanisms into motion earlier than the Prosecutor might request warrants for arrest beneath Article 58 of the Statute.“ (para. 10).
(3) When making use of the complementarity precept, it should be ensured – within the sense of the primacy of the territorial State – that this State is given an applicable and real alternative to current its nationwide investigative and authorized safety mechanisms, particularly if, like Israel, it has made clear its willingness to cooperate with the ICC:
“In different phrases, the place a State is keen to cooperate with the Prosecutor in a given scenario – and it’s our understanding that Israel had indicated willingness to take action within the scenario at hand – Article 17 needs to be interpreted, primarily based on the precept of excellent religion, as required beneath Article 31(1) of the Vienna Conference on the Legislation of Treaties, with a view to making sure that this State receives an applicable and real alternative to current its home investigation and authorized overview mechanisms with regard to the allegations at hand.” (para. 12)
(4) Article 18 ICCS, which regulates the complementarity mechanism for conditions (versus particular circumstances regulated by Article 19), should be interpreted “in a substantive sense” to imply {that a} State should be given a brand new or second alternative to invoke the complementarity objection within the occasion of a elementary change of a factual scenario that requires a “new investigation” (as was the case with the Hamas assault of seven October 2023):
“When an preliminary investigation is topic to important change over time as a result of a elementary change within the factual scenario – thus making it, in substance, a brand new investigation – the State involved ought to anew be given an applicable and real alternative to tell the Courtroom about its accountability mechanisms. With regard to the State of affairs in Palestine … Germany is of the view that the assault by Hamas caused such elementary change within the scenario {that a} new notification was required which might have given the State involved the procedural alternative to request that the Prosecutor defer to the State’s investigation.” (para. 14)
Vital Evaluation
Earlier than coping with the 4 arguments introduced by Germany it needs to be recalled {that a} PTC is, in precept, as already mentioned above, entitled to deal with admissibility proprio motu in arrest warrant proceedings, nevertheless it has a restricted discretion in that regard. As held by the Appeals Chamber within the DRC scenario already in 2006 (para. 52):
“… the Pre-Trial Chamber ought to train its discretion solely when it’s applicable within the circumstances of the case … Such circumstances might embody cases the place a case relies on the established jurisprudence of the Courtroom, uncontested info that render a case clearly inadmissible or an ostensible trigger impelling the train of proprio motu overview.”
None of those (three) circumstances is in any method linked to the German arguments.
1. The Rule of Legislation Argument
Germany doesn’t faux that this argument has a foundation in Article 17 ICCS. The truth is, the precept of complementarity is impartial vis-à-vis the political system (democratic or not) of the respective State and its rule of legislation credentials or deficits. It’s completely or no less than primarily involved with the States’ obligation and willingness/means to convey the perpetrators of worldwide crimes to justice by investigating, prosecuting and attempting them (Artwork. 17(1)(a)-(c) ICCS). The due course of reference in para. 2 is thus to not be understood as a good trial requirement stricto sensu however as an expression of the respective State’s genuineness in bringing these accountable to justice. Whereas the Courtroom has to undertake an evaluation of the standard of home justice inside the framework of the unwillingness take a look at (Article 17 (2)), contemplating human rights requirements (see additionally Article 21(3) ICCS), a doable due course of violation shall not be decisive for the admissibility dedication (Schabas/El Zeidy, in Ambos, ICC Commentary 2022, Artwork. 17 mn. 75). In brief, Artwork. 17 is about admissibility, not due course of (Ambos, Treatise ICL III 2016, 313).
To make certain, a “sturdy and unbiased authorized system” could also be thought-about a prerequisite of efficient felony investigations however its mere existence, in abstracto, doesn’t suffice to adjust to the obligations beneath the complementarity precept. It’s certainly upon the State to reveal that this “system is actively analyzing, investigating and reviewing a variety of points and allegations referring to potential violations of worldwide humanitarian legislation.” (Germany, para. 9). A basic deference to ‘superior’ authorized techniques would unfairly privilege these techniques as in comparison with much less steady and/or democratic techniques which nonetheless may, nevertheless, adjust to the complementarity necessities. Whereas Israel has, in precept and regardless of counter-reform efforts of this authorities, an unbiased justice system (see, typically, Israel Bar Affiliation, para. 2, 4 ff.; extra particularly, Centre for Israel and Jewish Affairs, para. 22; Cohen/Shany) and, maybe extra importantly on this context, a stable navy justice system (cf. NATO Excessive Degree Army Group [HLMG], para. 25 ff. [“… IDF military justice and accountability mechanism … consistent with the highest standards of our own armed forces.”]), the important thing query within the complementarity context is, particularly on the case-related stage of arrest warrant proceedings, whether or not this method concretely investigates the alleged crimes (individuals/conduct). We’ll return to this query under (3.).
2. The Armed Battle Argument
This argument has additionally been put ahead by the simply talked about HLMG (para. 24: “unrealistic to anticipate such motion [investigation etc.] in the course of the midst of a navy marketing campaign of this magnitude …”) and by the Democratic Republic of the Congo (DRC) (para. 22: invoking, much like Germany, a “considération substantielle” particularly with regard to an “état d’hostilités”). But, it didn’t come up in different conditions the place (non-international) armed conflicts happen (together with within the DRC!). The obvious scenario is maybe the Russia/Ukraine warfare, the place the argument has not been invoked by/in favour of both the aggressor or the sufferer State. The truth is, Israel itself doesn’t argue that it stays inactive with regard to its IHL or ICL obligations. Within the ICJ proceedings in South Africa vs. Israel, the latter is actively engaged and said a number of instances that it “is taking steps to attempt to take care of the huge complexity that such a scenario [Gaza] presents.” (see right here, para. 19). As to the ICC proceedings Israel confirmed nice shock as to the arrest warrant software because it claims to actively cooperate with the Prosecutor (see Cohen/Shany). The Israel Bar Affiliation explicitly mentions in its amicus curiae submission, “important legislation enforcement actions are taken whereas Israel stays in a state of warfare” (para. 26; equally, Rubinstein et al., para. 12; Touro Institute, para. 28).
At any charge, whereas the precise context in a given scenario should at all times be taken under consideration, there’s merely no authorized foundation for a basic armed battle exception or reservation inside the framework of complementarity proceedings. The truth is, such an exception could be essentially inconsistent with the concept of a preventive impact of ICL investigations. Simply recall that the ICTY was established throughout an ongoing battle within the perception that its institution “will contribute to making sure that such violations are halted and successfully redressed.” (S/RES 827 (1993), Preamble). In different phrases, acknowledging the truth that an armed battle creates specific challenges to the workings of felony justice (and to many different State providers) doesn’t imply that these providers are or needs to be suspended altogether.
3. Primacy of Territorial State in Case of Willingness to Cooperate
This argument has two sub-claims. The overall one is that it follows from the final primacy of home jurisdictions beneath the complementarity regime that sure deference is to be given to a State which has “indicated willingness” to cooperate, i.e., that “this State receives an applicable and real alternative” to current its investigative exercise. This declare finds, in precept, help within the new 2024 Coverage on Complementarity and Cooperation of the Workplace of the Prosecutor (OTP), which stresses the position of States within the prosecution of worldwide crimes and the significance of a constructive relationship of cooperation between them and the OTP (for a superb dialogue Labuda). As a sort of minimal customary of such a cooperative complementarity mannequin – which, famous in passing, attracts on the sooner concepts of “partnership”, “vigilance” and “constructive complementarity” (see right here and Ambos, Treatise ICL III 2016, 327 ff.) – one might certainly infer an obligation of the Prosecutor to offer States sufficient time to discover all home choices and keep in mind the precise circumstances, e.g. the existence of an armed battle (on this vein DRC, para. 16 indicating in whole six “normes minimales”).
Nevertheless, this sub-claim is (too) basic and premised on the respective State’s willingness to cooperate. The truth is, it’s intrinsically linked to the precise sub-claim, particularly that “Israel had indicated willingness” to cooperate. On this vein, the Israel Bar Affiliation affirms that Israeli legislation enforcement authorities have demonstrated a willingness to cooperate with non-Israeli authorities (para. 27). Provided that any cooperation at this stage of proceedings is confidential, it’s troublesome, if not not possible, to confirm this declare. There are rumours that Israel’s Lawyer Basic Workplace was in shut contact with the OTP with a view to sharing details about the totally different home investigations and an official OTP go to was scheduled the day the arrest warrant software was issued (Touro Institute, para. 27). Additional, the US claims (submission, para. 9,16) that Israel submitted a proper letter requesting a deferral that the OTP ignored. If such a proper request certainly existed (and one accepts the argument of a brand new scenario, thereto under 4.), the Prosecutor would have been obliged to “defer to the State’s investigation” and request an authorization from the PTC to proceed its investigation (Article 18(2) ICCS; additionally USA, para. 25). This author has not seen this letter however individuals who have seen it have characterised it as only a boilerplate “please defer as a result of now we have a functioning judiciary”. In keeping with these similar folks, the letter doesn’t point out Article 18, a brand new investigation or any concrete suspects. If that’s true, the letter wouldn’t adjust to Article 18(2) ICCS, which requires that the respective State, fairly concretely and exactly, informs “the Courtroom that it’s investigating or has investigated its nationals or others inside its jurisdiction with respect to felony acts which can represent crimes referred to in article 5 and which relate to the data offered within the notification to States.”
This brings us to the State’s burden to supply particular info as to investigations carried out in a given scenario (typically on the State’s burden of proof Kenya Enchantment Judgment, para. 62) – which shouldn’t be confused (as apparently completed by Germany) with a State’s basic willingness to cooperate and/or unspecific guarantees to research/prosecute. Consistent with the ICC’s two steps take a look at (right here, para. 147 ff., Ambos, Treatise ICL III 2016, 296), provided that (first step) there’s some investigative exercise on the a part of the respective State (consistent with Article 17(1)(a)-(c) ICCS) the OTP should (second step) defer to the home proceedings until the unwillingness/lack of ability exception (Article 17(2), (3)) applies. As soon as an investigation has superior from a scenario to a concrete case – as particularly within the case of arrest warrant functions – the “similar individual/similar conduct” take a look at applies, i.e., “the nationwide investigation should cowl the identical particular person and considerably the identical conduct as alleged within the proceedings earlier than the Courtroom.” (Kenya Enchantment Judgment, para. 40; critically DRC, para. 17 ff.). Whereas the “similar individual” requirement is easy, the “similar conduct” is extra normative, concrete incidents which “sufficiently mirror[s]” or “overlap” with those investigated by the OTP (Gaddafi Enchantment Judgment, para. 72, 73; confirming the “mirroring” take a look at Venezuela I Enchantment Judgment, para. 10, 255 and passim). In different phrases, Israel must present that it investigates Prime Minister Netanyahu and Defence Minister Gallant (similar individuals) for the allegations set forth within the arrest warrant functions (similar conduct), i.e., particularly the warfare crime of hunger of a civilian inhabitants (Article 8(2)(b)(xxv) ICCS).
To adjust to the investigation requirement, it isn’t adequate to solely open an investigation however to take concrete steps to advance this investigation (Kenya Enchantment Judgment, para. 40: “investigative steps … truly taken”; for a dialogue, see Heller: “‘tangible, concrete and progressive’ investigative steps geared toward eventual prosecution”). Thus, the important thing query then is whether or not it’s conceivable that Israel undertakes an investigation right into a coverage of hunger in Gaza that emanates from its management. Whereas there could also be some investigative exercise (see e.g. DRC, para. 21), that is most unlikely given Israel’s poor observe document in investigating and prosecuting crimes dedicated in opposition to Palestinians (crit. right here, right here and right here; additionally Chile/Mexico, para. 34: “no info that … Israel has began any prosecution …”) and the present enforcement issues with regard to the investigation of the alleged torture of Palestinian detainees. I be aware in passing that this raises means considerations inside the which means of Article 17(3) ICCS: If Israel is just not in a position to correctly examine these allegations as a result of right-wing protests, this will likely quantity to a “collapse or unavailability of its nationwide justice system” (cf. Ambos, Treatise ICL III 2016, 317 ff.; affirming means, nevertheless, from a navy perspective see HLMG, para. 28 [“We do not believe there is a credible basis to conclude Israel lacks the ability or will to implement national investigatory and judicial processes that are comparable to other countries and their militaries.”]).
Maybe Israel might make use of different investigation mechanisms falling wanting a felony investigation stricto sensu, e.g., a fee of inquiry, however then the query arises of whether or not such mechanisms adjust to the investigation requirement of Artwork. 17(1) ICCS. Whereas this isn’t an entirely untenable place (in favour Cohen/Shany), the final word goal of such different mechanisms should essentially be a felony prosecution (see Ambos, Treatise ICL III 2016, 303-4; equally Cohen/Shany [Commission of Inquiry „should be explicitly authorized … to make recommendations to the state prosecution regarding follow-up action required in order to establish the potential criminal responsibility of specific suspects.”]). Because of this, mere administrative or constitutional proceedings, resembling the present petition relating to the humanitarian scenario in Gaza by civil society organisations to Israel’s Supreme Courtroom (see Israel Bar Affiliation, para. 29 ff.), fall brief of what’s required by complementarity.
4. Elementary Change of the Authentic „State of affairs“ inside the which means of Article 18 ICCS?
To this point, the ICC case legislation and apply has broadly interpreted the time period “scenario” in Article 18. The time period is initially talked about in Article 14 however nowhere outlined within the Statute. It refers to “an outline of info, outlined by area and time, which circumscribe the prevailing circumstances on the time (‘battle state of affairs’) …” (Chaitidou, in Ambos, ICC Commentary 2022, Artwork. 14 mn. 29). The Courtroom outlined the idea by reference to the “territorial, temporal and presumably private parameters” (ibid. mn. 31 with references in fn. 119). The “situational linkage” jurisprudence, specializing in the alleged hyperlink of recent crimes to a “scenario of disaster” (ibid. mn. 37-8), even broadened the scenario idea additional. As a consequence, the OTP has solely exceptionally opened new conditions referring to a territorial space already beneath scenario examination. Simply recall that even the Russian invasion of Ukraine in February 2022 didn’t entail the opening of a brand new scenario, however the Prosecutor linked its (new) March 2022 investigation to the unique scenario going again to 21 November 2013 (right here). The truth is, the OTP solely opened new conditions with regard to the Central African Republic (CAR II) and Venezuela (Venezuela II). As to the previous scenario then Prosecutor Bensouda noticed a related distinction as to CAR I “each with regard to the armed teams concerned, and the political context of the occasions.” (right here, para. 9). As to Venezuela, the excellence between the 2 conditions is prime in that Venezuela I refers to alleged crimes of the Maduro authorities, whereas Venezuela II to alleged crimes in opposition to this authorities by the US.
What now follows from this for the Palestine investigation? It was formally initiated, and the related States have been notified in March 2021 (right here). The one-month interval (Article 18(2) ICCS) handed with no complementarity objection by Israel or some other State. Is it now doable to reclassify the October 7 Hamas assault as a brand new Palestine scenario? Does it characterize “a elementary change within the factual scenario” as argued by Germany and would this justify and even require the opening of a brand new scenario? The unique investigation covers Statute crimes allegedly dedicated in Palestine, i.e. West Financial institution (together with East Jerusalem) and Gaza, since 13 June 2014. On 20 December 2019, then Prosecutor Bensouda concluded on the idea of the preliminary examination (on the excellence to a proper investigation, see Ambos, Treatise ICL III 2016, 335 ff.) that there was an inexpensive foundation to consider that warfare crimes have been dedicated in Palestine (see right here). Bensouda referred specifically to doable warfare crimes by the Israel Defence Forces (IDF) within the context of the 2014 Gaza hostilities, the 2018 Gaza border fence demonstrations and the occupation of the West Financial institution (para. 2, 4, 5). She additionally referred to warfare crimes dedicated by Hamas and different Palestinian armed teams (PAGs) (para. 3). She confused that these crimes are “illustrative solely” (para. 9).
Towards this background, it’s troublesome to argue that the 7 October assault caused a change of such a elementary nature {that a} new scenario inside the which means of Artwork. 18 needed to be opened. The post-7 October investigation nonetheless considerations the identical events, particularly Hamas/different PAGs and the IDF. Whereas the character of the Hamas assault was definitely totally different in scope and impression than earlier assaults, it was nonetheless an assault regarding the similar adversary (Israeli civilians and combatants), objects (civilian and navy ones) and the identical territory (mainland Israel); equally, the Israeli response, whereas rather more extended and intense, corresponds to earlier strikes reacting to Hamas (rocket) assaults. From this angle, the unique Palestine/Israel scenario has not modified, no less than not by way of the related “scenario of disaster” giving rise to doable Statute crimes (for a special view, presumably inspiring the German place, Shany/Cohen right here and right here, para. 24 [“major differences between the factual patterns and categories of suspects”]; in an identical vein, USA, para. 16 ff. [“entirely new focus”, para. 19]; Rubinstein et al., para. 11 ff.; The Hague Initiative for Worldwide Cooperation, para. 30 ff.; equally, DRC, para. 16, 20 ff., 33; in stronger phrases Touro Institute, para. 26 ff. [“violates … complementarity”] and Centre for Israel and Jewish Affairs, para. 14 ff. [“pre-emptive, preclusive, and prejudicial nature of the process”], however “a wholly new set of allegations”, para. 27, definitely doesn’t suffice). If PTC I adopted the ”elementary change” argument, it must rethink the Ukraine scenario. For if an assault by a non-State actor like that of seven October gave rise to a brand new scenario, a full-fledged navy invasion by a State would, a fortiori, accomplish that.
Whereas the “elementary change” argument is of a extra substantial nature, it’s fairly formal or procedural to argue, because the USA (para. 22) and DRC (para. 28 ff.) do, that the collective State Get together referrals of 17 November 2023 and 18 January 2024 warranted a subsequent notification by the Prosecutor. At first sight, Article 18(1) ICCS appears to help this view because it requires the Prosecutor to “notify all States Events and people States which … would usually train jurisdiction over the crimes involved” when a scenario has been referred beneath Article 13(a) ICCS, i.e. by a number of State Events. But, the gist of the matter appears to be whether or not any State referral triggers the notification obligation – within the sense of an “article 18 dialogue by way of a proper and sufficiently detailed communication to related States” with a view to the one month response interval in Article 18(2) ICCS (USA, para. 22) – or whether or not such a notification obligation solely arises when a State refers an entirely new scenario or no less than a scenario which means a elementary change of an already present scenario. The instance of the (second) DRC self-referral of Might 2023 speaks – opposite to the DRC submission (para. 30) – extra in favour of this latter view since, on this case, the Prosecutor didn’t notify States however solely the ICC Presidency. Additionally, within the Ukraine scenario the huge collective State referrals beginning on 1 March 2022 didn’t have any impression on the dedication of the (unique) scenario. At any charge, this additional argument is essential sufficient to be handled by PTC I.
A final reflection on the connection between Articles 18 and 19 ICCS. Regardless of a doable second probability beneath Article 18(2), on the stage of arrest warrant proceedings, now we have a case in opposition to one or a number of suspects and Article 19 applies. The admissibility can then nonetheless be challenged, both by the suspect/accused (Article 19(2)(a)) or a State involved (Article 19(2)(b), (c)). Thus, a restrictive interpretation of Article 18 does on no account restrict the suspect’s/State’s proper to problem the admissibility of the concrete case and this proper exists no less than till the graduation of the trial (Article 19(4)).
I thank a number of colleagues for commenting on a draft of this piece.