The Office of the Prosecutor (“Office” or “OTP”) of the International Criminal Court (“Court” or “ICC”) is responsible for determining whether a situation meets the legal criteria established by the Rome Statute (“Statute”) to warrant investigation by the Court. For this purpose, the Office conducts a preliminary examination of all situations that come to its attention based on statutory criteria and the information available. Once a situation is thus identified, article 53(1)(a)-(c) of the Statute establishes the legal frameworkfor a preliminary examination. It provides that, in order to determine whether there is a reasonable basis to proced with an investigation into the situation, the Prosecutor shal consider: jurisdiction (temporal, territorial or personal, and material); admissibility (complementarity and gravity); and the interests of justice.This is not an investigation, it is not a determination of legal culpability. It is a preliminary analysis to see if there are reasons not to bring the case before the ICC.
One of the questions that the OTP needed to answer is whether the ICC has jurisdiction over the matter to begin with, meaning whether the incident was considered part of an international conflict. Here, the OTP shows its reasoning about whether Israel occupies Gaza for the purposes of this determination:
16.Jurisdiction ratione materiae: The hostilities between Israel and Hamas at the relevant time do not meet the basic definition of an international armed conflict as a conflict between two or more states. However, as acknowledged by the case law of the Court, the ICC Elements of Crimes clarifies that the applicability of the law of international armed conflict also extends to situations of military occupation. While Israel maintains that it is no longer occupying Gaza, the prevalent view within the international community is that Israel remains an occupying power under international law, based on the scope and degree of control that it has retained over the territory of Gaza following the 2005 disengagement. In accordance with the reasoning underlying this perspective, the Office has proceeded on the basis that the situation in Gaza can be considered within the framework of an international armed conflict in view of the continuing military occupation by Israel.No determination is made. It even allows that there is a doubt about the matter. (Its legal reasonings towards believing Israel occupies Gaza are flawed as well, but that doesn't matter for the purposes of whether there is doubt on the issue.)
17. The analysis conducted and the conclusions reached would generally not be affected and still be applicable, if the Office was of the view, alternatively, that the law applicable in the present context and in light of the Israel-Hamas conflict is the law of non-international armed conflict. Given the crimes of possible relevance to the present situation, which are substantially similar in the context of both international and non-international armed conflicts, it is not necessary at this stage to reach a conclusive view on the classification of the conflict. Additionally, as the protection accorded by the rules on international armed conflicts is broader than those relating to internal conflicts, it seems appropriate, for the limited purpose of a preliminary examination, in cases of doubt, to apply those governing international armed conflicts.
Inevitably, Israel haters will cherry pick portions of this report to pretend that the prosecutor determined that Israel is guilty of war crimes. But the OTP says explicitly what the parameters of this report are:
It should be recalled that the Office does not enjoy investigative powers at the preliminary examination stage. Its findings are therefore preliminary in nature and may be reconsidered in the light of new facts or evidence. The preliminary examination process is conducted on the basis of the facts and information available. The goal of this process is to reach a fully informed determination of whether there is a reasonable basis to proceed with an investigation. The ‘reasonable basis’ standard has been interpreted by Pre-Trial Chamber I (“PTC I”) to require that “there exists a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court ‘has been or is being committed’”. In this context, PTC I has indicated that all of the information need not necessarily “point towards only one conclusion”. This reflects the fact that the reasonable basis standard under article 53(1)(a) “has a different object, a more limited scope, and serves a different purpose” than other, higher evidentiary standards provided for in the Statute." In particular, at the preliminary examination stage, “the Prosecutor has limited powers which are not comparable to those provided for in article 54 of the Statute at the investigative stage” and the information available at such an early stage is “neither expected to be ‘comprehensive’ nor ‘conclusive’”.The OTP did not receive any evidence from Israel (nor from Turkey,) so it made its determinations based on incomplete and public information. On that limited basis it found reason to move forward on three specific charges, one more if the blockade is not considered legal, and it also found no reason to go forward on four additional charges.
In the end, the OTP decided not to move forward with the case:
The information available provides a reasonable basis to believe that war crimes under the Court’s jurisdiction have been committed ...The Office emphasises that these conclusions are solely based on the assessment of the information available at this stage and in accordance with the ‘reasonable basis’ standard. Not having collected evidence itself, the Office’s analysis in this report must therefore not be considered to be the result of an investigation.
However, on the basis of information available, the Office considers that the potential case(s) that would likely arise from an investigation into the situation would not be of sufficient gravity to justify further action by the Court and would therefore be inadmissible pursuant to articles 17(1)(d) and 53(1)(b) of the Statute.