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Clock ticks on ICC probe deferral

The International Criminal Court (ICC) announced that it has formally notified Israel and the Palestinians about its impending investigation of war crimes during the 2014 war in Gaza.

The development comes in accordance with Article 18 of the Rome Statute, marking the start of an official timetable of one month for either side of intent to seek a deferral to facilitate the conducting of their own probes.

The notification letters were sent on 9 March following declaration by ICC Prosecutor Fatou Bensouda of her intent to formally investigate war crimes in the Palestinian Territories.

The Palestinian Authority has long advocated the ICC investigation, which has been adamantly rejected by Israel.

Ramallah has confirmed receipt of the notification, while a spokeswoman for the Israeli foreign ministry declined to comment on the matter.

The ICC was established as a judicial body of last resort which can step in only if states are unable or unwilling to prosecute their nationals for crimes which fall under ICC jurisdiction.

Israeli leaders insist the ICC has no such jurisdiction since Jerusalem has always carried out its own investigations, including into what the IDF has deemed to be “exceptional incidents” out of the norm. Prime Minister Benjamin Netanyahu has dismissed the charges as outrageous, and accused the ICC of acting on political motivations rooted in anti-Semitism.

Under the court’s statute the prosecutor “shall defer to the state’s investigation of those people” about whom the court has informed states in the notification if there local investigations or prosecutions ongoing of the same incidents. Such a deferral will be reviewed every six months to ensure the local probes and prosecutions are genuine efforts.

Here is the entire text of Article 18 of the Rome Statute:

Preliminary rulings regarding admissibility

  1. When a situation has been referred to the Court pursuant to article 13 (a) and the Prosecutor has determined

that there would be a reasonable basis to commence an investigation, or the Prosecutor initiates an

investigation pursuant to articles 13 (c) and 15, the Prosecutor shall notify all States Parties and those

States which, taking into account the information available, would normally exercise jurisdiction over the

crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor

believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of

persons, may limit the scope of the information provided to States.

  1. Within one month of receipt of that notification, a State may inform the Court that it is investigating or has

investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute

crimes referred to in article 5 and which relate to the information provided in the notification to States. At

the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the

Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.

  1. The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months

after the date of deferral or at any time when there has been a significant change of circumstances based

on the State’s unwillingness or inability genuinely to carry out the investigation.

  1. The State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial

Chamber, in accordance with article 82. The appeal may be heard on an expedited basis.

  1. When the Prosecutor has deferred an investigation in accordance with paragraph 2, the Prosecutor may

request that the State concerned periodically inform the Prosecutor of the progress of its investigations and

any subsequent prosecutions. States Parties shall respond to such requests without undue delay.

  1. Pending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor has deferred an investigation

under this article, the Prosecutor may, on an exceptional basis, seek authority from the Pre-Trial Chamber

to pursue necessary investigative steps for the purpose of preserving evidence where there is a unique

opportunity to obtain important evidence or there is a significant risk that such evidence may not be

subsequently available.

  1. A State which has challenged a ruling of the Pre-Trial Chamber under this article may challenge the

admissibility of a case under article 19 on the grounds of additional significant facts or significant change

of circumstances.