The following is a Q&A between Just Security and Todd Buchwald, who previously served as U.S. Ambassador for Global Criminal Justice at the U.S. Department of State. Our topic focused on the U.S. Government’s recent submission of an amicus brief to the International Criminal Court on legal questions arising from the Prosecutor’s request for arrest warrants related to the ongoing Israel-Hamas war. What follows are Ambassador Buchwald’s written responses.
- With the caveat that you are not speaking on behalf of the U.S. Government, what is it that the U.S. Government has submitted to the International Criminal Court?
On August 6, for the first time ever, the United States Government submitted a formal amicus curiae brief to the International Criminal Court. The brief addressed questions related to the Court’s exercise of jurisdiction connected to the ICC Prosecutor’s request for the issuance of arrest warrants in its investigation of the situation in Palestine. As many of your readers doubtless know, the Prosecutor of the International Criminal Court had formally commenced an investigation of the situation in Palestine in March 2021. Amidst the violence that began with the October 7 attacks by Hamas, the Prosecutor – on May 20, 2024 – announced that he was seeking the authorization of arrest warrants, including against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, as well as arrest warrants against Hamas leader Yahya Sinwar and two Hamas leaders who reportedly were subsequently killed (Mohammed Deif and. Ismail Haniyeh).
The United States strongly criticized this step, including in statements by President Biden and by Secretary of State Blinken. There subsequently have been calls for legislation, including a bill that has been passed in the House of Representatives, that would compel the Administration to impose sanctions on the ICC and its personnel. The Administration has indicated that it opposes such legislation, saying that there are more effective ways to defend Israel and that it stands ready to work with the Congress on options for doing so, but there remains significant tension between Democrats and Republicans on whether to take up a Senate version of the legislation proposed by Senators James Risch (R-ID), Tom Cotton (R-AR) and others.
- The U.S. brief was one of dozens that were submitted to the Court earlier this month. What happened to open the flood gates to the submission of all these briefs?
The door to submitting these briefs was opened after the United Kingdom — under its prior Conservative government – formally requested the Court to grant it authorization to submit observations, as the Court may do under Rule 103 of its Rules of Procedure and Evidence. The Court – a pre-trial chamber of three judges – granted the request on June 27, stipulating that the submission could not exceed ten pages. At the same time, in recognition that its decision to authorize the UK to submit view could well result in requests by others to make similar requests (and presumably to avoid having this process play out over a more protracted period of time), the Court said it would also entertain requests to submit amicus briefs from States, organizations or persons, but only if received by July 12. My count shows over 60 such requests, including a request from the United States, that were received and approved by the Court on July 22.
- Have the Palestinians and Israelis made their own submissions to the Court?
There was a submission from the Palestinians but not from the Israelis. However, it was made known in the course of the proceedings that Israel had submitted a request for deferral of the Prosecutor’s investigation of the situation on May 1 (see here, paragraph 9). That to my knowledge would have been the first time Israel made a formal written submission to the Court. That said, Israel had previously engaged with the Court at numerous ways over the years, including through meetings between Israeli lawyers and representatives of the Office of the Prosecutor and the preparation by Israel’s Attorney General of an extensive memorandum in December 2019 that was made available to the Court and that set out in considerable detail Israel’s view that the Court lacked jurisdiction over the situation in Palestine.
The submission of this brief may thus be new ground for the United States, but is hardly so for Israel. It is hard to predict the future, but perhaps we are coming to a close of an era in which the U.S. Government automatically would refuse to make what it considered sound legal arguments to ICC actors or officials of other international tribunals as part of an effort to deny the credibility of these institutions. Indeed, it is not just Israel and the United States that have now made submissions, but U.S. Senator Lindsey Graham – a long-time ICC skeptic (and co-sponsor of the Risch-Cotton ICC sanctions legislation) — who sought leave and then submitted an amicus brief aimed at persuading, rather than simply ignoring, the Court. (All three of these Senators have voted in favor of legislation supporting ICC efforts in Ukraine.) It may well be that the Court does not ultimately adopt Senator Graham’s arguments or those of the U.S. Government, but I don’t see why that should cause the U.S. Government to act in a way that foregoes an opportunity to persuade and leaves the impression that it lacks sound international legal grounds for the positions it takes.
- Isn’t the American Servicemembers Protection Act (ASPA) still in force as a matter of United States domestic law, and doesn’t it prohibit the U.S. Government from cooperating with a request submitted by the Court.
Yes, the ASPA – or at least parts of it – remain in force but no, it does not prohibit submission of such a brief. On a purely technical level, I do not think submission of such a brief constitutes “cooperating” within the meaning of ASPA, and I do not think that the Court’s authorization of amicus briefs constituted a “request.” Nor do I think that submission of this kind of brief falls within other restrictive provisions of the ASPA, such as the restrictions on support or assistance for the Court. Moreover, even if there were doubt about whether any of these restrictions might apply, the ASPA specifically provides that none of these restrictions prohibit communication by the United States of its policy with respect to any matter, and the submission of a brief of this type is thus exempted from such restrictions.
- Did the U.S. Government make clear that its submission of the brief did not constitute acceptance of the Court’s jurisdiction?
I do not believe that there is any legal requirement to make such a statement but the brief included such a statement anyway. Specifically, the brief included statements that: (1) “[n]othing in this submission constitutes recognition of the Court’s jurisdiction in this Situation, or acceptance of the Court’s jurisdiction over the United States or its current or former personnel;” and (2) “the United States is of the view that requesting deferral of an investigation pursuant to article 18 does not constitute acceptance of the Court’s jurisdiction, but rather is [an] assertion of the relevant State’s exercise of jurisdiction.”
The United States was not alone in including statements along these lines. For example, a brief submitted by UN Mandate Holders of the Human Rights Council included presumably standard language that the privileges and immunities they enjoy as UN experts on mission — to which there are entitled under the Convention on Privileges and Immunities of the United Nations — should not be considered expressly or impliedly waived by submission of the brief. The statement is of particular interest in this context in view of previous decisions by the Court that such immunities do not in fact apply against the Court in the first place.
- On what issues did the Court authorize States, organizations and persons to submit observations?
In its request for leave to file an amicus brief, the UK indicated that it was seeking authorization to submit views on whether the Court can exercise jurisdiction over Israeli nationals in situations where Palestine cannot exercise such criminal jurisdiction pursuant to the Oslo Accords. The UK contended that this issue had been left open by the Pre-Trial Chamber in February 2021 in its ruling on the Court’s territorial jurisdiction in Palestine.
As many readers may recall, the Office of the Prosecutor took the position that the Court’s territorial jurisdiction “extends to the Palestinian territory occupied by Israel during the Six-Day War in in June 1967, namely the West Bank, including East Jerusalem, and Gaza.” In January 2020, the Prosecutor nevertheless sought a ruling on this matter on the grounds that the issue was controversial internationally and that it was therefore prudent to allow judicial consideration before embarking on investigative efforts that could end up entailing a waste of considerable time, effort, and resources if the Court ultimately disagreed with the Prosecutor’s view. The Prosecutor said: “Specifically, the Prosecution seeks confirmation that the ‘territory’ over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza.”
In its decision in February 2021, the Pre-Trial Chamber confirmed that the issue that it was addressing comprised “the scope of territorial jurisdiction in Palestine,” that the arguments relating to the Oslo Accords were not pertinent to the resolution of this issue, that these issues could be addressed at a later stage, and that the Chamber’s ruling would therefore not address the arguments based on Oslo (see here at paragraph 129). The Chamber then went on to say:
“When 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.”
The UK view was that, since the Prosecutor has now submitted applications for arrest warrants, including of Israeli nationals, the time had come for the Chamber to address these questions.
It was against this background that the Pre-Trial Chamber authorized the UK to submit written observations. As things turned out, following the recent elections in the UK, the new Labor government ultimately decided not to make a submission. However, at the same time it authorized the UK to submit views, the Court recognized that its action could well result in requests by others to make similar requests.
Accordingly, the Court said it would entertain similar requests – from States, organizations or persons – for authorization to submit amicus briefs that it received by July 12. Over 60 such requests to submit amicus briefs, including the request from the United States, were received and approved by the Court on July 22.
The actual amicus submissions that were then submitted to the Court are available on the Court’s website. Some of the amicus submissions are quite focused on Oslo-related issues, others less so.
- What did the U.S. submission say about the Oslo issue?
The U.S. Government’s basic argument is based on the principle of nemo dat quod non habet: no one can give that which they do not have.
The central idea is that the Oslo Accords, including its annexed legal protocol, reflect an underlying situation in which the criminal jurisdiction that the Palestinians can exercise over conduct in the West Bank and Gaza does not extend to jurisdiction over Israeli nationals. On the face of the terms of Oslo, Israel transferred certain criminal jurisdiction powers to the Palestinian authority but any powers of criminal jurisdiction over Israelis was specifically excluded from the transfer. Because the Palestinians lacked such jurisdiction over Israelis in the first place and such jurisdiction was not part of what was transferred, the Palestinians could not delegate to or confer such jurisdiction upon the Court by virtue of their actions to accede to the Rome Statute.
- But isn’t the notion that Palestine has such authority inherent in the Pre-Trial Chamber’s conclusion in its February 2021 ruling that Palestine is a State?
The Chamber was actually quite specific in its 2021 ruling that it had not concluded that Palestine was in fact a State under international law, and indeed said that it was “not constitutionally competent” to decide such a question.
- Why in the view of the U.S. submission are the Oslo provisions any different than the provisions of an agreement – like a status of forces agreement (SOFA) – that prevents a State from itself exercising jurisdiction over certain categories of persons, but that are not interpreted as ousting the ICC from exercising jurisdiction if such a person is suspected of committing a Rome Statute crime on that State’s territory?
For an argument along the lines presented in the U.S. submission to prevail, the situation under Oslo needs to be distinguished from a situation that might exist in connection with a status of forces agreement if a host State that has agreed to accord immunity to nationals from a visiting State subsequently becomes a party to the Rome Statute. In that case, if the ICC issued an arrest warrant for such a visiting State national, the host State might well find itself potentially facing conflicting international legal obligations: obligations under the Rome Statute to arrest and surrender the person, and obligations under the SOFA to accord the person immunity. Such situations are dealt with under Articles 97 and 98 of the Rome Statute, under which the host State would be expected to consult with the Court about the matter, and under which the Court would be prohibited from proceeding with its surrender request if the host State would thereby be required to act inconsistently with its obligation under the SOFA. If that model were applied to the present situation, the result might then be that the Court could not request Palestine to arrest or surrender the Israeli nationals, but the Court would not view itself as barred from making that request to other States.
However, the U.S. argument is different in that it regards Oslo not as simply a restriction on an otherwise existing authority to exercise jurisdiction but rather a reflection of the fact that the Palestinians lacked such jurisdiction in the first place. In other words, it is not a question of an authority to exercise jurisdiction that the host State has made subject to a limitation, but rather an authority to exercise jurisdiction that did not exist in the first place.
- What about the underlying premise of the argument in the U.S. submission that the Court operates by virtue of authority delegated from States – is that so obviously true?
Importantly, some commentators – including some scholars that I respect highly — have disagreed with the entire premise that States cannot create a Court that can exercise jurisdiction beyond what the States themselves, collectively, could exercise. Indeed, there is a strong echo of that idea in the Court’s decision in the case about head of State immunity for former Sudanese President Omar al-Bashir, in which the Court appears to have concluded that States can create a criminal tribunal that can exercise jurisdiction over a sitting head of State notwithstanding that none of the States could themselves do so.
My own view is that adoption of arguments along these lines has great potential for causing lasting damage to a sound U.S. relationship with the ICC. I have sought to explain this in the amicus brief that former Ambassador Stephen Rapp and I submitted to the Court in March 2020 — and also in an article that I wrote earlier that year for Just Security (see here and here) — following the Prosecutor’s decision in January 2020 that I mentioned above to request a jurisdictional ruling. To be so bold as to quote myself:
. . . . [T]he principle that the Court is based on delegated authority lies at the heart of the standard arguments upon which Court supporters have relied for years to rebut assertions that the exercise of ICC jurisdiction over nationals of States that are not parties to the Rome Statute would violate international law. As just one of many examples, the Triffterer and Ambos treatise on the Rome Statute . . . . sets out the rebuttal succinctly:
“[I]f a listed crime is committed in State A, a State Party to the ICC Statute, by a national of State B, whether or not State B is a State Party, State A will have enabled the ICC to take jurisdiction. . . . The ICC is not, as has been argued by the United States, taking jurisdiction over non-States Parties, in violation of Article 34 of the Vienna Convention on the Law of Treaties. When an alien commits a crime . . . on the territory of another State, a prosecution in the latter State is not dependent on the State of nationality being a party to the pertinent treaty or otherwise consenting. There is no rule of international law prohibiting the territorial State from voluntarily delegating to the ICC its sovereign ability to prosecute.”
[If it turns out] not to be true that the ICC is exercising in a collective way only the territorial jurisdiction that States could exercise themselves [then the] legs will be cut out from the arguments — long used by American supporters of the Court — to counter contentions that jurisdiction over nationals of States that are not Rome Statute parties is unlawful.
- Even if the judges agreed with the premise that the underlying authority to exercise jurisdiction must be delegated from somewhere, why could they not reason that – whatever questions there might be about the status of Palestine – all other ICC parties may under international law exercise universal jurisdiction over any charges of genocide, crimes against humanity, or war crimes committed on Palestinian territory? In other words, could not the judges look at the delegation of such authority from all the other ICC parties of their right to exercise universal jurisdiction as sufficient?
The Court might consider such an approach assuming it concluded that States outside Israel and Palestine themselves are able to exercise universal jurisdiction under international law over Rome Statute crimes, and that the Rome Statute operates as a vehicle through which these third States delegate these rights to exercise universal jurisdiction to the ICC. However, while this approach might have a surface logic, it appears to be in significant tension with the negotiating history of the Rome Statute. In particular, statements by the South Korean sponsors of what eventually became Article 12 of the Rome Statute specified that the jurisdictional regime did not rest “on the premise that the Court has universal jurisdiction over the core crimes” and said instead that “jurisdiction is conferred upon the Court based on State consent pursuant to the provisions on the Statute.”
- What would prevent the Court from deciding that the terms of Oslo are simply irrelevant by virtue of the fact that subsequent conduct of the parties renders it no longer binding?
It is hard for me to predict what path the Court might choose to follow but I would be surprised if it pursued this kind of reasoning. If it did choose to go down this path, I think it would be important to be transparent in its reasoning and to recognize that the potential impact of having the ICC opine essentially that Oslo is no longer governing. I suspect that the U.S. Government — and others as well — would see such a line of argument as having great potential to be politically disruptive. For its part, the U.S. submission to the Court took as a s given that the Oslo Accords remain relevant to how the parties allocate jurisdiction, but the more extensive views presented by the United States in connection with the Advisory Opinion proceedings before the International Court of Justice (see here, here and here) make clear the importance it attaches to the continued relevance of Oslo as a basis for an eventual two-State solution.
- The U.S. submission also addressed separate issues related to complementarity. What did it argue?
Secretary Blinken gave general voice to these issues of complementarity in his statement immediately following the Prosecutor’s announcement on May 20 that he was seeking the arrest warrants:
The ICC was established by its state parties as a court of limited jurisdiction. Those limits are rooted in principles of complementarity, which do not appear to have been applied here amid the Prosecutor’s rush to seek these arrest warrants rather than allowing the Israeli legal system a full and timely opportunity to proceed. In other situations, the Prosecutor deferred to national investigations and worked with states to allow them time to investigate. The Prosecutor did not afford the same opportunity to Israel, which has ongoing investigations into allegations against its personnel.
The U.S. submission focuses on one particular aspect of the issue: that the Prosecutor failed to provide Israel the opportunity due it under Article 18 of the Rome Statute to exercise its rights to pursue investigations of these matters itself.
The basic idea of Article 18, which was included in the Rome Statute in connection with an initiative of the United States, is that the Prosecutor must notify relevant States when he or she initiates an investigation, and a relevant State – in this case Israel – then has an opportunity for one month to inform the Court that it is investigating the relevant allegations. If the State provides such notification, the Prosecutor must then defer to the State unless the Pre-Trial Chamber subsequently decides to authorize the investigation. The U.S. submission contended that these obligations under Article 18 are fundamental to the Rome Statute’s complementarity regime, in which the ICC operates only as a court of last resort. Thus, consistent with the foundational ICC principle that primary responsibility for investigating and prosecuting the most serious crimes remains vested in States, Article 18 is intended to provide States a formal opportunity to step forward and assert their ability and willingness to proceed themselves.
In this connection, the U.S. submission cited recent ICC decisions on the situations in Venezuela and the Philippines for the proposition that the purpose of requiring the Prosecutor to provide this notification is to ensure that a State is given “information specific enough to give effect to the right” to pursue the investigation itself and seek deferral of the ICC’s investigation. In the view of the United States, the Prosecutor failed to carry out this obligation insofar as the cases for which the arrest warrants against Israeli Prime Minister Netanyahu and Defense Minister Gallant are concerned. Specifically, when it commenced its investigation back in March 2021, the Prosecutor did provide a notification, but the notification was limited to three areas of focus at the time: war crimes allegedly committed in the context of the 2014 hostilities in Gaza; Israel’s occupation of the West Bank, including East Jerusalem; and allegations related to demonstrations beginning in March 2018. The U.S. submission argued that the 2021 notification thus was insufficient to give the required notice of the allegations at issue in the Prosecutor’s May 20, 2024, application for the arrest warrants, which included allegations of the war crime of starvation as a method of warfare, the crime against humanity of extermination, and the war crime of taking hostages.
A more thorough evaluation of these arguments is made difficult because Israel’s May 1 request for a deferral – mentioned above — is not available on the Court’s website, but the mere revelation that Israel submitted such a deferral request is of more than passing interesting. The U.S. submission describes the Israeli request as–
“relaying information regarding examination and investigation of “a wide range of alleged violations of domestic and international law relating to events in Israel and Gaza” since 7 October 2023; noting its willingness to further engage with the OTP; and requesting that, should the OTP “become aware of specific incidents or issues relating to alleged crimes attributed to Israeli nationals or others within Israel’s jurisdiction,” the OTP “bring those matters to our attention with appropriate specificity and sufficient time” for Israeli authorities to investigate the allegations.”
Of course, the May 1 date is well beyond the thirty-day period that Article 18 sets for submitting such requests following the Prosecutor’s notification in March 2021, and so perhaps the Prosecutor simply considered that it was irrelevant because the submission was out-of-time. That said, the U.S. submission posits that this was not for the Prosecutor to self-adjudicate and yet “the United States is not aware of any notification by the Prosecutor to the Chamber of Israel’s request, or adjudication of it by the Chamber.” In any event, the May 1 request may be seen as showing at least a surface-level interest by Israel in assuming its “primary responsibility” for investigations with respect to allegations outside the contours of the Prosecutor’s original Article 18 notification to which, in view of the fundamental importance of the complementarity regime, the Prosecutor should have been particularly attentive.
For those interested, the basic argument is developed further in the amicus brief submitted by Germany, which – when the Prosecutor had announced his application for the arrest warrants — had made a public statement about the existence of a “host of difficult questions” on jurisdiction and complementarity that the Prosecutor would need to face. Among other things, Germany argued that – in dealing with a State that has been subjected to attack – the Court should give the State “an appropriate and genuine opportunity to put its accountability mechanisms into action” and “an appropriate and genuine opportunity to present its domestic investigation and legal review mechanisms with regard to the allegations at hand.”
- Are there other legal issues that remain outstanding?
Perhaps most interesting is the issue of immunity for sitting heads of State. This issue raises similar kinds of questions about whether States can delegate to the Court authority to take actions against the sitting head of a non-consenting third country that States could not themselves take. From the ICC’s perspective, it presumably considers this issue settled, based on its ruling in connection with the case against former Sudanese President Bashir, in which an ICC Appeals Chamber concluded that head of State immunity is simply inapplicable to the ICC under customary international law. From the political perspective of the U.S. Government, it would have been difficult to discuss the issue without addressing implications for the arrest warrant that the Court has issued against Russian President Putin, who presumably would claim benefit from any arguments that the United States put forward in support of head of State immunity. In any event, I would not conclude that the decision to forego discussion of the issue reflects acceptance of the Court’s reasoning in the Bashir case.
- What if any predictions do you have from here including how long before the Court decides?
I have no special ability to prognosticate and am hesitant to attempt any such predictions. There was criticism from some of the Court’s agreeing to the original UK application for leave to file a brief on the grounds that it would inject delay into the proceedings. That may create at least some pressure for the Court to act relatively quickly. On the other hand, the Court will now need to consider dozens of submissions and the issues are in any case of exceeding importance.
The Court’s Rules of Procedure and Evidence provide that both the Prosecutor and the defense “shall have the opportunity to respond to the observations” though there is no actual “defense” at this stage and prior Court decisions leave those named in the arrest warrant applications without a role (see here at paragraph 18). The ICC’s Office of Public Counsel for Defense – which expresses general views on the rights of defendants but does not represent any actual persons – submitted its brief on August 16, arguing among other things that the Prosecutor’s decision to publicly announce his application before the judges ruled on it was unauthorized by the judges and prejudicial to the presumption of innocence of those named in the application. The next step will be a submission of up to 53 pages that the Court has instructed the Prosecution to file by August 26.
Beyond that, my bottom-line answer to your question is: I do not have a good guess about how long the Court will take or what it will decide.