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).

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