Middle East Monitor reported that the legal Team (“Team”) which appointed by Muslim Brotherhood’s political wing, the Egyptian Freedom and Justice Party, will holding a press conference on Monday, January 6, 2013, at 11 am at the Cavendish Hotel, London. The Press Conference would be expected to shed a light on the nature and some technicalities regarding the complaint. Ever since media coverage of it, it was still pretty unclear whom is the Team truly representing, the Party or the Muslim Brotherhood (“MB”) and why is International Criminal Court (“ICC”), etc. Up until this writing was concluded on Pacific Eastern time, the Press Conference in London is still not yet begin. Henceforth, I fully ‘enjoy’ the luxury of having the chance to possibly making a wide array of analysis to forecast about what would be the intended outcomes of the complaint and how it could be working.
Quite few days after the complaint was lodged, Opino Juris quickly responded and wondered whether the complaint was ‘legally’ serious considering that Egypt is not yet a party to ICC (and seemed not to be one in any immediate and foreseeable future). The Juris has a legit standpoint, though. What makes the legal Team stern enough to still lodge the complaint? Did they joking around?
Nonetheless, it seems that they were not joking around. At least, judging by line up of the Team, they are indeed not another political slapstick which marked the beginning of 2014 with horrendous yet spectacular mega-drama. The Team’s line up comprised of well known figures in human rights fields such as the calibre of John Dugard (former UN Human Rights Rapporteur) and seasoned practitioner Lord Ken MacDonald (former Director of Public Prosecutions of England and Wales) who is joined by the like of human rights specialist Michel Mansfield. At the end, they could not get politically wrong if not legally mistaken with their calculation.
Though Opino Juris was precise in identifying that Egypt is not a state party to ICC, it is interesting to see whether the two other channels to invoke ICC’s jurisdiction can work in the MB’s case. They are the UN Security Council’s referral and the Prosecutor’s proprio motu (on his own volition). It is well understood that the Team might have conceivably intended to trigger the latter than the former. Nevertheless, to me MB’s complaint is truly interesting and it would not simply a tale about non-state entity seeking to trigger ICC’s jurisdiction on the basis of the Prosecutor’s own volition. Indeed, it has a peculiar and multifaceted dimensions than that matter only.
Those dimensions are as follows. If Egypt is not a state party to the Rome Statute, how would ICC entertain the complaint? If ICC chosen to pursue Prosecutor’s proprio motu standing, absence of UN Security Council’s referral, will ICC ventures itself into uncharted territories of waging prosecution against a non-state party?
Aside from any intended political consequences of the complaint as might be expected by the complainer and the truly intellectual temptation to also address such issue in this writing, I confine my takes only on the plethora of legal issues as might be related with the complaint.
What a difference does a non ICC’s state party make?
Egypt is not a state party to the Rome Statute and have not accepted ICC’s jurisdiction in any manner whatsoever. This fact is crucial if the complaint is intended to invoke ICC’s jurisdiction based on Prosecutor’s own volition (proprio motu). In this situation, the case for a UN Security Council referral seems to be politically not feasible for the time being and hence perhaps it is not certainly the most expected outcome when the Team lodged the complaint. It is logical to posit that the intended outcome is to invoke ICC’s jurisdiction based on Prosecutor’s own volition as regulated under Article 15 of the Rome Statute.
Nevertheless, the case for a proprio motu’s triggered jurisdiction is not so promising in Egyptian situation. ICC could not in any way establish jurisdiction where preconditions to the ICC’s jurisdiction as stipulated under Article 12 (2) are not met.
Article 12 (2) provides that the Court’s jurisdiction which triggered by Prosecutor’s proprio motu (just like the case of Prosecutor’s granted investigation in Kenya) could only be done if the state in question is a state party to ICC or at least have accepted the jurisdiction of the Court. Meanwhile, Egypt is not a state party to ICC and have not accepted the jurisdiction of the Court in any manner whatsoever.
It would be then very interesting to see how ICC would react to such scenario where UN Security Council’s referral seems unlikely to happen very soon. Will ICC reject the MB’s complaint or how would it tactfully entertain the complaint?
The only leeway, sure a quite extreme scenario, that the preconditions to the ICC jurisdictions could be fulfilled. This is if the Pre-Trial Chamber is convinced by the Prosecutor (under Article 15 (3) & (4)) that there at least triable offenses as mentioned in Article 5 which alleged to be happened in the territory of a state party or state which have accepted jurisdiction of the Court.
This leeway is possible since Article 12 (2) (a) provides the following,
” The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft “
That provision means, taking into consideration mantra of Article 12 (2), ICC can assume jurisdiction if a triable offense under Article 5 of the Court were alleged to have been occurred in the territory of Egypt’s neighboring countries or countries that are state parties to ICC or at least have accepted ICC’s jurisdiction and importantly, such offenses were against Egyptian nationals.
Folks, the ‘leeway’s argument is surely my farthest hypothetical imagination I could ever extrapolate in this analysis …
For the time being, feel free to get your own conclusion, since I am still waiting for news about the press conference.