The Office of Public Counsel for the Defence

I. INTRODUCTION AND PROCEDURAL BACKGROUND

1. On 22 January 2020, the Prosecutor filed the Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine which requested Pre-Trial Chamber I “to rule on the scope of the Court’s territorial jurisdiction in the situation of Palestine and to confirm that the ’territory’ over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza”.

2. On 28 January 2020, Pre-Trial Chamber I invited “States, organisations and/or persons to submit observations on the question of jurisdiction set forth in paragraph 220 of the Prosecutor’s Request” by no later than 14 February 2020.

3. As the rights and interests of potential suspects are implicated by any ruling on territorial jurisdiction, the Office of Public Counsel for the Defence (“OPCD”) seeks leave to file observations pursuant to Rule 103 and Regulation 77(4) of the Regulations of the Court. The OPCD files this request in line with its mandate to represent and protect the rights of potential suspects who would be subject to this jurisdiction, and to prevent a judicial predetermination on the issue of territorial jurisdiction.

II. SUMMARY OF OBSERVATIONS, IF GRANTED LEAVE

4. If granted leave to make observations, the OPCD would submit that a ruling on territorial jurisdiction should be deferred until a case is brought before the Court by Article 58 warrant of arrest or summons.

5. In support of this, the OPCD would argue that Article 19(3) of the Statute is inapplicable at this stage. In the Situation in Myanmar/Bangladesh, Judge Perrin de Brichambaut concluded in his Partially Dissenting Opinion that “article 19(3) of the Statute can be applied only when the proceedings have reached the stage of a case identified by the Prosecutor”.3 This means once a “case has been defined by a warrant of arrest or a summons to appear pursuant to article 58 of the Statute”.4 Judge Perrin de Brichambaut’s opinion is persuasive since the Majority did not express a view to the contrary.5 If granted leave, OPCD would provide further support to Judge Perrin de Brichambaut’s conclusion with arguments based on the proper interpretation of Article 19(3).

6. In particular, the OPCD would submit that the plain text of the Rome Statute would indicate that such examination of the specifics of jurisdiction must be made on a case-by-case basis (rather than situation-by-situation basis).6 While Articles 12 and 13 of the Statute define the larger scope of what ‘territory’ means in a treaty-based Court, Article 19 refines the specifics of what the territory may mean in the scope of other factors of the charges, such as temporal and subject matter jurisdiction. Further, the OPCD would elaborate on the contextual interpretation conducted in the Partially Dissenting Opinion, and specifically how any decision taken at this time would impact the right of a future accused or suspect under Article 19(2)(a) to challenge the jurisidiction of the case.

7. The OPCD would submit in the alternative that, even if Article 19(3) of the Statute were applicable, the factors weigh against ruling on territorial jurisdiction at this time. In the Situation in the Democratic Republic of the Congo, the Appeals Chamber held that Pre-Trial Chambers must bear in mind the interests of suspects when deciding whether to make a ruling on admissibility, which applies also when those persons do not know about the proceedings. The OPCD would argue that the same must apply for discretionary rulings on questions of jurisdiction. With the interests of suspects in mind, the inability for potential suspects to present submissions (because they are not yet before the Court), and the lack of ad hoc Defence Counsel appointed to present arguments on their behalf are factors against ruling on jurisdiction at this time.

8. The OPCD would further submit that a ruling on territorial jurisdiction at this time would impair an accused’s or suspect’s right to challenge jurisdiction under Article 19(2)(a) of the Statute if and when they are before the Court. As held by the Appeals Chamber, if the Pre-Trial Chamber were to make an adverse admissibility ruling “without the suspect participating in the proceedings, and the suspect at a later stage seeks to challenge the admissibility of a case […] he or she comes before a Pre-Trial Chamber that has already decided the very same issue to his or her detriment”, and that a “degree of predetermination is inevitable”.10 Conversely, even if the Pre- Trial Chamber were to make a ruling favourable to the Defence, the future suspect would not be able to participate in any prosecution appeal against it under Article 82(1)(a) of the Statute, which means his or her rights would also be “seriously impaired”.11 Either way, the interests of suspects would not be sufficiently protected by making admissibility determinations without their participation, and the OPCD would argue that this reasoning applies by analogy to determinations on jurisdiction.

9. In fact, rulings on territorial jurisdiction without the participation of suspects or accused would be particularly harmful. In Kony et al., the Appeals Chamber reflected on why making admissibility determinations based on gravity in the absence of suspects could be prejudicial:
…a Chamber determines the gravity of a case only once in the course of the proceedings because the facts underlying the assessment of gravity are unlikely to change and a party may therefore be unable to raise the same issue again in future admissibility challenges.
The OPCD would argue that the same applies here, since the underlying facts concerning territorial jurisdiction are unlikely to change. Deciding whether the West Bank, including East Jerusalem, and Gaza, fall within the scope of the Court’s jurisdiction at this stage could therefore prejudice an accused’s or suspect’s right to challenge territorial jurisdiction if and when they are before the Court.

10. It is only at that time, in the context of all four jurisdictional considerations (temporal, personal, subject matter, and territorial) and with benefit of a dedicated Counsel representing a defendant on specific charges, that an informed assessment can be made on the parameters of territorial jurisdiction where challenge arises.

III. AFFILIATION AND EXPERTISE OF THE OPCD

11. The OPCD requests leave to file submissions at the invitation of the Pre- Trial Chamber and pursuant to Regulation 77(4)(c) of the Regulations of the Court, which mandates that, “[w]hen a conflict of interest does not arise” the OPCD may appear “on the instruction or with the leave of the Chamber, in respect of specific issues ”. Under Regulation 77(4) of the Regulations of the Court, the OPCD is “entrusted with the power of representing and protecting the rights of the defence during the initial stages of the investigation”.

12. The OPCD has made submissions representing and protecting the rights of the Defence on a wide range of issues. For example, Chambers have more recently invited the OPCD to make observations in the Situation in Afghanistan, the Situation in Uganda, and in an unknown situation.

13. The OPCD submits that granting leave to appear in the current proceedings may be authorised under Rule 103 of the Rules of Procedure and Evidence, but that Regulation 77(4)(c) of the Regulations of the Court, which allows the Office to appear “on the instruction or with leave of the Chamber, in respect of specific issues”, is the more applicable provision given that it is the lex specialis.

14. Accordingly, the OPCD respectfully requests that the Chamber grants the Office authorisation to make consolidated written submissions on the need to reserve the issue of territorial jurisdiction until its proper timing as envisaged by the Statute and case law.

IV. RELIEF REQUESTED

15. For the reasons above, the OPCD respectfully requests the Pre-Trial Chamber to grant the Office leave to file observations on paragraph 220 of the Prosecutor’s Request.