The Principle of Complementarity and the Preliminary Examination of a Potential Settlements Case

A Response to the OTP’s Report on Preliminary Examination Activities 2018 by Joshua Kern

1. The Situation in Palestine (the “Situation”) has been under preliminary examination since 16 January 2015. The OTP published its annual report on Preliminary Examination Activities for 2018 (the “Report”) on 5 December 2018. The OTP’s Report discloses that it intends to complete its preliminary examination of the Situation as early as possible, and that it is now considered to be in “Phase 3” where admissibility (i.e. complementarity and gravity) issues are considered. The OTP may thereafter consider whether an investigation would or would not be in the interests of justice during a “Phase 4”.

2. We have previously argued that the ICC is not permitted to exercise enforcement jurisdiction against nationals of non-states parties absent a referral of the United Nations Security Council under Article 13(b) of the Rome Statute. This argument, as well as others, preclude the ICC’s exercise of jurisdiction over Israeli nationals. The arguments which follow concern the particular grounds of admissibility and complementarity. They are made without prejudice to jurisdictional arguments and arise from the OTP’s statements that its preliminary examination has now reached Phase 3.

3. This communication, submitted pursuant to Article 15 of the Rome Statute, argues the OTP should pay a qualified deference to decisions of Israel’s Supreme Court sitting as the High Court of Justice (“HCJ”) when conducting complementarity analysis with respect to a potential settlements case. This position is consistent with a textual interpretation of the Rome Statute, the Court’s jurisprudence to date and sound policy reasons. Such an approach reflects the lower evidentiary threshold of “reasonable basis to believe” that crimes within the jurisdiction of the court have been committed at the preliminary examination stage in order to establish jurisdiction, and is mindful of the legal reality that states have no duties under international law to prosecute Rome Statute crimes that are not crimes under customary international law and which they have not agreed to prosecute under a suppression convention.

4. The Report suggests that the OTP considers that inactivity at the national level may render a potential settlements case admissible before the Court. In what must be construed as an indication of Israel’s perceived inaction or unwillingness to investigate and prosecute, the OTP asserts that that the HCJ "has held that the issue of the Government’s settlement policy was non-justiciable". Moreover, the Report asserts that the Israeli government’s position is that settlement activity is not unlawful. Nonetheless, the OTP has “considered a number of decisions rendered by the HCJ pertaining to the legality of certain governmental actions connected to settlement activities."

5. Although the Report asserts that the HCJ has held that “the issue of the Government’s settlements policy is non-justiciable,” it is nevertheless the case that the HCJ has ruled on the legality of settlements, including settlements policies, in landmark judgments in the past. Through exploring this jurisprudence, it is argued here that there is no reason to believe that the HCJ will not be willing and able to carry out such proceedings in the future.

6. The same issues will arise mutatis mutandis with respect to consideration of the interests of justice test during Phase. Is it in the interests of justice for the ICC to assert primacy of jurisdiction over states that assert jurisdiction over investigations consistently and in line with their obligations under customary international law? Moreover, as a matter of comity, should a qualified deference not be afforded to national Courts in the ICC’s “situational” complementarity and interests of justice analyses? This submission argues that such a qualified deference should properly precede any OTP decision to investigate a settlements case. For so long as the HCJ has made genuine factual and legal determinations with respect to conduct which would fall to be prosecuted in a potential settlements case, there is a reduction in the number of potential cases that are admissible before the ICC, even were there - arguendo - any reasonable basis to believe that crimes within the jurisdiction of the Court had been committed. Moreover, the HCJ’s intervention forecloses the (so-called) impunity gap for such crimes under customary international law.

7. Admissibility assessments encompass complementarity and gravity. This submission deals solely with the issue of complementarity. Three sections follow. Part I examines the applicable law, namely the Rome Statute framework which will guide the OTP when conducting complementarity analysis of a potential settlements case at the situation stage. Part II considers the HCJ’s jurisprudence in the context of the statements made by the OTP in the Report. Part III argues as matters of both law and policy that HCJ determinations of legality in potential settlements cases should be granted a qualified deference in the OTP’s complementarity analysis during its preliminary examination. Part IV concludes with an invitation to continue dialogue.