The OTP’s expert panel in the Situation in the State of Palestine: Additional safeguard or hostage to fortune?

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On 20 May 2024, the world of international criminal law shook with news announced by Karim Khan KC, the Prosecutor of the International Criminal Court (ICC), that he was applying for arrest warrants in the Situation in the State of Palestine (the “Situation”). The Prosecutor’s announcement was supported by what he described as “an additional safeguard,” in that his Office (the “OTP”) had been assisted by the “advice of a panel of experts in international law” (the “Panel”). The Panel comprises Lord Justice Fulford, Baroness Helena Kennedy KC, Elizabeth Wilmshurst CMG KC, Danny Friedman KC, Amal Clooney, His Excellency Judge Theodor Meron CMG, Professor Marko Milanovic, and Professor Sandesh Sivakumaran. The Prosecutor further acknowledged “the contributions of a number of [Mr Khan KC’s] other Special Advisers to this review, particularly Adama Dieng and Professor Kevin Jon Heller.”

Mr Khan KC describes the Panel as an “impartial group” which was “convened to support the evidence review and legal analysis” regarding the applications for warrants. According to the Prosecutor, the Panel’s “independent expert analysis” had “supported and strengthened” his applications. Others have commented on the perception arising from the Prosecutor’s selection of certain panellists (see here). At a more granular level, the Prosecutor’s decision to instruct the Panel, and its resulting report (the “Report”), beg several questions regarding his decision to apply for warrants.

In any situation, the decision to apply for ICC arrest warrants lies with the Prosecutor, as does responsibility and accountability for that decision. The Prosecutor must take “appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court” under Article 54(1)(a) of the Rome Statute, yet it is open to question whether outsourcing the OTP’s review function is such a measure, or whether it reflects uncertainty and a lack of confidence in the decision to proceed.

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Joshua Kern

Joshua Kern