The Gaza Jurisdiction Question — Comments

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Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”

This issue presented by the Forum intrigues me because it addresses a topic that can be projected onto the development of the broader international community. The question of whether the ICC Prosecutor has the authority to investigate alleged crimes committed in the 2008-09 Gaza conflict, for me, can be split into two distinct sub-questions. First, whether it is possible for the ICC Prosecutor to investigate the conflict, and second, if so, whether the Prosecutor should investigate. I don’t purport to have the answers to any of these questions, but they strike me as the best way to organize my thoughts about the issue.

As to the first question, it seems to me as if there are several possibilities by which the ICC Prosecutor could investigate the Gaza conflict – some more probable than others. It has been suggested that Palestine be considered a state, at least for ICC jurisdictional purposes, so that the Palestinian authority itself may submit the Gaza conflict to the Prosecutor for investigation. Regardless of whether Palestine actually was a state during the time of the Gaza conflict, it seems to me that the matter is highly controversial and heavily contested, making it an unlikely route for the Prosecutor to initiate an investigation. Less controversial would be for the UN Security Council to refer the Gaza conflict to the ICC, a mechanism that already exists in the Rome Statute. Whichever method would be utilized for the ICC to obtain jurisdiction over the Gaza conflict, it seems that it is definitely possible for the Prosecutor to exercise authority to investigate.

The second question, however, is the most vexatious one for me. In some ways, it might have primacy over the first question because its answer determines whether there exist any justifications for initiating the mechanisms prompted by the first question. The social and political implications of charging Israeli and Palestinian officials and soldiers are numerous. The values advanced by such an investigation and subsequent charges, acquittals, convictions, and sentences – e.g. rehabilitation of convicts, reconciliation between Israelis and Palestinians, retribution for victims of the conflict, deterrence of future war crimes – must also be considered in initiating any of the possible routes to ICC jurisdiction. I am looking forward with great anticipation to discussion over this second question in this first issue of the Forum.

If lying on the jurisprudential essence of the prosecutions made by the OTP, one of the hirer-aching reasons is to bring the victims at the justice. If atrocities committed Gaza touches the lines of injustice in the eyes of International Community, for the sake of justice the Office of the Prosecutor (OPT) has jurisdiction to investigate atrocities committed in Gaza, due to the fact that they're internationally condemned by the international community as they carry the nature of universal crimes.

The UN was created for exactly the purpose you describe. By the UN Treaty, only the UNSC may so act on behalf of the "international community". The UN Charter makes it clear that only the UNSC has the authority to act on behalf of the International community.

The ICC may never act on behalf of the "international community" but only with the jurisdiction delegated by its members, unless the UNSC delegates it authority and jurisdiction that it exclusively holds from the international community.

You made excellent points.

The fundamental question here is if the ICC stands for International Criminal Court or if it stands for the International Civil Court?

  1. Does a criminal - or does a civil court determine if the people of Gaza are in fact a state?

    Is this a function of any criminal court anywhere?

    Does the Treaty of Rome also give the ICC any civil authority or jurisdiction?

I suggest that the UN Charter reserves this jurisdiction to itself. The proper course is that the UNSC make this determination and then refer it to the ICC. The fact that the UNSC is very unlikely to either make this determination or to refer it to the ICC does not mean that the ICC then has jurisdiction. Where in the UN Charter does the ICC claim that it has the jurisdiction of the UNSC whenever the UNSC does not act as the ICC requires?

Israel is a UN member and is subject to the UN Charter and the jurisdiction of the UNSC. Gaza is not a member of the UN, but is only subject to UN authority and jurisdiction through Israel which represents it there.

The Prosecutor does not have a reasonable basis to believe that the 2008-2009 Gaza conflict is within the jurisdiction of the International Criminal Court “ICC”. According to Article 53 of the Rome Statute in order to initiate an investigation, the Prosecutor must have a reasonable basis to believe a crime has been or is being committed within the jurisdiction of the Court. Based on the information available the Court does not have jurisdiction over Gaza and therefore does not meet the initial element to initiate an investigation. While the Gaza conflict is not within the jurisdiction of the International Criminal Court, this does not suggest there weren’t violations of international law during the Gaza conflict but rather illuminates an outdated state-centered approach to making international actors accountable.

Article 12 of the Rome Statute allows for Jurisdiction in two situations, 1) if the state in which the crime occurred is a member of the Rome Statute or 2) if the state where the crime occurred submits itself to the jurisdiction of the court. This question would not be problematic in the case of most stable and established states, however the Gaza conflict occurred in a territory with a long history of instability and conflict. There are alternative modes of interpreting the situation. From Israel’s viewpoint, they are not signatories of the Rome Statute and have not agreed to its jurisdiction, and on the other hand the PNA has tried submitting itself to the jurisdiction of the Court. This leads to a highly charged political situation. If the Prosecutor uses the PNA’s submission as a reasonable basis for finding jurisdiction then he is asserting that the PNA is a State. Not only would this be a risky (and possibly de-legitimizing) move for the young Court but it also fails to meet the criteria for statehood as delineated by the Montevideo convention. Under Article 1 of the Montevideo convention the four indicia of statehood include "(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states." With the fourth criterion being the most difficult for the PNA to meet, it would be difficult for the Prosecutor to fit the context of the Gaza conflict within these limited parameters.

Given the current constraints on jurisdiction under the Rome Statute and the relatively young experience of the Court, the Prosecutor does not have a reasonable basis to find the 2008-2009 Gaza conflict within its jurisdiction.

I believe that the risk of a decision being “too politically charged” should not be a deterrent to tackling the issue of jurisdiction head on and reaching the correct conclusion.

There seems to be two main issues: first, does the Palestinian National Authority (“PNA”) quality as a “State” under the Statute of Rome? And second, can the PNA legitimately lay claim to the Gaza territory as its own? I will only address the first of these issues.

Professor George P. Fletcher argues that the International Criminal Court (“ICC”) does not have jurisdiction to investigate alleged crimes in the PNA’s territory, including the Gaza territory, partly because the PNA was not a participating State at the Rome Conference of 1998 and is not a party to the Statute of Rome. The problem with this argument is that under Article 12(3) of the Statute of Rome, a State which is not a party to the statute may voluntarily accept the court’s jurisdiction with respect to a particular crime in question. By the plain meaning of the text, Article 12(3) expands the possible jurisdiction of the court to more states than just those which are parties to the Statute of Rome. Moreover, Article 12(3) seems to at least slightly open the door to a more flexible meaning of a “State” under the Statute of Rome.

Given this expandable definition of a “State,” Professor John Quigley argues that in international law, the recognition of a state may be implied from practice. In the case of the PNA, he explains that the main United Nations (“UN”) organs treats it as a state. For example, he mentions that the General Assembly gives the PNA’s representatives the right to reply to statements made by other state representatives, the Security Council allows the PNA to participate in its debates, the Economic and Social Council admitted the PNA as a member of the Economic Commission for Western Asia, and, most significantly, the International Court of Justice invited the PNA to participate in its proceedings regarding the Israel’s construction of a barrier in the West Bank of the Jordan River. Each and every one of these instances involve authority that is granted exclusively to states. For these reasons, the PNA has a convincing case that it qualifies as a State under the Statute of Rome.

On January 22, 2009, the ICC received a written declaration accepting jurisdiction of the ICC under Article 12(3) from the PNA, on whose territory the alleged crimes were committed. As a result, I believe that the Prosecutor of the ICC has the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict.

Few agree, aside from professor Quigley, that Palestine is a State and that is definitely the minority position. Currently, we have both the President Abbas and Prime Minister Fayyad speaking quite openly of a “prospective” state. To wit, to argue that Palestine is a State is contrary to the position to the PNA.

The argument made that Palestine is a state by virtue of the declaration in 1988 of the PLO has been treated by the international community is symbolic in nature. Regardless of the approach taken, even based on a teleological approach one is hard pressed to find Palestinian statehood especially based on Casesse’s commentary. It is not even a close call and reminds one of the parable of the emperor wearing no clothes.

From going back in time to the negotiation of the Rome Treaty 12(3) as stated by the first President of the Court, Kirsch, 12(3) was the most hotly contested issue in the negotations. Of all the submissions the most impassioned is that of Pellet which is a damning admission that Palestine is not a State for he argues the functional approach. His position is that for the core crimes under Article 5 there is universal jurisdiction regardless of nationality and territoratility. This was the German position in the 1998 negotiations, this position was rejected in the legislative history by the compromise reached under 12(3). Thus the teleological approach by Pellet must be rejected.

Of all the issues and submissions no one has raised the issue of standing. The PNA unequivocally has no standing to raise the issue of war crimes in Gaza, as it does not represent Gaza. Hamas controls and represents Gaza. The people of the West Bank carry Jordanian documents and it is quite unclear what nationality those of Gaza have. They do not carry Egyptian documents, and in order to determine their nationality one has trace their lineage.To state that Gazan’s are Palestinians puts the horse before the cart as nationality is determined by lineage and State recognition but of course there is no State.

Another issue of interest is that it is ultra vires for Moreno-Ocampo to determine Statehood and if he was struggling with the issue as he pretends he has the ability to put this issue before the Appeals Chamber under Article 19.

As mentioned by many publicists Palestine does not meet the criteria of Montevideo of 1933. Further as raised in the submission by Al Haq there is no criminal prosecution over the Israeli population at all thus a prime purpose of the Rome Statute, that of complementarity fails.

To find statehood where none exists turns the ICC into a political body which is not the role of a judicial organ. Palestine has not been recognized as a State by the ICJ, the UN, the Quartet, WHO, ICRC and of course the ICC where the palestinian delegation was lumped with the “other groups”.

This is actually not a difficulty legal conundrum, Palestine is not a State, and the dragging out of this issue by Luis Moreono-Ocampo is ill advised for his own agenda.

All the criteria for state indicia according to Montevideo statute are met correctly. Instead if you talk of establishing good relation with Israel, know that that won't be because no nation would make good relation with regime that occupies the nation, detains its population and tortures them physically and psychologically.

For example, look at the relations of Serbia to Kosovo, or Azerbaijani to Armenia, do we see any good relations?

Your points are both insightful and accurate. It is even a bit more complex.

Gaza is not a member of the ICC. Gaza is not "Palestine". The primary question may be: if Gaza is a state is the West Bank also a state? Are there two states or is the Unity Government a state? Is the Unity Government like the EU, a supernational government, and if so, what jurisdiction did the two nations reserve from it?

Gaza has had many governments and presently has two, and also a "unity government", and is totally subject to Israel (by the Oslo Accords).

How should the ICC determine if one, both or all three governments represent a state? Which government(s) has the standing to petition for ICC recognition?

The "Unity government" had not requested an ICC review prior to the recent war, so may the ICC review any petition for incidents prior to its formation where there was no jurisdiction? Must both Palestinian government petition? May one alone?

As a graduate student studying international relations, I bristled at the thought of even discussing the Israeli-Palestinian conflict. The Special Court of Sierra Leone, Kosovo, child soldiers, North Korea…bring it on…give me more. Just please, I beg you, don’t ask me about Israel and Palestine. I was so intimidated by the complex history and zealotry that I looked away, resigning myself to ignorance. It was just all too political, too charged for me to wrap my brain around. As a law student, I am expected to now possess the tools to look at this intimidating conundrum more surgically. The law and my newly-acquired ability to dissect everything in a reasonable, apolitical fashion would be my guide through the hornet’s nest, right? Wrong. Looking at the conflict through a purely legal lens misses far too much. Any decision pertaining to ICC prosecution will have tremendous political ramifications.

The Goldstone Report criticized both Hamas and Israel for actions related to the three-week conflict which took place from December 2008 and mid-January 2009. The most damning conclusion: Israel’s Operation Cast Lead, which involved indiscriminate and deliberate attacks on civilians, was directed against “the people of Gaza as a whole” as part of “an overall policy and aimed at punishing the Gaza population for its resilience and for its apparent support of Hamas.” The Mission called for a complete overhaul of Israel’s unlawful military strategy and ineffective system of military justice. The report recommended that both sides openly investigate their own conduct and, should they fail to do so, that the Security Council refer the situation in Gaza to the Prosecutor of the International Criminal Court.

The aftermath was ugly. Hamas championed the report as vindication. Israel, which had vehemently refused to cooperate with the investigative team, issued a response that challenged the Mission’s methodology and core factual and legal conclusions. The UN, its Human Rights Council, and Judge Goldstone himself were labeled anti-Semitic. But, something really important was lost in all the panic and mud-slinging: the main goal of the report is accountability. In his 17 September 2009 op-ed in the New York Times, Goldstone pointed out that “both Israel and Hamas have dismal records of investigating their own forces.” Hamas fighters are praised rather than punished for shooting a rocket into a civilian area in Israel, and Israel’s investigations are unlikely to be serious and objective. Goldstone is right in saying that “absent credible local investigations, the international community has a role to play.”

The problem with bringing in the international community to mete out justice in this legal black hole of unrestrained attacks on civilians and terrorism is that politics threatens to poison the entire enterprise. The issue this forum raises is whether Moreno-Ocampo can investigate the Gaza conflict. But, I don’t think the real question is can he, it’s should he. To get the can part out of the way, it’s pretty clear that the Palestinian National Authority does not have the power to accept ICC jurisdiction over the Gaza Strip, given that its lack of effective control over the territory precludes it from satisfying the Montevideo Convention’s criteria for statehood. The ICC would essentially have to recognize Palestine as a state in order for it to meet the requirements of Article 12(3) of the Rome Statute.

Although the Goldstone Report recommends that the Security Council step in with a Darfur-like referral once it becomes clear that Israel isn’t effectively investigating or prosecuting the report’s allegations, this route to accountability is, realistically, a non-starter. Months after the release of the report, the US House of Representatives overwhelmingly passed a resolution denouncing the report as “irredeemably biased and unworthy of further consideration or legitimacy.” It’s unlikely the fiercely pro-Israel US would gift-wrap its longtime ally for Mr. Moreno-Ocampo.

An article posted on a Newsweek blog days after the release of the Goldstone report claimed that Moreno-Ocampo was considering whether Lt. Col. David Benjamin, a reserve officer in the Israeli military, authorized war crimes during the Gaza campaign. The Prosecutor allegedly told Newsweek he has all the authority to launch an inquiry motu proprio because Benjamin holds dual citizenship in Israel and South Africa, and the latter has ratified the Rome Statute, bringing Benjamin into the Court’s orbit. In theory, Article 15 of the Rome Statute would allow Moreno-Ocampo to investigate only the specific crimes committed by Benjamin rather than looking at the entire Gaza situation, which he does not possess the requisite authority to do.

Now that the can is out of the way, I turn to the should. The argument for pursuing the Gaza situation is clear: to date, all of the country situations before the ICC are African. Here, we have a Western ally and democratic state that has probably committed some incarnation of war crimes or crimes against humanity. Not pursuing accountability in this case would reveal an unacceptable hypocrisy in the system of international justice and send a message that states with friends in high places will always remain above the law. The legitimacy of the ICC would certainly be compromised through such a blatantly asymmetric approach to justice. And, perhaps even more importantly, those responsible for killing hundreds of civilians, including many children, may never be held to account.

On the flip side, initiating an investigation into the Gaza conflict would completely politicize the ICC. If Moreno-Ocampo accepts the Palestinian Authority’s ad hoc referral, he will essentially be recognizing Palestine as a state. Certainly, this would send shivers down Israel’s spine, as it would mean said Palestinian state could refer alleged Israeli war crimes to the Court without the current legal wrangling. But the scarier ramification would be the complete politicization of the Prosecutor’s role. To my knowledge, nothing in the Rome Statute comes even close to imbuing the Prosecutor with the unprecedented power to grant statehood or engage in such high-level international relations. Crossing this line would certainly spell disaster for the fledgling ICC, as the institution would be inappropriately inserting itself as a stakeholder into an ongoing conflict situation and setting a very scary precedent.

If Moreno-Ocampo acknowledges the unsavoriness of such a move and decides instead to use his motu proprio powers as a loophole for going after individual actors who happen to suffer from the misfortune of dual-citizenship, his position will be equally delegitimized. Although any good Prosecutor should be proactive, targeting only Israeli officials in such a convoluted, deliberate way would be too aggressive, too biased, and, once again, too political.

I think the arguments against investigation are more compelling, but that doesn’t mean I’m not supportive of the situation’s being seriously considered by the Prosecutor and the international legal community. The debate and analysis that potential ICC prosecution has created keep the focus on countering impunity, one way or another. I hope this prompts a more local solution, whereby Israel seriously investigates the allegations and reviews its approaches to warfare and military justice. It’s unrealistic to expect the same from Hamas, but accountability efforts on the part of Israel could prove very positive for diplomacy. If a domestic solution cannot be realized, prosecution of Israeli and Palestinian officials by foreign prosecutors is always an option, given that war crimes and crimes against humanity are likely jus cogens norms, which may trigger universal jurisdiction in some countries. The specter of these external prosecutions may actually reinforce the case for a domestic solution.

In “ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities,” Professor Yael Ronen suggests that admission of the Palestinian National Authority’s (Palestinian Authority) Article 12(3) declaration would not encroach any state’s sovereignty because the territory in question is not claimed by any existing state. However, the Israeli government has claimed, and continues to claim sovereignty over the actions of its nationals in the Palestinian territories. Thus, expanding the term “state” to include “quasi-states” such as Palestine, for the purposes of ICC jurisdiction, would conflict with the sovereignty of Israel, which is currently investigating the conduct in question.

In addition, other provisions in the Rome Statute suggest that Article 12(3) should be interpreted narrowly. Article 14, for example, intentionally limited referrals to state parties. In drafting the Statute, the possibility of referrals by non-party states was not seriously discussed. Drafters were concerned that states that did not accept the ICC’s automatic jurisdiction could benefit from the system without sharing in the state party obligations, such as budgetary contributions and duties of cooperation. Since “quasi-states” such as Palestine would also be able to avail themselves of ICC jurisdiction without incurring the burdens of state party membership, this rationale also militates against interpreting Article 12(3) to include quasi-states.

Finally, allowing the Palestinian Authority’s declaration to confer ICC jurisdiction would open ICC jurisdiction to declarations from other quasi-states, without providing any judicially manageable standards for determining whether an entity constitutes a quasi-state, and whether that quasi-state possesses sufficient sovereignty to constitute criminal jurisdiction. Here, determining whether the Palestinian Authority is a quasi-state with sufficient sovereignty necessarily entails an inquiry into whether or not the Palestinian Authority controls Gaza. To do this, the Prosecutor would have to analyze the complex relationship between Israel, which claims partial sovereignty and jurisdiction over the territory, the Palestinian Authority, and Hamas, which controls Gaza and controlled it at the time of the conflict in question. Given the current on-going status of peace negotiations, it seems politically unwise for the Prosecutor to make a unilateral investigation and finding regarding the respective sovereignties of these entities.

The International Criminal Court was not conceived of as an institution capable of conducting foreign relations on behalf of its member parties, nor has it been delegated this power. For the Prosecutor to initiate such an investigation on the pretext of determining ICC jurisdiction would be to engage in statesmanship on an unprecedented level. If the states parties wish to extend to the Prosecutor the power to engage in such determinations of state sovereignty, they can amend the Statute or Rules to expressly permit the Prosecutor to accept declarations from quasi-states, and provide a standard from which the Prosecutor can determine whether a quasi-state has sufficient sovereignty. Accordingly, the Prosecutor does not have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict.

1 Yael Ronen. “ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-state Entities.” Journal of International Criminal Justice 8, 3-27 (2010).

2 Ibid. at 17.

3 Compare ibid. at 17 (asserting that admission of such a declaration would “not jeopardize the basic tenets of the ICC mechanism”).

4 Carsten Stahn, Mohamed M. El Zeidy, and Hector Olasolo. Developments at the International Criminal Court: The International Criminal Court's Ad Hoc Jurisdiction Revisited. 99 A.J.I.L. 421, 425 (2005).

I believe that this question, while framed neutrally, is practically impossible to separate from the political controversies surrounding Gaza. Perhaps a neutral, law-based framing is the only way that all sides will feel comfortable openly debating this charged issue, but starting a debate is not the same as being able to arrive at a comprehensive answer to the question posed. I do not think the true value of this forum can be found in the framing of the issue, in arguments about principles of statehood and jurisdiction, or in the carefully-phrased responses of this forum’s “invited experts.” I think the true value will come from the context that forum members give this question in their individual responses. I hope that people from both sides of this issue come here and explain why the prosecutor should or should not investigate the Gaza conflict, in the context of their individual lives, circumstances, beliefs and points of view. I am an American law student. I can understand the legal principles behind this question, but I feel inadequate to answer this question because I don’t think I fully understand the context and the situation over in Gaza. I don’t think a few explanations by United States main-stream media outlets are enough to base a reasoned opinion on. I ask for more context because for me, killing and destroying innocent civilians and their homes is simply unacceptable. I don’t understand what could make it acceptable. I hope that context will at least help me understand Israel’s side.

However, perhaps I am approaching this the wrong way. One of the first things I learned in law school is that what is right doesn’t always match up with what is legal. Just because inherent principles of justice might demand action doesn’t mean that the International Criminal Court should be the one to charge in and act. If the Prosecutor evaluates the relative statutes, treaties and conventions related to his authority to investigate and decides that he does not have jurisdiction, then the International Criminal Court should stay out. It is still a relatively new court. It needs to stay well within its legally designated powers if it is to be respected and followed throughout the world. Even if that would be unjust for the victims of Gaza, the International Criminal Court has victims all over the world crying out for justice. If the International Criminal Court loses its respect and legitimacy, it will not be able to help anyone anywhere.

While I wish it were otherwise, I think, based solely on principles of law, that the prosecutor will likely not be able to investigate the events in Gaza. Israel has declined jurisdiction, and I find it highly unlikely that the Security Council, which includes the ever pro-Israel United States, would refer the situation to Mr. Ocampo. The Palestinian National Authority has declared that it accepts jurisdiction, but it does not seem that they meet the requirements for statehood under the terms of Article 1 of the Montevideo Convention. The Palestinian National Authority’s power has been explicitly limited in vitally important areas. For example, the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip limited the PNA’s authority in the sphere of foreign relations and the exercise of diplomatic functions. In addition, it seems to be fairly clear that the PNA does not even control Gaza; Hamas controls Gaza.

We shall see. I look forward to following this debate and learning more about both sides of this issue.

The Palestinian National Authority does not have the requisite control of the Gaza territory for statehood and thus cannot submit the Gaza territory to ICC jurisdiction. The International Criminal Court has jurisdiction where (a) the accused is a national of a state party, (b) the alleged crime took place on the territory of a state party, or (c) the acceptance of jurisdiction by a state which is not a party to the Rome Statute (Rome Statute, Art. 12). As a non-state party, the Palestinian National Authority has attempted to confer ICC jurisdiction by lodging a declaration with the ICC Registrar pursuant to Art. 12(3); however, the Palestinian National Authority has not attained a level of statehood sufficient for the exercise of ICC jurisdiction under the Rome Statute.

Insofar as the Palestinian National Authority has submitted a declaration accepting the International Criminal Court’s jurisdiction in the Palestinian territory, whether the ICC has jurisdiction over the Gaza conflict turns on whether the territories administered by the Palestinian National Authority, including the Gaza Strip, constitute a state as recognized by international law. To be recognized as a state under international law, an entity has to be sovereign: It needs a defined territory and a permanent population under the control of its own government that engages in or has the ability to engage in foreign relations with other such entities (Restatement 3rd of International Law). Thus, the territories administered by the Palestinian Authority do not meet the definition of a state under international law.

The main bar to Palestinian statehood is the Palestinian National Authority’s lack of effective control over the territory of Gaza. The Gaza Strip has a defined territory; its borders were defined by the Armistice Line following the creation of Israel in 1948 and the subsequent war between the Arab and Israeli armies. For the next 19 years Gaza was administered by Egypt. It was captured by Israel during the 1967 Arab-Israeli war. In 2005, Israel pulled out its troops along with thousands of Jews who had settled in the territory. However, Israel still exercises control over most of Gaza’s land borders, as well as its territorial waters and airspace. Gaza’s southern border is controlled by Egypt. In January 2006, the Islamist militant organization, Hamas, won parliamentary elections in Gaza and in June 2007 the organization took over the Strip, ousting the forces of Fatah, the faction led by Palestinian National Authority President Abbas. This effectively split Gaza from the West Bank in terms of its administration. Because of this, the Palestinian National Authority does not have the requisite control of the Gaza territory for statehood and thus cannot submit the Gaza territory to ICC jurisdiction.

Carlile you said

To be recognized as a state under international law, an entity has to be sovereign: It needs a defined territory and a permanent population under the control of its own government that engages in or has the ability to engage in foreign relations with other such entities (Restatement 3rd of International Law). Thus, the territories administered by the Palestinian Authority do not meet the definition of a state under international law."

You are overlooking the fact that many, if not most states have already recognized the State of Palestine and that quite a few of them are State Parties to the Rome Statute. Their decisions are not based upon US practice, but are just as legally binding. The PNC declared that the PLO was the provisional government of the State of Palestine in Articles 2 & 5 of the 1988 Declaration. It shares overlapping functions with the PNA.

In its first 1949 session, the International Law Commission said that the tangible manifestation of sovereignty was jurisdiction and that "sovereign equality" has the same meaning as "legal equality". The Gaza-Jericho agreement stipulated that the PNA has territorial jurisdiction. You cited the "Restatement 3rd of International Law", but it does not require an entity to engage in foreign relations in order to be considered a State. It merely requires that the entity have "the capacity" to engage in foreign relations. In any event, the PLO and PNA issued "full powers" to sign and ratify ESCWA treaties on behalf of Palestine (an ESCWA member state). Several instruments have already been accepted by the Secretary General and have been deposited with the UN Treaty Organization.

The introduction of the Restatement says

"In the United States, the principal resources for reserach in international law and practice are the successive Digests of International Law - by Wharton (1866); Moore (1906), Hackworth (1940), and Whiteman (1963), and the State Department's Annual Digest of United States Practice in International Law, beginning in 1973."

Whiteman's Digest lists a half dozen international and national court decisions which affirmed the statehood of Palestine as defined in general international law. The Digest also says:

"A state in the international sense is generally described as a recognized member of the family of nations, an international person. Authorities differ in respect to the qualifications for such statehood, but there is general agreement on certain basic requirements. Independence is not essential. The requisite personality, in the international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relationships between itself and other contracting parties" See Marjorie M. Whiteman, Digest of International Law, vol. 1 (Washington, DC: U. S. Government Printing Office, 1963) pages 223, and 650-658

So, the fact that the PLO, signs international treaty agreements on behalf of the PNA could reasonably be construed as evidence of its statehood. Professor Fetcher says that international courts have no business making determinations regarding statehood, but the cases in Whiteman's Digest illustrate that it is standard practice.

The Palestinian National Authority exercised jurisdiction in Gaza and operated the judicial system there under a prior agreement with Israel. Jurisdiction and nationality are the only criteria contained in Article 12. The subsequent loss of "effective control" in that specific locale is not relevant to acceptance of the Court's jurisdiction in accordance with Article 12. That constitutes the requisite "inability" mentioned in Article 17(3) which triggers the Court's complimentary jurisdiction: "due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings."

Professor Yaël Ronen argues that the main obstacle to establishing a Palestinian state is that “neither the [Palestine Liberation Organization (“PLO”)] nor the [Palestinian National Authority] claims that a state of Palestine already exists.” Although I agree with Professor Ronen’s premise that claiming one's own statehood is an essential characteristic of a state, her article fails to mention one key point: The Palestinian National Council, the PLO’s legislative arm, proclaimed Palestine a state in 1988. Although the PLO may not be currently claiming that Palestine is a state, I believe this past statehood proclamation is an important factor that should not be ignored in Professor Ronen's analysis.

Dear Danterzian,

You are right that the 1988 proclamation is a relevant element in the analysis, and I am grateful for your comment as this is an opportunity to highlight that my comment is an extract from a longer piece published in the JICJ, in which I addressed the present implications of the 1988 proclamation. As I see it, the 1988 proclamation of independence had a profound political impact, but its legal significance should not be overstated. First, the proclamation appears to have been largely a symbolic gesture, as implied by the call ‘upon the members of the Arab nation for their assistance in achieving its de facto emergence’.

More importantly, a proclamation of independence, even with limited recognition subsequently, does not suffice to create a state. While statehood is no longer exclusively a factual matter, it is still dependent primarily on fulfillment of factual requisites, namely effective governmental control over a population in a specified territory. Yet until 1994 at the earliest, the Palestinians did not fulfill the factual requisites of statehood, as they had no control over the territory they claimed. Without even a minimum foundation of control, recognition of Palestinian statehood was or would have been premature and legally incorrect.

Even though Palestinians may not have satisfied the statehood requirements at the time of its independence proclamation, what if we view fulfilling the statehood requirements as a process, as opposed to a snapshot in time? Under this view, the independence proclamation arguably started Palestine’s process towards attaining statehood.

Imagine the process of attaining statehood as a line with only two points: Points A and B. At Point A, the territory is clearly not a state, and at Point B, the territory has clearly attained statehood. At some point in between Points A and B, there’s a grey area, where statehood is arguably attained, but it’s not entirely clear.

Under this view, Palestine’s 1988 independence proclamation started its process towards attaining statehood by moving away from Point A and towards Point B. This act, alone, is probably not sufficient to attaining statehood, but Palestine’s subsequent acts, such as arguably meeting the territorial control requirements in 1994, move Palestine further along this line. Although these acts don’t move Palestine all the way to Point B—and thus Palestine doesn’t clearly attain statehood—it’s possible that these acts, cumulatively, moved Palestine far enough along the line to make it arguably a state.

Again, I do not disagree. It is indeed a peculiarity but a reality that statehood is not a black-and-white concept, but there are shades of gray, the in statu nascendi entities, for example. However, assuming there is a threshold of statehood that must be passed for the purposes of Article 12(3), the question is whether the PA has passed it. I would argue that for the ICC Statute should be read strictly, i.e. setting a high threshold of complete statehood.

Why would you argue for a high threshold? It would seem a low threshold would be more appropriate when you have a party begging for the ICC's intervention. Whose interest is served by having the ICC refuse to investigate?

For one, the ICC’s interest might be served by not investigating. Choosing to insert itself into one of the world’s most complicated and controversial ongoing conflicts could hurt the ICC’s credibility and erode some of its support. Also, it might be worthwhile to ask: If the ICC chooses to investigate the 2008 Israel-Palestine conflict, will that investigation hamper the new wave of peace efforts being pushed by the U.S.?

Certainly it’s fair to point out that the ICC has institutional concerns and that it operates in a political environment. But shouldn’t their goal—if not the reality—be to try to be purely judicial? Summarizing broadly, Dr. Ronen’s argument was that the Palestinians don’t yet possess the necessary attributes of statehood. And she argues that a high bar must be passed before they do. I don’t know whether Palestine can be considered a state—I’ve read the arguments that go both ways. But I don’t see why a high bar should be imposed. Shouldn’t the goal be to get the bad guys when possible? Isn’t that the whole point of the ICC—for someone to step to the line when acts occur that shock the international conscience?

The point of the ICC is to get the bad guys, but not under any circumstances. The ICC does not have universal jurisdiction, but a consent-of-states based one. Amongst other things, this requires a ‘state’. As with many other concepts, this requires a decision whether a bright line has been crossed. Wherever the line is, there will always be hard cases to decide. I argue that the line should be at ‘clearly a state’ and not lower because that is what states that have agreed when drafting of the ICC statute are expecting. If they had known that the ICC would exercise jurisdiction based on quasi-state consent, they might well have insisted on other balancing measures within the Statute (e.g. tighter political control, an opting-out provision, etc.). Institutions sometimes outgrow their creators’ intentions, but my opinion is that the ICC should not do so at this time.

I think you’ve placed into sharp relief the issue that’s troubling me. Beyond its value as precedent, if the Prosecutor asserted jurisdiction here, would there by an adverse effect to any of the interests of a signatory to the Rome Statute?

Setting a low threshold of statehood would have a substantial effect on the rights of States. It would potentially lead to a situation where the ICC would encroach upon the sovereign and territorial integrity of existing States. Not only would this be contrary to international law, but it would also result in a double standard: some entities would be recognized as States for some purposes and not for others. The ICC is a treaty-based institution and as such it depends on already established States for conferral of jurisdiction. This significantly reduces the scope of matters which the ICC can investigate.

danterzian,

You are describing the doctrine of the retroactivity of recognition. It is an accepted practice in the foreign relations law of many countries including the US and the UK. Chapter 13 of Ti-Chiang Chen's "The international law of recognition, with special reference to practice in Great Britain and the United States (1951) is devoted to the subject.

For example the US Supreme Court ruled in Oetjen v. Central Leather Co., 246 U.S. 297 (1918)" that "When a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect, and validates all the actions and conduct of the government so recognized from the commencement of its existence."

Professor Ronen says that Palestine does not claim to be a State, but that is an untenable assertion. Ali Waked, "Abbas: Palestinian state an existing fact", was a YNet News report on November 11, 2009 that said

According to Abbas, an independent Palestinian state is an existing fact. "A Palestinian state is a truth recognized by the world, and we are now leading a battle to have its border recognized," Abbas said during the rally.

When the Foreign Minister and Justice Minister of the Palestinian Authority presented the Article 12(3) Declaration to the ICC, that was an "act of State". The Justice Minister said "Today we came to deliver a set of documents that shows that Palestine as a state ... has the ability to present a case to the court and to ask for an investigation into crimes committed by the Israeli army. We will deliver more information about war crimes and crimes against humanity -- not only in Gaza during the last Israeli attack, but also from 2002 until this moment." The Foreign Minister said they had provided proof that Palestine was recognized as a state by 67 countries and had bilateral agreements with states in Latin America, Asia, Africa and Europe. See Today's Zaman, "ICC prosecutor considers ‘Gaza war crimes’ probe", 10 March 2009

In an interview with the Jerusalem Post, Professor Ruth Lapidot said "The Palestinians have already unilaterally declared statehood, and they did not need to do it again. Recognition of statehood is a political act, and every state has the right to decide for itself whether to recognize another state."

In The 1988 Declaration of Independence" Jerome Segal wrote about PM Salam Fayyad's plan for Palestinian statehood. He said lest anyone believe that the 1988 declaration is ancient history, they should read the new Fayyad plan with more care. It cites the 1988 declaration four times, identifying it as having articulated "the foundations of the Palestinian state." Her's a link to the plan "Ending the Occupation, Establishing the State - Program of the Thirteenth Government"

Palestine is a full member State of several international organizations. It has been formally recognized by at least 110 other countries. The United States opposed the request for an advisory opinion in the Kosovo case saying "As a practical matter, Kosovo's independence is an irreversible matter. Forty-eight countries have recognized Kosovo as an independent state, including 22 of the 27 members of the European Union".

The United States and the EU are funding the Palestinian Authority's institutions of State. The Quartet Road map is a joint undertaking to help establish the state. One of the Quartet partners already hosts The Embassy of the State of Palestine in the Russian Federation.The EU Council has stated that "Palestinian statehood is not subject to any veto." The fact that the US and EU say they do not recognize Palestinian statehood (yet) does not mean that it does not exist. When the EU and US finally recognize Palestine, that recognition should validate every act of its government since it came into existence - including the declaration accepting the jurisdiction of the International Criminal Court.

Other international criminal tribunals have employed the decisive factors contained in the Montevideo Convention to resolve genuine disputes regarding statehood and the international nature of a conflict. They have considered participation in negotiations, and recognition by other States or groups of states as sufficient evidence of statehood. See for example paragraphs 85-115 of "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)

The Prosecutor of the ICC does not have jurisdictional authority to initiate an investigation into the alleged crimes committed in the 2008-2009 Gaza Conflict. In order to systematically analyze the issue it is important to address the jurisdictional dilemma faced by the Prosecutor and address the far reaching consequences of initiating an investigation.

Under Article 12(3) of the Statute of Rome, “the acceptance of a State which is not a Party to the Statute is required for the ICC to have jurisdiction over a crime….” Jurisdictional authority cannot be obtained directly from Israel as it is not a party to the Statute of Rome, nor has it voluntarily conferred jurisdiction on the ICC. Other potential avenues for the ICC to obtain jurisdiction is if the accused is a national of a state which has accepted the jurisdiction of the ICC or if the U.N. Security council refers the situation to the prosecutor. The former option would be administratively taxing as the Prosecutor would have to delve into the nationalities of the accused and determine whether the requirement is met for each individual. Moreover, Professor Ronen suggests that a U.N Security Council referral would not be feasible because the U.S. would likely veto any attempt to pass a resolution. Consequently, this leaves us with the question of Palestinian statehood.

Although Professor Quigley asserts that Palestine is a state, Palestine continues to demand the establishment of a sovereign and independent state. The Agreement on the Gaza Strip and the Jericho area signed by Palestine Liberation Organization indicates that statehood remains a goal. Moreover, the Montevideo Convention of 1933 sets forth four prerequisites to statehood which include 1) permanent population, 2) defined territory, 3) government, and 4) capacity to enter relations with other states. Palestine fails to meet the latter pair. Palestine does not have effective control over the West Bank, which weakens its claim of government. Palestine’s ability to enter into relations with other states is severely limited by the Oslo Accords. Under these terms, Palestine is not a state, and cannot confer jurisdiction on the ICC to investigate the alleged crimes committed during the Gaza Conflict.

If the ICC were to commence a unilateral investigation of the alleged crimes committed during the Gaza Conflict, there may be serious political ramifications. Initiating a unilateral investigation may undermine the efforts of the Court. Because the decisions made by the ICC do not occur in a vacuum, one must consider the consequences to the international political ambit. Although the ICC may resist the politicization of the issue, the likely scenario may be that it would fuel deeper resentments in the region and thwart the peace talks. Since we are on the eve of new peace talks between the Israeli Prime Minister Netanyahu and Palestinian Authority President Abbas, the ICC should remain at the margin. Israel and Palestine may bilaterally agree to open their own investigations about the alleged crimes committed during the Gaza Conflict, and thus the ICC’s role would be non-extant.

The notion of jurisdiction is fundamental to the operation of the International Criminal Court (ICC). Jurisdiction refers to the competence or authority of the Court to investigate or review a particular matter. The ICC lacks universal jurisdiction. Its jurisdiction is limited both in terms of subject matter and territoriality. Thus, the Court has the authority to investigate genocide, crimes against humanity and war crimes as defined in Articles 6, 7, 8 and 9 of the Rome Statute. Further, the crimes must have been committed on the territory of a State Party or a State which has accepted the jurisdiction of the ICC. Alternatively, the accused must be a national of a State Party or a State which accepted the Court’s jurisdiction. Article 11 of the Rome Statute stipulates that the Court can exercise jurisdiction only over events that have taken place since 1 July 2002 or a later date at which the Statute entered into force in the State.

The Court has discretion to determine whether to investigate alleged war crimes, even if such crimes fall within the scope of its jurisdiction. Under Article 53 of the Rome Statute, there must be a reasonable legal and factual basis for the Court to proceed.

Significantly, the Court must be careful not to undermine the rights of States which have not ratified the Rome Statute. The ICC is a treaty based body: it cannot exercise jurisdiction over crimes or persons of sovereign states that have not submitted to the authority of the Court. This is reflected in Part 9 of the Statute. Article 86 says that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Similarly, Article 87(1) provides that the Court has the authority to make requests to State Parties for cooperation. Non-party states are dealt with in Article 87(5) which reads as follows:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

At present, Israel has not ratified the Rome Statute. There is no ad hoc arrangement between ICC and Israel which would provide a legal basis for the ICC to determine whether the alleged war crimes have been committed in the 2008-09 Gaza conflict. Moreover, the Security Council has not called upon the ICC to act. Essentially then, the issue turns on the legal status of the ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ lodged by the Palestinian Minister of Justice on 21 January 2008.

Here, the first question that arises is: can the declaration be used as a basis for ICC’s acquisition of jurisdiction in the Gaze conflict? Article 12(3) of the Rome Statute supplies the answer. The Article is tied to the notion of a “State.” It provides that a State which is not a party to the Statute may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to a crime. The core purpose of the Article is to allow non-party States to cooperate with the court. It follows that Palestine must qualify as a “State” in order to come within the scope of the provision.

Article 1 of the Montevideo Convention of 1933 specifies distinct criteria for the attribution of international legal personality. Pursuant to Article 1, a State should possess a permanent population, a defined territory, a government and the capacity to enter into legal relations. Hence, as a matter of general law Palestine must show sufficient evidence of the existence of these facts to prove statehood.

The existence or non-existence of Palestine as a State is a contentious and politically divisive issue. However, this issue cannot be resolved through judicial mechanisms. Already established States would need to formally declare their acknowledgment of Palestine for Palestine to be able to claim statehood. The primary function of the ICC is to exercise judicial power. As a consequence, it cannot interfere in the process of the formation of new states.

This is an extremely difficult question that I’m rather reluctant to answer definitively. The easiest solution would simply be for the Security Council to refer the matter to the Prosecutor, circumventing the question of Palestinian statehood entirely. However, as noted in Professor Ronen’s comment, this option is unlikely due to the U.S.’s veto.

Using a black letter law approach, Palestine likely cannot be considered a state since it fails the prerequisites of the Montevideo Convention, namely government and capacity to enter into relations with other state. Even more problematic is the lack of consistent assertions by the PLO and PNA of an existing Palestinian state.

It seems that the only approach that could feasibly find jurisdiction for the ICC in the Gaza conflict would be to look at the question functionally. The ICC has jurisdiction only over those states that submitted to its authority—which necessarily means that those states initially had criminal jurisdiction that it could submit to the ICC. Under the Oslo Accords, the PNA does have criminal jurisdiction over the area but Israelis are exempt. Dr. Kearney’s comment makes a strong argument for why this exemption should not apply to crimes against humanity on the basis of Article 146(2) of the Fourth Geneva Convention—namely that the duty to investigate and prosecute crimes against humanity cannot be curtailed by distinctions of nationality. However, the issue here is not simply nationality, but nationality and jurisdiction under the Oslo Accords. Because the jurisdictional exemption, Palestine would not be able to submit jurisdiction over Israelis to the ICC. Arguably, Palestine could submit criminal jurisdiction over non-Israelis in this conflict to the ICC but the result would be one-sided and highly inequitable. In order to gain full jurisdiction over the situation, the ICC would need Israel to submit authority to the ICC to have jurisdiction over Israelis in this matter, an occurrence which is rather unlikely.

Professor Quigley cites to the Montevideo Convention on the Rights and Duties of States in advocating his position that Palestine is a state. This 1933 treaty, signed by the United States and a variety of Central and South American states, represents a codification of customary international law from the period and details the four factors considered vital for statehood: permanent population, a defined territory, a government, and the capacity to enter into relations with other states. Professor Quigley proceeds to argue that Palestine meets each of these criteria, yet, in all four instances, must make a defense of the peculiarities of the Palestinian “state” and argue why they are insignificant in determining statehood. This may be the rare case where the sum is less than the totality of its individual parts; if it is only technicalities, abnormalities, and exceptions that allow Palestine to qualify as a state under each of the four factors, should we consider it a state in the totality of the circumstances as defined by the Montevideo Convention? A better argument for considering Palestine to be a state may be found in criticisms of the Convention and the need to embrace a more modern definition of statehood.

Even in 1933, the conditions for statehood set out in the Montevideo Convention were not universally agreed upon. (Thomas Grant, “Defining Statehood: The Montevideo Convention and its Discontents”, Columbia Journal of Transnational Law 37, 1998-1999) In the intervening years, various theories of statehood have waxed and waned, and there remains significant dispute over what factors really should govern the determination. (Ibid.) For instance, Professor Quigley cites to evidence that is outside of the Montevideo Convention’s criteria, most notably his emphasis on the functional treatment of Palestine as a state by the organs of the United Nations. While this kind of evidence arguably falls under the fourth factor, I would contend that in the post World War II international landscape it should be considered to be its own criterion. The importance of the United Nations and other international bodies has grown in the post-war years, and so too has their role in determining the structure of international political landscape.

It is significant to note that many of the arguments against Palestinian statehood, both on this Forum and elsewhere, are centered around the Montevideo factors. For Professor Quigley and others attempting to advocate that Palestine is already a state, it may be necessary to first end the ideological stranglehold created by the Convention and move our thinking towards more progressive conceptions of statehood that reflect the modern global community.

I am very glad that this particular topic was chosen because I have already dealt with it in two previous articles of mine:

K. Magliveras, “Some Thoughts on a Possible Involvement of the ICC Prosecutor in the Recent Armed Conflict in the Gaza Strip” [2008] 61 Revue Hellenique de Droit International 435-454 &

K. Magliveras, “The Position of the ICC Prosecutor in the Recent Hostilities in the Gaza Strip” [2009] 25 International Enforcement Law Reporter 209-213

I believe that the ICC is not and should not be regarded as deus ex mechanica, which will somehow bring to an end the impunity to which those breaking the fundamental rules of the global community by perpetrating war crimes, crimes against humanity and acts of genocide are invariably accustomed to. The ICC has been the creation of states and states are run by governments and government officials are always fearful that one day they might find themselves on the dock. The limitations and restrictions that have been imposed on the powers and the functions of the ICC rather reflect this reality. On the other hand, armed hostilities between states, warfare between states and non-state actors, foreign domination and domestic oppression persevere in many parts of the world and lead to complicated situations. By definition, these situations lead to the commission of crimes, which, at least prima facie, fall within the ambit of Articles 5 et seq. of the Rome Statute, even though the ICC might not always have jurisdiction to deal with the perpetrators of the alleged crimes.

But even where it does have jurisdiction, the ICC has not been designed to pass judgment and determine which side is right and which is wrong, who started the hostilities, whether it was a case of permitted reprisals or whether it was an exercise of the right to defence, etc. This is the function of the International Court of Justice or any other judicial or arbitral mechanism (be it regional, be it ad hoc, etc.) to which the parties to the dispute have resorted. The purpose of the ICC is to prevent the impunity of the perpetrators of such crimes (irrespective of their nationality) when the states which are responsible for investigating and prosecuting them cannot or, for whatever reason, will not exercise jurisdiction. The ICC was established as a permanent institution to ensure that there will always be somebody that will do something when heinous transgression has taken place and that this somebody always acts in a legitimized manner. This is a manifestation of the principle of complementarity: when no state can or wishes to get involved, the ICC will be there to ensure that the crimes will not go unpunished.

The warfare in the Gaza Strip in the closing days of 2008 had a disproportional to its duration heavy toll on human life. It resulted in many casualties and in considerable damage to infrastructure including UN facilities. Even though for purposes of attributing responsibility it could be regarded as a stand-alone incident, it was yet another chapter in the Palestinian-Israeli confrontation. In the future, there are bound to be other hostilities and possibly even more deadly. A number of factors have not allowed the investigation and the prosecution of the crimes that have been perpetrated by both sides during the decades long conflict. A cynic might say that it is better to leave it that way. But this is the cynic talking.

The question is to delineate the role that the ICC should and could have in this as well as in similar incidents in the years to come. As has been argued above, no warfare is ever conducted according to the laws (sic) of war and the rules of international humanitarian law. To that extend, should one expect that the ICC Prosecutor either on his own initiative or following the submission of complaints by interested parties will look into each and every of such incidents? Obviously, there might be cases where the Prosecutor would not have to do so (e.g. when the states involved have undertaken a credible and independent investigation of their own) or, on the contrary, he would be obliged to exercise his functions because a contracting state and/or the Security Council has referred to him a situation pursuant, respectively, to Article 14 or Article 13(b) of the Rome Statute.

The Rome Statute has awarded to the Prosecutor broad competence to initiate investigations, subject of course to review by the Pre-Trial Chamber, in whatever situation he regards as falling within the ambit of his authority. At the same time, the ICC will not achieve universality any time soon (since mid July 2008, when Cook Islands joined it, there have been no further accessions) and, despite its 108 participating states, it cannot claim that it acts on behalf of the whole global community. Therefore, it is credible to expect that the Prosecutor will commence examinations in all relevant situations? Leaving aside issues concerning the feasibility of such a proposal from a resources point of view and questions of trivialization, was the ICC established with such a role in hindsight? Probably not. After all, the sixth recital of the Rome Statute’s Preamble unequivocally states that it is the duty of every state (and consequently not only of contracting parties) to exercise criminal jurisdiction over those responsible for international crimes.

There have been a few cases where states exercising their legislation on universal jurisdiction did commence investigations on grave crimes allegedly committed in other parts of the world. Regarding the Israeli-Palestinian conflict, it should noted that on 29 January 2009 the Spanish judiciary launched an enquiry into the alleged war crimes committed in Gaza on 22 July 2002, when an Israeli fighter airplane dropped a bomb aimed at Saleh Shehadeh, a senior Hamas official, killing him, 14 Palestinians and wounding some 150 others. A request that the Israeli and Palestinian authorities cooperate with the enquiry has also been issued by the Spanish judiciary. Based on this precedence, one can not exclude the possibility that Spain might get involved in the recent situation.

The exercise of universal jurisdiction by individual states is problematic and, while a lot of good might be done in certain cases, it cannot be a substitute for global criminal justice. Leaving aside the various ad hoc international(ised) criminal tribunals, this is a role for the ICC. With the lodging of the declaration by the Palestinian Authority, the Prosecutor has in his hands a situation which is extremely difficult to handle and which has turned a very large segment of the international community against him. However, if he resolves that war crimes were committed, he must move against those individuals whom he regards as perpetrators despite the legal loopholes and the intimidation. Ending impunity is one of the challenges that the global community must address and is also the principal reason why the ICC was established. And this is what it must do.

I argued elsewhere that the bar for considering whether the Palestinians constitute a state should not be high. But in your last paragraph, you seem to treat the issue as if it’s a mere legal technicality. That doesn’t seem right either.

Jurisdiction is always a critical threshold issue for any court and that’s intensified when you have a judicial body that’s a creation of an international treaty. The ICC’s authority comes from a willingness of States to cede some of their sovereignty. If Palestine isn’t a State, it hasn’t made that bargain.

I think that it is more than a mere legal technicality but surely the same standards that are required for accepting statehood, according to the traditional teachings of PIL, are not required in the case of the ICC getting involved in the affair we are discussing here and in similar affairs.

As I am sure you are aware, there have been instances where the existence of statehood proper were required (e.g. to become a Member State in an international organization) but the criteria for statehood were not taken into consideration simply because the situation at hand was so fundamentally different from the average situation that the drafters of the relevant rules had originally in mind. If the UN Charter did not demand a resolution by the SC to accept a new Member, don't you think it is highly likely that the Arab-African group in the GA would have pushed for Palestine's full membership?

As to your last point, you are of course right in how the ICC was established. However, the ICC tries individuals and not states. Even if Palestine as an independent state with full sovereignty chose not to join the ICC, its citizens would have come under its jurisdiction in the same way that the Bush Administration feared that US nationals would be tried by it. Perhaps this is an anomaly of the fact that the ICC was set up by only a certain number of states but, according to the Statute of Rome, it claims (or in theory it could claim) a near universal jurisdiction.

Really? Absent a referral by the Security Council of the UN, I thought that the ICC is strictly bound to the jurisdictional limits of the Statute of Rome and can't claim universal jurisdiction.

It is widely recognized that the ICC cannot draw upon universal jurisdiction. The power of the ICC to prosecute derives from the consent of the state parties.

Magli, your analysis leads to the conclusion that the ICC should not apply the standard criteria for statehood for the purposes of Article 12(3) of the Rome Statute. In this respect several observations should be made.

Firstly, statehood is a central concept under the Rome Statute. The absence of statehood precludes an entity from acceding to the Statute as a party. This is evident from the terms of the Statute itself. For example, Article 125(2) states that the Statute is subject to ratification, acceptance or approval by signatory States. Similarly, Article 125(3) provides that the Statute is open to accession by States only. This suggests that some entities lack the legal capacity to accept the jurisdiction of the Court.

Secondly, adopting a broad definition of statehood would open up Pandora's box and result in unintended consequences for the signatories to the Rome Statute. Would quasi-States have the same rights and obligations as signatory States? How would they cooperate with the ICC and how would this affect their relations with the parent State and/or other States?

Finally, what degree of statehood would be required for an entity to qualify for admission? While an entity would not be required to possess all attributes of a State, it would need to possess some legal characteristics of a State. The entity would need to be identifiable and distinguishable from other legal constructs in some way.

It is clear that the Rome Statute in its present form does not accommodate non-States. The Statute would need to be amended to allow non-States to join the ICC. However, such an amendment would necessarily lead to different levels of membership. It would most likely be opposed by the signatories to the Statute who are primarily concerned with the protection of their rights and national interests.

Alma,

You are of course right in what you are saying. The difficulties are obvious but I think that in an academic discussion one has to explore different arguments. If we are to agree that the ICC is a project dating from the late 1940s, whose implementation was rather delayed, the needs of the contemporary world are fundamentally different from the era where everything resolved around the “State”. What is collectively known as “non-state actors” (the exact content of the term is of course debatable) is not only a reality but a reality that must be accommodated in the global community.

Basically, my argument is that if one has to work with a given institution (in casu, the ICC), somehow a formula must be found to deal with all these situations, which are not theoretical but are out there and demand a solution. Of course, the ICC might not be the right institution to address these situations. On the other hand, there is no other institution at present that could play the role of accusing and trying the alleged perpetrators. Maybe it is time to think of having another international criminal court that would reflect more the contemporary state of affairs. I realize that this is another discussion but let me just say that if international institutions did compete with each other, it might not have been such a bad idea.

Finally, as regards the problems with the Rome Statute that you cite, all could be investigated and a solution might be found. For example, different levels of membership is not a new thing for IOs. It might be appropriate to recall the ongoing discussion (it does go back a great deal of time) regarding the accession of the European Union (previously, the European (Economic) Community) to the European Human Rights Convention. The Convention, dating from 1950, would have needed considerable amendments to allow international organizations to become contracting parties, not to mention the question of how could you have an IO as a defendant or as an applicant before the European Court of Human Rights. These are all challenges that make law such a fascinating subject.

Magli, many thanks for your post. The Gaza debate shows how difficult it is for the ICC to interfere in situations where there is no clear jurisdiction.The Rome Statute imposes real limitations on the Court. It effectively prevents the Court from pursuing global justice. The ICC is subordinate to states and lacks universal jurisdiction. This is really at the heart of the problem. However, this should not be an excuse for complete inaction. The ICC could potentially make an important contribution to global justice by drawing attention to atrocities and assisting national courts in prosecuting individuals suspected of war crimes. This might be an important step towards ending impunity.

Alma, the ICC is as much subordinate to states as is the ICJ (in theory both could be abolished if contracting states so wish) but I don't think that the ICC would ever consider it as a problem in order to be bold and judicially active. So, I think the answer to the question whether the ICC lacks universal jurisdiction (the content of the term of course needs to be pinned down) is how far do the judges and the prosecutor wish to push it? Perhaps if they push it too far they will be accused of "running wild" as the European Court of Justice was accused in the 1980s (incidentally another institution which is subordinate to Member States but which made it clear from day one that it is the other way round!).

If they maintain the present course, I think that sooner or later they will be accused of being unable to perform and deliver. Certainly, there can be academic arguments supporting a wider role for the ICC, wider than the one enshrined in the provisions of the Rome Statute. I think the European Court of Human Rights is a precedent (although it could be argued that lately it might have gone beyond its mandate as far as the protected rights are concerned).

The Gaza Strip is a challenge for the ICC. It is not the only one. There are others, some of which are acknowledged, some of which are not. A start has to be made at some stage and a decision has to be reached. If the ICC reaches the conclusion that it can not deal with the Gaza situation, so be it (as long as it is properly argued). And then it should move on and deal with other challenges. This farce with the Arrest Warrant against al Bashir must be addressed. One could say that the Rome Statute says nothing about such situations and therefore there is nothing that the ICC could do. Well, fair enough. So we have already two situations that are bound to be repeated in the future and no remedy. The Assembly of State Parties should look at these deficiencies rather than trying to solve the aggression question. Politica and law go hand in hand. And the ICC after 10 years in operation should have realized it. Bold decisions must be made now and not at some future stage. Is the ICC up to it?

Magli,

The future of the ICC will largely depend on the ability of the Court to garner the political support of States and the Security Council. While some institutions such as the European Court of Human Rights (ECHR) may take on a life of their own, there are some crucial differences between the ICC and the ECHR. The ICC operates within a web of unique constraints. Under Article 17 of the Rome Statute the ICC must observe the complementarity principle: it can only act if a State ‘is unwilling or unable genuinely to carry out the investigation or the prosecution.’ The provision highlights the ICC’s obligation to defer to national courts.

The ICC Prosecutor must rely on state referrals or referrals by the Security Council. This limits ICC Prosecutor's discretion to act. Relying on universal jurisdiction is unlikely to promote strong political support amongst States for the Court and without such support the Court would find it difficult to conduct investigations and secure convictions.

There is no doubt that there is a need for the global community to respond to genocide and other crimes against humanity. But how the global community responds to these crimes is closely linked with its perception of the heinousness of the crimes, political considerations and priorities. The reality remains that ending impunity for war crimes is an international effort that hinges on the cooperation of States, human rights organizations, national courts and international institutions such as the ICC. Security Council referrals may enlarge the scope of ICC's jurisdiction and provide the Court with an opportunity to transform itself into a truly global institution.

You argued that ICC’s purpose is to ensure that crimes don’t go unpunished, while simultaneously arguing that the ICC wasn’t designed “to pass judgment and determine which side is right and which is wrong . . . .” How can you separate these two concepts?

If the ICC’s purpose is to ensure crimes don’t go unpunished, doesn’t that purpose necessarily require judging both sides and determining which side is right and which is wrong? For example, the ICTY sentenced Stanislav Galic, a Major General in the Bosnian Serb Army, to life imprisonment for conducting sniping and shelling attacks on Sarajevo’s population for a period of several months. Doesn’t the ICTY’s conviction and sentence indicate that the tribunal judged both sides and determined the Serb general’s side to be in the wrong? Is your argument premised on a distinction between the ICTY and ICC that I’m missing?

Perhaps I need to clarify this argument. What I mean is that the ICC was set up to try individuals who have been accused of committing crimes coming within the Court's jurisdiction. So, the primary aim of the ICC should be that there is no more impunity and that someone is convicted for the crimes perpetrated. Naturally, an individual may commit (for example) crimes against humanity on his own and without being necessarily associated with a state apparatus. But arguably this is an exception and for the most part crimes are committed within the context of armed hostilities, be it the traditional war or some other form of warfare. Now, my argument is that in such circumstances the ICC should not and cannot assume the role of another internationalized judicial entity (e.g. the ICJ) and rule which party in the warfare was innocent and which party was to take the blame. And this because what, in my opinion, is the principal role of the ICC is to ensure that those accused of having perpetrated crimes during the armed hostilities (regardless of their nationality) be brought before it, tried and, if found guilty, convicted and sentenced.

The ICC tries individuals and not states or parties to warfare. Even though the legality of the hostilities, who started them, etc. will most probably be dealt with by the ICC, this should happen as an incidental manner and the ICC should refrain from making it a principle matter of adjudication. After all, even if for the sake of argument the ICC were to rule that State A was to take all the blame this does not mean that the citizens of State B (the other party to the warfare) will never be prosecuted if the Prosecutor General finds evidence for having committed atrocities during the hostilities.

I believe that each and every internationalized judicial entity has a distinct role to play. I do not want to start a conversation of what will happen if the ICC and, e.g., the ICJ will reach opposite conclusions as to who was right and who was wrong in a given warfare (although this will probably be of interest to this Law Forum) but I am only making this point to show that the ICC was established to ensure that crimes perpetrated by individuals are punished, irrespective of the responsibility to be borne by their state of nationality.

Article 66 of the Rome Statute provides that all persons are presumed innocent until proven guilty beyond a reasonable doubt. I agree to a certain extent that the ICC should refrain from ruling which party is to take “blame” for perpetrating war crimes because of the presumption of innocent until proven guilty. Nevertheless, if credible evidence exists that a political party is facilitating weapons to a militant group with the objective of terrorizing members of certain ethnic communities or committing genocide, shouldn’t the ICC condemn the acts by that political party? By expressing its condemnation of that party’s role in committing the acts and threatening to prosecute the leaders of the party, the ICC would be sending a powerful message to the international community and may even act as a deterrent for future atrocities.

Does anybody think Palestine’s request for ICC jurisdiction over crimes in the Gaza Strip is playing a role in the resumption of Israeli-Palestinian peace talk? My intuition says “yes,” but this recent article on the question doesn't discuss Palestine’s request for ICC jurisdiction.

The interaction between the (possible) ICC case and the peace talks looks like a chicken-and-the-egg scenario.

How much influence the ICC jurisdiction issue will have over the peace-talks seems dependent on whether or not the ICC will actually pursue the case. If the ICC finds no jurisdiction, then the point is irrelevant; if the ICC does find jurisdiction, then it'll become another point of contention and/or bargaining chip in the talks.

However, the diplomatic process itself seems to be a consideration in deciding whether or not the ICC will pursue the case. If so, then this whole question may be dependent on the peace talks and not the other way around. As it is, the situation seems to be at a standstill.

Do you think that the ICC should care about the politics? Is it the role of the ICC to take into account the global circumstances and calculate their actions in a way to maximize a desired political outcome? Or should they put on blinders to the politics and just pursue their own mission of prosecuting the perpetrators of war crimes?

This is an interesting question. It raises important issues about the intersection between international criminal justice, law, morality and politics.

Genocide and other crimes against humanity are typically the product of political forces. These crimes constitute a threat to peace and by definition involve a large number of victims. This creates a moral obligation for the international community to suppress violence and prevent the mass killing of innocent civilians.

Courts whether national or international tend to focus their attention on the perpetrators of war crimes rather than the political forces which may have facilitated the commission of these crimes. They are less inclined to consider the involvement of states in initiating and organizing genocide.

The ICC operates in a world of politics. It is difficult to predict what course the Court is going to take in the future. The Preamble to the Rome Statue provides that the Court has been set up to put an end to impunity and to contribute to the prevention of genocide, crimes against humanity and war crimes. This seems to suggest that the Court has an important role to play in reducing violence and protecting individuals from gross human rights violations. Simultaneously the Court confronts a classic overreach-underreach dilemma—it must strike a balance between dispensing justice and avoiding undue interference with other means of securing peace.

I can’t tell where you come down on the issue of whether it’s appropriate for the ICC to calculate their actions in a way to maximize a desired political outcome. You quote the preamble of the Rome Statute which certainly expresses high ideals. But the gritty details of the administration of the court found in the statute don’t seem to be designed for a court with political discretion. An example is the list of qualifications for the prosecutor found in Article 42. There’s nothing there suggesting that diplomatic or political expertise is a requirement for the job.

If the Court is supposed to consider political consequences, who is there to say what the desired political outcome is? Some situations are probably obvious. But in the conflict between Israelis and the Palestinians, some may argue that the Court shouldn’t take action because it could disrupt delicate negotiations. Some may argue the converse and say that the Court can play a role in getting the parties to come to an agreement.

Is the prosecutor—who isn’t selected for his or her political or diplomatic skills—to be the sole arbiter of what the appropriate political outcome should be and the best means to get there?

And beyond the Middle East, if the ICC is to consider politics, it must be considering its own future. Will asserting jurisdiction in Gaza hurt the future of the ICC—or will it help it?

Personally, it makes me nervous when judicial bodies start to take politics into account. In my experience, courts do their best when their decisions are tightly tied to the facts of the litigants before it. They tend to stray when they push their decisions too broadly. And that’s only in the legal context. When politics starts to influence them, I’m afraid they could go badly wrong.

I think it depends on how broadly “politics” is defined. The ICC was founded with the goal of not just prosecuting war crimes but also deterring war crimes in the future. To that end, it’s reasonable to consider the practical realities of the situation. If pursuing the case would become another bone of contention and actually hinder the peace process, then the ICC may end up having an adverse effect on its own goals in the long run.

I don’t think that this issue alone should stop the ICC in its tracks—any case the ICC takes on will be highly sensitive and vulnerable to political manipulation. However, the political situation, insofar as how it ties in with the ICC’s main goals, might be one factor for the Prosecutor to consider when deciding exactly what steps to take and when.

News from the UN: BBC Article.
The UN has criticized Israel's and Hamas' investigations into the Gaza conflict, though the Palestinian Authority's investigations were found to meet international standards.

Instinctively, it seems to me that the lack of adequate investigations should be considered as a reason for the ICC to take over the matter. However, since the main obstacle to ICC authority is legitimate jurisdiction and Palestinian statehood, should Israel and Hamas investigations (or lack thereof) even be considered?

UPDATE: The UN Panel report is now up on the Background Materials page.

To me, the UN’s analyzing the obligation of the “de facto Gaza authorities” (i.e., Hamas) and Palestinian Authority to investigate war crimes in the Gaza Strip implies an acknowledgment of Palestinian statehood. I’m not sure of the law—and somebody, please feel free to step in and correct me—but it seems that requiring Palestinian authorities to comply with international law by investigating and adjudicating war crimes is almost tantamount to declaring Palestine a state.

Investigating and adjudicating war crimes seem like incidents of sovereignty, and at some point, Palestine should have enough incidents to be a state.

Ti-Chiang Chen's classic "The International Law of Recognition:With Special Reference to Practice In Great Britain and United States has a chapter on the Laws of Recognition of Belligerency and Insurgency which discusses the customary rules and the internal inconsistency of the logic of some scholars on the very point you've raised here. How can an entity have the duties and responsibilities of a State under international law, yet still not possess the necessary legal personality of a State? How can international law take no notice of an entity that has international legal personality? & etc.

The U.S. State Department has a web page which explains that blockades have historically resulted in belligerent recognition, because they are "a weapon of war between sovereign states."

There can be no doubt that an international armed conflict exists between Israel and Hamas. The Israeli Supreme Court held "that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter "the area") a continuous situation of armed conflict has existed since the first intifada." See the subsection of the ruling under the heading "The General Normative Framework, A. International Armed Conflict"

The Restatement (Third) of The Foreign Relations Law of the United States §201.(h) says “Determination of Statehood: Whether or not an entity satisfies the requirement for statehood is ordinarily determined by other states when they decide whether to treat that entity as a state.”

Wikileaks recently published a classified document which revealed that Israel's former Military Intelligence Director, Amos Yadlin, said that Israel would be “happy” if Hamas took over Gaza because the IDF could then deal with Gaza as a HOSTILE STATE. (emphasis added)

The Foreign Ministry of Israel has consistently maintained that Israel can not be held internationally responsible for observing human rights covenants in Gaza or the West Bank because those areas are not part of Israel's sovereign territory and jurisdiction. Israel claims that the Palestinian Authority has taken on those responsibilities. See for example CCPR/C/ISR/2001/2, para 8 or E/1990/6/Add.32, para 6-7

Prime Minister Netanyahu's spokesmen, Mark Regev, subsequently cited a provision in the San Remo Manual on International Law Applicable to Armed Conflict at Sea and explained that Israel is clearly within its rights to stop aid flotillas, because “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.” (emphasis added) Professor Anthony D'Amato commented that Israel is quoting a provision of the laws of war that is only in force in a situation “between states”. Others have made similar observations. In “Why is Israel’s blockade of Gaza Legal?”, Kevin Jon Heller noted that Israel’s defense of its blockade creates a serious legal dilemma for it.

The applicable rules of law employed by the Court under the terms of the Rome Statute do include the laws and customs of war. The first Goldstone follow-up report from the PA to the UN contains a decree signed by the "President of the State of Palestine" establishing an independent commission to investigate in compliance with General Assembly resolution 64/10 of 5 November 2009. See "Report of the Secretary-General, UN Document A/64/651, 4 February 2010 para 5 and Annex II.

So it certainly could be argued that both Israel and the United Nations are tacitly treating Palestine as a state.

In his post on the Forum, Prof. George Fletcher argues that the Palestinian Art.12(3) declaration is invalid by virtue of being filed by an entity that is not a state.

Prof. Fletcher asks whether the Palestinian Authority is a state. Of course it is not. The Palestinian Authority is a governing body. If there is a state involved here, it is Palestine, not the Palestinian Authority. So the wrong question is being asked. Prof. Fletcher quotes passages from James Crawford in which Prof. Crawford says that the P.L.O. is not a state. Again, the wrong question.

Prof. Fletcher cites the 1995 Interim Agreement between Israel and the P.L.O., and its provisions placing restrictions on the PA, to prove that the PA isn’t a state. What he recites is accurate about the role of the PA under the Interim Agreement, but that agreement does not limit Palestine as a state. Moreover, its restrictions were expected to endure for only a short time.

Prof. Fletcher recites the oft-cited Montevideo Convention criteria for statehood and asks whether the PA satisfies them. Again, he asks the wrong question. To the extent the issue may be relevant, he should be asking whether Palestine satisfies the criteria. He would then have to acknowledge that the territory of Palestine is held by a foreign army under the regime of belligerent occupation. A state is not deprived of its status as a state when its territory is occupied. Moreover, as Scott McDonald has aptly pointed out in an earlier post, it is debatable whether the Montevideo Convention criteria provide a guide to the actual practice of states in recognizing entities as states. Entities have been accepted as states when compliance with the Montevideo Convention criteria are doubtful.

Prof. Fletcher compounds his error when he asserts that human rights observance is a criterion for statehood. He asks whether the PA, rather than Palestine, meets this criterion. But even if he were to apply this supposed criterion to Palestine, there is scant evidence that human rights observance needs to be assessed before an entity is considered a state. All that Prof. Fletcher cites is a declaration of European states about territorial changes in Eastern Europe as Yugoslavia and the USSR were coming apart. Prof. Fletcher does not assert, moreover, that Palestine fails this supposed criterion. If he were to explore that question, he could certainly cite human rights failures, as one can with all states. But he would have to acknowledge that Palestine is treated as a state by governmental and non-governmental institutions that have been assessing Palestine against the human rights standards applicable to states. The U.N. High Commissioner for Human Rights makes services oriented towards human rights implementation available to Palestine—a service that the High Commissioner is permitted to provide only to states. The High Commissioner apparently considered Palestine a state. So the human rights issue provides better evidence that Palestine is a state, than that it is not.

Prof. Fletcher says that an Art. 12(3) declaration can, according to Rule 44(1) of the ICC Rules of Procedure and Evidence, be made only by a state that is eligible to become a party to the ICC Statute. He does not indicate how that proposition, were it true, is relevant to determining whether Palestine is a state. In fact the proposition is not true. Rule 44(1) merely lets the ICC Prosecutor ask the Registrar to ask a state if it intends to file an Art. 12(3) declaration in a situation in which such a declaration might be relevant. Rule 44(1) says nothing about the character of states eligible to file an Art. 12(3) declaration.

Prof. Fletcher cites Prof. Otto Triffterer’s treatise for a listing of the supposed total number of states in the world, a listing that does not include Palestine. However, the treatise gives this listing only in a footnote. The status of Palestine was not mentioned or analyzed. A definitive listing of states in any event is a hazardous undertaking. Beyond Palestine, plausible arguments can be made for a number of putative states.

As another argument against statehood, Prof. Fletcher says that the PA was not a participating state at the Rome Conference that drafted the ICC Statute. Again, he asks the wrong question. The entity listed in the official records of the Rome Conference is “Palestine,” not the PA. The two Palestine representatives accredited to the Conference were identified in the records as representatives of Palestine, not of the PA. Prof. Fletcher implies that the manner in which the United Nations handled Palestinian participation at the Rome Conference reflected a determination that Palestine is not a state.

That implication is unfounded. The Rome Conference was held pursuant to a call by the U.N. General Assembly. It was a U.N. conference. Invitations went to U.N.-related entities. In its resolution deciding that the conference would be held in Rome in summer 1998, the General Assembly asked the U.N. Secretary-General to invite organizations entitled to participate in the work of U.N.-sponsored conferences. (GA Res. 52/160, December 15, 1997, para. 8). In that resolution the General Assembly provided a list that referred to the P.L.O. as such an organization, based on the General Assembly’s invitation to the P.L.O. in 1974 to be a U.N. observer. (Res. 3237, November 22, 1974). The General Assembly indicated that the Secretary-General should invite Palestine (which by 1997 was designated by that term at the U.N.) along with other U.N.-related entities.

Prof. Fletcher notes, correctly, that Palestine (and here he uses the correct term) was placed under the category of “Other Organizations” in the official list of delegations participating in the Rome Conference. He implies that the category “Other Organizations” was for entities that were not states. No such conclusion is warranted. According to Res. 52/160, certain non-governmental organizations were to be invited to the Rome Conference. They were to have a lesser level of participation than “delegations.” Palestine was not among them.

The category “Other Organizations” was a sub-category in a list of “delegations.” That list was made up of UN member states and state-related organizations. The category “Other Organizations” included but one entry: Palestine. The category thus was a special sub-category, devised specifically for Palestine, under the larger category of “delegations.” The same differentiation appears in annexes to the Final Act of the Conference. There Palestine was listed as having been an observer along with intergovernmental organizations and UN-related entities (Annex III). A separate listing (Annex IV) named non-governmental organizations that participated as observers. Palestine does not appear on the latter list, precisely because it was not invited as being non-governmental. Palestine participated at the level at which states participated, not at the lesser level accorded to non-governmental organizations.

Prof. Fletcher cites as an indication of Palestine’s supposed non-statehood a report produced in 2009 under the American Society of International Law. The report is ambiguous at best on the point, however. The report refers to the Palestine declaration accepting ICC jurisdiction and states that the declaration “raises issues about the authority of the Prosecutor, and of the ICC, to treat as a State an entity which is not generally recognized as a State and which is not a U.N. member.” The authors of the report leave the matter with this single sentence, giving no explanation for whatever status they attribute to Palestine. Their suggestion that U.N. membership is required in order validly to confer jurisdiction on the ICC is incorrect. The ICC Statute contains no such requirement. Their statement that Palestine “is not generally recognized” ignores the more than 100 formal recognitions, and implicit recognition by many others, including Israel and the United States. Moreover, the authors merely say that the declaration raises questions about Palestine’s status. They say nothing definitive on the matter.

Prof. Fletcher himself discusses recognition, but the single authority he cites is faulty. Prof. Fletcher’s source is a statement by Prof. James Crawford in his treatise Creation of States in International Law that “quasi-unanimous support would be required” for Palestine to be a state. Prof. Crawford’s only source for that statement is a 1949 advisory opinion of the International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations. That advisory opinion, however, had nothing to do with recognition of states, hence is irrelevant on the issue of how much recognition is needed by a putative state. “Quasi-unanimous support,” in the sense of quasi-unanimous recognition, is not demanded in international practice for an entity to be considered a state. A number of states, prominently Israel in 1949, were admitted to the United Nations (for which statehood is required) when many UN member states had not recognized them. These entities were considered to be states despite sparse recognition.

Prof. Fletcher cites the 2003 Road Map as evidence against Palestine statehood, on the theory that the Road Map contemplates the establishment of a Palestine state only in the future. But the Road Map called on the major powers to recognize Palestine as a state within a few weeks of the adoption of the Road Map, if certain acts were accomplished by both parties. Those acts were not in the event accomplished, but the commitment in the Road Map to recognize Palestine within a matter of weeks could have been undertaken only on the assumption that Palestine was a state. Hence, the Road Map, far from providing evidence that Palestine is not a state, provides evidence that Palestine is.

Finally, Prof. Fletcher argues against ICC jurisdiction based on the Palestine Art. 12(3) declaration by saying that acceptance of jurisdiction would involve the ICC inappropriately in “political issues.” Yet the ICC Statute calls for jurisdiction on criteria to be ascertained by the ICC. It would be a repudiation of its assigned functions for the ICC to opt out on political grounds. Other international institutions have faced the same issue when Palestine was relevant to their functioning and founding instruments. The UN High Commissioner for Human Rights, as noted, did not forego providing human rights advisory services to Palestine, even though those services can be provided only to a state. The European Community concluded a trade deal with Palestine when it determined that such would be useful. EC rules allow for such deals to be concluded only with states. Both the UN High Commissioner and the EC, proceeding with little fanfare, simply carried out their assigned functions, on the assumption that Palestine is a state.

Prof. Fletcher’s arguments against Palestine statehood do not stand up to scrutiny. My own reasons for the conclusion that Palestine is a state were outlined in my own post on this Forum. They are now explained in detail in my book just published by Cambridge University Press, titled The Statehood of Palestine: International Law in the Middle East Conflict (hardback and paperback).

Although I generally agree with Professor Quigley, especially regarding institutions impliedly treating Palestine as a state (e.g., “[t]he U.N. High Commissioner for Human Rights mak[ing] services oriented towards human rights implementation available to Palestine—a service that the High Commissioner is permitted to provide only to states”), I feel one of his conclusions does not logically follow from his premise.

Professor Quigley argues that Palestine participated in the UN at the same level states participated. To support his claim, he infers it from facts regarding Palestine and other groups’ categorization at the UN. First, he notes that Palestine was listed in the “Other Organizations” sub-category, where it was the sole entity listed. Second, he notes that Palestine was not listed in a category that only comprised NGOs.

Although I agree that these two facts suggest that Palestine did not participate “at the lesser level accorded to non-governmental organizations,” I do not believe it warrants the conclusion that Palestine participated at the same level as states. If anything, Palestine’s listing as the sole organization in the “Other Organizations” category implies that it participated at a lesser level than states.

Dantzerian makes a helpful clarification to my point about Palestine’s participation in the Rome Conference. I wrote that Palestine participated at the same level as states. Dantzerian questions that statement. As I explained in my post, I meant that Palestine participated at the level of inter-state organizations that, like Palestine, were invited as observers. UN General Assembly Resolution 52/160—the resolution that provided for invitations—put Palestine in the same category of invitee as inter-state organizations like the European Community and the Organization of American States (para. 8), rather than in the category of NGOs (para. 9).

Professor

ICC jurisdiction is secondary to the jurisdiction of the state involved and the role of the ICC is to address issues beyond the ability of that nation's judiciary.

Let's accept for the purpose of discussion your assertion that Palestine is a state. For the purpose of an ICC procedural review, which system is then the national system?

Is this Israel's judicial system?

Palestine's?

If it is Palestine's is the legal system in Gaza or is this the legal system in the West Bank? Both? Is it the non-existent legal system of the unity government?

How would an ICC procedural review on this matter proceed?

I suggest that the Treaty of Oslo is determinative.

danterzian,

I believe that Professor Quigley is correct. In 2004 the General Assembly adopted a resolution, A/RES/58/292, on the status of the Occupied Palestinian territory which noted that Palestine was an observer pending its attainment of full membership in the United Nations. That same year, the non-member Permanent Observer.State of the Holy See launched a bid to apply for full membership in the United Nations. When its efforts were unsuccessful, it asked to be granted upgraded observer privileges equal to those already held by Palestine. See for example "The Holy See backs off from its claim for full membership of the UN, settling for the rights already held by Palestine", by Serra Sippel, at See Change

The "Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties" has been prepared by the Treaty Section of the Office of Legal Affairs. It explains the role of the General Assembly in the practice of the Secretary when acting as depositary of a convention with an 'all States' clause. The Secretary follows the practice of the Assembly found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "Vienna formula".

The 1998 resolution that granted Palestine its current observer privileges, UN document A/RES/52/250, recalled that the Assembly acknowledged the 1988 proclamation of the State of Palestine and that Palestine is a full member in the Group of Asian States; the Economic and Social Commission for Western Asia; the League of Arab States, the Movement of Non-Aligned Countries; the Organization of the Islamic Conference; and the Group of 77 and China. The members of the G-77 have increased to 130 countries since its founding. The resolution also noted that elections had been held and that the Palestinian Authority had been established on a part of the Palestinian territory.

The rules of the ESCWA stipulate that Palestine is a member State. The Secretary acting as depositary has accepted several instruments of ratification or accession to treaties from Palestine that are open to the ESCWA and other States for signature. See for example

Reference: C.N.1275.2006.TREATIES-3 (Depositary Notification);
Reference: C.N.624.2005.TREATIES-10 (Depositary Notification)
Reference: C.N.624.2005.TREATIES-10 (Depositary Notification)
Reference: C.N.285.2003.TREATIES-5 (Depositary Notification)

The UN Treaty Organization Historical Information Note 1 explains:

Agreements adopted under the auspices of the Economic and Social Commission for Western Asia (ESCWA) are open for signature by the members of ESCWA. Palestine was admitted to membership in ESCWA pursuant to ECOSOC resolution 2089 (LXIII) dated 22 July 1977, which amended paragraph 2 of the terms of reference of the Commission. Full powers for the signature of the Agreements were issued by the Chairman of the Executive Council of the Palestine Liberation Organization and the President of the Palestinian National Authority.

The General Assembly affirmed that Palestinian statehood is a matter of self-determination that is not subject to the peace process or to any veto. See operative paragraphs 1 & 2 of A/RES/55/87, 21 February 2001

The State of Palestine maintains embassies in dozens of countries and participates as a full member State in a half dozen international organizations. See for example The Embassy of the State of Palestine in the Russian Federation.Palestine obviously claims to be a State and the UN has been tacitly treating it as one for quite awhile now.

This is in response to the opinions expressed by Professors George Fletcher and John Quigley concerning the Palestinian Authority’s submission of the Situation in Gaza, “Operation Cast Lead,” to the ICC.

Both Professors Fletcher and Quigley are correct, but only up to a certain point. As chairman of the Diplomatic Conference’s Drafting Committee, I can attest to the fact that referrals under Article 12(3) were intended to be by States only. Anyone interested can go to my three volumes on The Legislative History of the ICC (Transnational Publishers, 2005).

Professor Fletcher did not need to refer to Professor Crawford for authority on that point since the legislative history of the ICC is the best evidence. As a historic footnote, the 1994 Draft Statute prepared by the ILC was only used by the Ad Hoc Committee in 1995 and not thereafter. The 1994 ICL Draft was modeled on a 1979 Draft prepared by this writer at the request of the Commission on Human Rights to enforce the Apartheid Convention. That convention is the only international criminal law convention that contains a specific article (Article V) that calls for the establishment of an international criminal court.

Concerning Professor Quigley’s position, there is no doubt that all of the elements of statehood exist for Palestine to declare itself a state. And, indeed it did so in 1988, and some 88 states recognized it. But in the Oslo Accords in 1993, the PLO, which had claimed to be the sole representative of the Palestinian people, withdrew from that position and agreed to have Palestinian statehood subject to a negotiated agreement with the State of Israel. Thus, the PLO, which declared Palestinian statehood, withdrew from that stance. Since 1993, the Palestinian Authority acted in conformity with the Oslo Accords. Negotiations since then, which are ongoing, evidence this legal status.

Moreover, the Palestinian Authority’s declaration of 21 January 2009 does not claim that Palestine is a state. It is clear that if a given entity does not claim the status of statehood, that status cannot be ascribed to it, notwithstanding the existence of all necessary conditions for statehood.

Lastly, the PA requested a number of experts to write a memorandum to the ICC Prosecutor, which was submitted by Alain Pellet and signed by a number of scholars, including this writer, (entitled “The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction”), in which there is no claim of statehood by the PA.

The conclusion is that Article 12(3) does not apply; however, the Prosecutor is properly seized pursuant to Article 15, and should act proprio motu.

M. Cherif Bassiouni
Distinguished Research Professor of Law Emeritus, DePaul University

Prof. Bassiouni makes the important point that all the elements of statehood are present for Palestine and that it declared statehood in 1988. Those same elements continued to be present, so that I see no reason why Palestine should not be regarded to be a state. But Prof. Bassiouni goes on to say that, by virtue of the post-Oslo process, the PLO withdrew from its 1988 position on statehood and agreed to have Palestinian statehood be subject to a negotiated settlement with Israel. I see no such retrenchment on the Palestinian side on the issue of Palestine statehood.

The post-Oslo agreements with Israel do not address the issue of statehood. Statehood is not one of the enumerated final status issues. Borders are to be negotiated as a final status issue, but agreeing to negotiate borders did not mean that Palestine was not a state, any more than it meant that Israel was not a state. Only states negotiate borders. The Interim Agreement of 1995, which is the major post-Oslo agreement, specifies that neither party shall be deemed “to have renounced or waived any of its existing rights, claims or positions” (Art. 31-6). Thus, the Palestinian position on Palestine statehood, far from being renounced, was preserved.

On three occasions—once in 1996, again in 1999, and again in 2000—President Arafat announced his intent to re-declare statehood by a given date. Each time he refrained at the last moment, under pressure from the United States and threats from Israel, or in hopes of coming to an agreement with it. But his stated intent—post-Oslo—to re-declare statehood meant that Arafat considered Palestine still to be a state. The post-Arafat leadership maintains the same view.

The August 2009 Government Program announced by the PNA for building state institutions includes a sentence that reads: “Palestine is an independent Arab state, with full sovereignty over the West Bank and the Gaza Strip on the 1967 borders, with Jerusalem as its capital.” That sentence indicates that the PNA considers Palestine to be a state.

The assertion about independence is accurate, notwithstanding Israel’s control of much of Palestine’s territory, because independence in this context means that a state is not under the sovereignty of some other state. A state whose territory is occupied remains “independent” in this sense. Prof. Bassiouni’s bottom-line point is important and, in my view, correct. That point is that the ICC prosecutor is properly seized of the Gaza situation and has every reason to act on it under the prosecutor’s proprio motu powers.

You incorrectly asserted that "Only states negotiate borders."

Provinces do negotiate borders with the state authorities.

Local authorities also negotiate borders with the state authorities.

I am not sure what the significance is of this exchange, particularly as I do not see where in my original opinion I made the statement above, but for what it's worth, I was probably refering to international borders and not intra-state ones.

Professor Bassiouni asserts that the PLO withdrew its claim of statehood in the 1993 Oslo Accords. I’m hesitant to agree.

Two principles of the Oslo Accords were that (1) Israel would withdraw its military forces in the Gaza Strip and the West Bank and (2) Palestine would gain self-government via creation of the Palestinian Authority. To me, these principles do not indicate that the PLO withdrew its claim of statehood. Rather, they indicate that the PLO was actively trying to attain the statehood it claimed.

Certainly, under Article 15 of the Rome Statute, the Prosecutor may initiate investigations proprio motu. However, what might be problematic is Professor Bassiouni’s assertion that even if the PLO is not a state (regardless of whether it actually is), the ICC can still exercise jurisdiction over it. If the Prosecutor is properly seized in the case of non-states, then where does the jurisdiction of the ICC end? Is it unlimited? Certainly not, but by following Professor Bassiouni’s “functional approach,” rather than stricter adherence to the Rome Statute’s jurisdictional requirements, the ICC—an international court that is based on treaty—may eventually broaden its powers beyond its intended scope.

Professor Cherif Bassiouni raises an important point regarding the applicability of Article 15 of the Rome Statute. Thus far, most contributors have focused on Article 12(3) rather than Article 15 in considering whether the ICC should have jurisdiction over alleged war crimes in Gaza. The prevailing consensus seems to be that the ICC lacks the power to exercise universal jurisdiction.

Article 15(1) provides the ICC Prosecutor with the power to initiate investigations proprio motu. This means the Prosecutor can act independently of State Parties to the Rome Statute and the Security Council. To do so, the Prosecutor must have a proper basis and ‘information on crimes within the jurisdiction of the Court.’ The application of Article 15 is closely connected with Article 12(3) which defines the preconditions for the Court’s exercise of jurisdiction.

The drafters of the Rome Statute were particularly concerned with delineating the proper scope of the Court’s jurisdiction and limiting the discretion of the Prosecutor. Upon ratifying the Rome Statute, a State accepts the jurisdiction of the Court with respect to crimes listed in Article 5. These crimes include: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 11 sets out the jurisdiction ratione temporis. It states that the Court has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute.

The Rome Statute contains several other provisions which limit the Court’s jurisdictional reach. For example, Article 124 is a transitional provision which allows a State to declare that it does not accept the jurisdiction of the Court with respect to war crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory.

Article 13 sheds light on how the Court may initiate investigations. It sets out three possibilities. Thus, the Court may exercise its jurisdiction with respect to a crime referred in Article 5 if: (a) a situation is referred to the Prosecutor by a State Party in accordance with Article 1; (b) a situation is referred to the Prosecutor by the Security Council; or (c) if the Prosecutor initiates proceedings in accordance with Article 15.

The inclusion of Article 15 ensures that the Prosecutor can bring proceedings notwithstanding the absence of a referral by a State or the Security Council. The Article acknowledges that the Prosecutor has some degree of authority and may initiate a case independently.

Article 15(2) requires the Prosecutor to analyze the seriousness of the information received. The Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental or nongovernmental organizations, or other reliable sources that he or she deems appropriate. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she must request an authorization from the Pre-Trial Chamber in order to be able to commence investigations. The Pre-Trial Chamber has the power to approve or reject a request for authorization and thus is intended to oversee the exercise of prosecutorial discretion. Under Article 15(4) it is envisaged that the Chamber will authorize the commencement of the investigation if upon examination of the Prosecutor’s request it considers that there is a reasonable basis to proceed and the case appears to fall within the jurisdiction of the Court.

Article 15 has raised substantial concerns about the proper role of the ICC Prosecutor in international affairs. More specifically, some States have expressed concerns about the possibility of politically motivated prosecutions. The perceived risk here is that the Prosecutor may unduly interfere with matters traditionally considered to be within the domain of the State.

What then is the appropriate approach for the ICC Prosecutor in the Israel-Gaza conflict? Israel is not a State Party to the Rome Statute and Palestine does not seem to satisfy the traditional criteria for statehood.

Can the Prosecutor invoke Article 15 to overcome these jurisdictional obstacles? The purpose of the ICC is to end impunity. The Preamble to the Rome Statute emphasizes that the Court was designed to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished.” However, the Court will only be able to fulfill this mission if a State on whose territory the alleged crimes have been committed or a State whose national is accused has ratified the Rome Statute. This appears to be a significant limitation which cannot be overcome by reference to Article 15.

The functional approach espoused by Professor Cherif Bassiouni can severely undermine the ICC’s role in prosecuting war criminals. Although the ICC’s objective may be to end impunity, it simply cannot wield its prosecutorial powers under the guise of proprio motu powers of Article 15 without first legitimately obtaining jurisdiction over Palestine. Accordingly, Article 12(3) is the operative provision that dictates whether jurisdictional authority over Palestine is proper. Even though Professor Quigley asserts that the elements for statehood are present in Palestine, there still seems to be an unresolved question over Palestine’s statehood.

The recent UN Watch report “Goldstone II: Questions on the Impartiality of the U.N. Tomuschat Committee”argues Professor Tomuschat violated his U.N.-imposed impartiality obligations by heading a U.N. Human Rights Council committee. Tomuschat, who had previously written several academic articles criticizing Israel, and his committee concluded that Israel breached its duty to investigate “those who designed, planned, ordered and oversaw ‘Operation Case Lead’.”

Although the UN Watch report credibly argues that Tomuschat is biased—or at least has the perception of bias—I have one major criticism of the report: It does not provide any alternatives. All people who are qualified to head this committee will have almost undoubtedly written previously on Israel and Palestine. Although other potential committee heads may have written less extensively or less partisanly than Tomuschat, the difference in bias would merely be a matter of degree.

Ultimately, I agree with the UN Watch report that Tomuschat violated U.N. impartiality obligations because Tomuschat’s prior work extended beyond mere academic commentary: He “helped prepare an advisory opinion analyzing legal aspects of the Israeli-Palestinian issue” that was allegedly performed on behalf of Palestinian leader Yassar Arafat.

The legitimacy of the Goldstone follow-up committee ultimately depends upon the reputation and impartiality of its members, including its former head—Professor Christian Tomuschat.

UN mandate holders are expected to act as independent United Nations experts. The UN’s Code of Conduct for Human Rights Council (‘Code’) establishes standards of impartiality and independence which apply to all UN mandate holders. These standards are designed to function as vital safeguards against potential abuses of power. Article 3 of the Code lays down the general principles of conduct applicable to mandate holders. It states that mandate holders shall:

“act in an independent capacity, and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts based on internationally recognized human rights standards, and free from any kind of extraneous influence, incitement, pressure, threat or interference, either direct or indirect, on the part of any party, whether stakeholder or not, for any reason whatsoever, the notion of independence being linked to the status of mandate-holders, and to their freedom to assess the human rights questions that they are called upon to examine under their mandate.”

The article further provides that mandate holders shall “uphold the highest standards of efficiency, competence and integrity, meaning, in particular, though not exclusively, probity, impartiality, equity, honesty and good faith;” and they shall “neither seek nor accept instructions from any Government, individual, governmental or non-governmental organization or pressure group whatsoever.” Under Article 5 of the Code, mandate holders are required to make a written declaration that they shall “shall perform [their] duties and exercise [their] functions from a completely impartial, loyal and conscientious standpoint.”

The UN Watch Goldstone II report raises serious questions concerning the objectivity and impartiality of Professor Christian Tomuschat, and calls into question the credibility of the UN’s Goldstone follow-up committee. The report cites specific publications and statements by Professor Tomuschat which show that he has a history of anti-Israel bias. Even more importantly, the report highlights the pervasive nature and extent of this bias. Thus, the report documents that Professor Tomuschat performed legal work for PLO leader Yasser Arafat, and compared Israeli actions to World War II barbarism. Professor Tomuschat’s highly prejudicial statements and close association with the Palestinian cause not only diminish public confidence in Professor Tomuschat’s ability to assess facts independently in the Israeli-Arab conflict, but also reinforce the impression that the Goldstone follow-up committee may have failed to properly carry out its mandate under his leadership .

Alma,

I agree that Professor Tomuschat’s impartiality was compromised by his legal work for the PLO; however, absent that legal work, I’m unsure if Tomuschat’s academic work would be sufficient to compomise his impartiality.

Some of the Report’s points are tenuous at best. For example, Point 3 of the Report concluded that Tomuschat “had already made up his mind about Israel’s system of investigations” because Tomuschat had previously written that “[i]n such instances, there is little hope that the judicial system of [Israel] will conduct effective investigations....” I’m not convinced that this academic writing from eight years ago that merely conjectured about the future of Israel’s system of investigations would compromise his impartiality for the UN Committee.

Observations and critiques about the opinions expressed by scholars and legal experts pertaining to the contested PNA Acceptance of Jurisdiction.

This is a reply to the legal arguments expressed by Prof. Cherif Bassiouni, Prof. Georges Fletcher, Prof. John Quigley, Prof. Alain Pellet and the Palestinian lawyers regarding the following legal Debate: Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?

Argument:

The purpose of this argument is to relocate the academic debate from international law to the legal boundaries provided for solely by the Rome Statute. My article will first focus on the statutory restrictions imposed on the Prosecutor’s proprio motu powers to initiate a preliminary examination with respect to the following:

  1. When and through which organ should a judicial determination be made regarding the applicability of Article 12.3 to the PNA? Should the authority on the aforementioned be the ICC, the Parliament of the Rome Statute, or International law?
  2. In light of uncertainties within the international community, does the lodging of the PNA declaration pursuant to Article 12.3 amount to a prohibited change in law under the Statute? Consequently, have the Registrar and Prosecutor acted without jurisdiction?
  3. What legal options are available to the prosecutor in launching an investigation in cases involving non-state actors?

Introduction

The first step is to place the debate in the special legal framework provided for in Article 21 “Applicable Law” and overarching provisions of the Rome Statute.1

The commentary of Otto Triffterer on Article 1 explained how the jurisdiction of the ICC and its Prosecutor to exercise their mandate is governed exclusively by the Statute, excluding any “other source of law, except an amendment of the Statute especially in case of a referral pursuant to Article 13 or 14, and 15” .2 Acceptance of jurisdiction by a non-State Party pursuant to Article 12.3 is a legal mechanism that regulates the referral of the Prosecutor acting ex officio. It is a precondition for the triggering of the Court’s jurisdiction by the Prosecutor. I argue that Articles 12.3 and 15 are procedural filters.3 Their role is to prevent abusive prosecutions, including initiation of a preliminary examination beyond the mandate of the Prosecutor, especially when he acts under the procedural mechanism provided for in Articles 13, 15 and 12.3. Consequently, any arguments based on international law are to be considered subsidiary law. Extending article 12.3 to entities or quasi state will amount to an ex post facto decision.4 It is well established in the context of the Rome Statute Doctrine that in case of issues pertaining to the scope of the jurisdiction of the Court only the procedure of amendments provided for in the Statute is pertinent. The limited mandate of the Court and its prosecutor acting ex officio are the expression of the limited jurisdiction accorded to the Court. It is established by the commentators that Article 4(2) prohibits expanding the limited jurisdiction beyond this Statute. “Attribution of new powers must be done by revision, not by subsequent treaty or practice.”5 Hence, in reply to Mr. David Lee, it may be asserted that unlike other treaties, the jurisdiction of ICC cannot be broadening beyond the intent of its framers.6

Observations and critiques about the OTP submissions.

Professor Pellet’s submission7 is a good illustration of what should not be done in construing the Rome Statute. Mr. Pellet did not construe the term “non-State” as used in the Statute; instead, he chose to assess the notion of PNA Statehood based on external sources of law. His juridical conclusions are based on international law, and therefore constitute a secondary source of law outside the purview of the applicable law pursuant to Article 21(1). It is thus contrary to the Rome Statute ambit.

On the other hand the answers of Professor Bassiouni and Fletcher are within the Statute framework. I submit that their points are the only ones that are pertinent. In fact, only arguments based on the Statute are relevant with respect to the notion of limited jurisdiction. I would like to emphasize that there is a common mistake of law which has been made by Professor Bassiouni and others in this forum. The Prosecutor alternatives are not Article 12.3 or Article 15 but Articles 13(c), 15, 12.3 conjointly or Articles 13(c), 15, 12(2)(b). It is worth noting that the role of the Prosecutor is twofold pursuant to Articles 42 and 15.

As a result of the Statute doctrine and the ICC rulings the correct interpretation of an issue pertaining to the limited jurisdiction of the Court must be solely according to the Statute.

It is well established that the drafters rejected all of the proposals supporting universal jurisdiction and adopted a compromise between the acceptance of jurisdiction and the safeguard of the sovereign prerogatives of States. Hence, Article 12 settled the issue of pre-conditions for the triggering of jurisdiction by a State Party or by the Prosecutor ex officio. There are no preconditions in case of a referral by the Security Council. Acceptance of jurisdiction is restricted to the territory of a State Party where the crimes have been committed or the territory of a State Party of which the alleged perpetrator is a national. Acceptance of jurisdiction at the request of a non-State Party may be viewed as a favor intended to encourage states to ratify the Statute. It enables a non-State that has accepted the jurisdiction of the Court to expect that the Prosecutor will effectively trigger his power proprio motu pursuant to the following mechanisms set out in Articles 13, 15, 12.3 or 13, 15, 12(2)(a) (dual nationality).

The role of Article 12.3 is to limit the power of the Prosecutor so that he will not begin his prosecutorial activity without having jurisdiction,8

Under the Statute, it can be affirmed that non-States cannot refer a situation to the Court nor can they initiate a preliminary examination. Non-States can only hope that the Prosecutor will decide to initiate a preliminary examination based on the information gathered pursuant to Articles 15.1, 15.2, and 12.3. In conclusion, it may be argued that Article 12.3 serves as the second filter after Article 15 to prevent abusive prosecution in excess of the Court’s jurisdiction.

The various submissions supporting the extension of Article 12.3 to entities like the PNA is a reiteration of the most contentious debate at the Rome Conference against universal jurisdiction.

During the past decade, the PNA has tried all the judicial instances to prosecute crimes allegedly committed during the war in Gaza. The PNA had constantly expressed its desire to extend the jurisdiction of the Court to the Gaza situation before the Assembly of States Parties, in various committees of NGO’s and in the course of consultations with the organs of the Court. The Prosecutor had always stated that he has no mandate in Gaza. Nonetheless, just after the 2008 Gaza war, he suddenly changed his policy and decided to initiate a preliminary examination of the situation. Many scholars lobbied the international community in an effort to change this constitutional compromise, which was adopted by the framers of the Rome Statute.

The PNA and scholars who are proponents of the extension of Article 12.3 to non-State entities prove that they do not know the law of the Statute even if some of them are international law experts. This is due to the unsettled sources of international criminal law9 and also to the fact that scholars are not familiar with the sui generis criminal system created by the Rome Statute.10 The Statute has a separate system of international criminal law. It has created an international institution. Thus, the Court and its prosecutor are expected to act accordingly to the mandate assigned to their powers by the framers pursuant to Article 1 and 4(2).11 The Statute did not create any mechanism to recognize non-State entities as if they were States. The notion of State is an unsettled question in public law that has to be answered prior to addressing the jurisdictional issue under the statute.12

The PNA’s lawyers argued that the Prosecutor can prosecute any perpetrator anywhere for any international crimes.13 This assertion is not accurate. It violates the principle of complementarity and the prohibition on expanding the parameters of jurisdictional conditions.14

The Prosecutor cannot initiate a preliminary examination to make an example of Israel just because it is a democracy and no leader from a western country has been prosecuted by the ICC. This recurrent argument is discriminatory and prohibited pursuant to Article 21.3. It does not matter how many submissions support the recognition of a Palestinian state, it cannot change the fact that the Prosecutor has no mandate. He cannot act in a manner contrary to the general principle governing the Prosecutor’s power ex officio pursuant to Article 42, “the Prosecutor shall act independently ....A member of the Office shall not seek or act on instructions from any external source.”15

The bottom line is that the Statute provides for the mechanism of amendments in such a case. It is in the context of amendments that all of those wishing to change the law of the Rome Statue may act by means of proposals submitted to the Assembly of State Parties, acting as the parliament of the Rome Statute.16 I believe that it would be futile to propose amendments which are essentially a reiteration of the previously rejected proposals.17 Besides, at the last Review Conference in Kampala, in June 2010, the PNA did not propose any review of Article 12.3. It was not an issue. Moreover, the Assembly of States Parties addressed the participation of Palestine under the category of a non-State entity. It is in this capacity, that the Ambassador of the PNA and Palestinian delegation presented his statement before the Assembly of State Parties, pressuring the ICC to prosecute Israeli leaders.18

The purpose of those submissions is purely political.19 It perfectly illustrates the fear of the framers who opted to restrict the Prosecutor’s proprio motu powers pursuant to Article 13(b) with two kinds of investigations before the launching of a full inquiry investigation. The prosecutor can initiate a preliminary examination under 15(1), (2), and (6) and end the proceedings or he may ask the authorization to open an investigation into the situation pursuant 15.3.20 The Statute regulates strictly the mandate of the Prosecutor when he acts according to his ex officio power pursuant to Article 15. The framers’ intent was not only to prevent frivolous, peripheral, politically motivated prosecutions but also to prevent the encroaching upon the States Parties’ sovereign prerogatives. That is why the Statute provides general criminal principles prohibiting ex post facto decisions.21 This is further affirmed by the Pre-trial decision in the situation of Kenia:

“One may argue that Article 22 of the Statute does not have as a sole purpose the protection of persons prosecuted before the Court. It has also the purpose of imposing a strict interpretation in the jurisdictional ambit of the Court”22

It follows that the Prosecutor cannot proceed to a full investigation in Gaza. It further, derives from the above argumentation that because the question whether the statehood condition is met is a constitutional issue, the Prosecutor, acting ex officio pursuant to Article 13(c), cannot be said to meet the precondition established in Article 12.3. Therefore, the only alternative left to the Prosecutor to effectively initiate a preliminary examination regarding the Gaza situation would be under the following procedural mechanism pursuant to Articles 13(c), 15 and 12(2)(b), which provide that alleged perpetrators holding dual nationality, at least one of which is that of a State Party, may be prosecuted. Another option would be to wait for the constitution of the Palestine or to a universally accepted definition of the notion of State.

The statutory restrictions imposed on the Prosecutor’s proprio motu powers to initiate a preliminary examination pursuant to Articles 13(c), 15 and 12(3)

In case of the triggering of the Prosecutor ex officio pursuant to Article 13(c), the Statute provides for twofold investigations.23 This is due to the distinction between a situation and a case under the Statute.24 Recently, the Pre-trial Chamber in the case of Kenya has defined the criteria that must be met in order to open an inquiry into the situation under Article 15.3.25 Unfortunately the Court did not refer to the initiation of a preliminary examination under Articles 15 and 12.3, acceptance of jurisdiction by a non state party.

The initiation of a preliminary examination26 pursuant to Article 15 must be distinguished from the procedure existing in case of a State referral pursuant to Article 53.

The Prosecutor has exclusive authority to decide to open investigations regarding the three triggering options. The acceptance of jurisdiction ad hoc by a non-State is not a trigger mechanism.27 Only States Parties, the Prosecutor ex officio and Security Council have this power. “There cannot be referrals by non-States Parties, even by those that have made declarations pursuant to Article 12(3).” 28 The initiation of investigatory proceedings is regulated by Article 53 for States Parties referrals and by Article 15 when the Prosecutor exercises his power proprio motu. In the latter case, this power is further conditioned by the requirement of Article 12.3 or 12(2)(b).

The Statute regulates the gathering of information only for States’ referrals. I argue that there is a lacuna pertaining to the gathering and analysis of information pursuant to Articles 15 and 12.3 which have been filled out by the OTP Regulations.

It is possible that Regulations 25 and 27(a) are not consistent with the Statute’s general principles.29 Those Regulations authorized the initiation of a preliminary examination without making a distinction between the power of the Prosecutor under 13(a) and 13(b) and when he is acting ex officio. In my opinion, the Prosecutor acting ex officio must analyze the weight of the information gathered pursuant to Articles 15.1 and 15.2 in a manner enabling him to exclude facts which are beyond the jurisdiction of the Court prior to the inquiry. This interpretation derives from the OTP Regulation 27(a) stating that “In the examination of information on crimes pursuant to Article 15, paragraphs 1 and 2, the Office shall make a preliminary distinction between: Information relating to matters which manifestly fall outside the jurisdiction of the Court.” That is why a preliminary examination may be initiated in the case of Article 12.3 only if the prosecutor has established previously that the statehood is not contested. It follows from this that the Prosecutor cannot initiate a preliminary examination before the constitutional filters imposed by the framers have been passed.

I suggest to modify the OTP Regulation 25(c) and add in Regulation 25(a) “and acceptance of jurisdiction by a non state Party” instead of in its present position. The initiation of a preliminary examination is only possible for the 3 triggering under Article 13. It derives from this logic that acceptance of jurisdiction by a non state party is part of the prosecutorial initiative under its power ex officio. Article 12.3 does not stand by itself.

It is obvious that 12.3 and 15 have been misconstrued. Both provisions represent procedural filters prior to the initiation of a preliminary examination. As for Articles 53, 54, 18, and 19 they apply only after the authorization to open an investigation in the situation pursuant to 15.3. The Pre-Trial Chamber may not authorize the opening of a full investigation but rather a preliminary investigation into the situation pursuant to Articles 13, 12.3 and 15.3. In the case of a State Party referral, the Prosecutor acts pursuant to his regular power to investigate. He will proceed directly to an investigation of the situation without judicial review pursuant to article 53(1).30 Accordingly, the provision makes a distinction between a preliminary examination under Articles 15.1, 15.2 and 15.6 and the opening of a full investigation under articles 15.3 and 53.31

When the Prosecutor acts ex officio he is confined, pursuant to Article 4(1), to insuring that he has the full cooperation from a competent non-State Party in accordance with a declaration of acceptance pursuant to Articles 12.3, and 15.2 and Rule 44.2.32 Only at that point may he ask the Pre-trial Chamber to authorize the opening of an investigation into the situation. It follows that the Prosecutor has skipped this phase probably because of the lack of Regulation pertaining to the analysis of information provided for under Articles 15 and 12.3. The Prosecutor decided to treat the analysis of information coming from the statutory referrals set out in Article 14(2) without taking into account the notion of “investigations” within the meaning of Article 15 (6). Conclusively, the PNA declaration is mistakenly considered to be a referral. The above reasoning may be pertinent to the assessment that the Prosecutor, who initiated a preliminary examination, based on its power ex officio acted in a manner contrary to the Statute. The logic of the Statute dictates that only a competent non state party can make an Acceptance of Jurisdiction under 12.3.

It follows that in the context of the Statute constitutional framework that Professor Pellet’s interpretation is not accurate.33 He sustains that “It is for the ICC to define its jurisdiction and the limits imposed on its exercise of jurisdiction, based on its interpretation of the provisions of the Statute, in accordance with the principle of the kompetenz-kompetenz, according to which it is judge of its own jurisdiction. This is a general principle of international dispute settlement whose specific conditions of implementation by the ICC are specified in Articles 18 and 19 of the Statute.” This statement is contrary to the Statute purposes. The borders of the ICC jurisdictional parameters are predetermined by the Rome Statute framers, either the ICC or its Prosecutor nor do the communities have this constitutional power to modify it. Hence, Articles 53, 18 and 19 apply only after the Prosecutor is authorized to open an investigation into the situation. The ICC is an international organization subject to the mandate of the States Parties pursuant to the Preamble, Article 1 and 4.2. This is further illustrated by the dissenting opinion in the situation of Kenia. A commentator report in its analysis that “Judge Kaul expresses his concern that if the standard were to be set so low that the Court becomes a mere” rubber stamp” for the Prosecutor, it may result in the Court commencing investigation without the Court having jurisdiction.“34

The non state party has a duty to accept the statute in its entirety and cooperate fully with the Court and its Prosecutor pursuant to Rule 44(2).

The Prosecutor has the legal power to initiate a preliminary examination pursuant to Article 15, but he is obliged to act on the territory of a State Party or a non-State party by ad hoc consent. This ad hoc consent requires full cooperation and assurances that the Prosecutor can investigate freely in the territory. Pursuant to Part 9, States Parties are obliged to fully co-operate with the Court in its investigation and prosecution of crimes, and the same rules also apply to non-States Parties if they lodge an ad hoc declaration under Article 12(3). Therefore Rule 44(2) requires criteria of competency from the non State Party.

Reactions to the replies presented by Professors Bassoon, Fletcher and Quigley.

As a commentator on the Rome Statute negotiations, Mr. Bassiouni asserts that the framers meant “States” and not entities. Professor Fletcher suggests that regarding a non-State to be an eligible State Party is also consistent with the intent of the framers. Professor Quigley objected to this statement because it is not written in the Statute that a non-State meant an eligible State or an entity. The Statute has been drafted in a manner which did not permit the coordination of all the provisions between them. The fact that the Statute does not say specifically that it does not apply to non-State entities does not negate the implied intent of its framers and the clear phrasing under article 12.3. The last argument against the expansion of Article 12.3 to include the PNA lies in the fact that there is no accepted definition of the notion of State in international law. For this reason, neither the Prosecutor nor the Court is entitled to make this determination.

Furthermore, in the case of the PNA, the borders of its territory are not yet known. This fact prevents the PNA from meeting the obligatory conditions set forth in Article 12.3 and Rule 44.2: a non contested non state party territory and effective cooperation. Without previously meeting those conditions, the Court will not be able to authorize the Prosecutor to launch a full investigation in Gaza.

To conclude

The term “non state party” within the statute meaning cannot be construed as including a non state for which there is no prior internationally recognized definition of Statehood. However, a legislative determination may legally declare the statehood of the PNA prior to an amendment by the parliament of the State Parties. The same logic applied to the definition of terrorism under the Statute which is also included in the limited jurisdiction of the Court.35 Cherif Bassiouni statement at the Rome Conference resumes perfectly the idea that the Rome Statute cannot be reduced only to impunity. The framers intended to spread the ICC Culture to reach universal ratification. It is only through the principle of complementarity that impunity will be achieved.

“The ICC will not be a panacea for all mankind. It will not eliminate conflicts, nor return victims to life, or restore survivors to their prior conditions of well-being and it will not bring all perpetrators of major crimes. But it can help avoid some conflicts, prevent some victimization, and bring to justice some of the perpetrators of these crimes. In so doing, the ICC will strengthen world order and contribute to world peace and security. As such, the ICC, like other international and national legal institutions, will add its contribution to the humanization of our civilization…. Ultimately, if the ICC saves one person as it is said in the Talmud, it will be as if it saved the whole humanity.”36

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Article 21(1), Preamble, Articles 1, 4(2), 24.2 ; 42.2, Regulation 25, 27(a); 86, 87(5) and articles ; 13(c), 15.1, 15.2, 12.3 ; 15.3, 15.6 ; 53.

  2. 2.

    The Statute clearly asserts that “For the field of governing the jurisdiction and functioning of the Court, the Statute and its secondary legal sources based on the Statute, like the Rules, are equally applicable while for assignment (referral) of jurisdiction only the Statute is relevant. As support for a wide notion of the words governed by the provisions of this, Statute article 21, Applicable Law, is also relevant.” Otto Triffterer Article 1 “applicable standards” at page 62, MN 22 and 23, In Otto Triffterer Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos Verlagsgesellschaft, 1999.

    The jurisdiction and functioning of the Court and its Prosecutor shall be governed by the provisions of this Statute since “The power to exercise its jurisdiction, thereby limiting this jurisdiction to what has been assigned to the Court theoretically in this Statute, thus excluding any other source of law, except an amendment of the Statute. This theoretical basis is in practice limited further, since the exercise depends on the fact that a situation has been referred to the Court according 13, 14 and 15.” In Otto Triffterer Article 1 at page 61, MN 21 and Article 4(2) at page 95, MN15.

    It is further confirmed by the ICC rulings: “The Appeal Chamber shall not advert to the definition of ‘good faith,’ save the mention that it is linked to what follows and that it is the wording of the statute. The rule governing the interpretation of a section of the law is its wording read in context and in light of the context of a given legislative provision defined by the particular sub-section of the law read as a whole in conjunction with the section of enactment in its entirety.” In ICC Appeal Chamber Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal in ICC-01/04-168, Situation in RDC, paragraph 33. Also in the Lubanga judgment in ICC-01/04-01/06-772, 14 December 2006 at pp. 34 note 80. The Court held that “The previous decision of the Appeals Chamber in Situation in the Democratic Republic of the Congo Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal is instructive on the interpretation of article 21 (1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either sub-paragraphs (b) or(c) of paragraph 1 of article 21 of the Statute.” It was previously construed by Alain Pellet as followed “Indeed endowed with limited jurisdictions the court cannot depart from the terms of the statute and can only act within its framework; which both confers and limits the court’s jurisdiction.” Alain Pellet at page 1079, supra notes 159, 160, in Antonio Cassese/Paola Gaeta/John R.W.D. Jones. The Rome Statute of the International Criminal Court, Oxford: Oxford University Press, 2002

  3. 3.

    Acceptance of jurisdiction by a non state party—Article 12.3 is a key provision which regulates the limits of the prosecutor ex officio power under Articles 13(c) and 15. Gabriella Della Morte, Les Frontières de la Compétence de la Cour Pénale Internationale, in International Review of Penal law (73), at pages 26, 41, 52.

  4. 4.

    The General Principles of Criminal Law pursuant to articles 22, 23 and 24.2 prohibits ‘change in the law’ amounting to ‘a bill of Attainder.’ This interpretation is confirmed by Pangalagan’s doctrine as followed “in case of retroactivity of law the most lenient law shall apply, ‘nullum crimen and ex post facto,’ every law which in relation to the offense or its consequences, alters the situation of a person to his disadvantage. For persons entitled to the benefit of more favorable law this provision can be invoked at any stage of the proceedings provided that the finding of guilt is still susceptible of appeal. When that more severe morality becomes a law while a person is being tried, and the law is applied to him or her, the community’s judgment in that context loses its general character. The danger therefore is that, when a community decides to punish an more sternly, a parliamentary act can effectively target individual and thus partake of a judicial character, and the law, though general on-its-face become a bill of attainder as—applied. On the other hand, focusing on the fairness standard, an ex post facto law fails the forcibility in that the individual is unable to know beforehand the full consequences of its act, and can be held to account only under the terms by which the act was punishable at the time it was committed,” Article 24, (Raul C. Pangalagan, p.472, MN 14), in (Triffterer, 1999). See supra note 2.

  5. 5.

    “Article 4: Legal status and power of the Court” means that “States must fully cooperate in the investigation and prosecutions, and shall ensure that procedures under national law are available for such cooperation.” As a result Article 4 refers to Article 15.2, (p.93 note 42) ; “Article 4.2 was inserted into original provision after deliberation in the committee of the whole during the first week of the Rome conference” (p.94, MN 13, note 50) ; “the powers of the Court are limited to those provided by the Statute” (95, note 51); “the provision is directed against an expansion of the court’s power beyond statute” (p.95, MN 13); “the attribution of new powers must be done by revision, not by subsequent treaty or practice,” (p.95, MN 15); ”The acquisition of additional powers through customary law can similarly be examined. Under general international law, subsequent practice of the members of an international organization can modify the constitution of the organization if it reflects an agreement among all the States Parties,” (p. 96, MN 16) (Wieke Ruckert in Triffterer, 1999), supra note 2.

  6. 6.

    “Since article 4(2) establishes that the functions and powers have to be provided for in this Statute, the provision leaves no room for application of any such broad construction that could encroach upon the sovereignty of States Parties” (p.95, MN 14). The author further established that “By contrast, the States Parties have agreed to a differentiated system and procedure of amendments to the Statute, laid down in 121 to 123. The attribution of new powers and functions would thus have to be effected through relevant procedures of amendment, not subsequent treaty law” (p.95, MN 15) (Ruckert), supra note 2.

  7. 7.

    Les effets de la reconnaissance par la Palestine de la compétence de la CPI” (English translation) February 18, 2010.

  8. 8.

    The Author Dominik Zimmerman resumed the Doctrine as followed: Article 12.3 does not give the right to a non State Party to refer a case “This power is restricted to States Parties and there can be no ad hoc referrals by non-States Parties, even those that have made declarations pursuant to article 12(3). This power is not restricted to States with a direct interest or involvement in the situation. State Party referrals must be done in accordance with article 14.” (Sharon A. Williams/William A. Schabas, p.569, MN 15) in (Otto Triffterer 2008). (Philippe Kirsch and Darryl Robinson, p. 619) (Antonio Cassese/Paola Gaeta/John R.W.D. Jones) available online and here. It derives from this doctrine that if non state cannot refer a case, they cannot either initiate a preliminary examination. The latter is confined to the mandate of the Prosecutor under Article 1, 4.2, 13, 12.3 and 15. Hence the OTP Regulation under Article 14 does not apply to non State Parties.

  9. 9.

    “L’humanisme Judiciaire / Judiciary Humanism,” (Rosette Bar Haim, RQDI, Hors Serie 2010—International Association of Defense Lawyers, AIAD-ICDAA) available online. View the summary in English at page 13 in the introduction of Joe Cooper. The legal doctrine of Judicial Humanism is announcing new sources predicting the new international legal order, still currently at an embryonic stage. Available online (French version only).

  10. 10.

    “Thus, The Statute itself seems to postulate the future existence of two regimes or corpora of international criminal law, one established by the Statute the other laid down in general international law,” (Pellet, p.1083, note 177), (Cassesse) supra note 2.

  11. 11.

    It is established by the Doctrine “As a constitutive instrument, the ‘Statute is a treaty of a particular type,’ being an agreement between the States Parties and the ‘constitution’ of the organization, pinnacle of the hierarchy of applicable norms” in (Pellet, p. 1054, note 20), (Cassesse), supra note 2.

  12. 12.

    Article 86 and article 87(5) “General Obligation to cooperate.” It is established by the Doctrine that “No statutory duty to cooperate with the court exists for entities other than the one mentioned in margin NOS 2 ET SEQ8. The statutes do not address at all the issue of possible cooperation between entities and the Court. This lacuna does not preclude, however, the possibility to work out solutions on an ad hoc basis wherever the needs arises”; “it is the state party not the state officials individually that are under the obligation to cooperate. International obligation is directed to states not to their officials. The statute is clear part 9 and 86 cannot be deviated, states officials as individuals cannot be the address of court request for cooperation; it does not apply to individual too.” (Claus KREB, p. 1051 MN 1), (Triffterer), supra note 2.

  13. 13.

    This is a recurrent expression in the media. “The 15 of January 2009 the prosecutor declared in the press that he has no jurisdiction to investigate possible Israeli war crimes in Gaza.” Available online (13 of January 2011). “The 22 of January 2009, the prosecutor received Dr. Ali Kashan, Minister of justice of the PNA, who briefed the Prosecutor on the current situation. The same day, Dr. Kashan, on behalf of the PNA lodges a Declaration under 12.3. In February 2, 2009 the prosecutor declares in Davos that he is looking at ways to put Israelis on trials, even if this examination does not reflect that war crimes have been committed in Gaza. The first step will be to know if he has jurisdiction. Palestinian lawyers pressured the prosecutor saying that ‘Palestinians lawyers argue that the PNA should be allowed to refer the cases in Gaza on the same ad hoc basis despite its lack of international recognized statehood.’ ” Available online. “The 3 of February in editorial Gaza : welcome initiative by ICC : the ICC is wisely reconsidering its decision last month that it was unable to mount a war crimes prosecutor over Israeli savagery in Gaza because it did have jurisdiction.” available online

  14. 14.

    “Article 1(3)(c): The power to exercise its jurisdiction—Complementarity to national criminal jurisdictions.” “The concept of complementarity is addressed in Article 1 is precisely described not only by paragraph 10 of the Preamble but in even more detail in 12-15, 17and 18. Accordingly to these provisions complementarity means that national jurisdiction has in principle priority unless a situation is referred to the court by the Security Council or the competent national jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution, article 17 para.1(a).” (Triffterer, p.59, MN 20), supra note 2. Preamble paragraph 4 is construed as followed “Not all crimes committed can in practice be prosecuted before the ICC. Hence, it appeared necessary to point out and affirm that the effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” (Triffterer, p. 11 MN 13), see supra note 2.

  15. 15.

    The Principle of independence and impartiality of the prosecutor are settled in Articles 42(1) (2). “General principles, article 42 (1) and 42 (2) and OTP Regulation 27) (a) ‘information relating to matters which manifestly fall outside the jurisdiction of the court.’ Article 42 of the Statute provides that the Office of the Prosecutor shall act independently of instructions from any external source. Independence goes beyond not seeking or acting on instructions: it means that the Office decisions shall not be altered by the presumed or known wishes of any part or by the cooperation seeking process. The scope of the Prosecutor’s examination cannot be bound in a manner contrary to the Statute.” Available online Referred to in “OTP Regulation in preliminary examinations,” at pp. 34, p. 6.

  16. 16.

    supra note 2

  17. 17.

    ”Thus, it suffices to mention that, insofar as proprio motu investigations by the Prosecutor are concerned, both proponents and opponents of the idea feared the risk of politicizing the Court and thereby undermining its ‘credibility.’ In particular, they feared that providing the Prosecutor with such ‘excessive powers’ to trigger the jurisdiction of the Court might result in its abuse. This concern prompted the drafters of the Statute to seek a balanced approach that rendered the proprio motu power of the Prosecutor to initiate an investigation acceptable to those who feared it. The intended result was accomplished through the current text of article 15 of the Statute.” See in Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya; No. ICC-01/09 1/83 31 March 2010ICC-01/09-19-Corr 01-04-2010 1/163 CB PT, available online at pp. 18

  18. 18.

    See the Allocution of the Palestinian representative at the review conference June 2010; available online. It should be noticed that Palestine is referred to as an entity by the assembly of States Parties at the Review Conference in June, Kampala. available online.

  19. 19.

    In support of the arguments establishing a risk of abusive initiation of a preliminary examination in the case of the PNA, I refer to the European Centre for Law and Justice: “Legal Memorandum opposing accession to ICC jurisdiction by Non-State entities” September 9, 2009.

  20. 20.

    See at supra note 26

  21. 21.

    See supra note 4

  22. 22.

    “Article 22, general principles of criminal law “, in ICC-01/09-19-03-2010 113/163 CB PT at paragraph 56, note 61. See the dissenting decision of Judge Kaul (KENIA, ICC, and March 2010) at supra note 17.

  23. 23.

    The term ‘investigation’ in Article 53 is construed as followed “The investigatory activities which commence, subsequent to the Prosecutor’s powers to investigate having been triggered, are broadly speaking two fold. In the first place the Prosecutor must assess the preliminary information provided in order to determine whether or not to embark on a full investigation. this preliminary assessment is a precautionary measure is which is intended to protect the Prosecutor from the obligation of expending resources and time on an investigation which clearly has no chance of leading to a compelling indictment or prosecution “this provision provides one of the several safeguards against the abuse of the investigative capacity of the court by the Prosecutor. The second investigatory activity, which commences depending on the outcome of the assessment of the preliminary information is the launching of an in depth investigation of the incident or situation to which the preliminary information pertains. This in-depth invest will determine whether a prosecution should be instituted or not.” (Bergsmo/Kruger, p. 704, MN 6), (Triffterer), supra note 2.

  24. 24.

    “States Parties can trigger the Court’s jurisdiction over a particular situation. This entails an ability to direct the Court’s attention to events in a particular time and place, possibly involving criminal acts, with a view to initiate an exercise of jurisdiction over those acts. In Prosecutor v. Dyilo, Decision Concerning Pre-Trial Chamber I’s Decision of 10 February 2006 and the Incorporation of Documents into the Record of the Case against Mr. Thomas Lubanga Dyilo, 24 February 2006, para. 21, PTC I stated that a situation is defined by “territorial, temporal and possibly personal parameters.” This was repeated in Prosecutor v. Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, 5 November 2007, para. 9. See, also Bemba, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, para. 16. (Dominik Zimmerman) available online and here.

  25. 25.

    Analysis of the Kenia situation: available online (Lionel Nichols)

  26. 26.

    “Article 15(1) uses the word ‘investigation’ this should not be misconstrued. 15.6 refer to ‘preliminary examination’ referred to in pp.1, 2, an expression which more adequately captures the nature of the activities which the Prosecutor may undertake during the initiation phase. When initiating an investigation, the prosecutor may take investigative steps such as outline in para.2, but not an actual investigation. Only when the pre-trial chamber has judicially approved a prosecutorial request to proceed may a full investigation be launched.” (Bergsmo /Pejic, p. 364, MN 10), (Triffterer).

  27. 27.

    Regarding Article 12(3), ICC Statute and rule 44, ICC RPE: “It should be noted that article 12(3) is a jurisdictional provision, not a trigger mechanism. As such, such declarations should not be equated with referrals, but will require a separate triggering by the Prosecutor proprio motu or by a State Party. See also Regulation 45‐46, Regulations of the Court, which provide for the constitution of a Pre‐Trial Chamber only following the Prosecutor’s notification of a referral or of an intention to submit an article 15 request.” available online at page 9, supra note 2.

  28. 28.

    This reasoning may assess that the Prosecutor did not have jurisdiction to initiate a preliminary examination in the case of the PNA. (Dominick Zimmerman, note 137), supra note 8.

  29. 29.

    Regulation 25: Initiation of preliminary examination

    1. The preliminary examination and evaluation of a situation by the Office may be initiated on the basis of:

    • (a) any information on crimes, including information sent by individuals or groups, States, intergovernmental or non—governmental organizations;
    • (b) a referral from a State Party or the Security Council; or
    • (c) A declaration pursuant to article 12, paragraph 3 by a State which is not a Party to the Statute.
  30. 30.

    [144] Article 15 “Paragraph 3 concerns the situation when the Prosecutor has concluded his or her preliminary investigation pursuant to paragraphs 1 and 2. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. In cases where the Court’s jurisdiction is triggered under article 13(c), this is the only way the Prosecutor can get from a preliminary examination to the stage of an actual investigation with the associated powers under article 54. If the Court’s jurisdiction has been triggered by a State Party or the Security Council pursuant to article 13(a) and (b) respectively, article 15 does not apply. In such cases the Prosecutor may proceed under article 53(1) directly without the authorization of the Pre-Trial Chamber.” Doctrine: (Bergsmo and Jelena Pejić at pp. 588-590, MN 18-24) in (Otto Triffterer 2008).
Philippe Kirsch and Darryl Robinson at pp. 661—662, in Antonio Cassese/Paola Gaeta/John R.W.D. Jones. (Mark Lamberg). supra note 8.

  31. 31.

    It derives from Article 53 that: “It follows from what has already been developed that the formulation ‘initiate an investigation’ in article 53 of the ICC Statute must be distinguished from ‘initiate investigations’ in article 15. According to article 15.6, the latter refers to preliminary examination, i.e., the preliminary gathering of information in order to determine whether to proceed to request the pre—trial to authorize a full investigation. The phrase as used in the context of article 53, on the other hand, refers to the commencement of a full investigation with a view to determining whether to prepare an indictment and prosecute. Article 42(1) makes a distinction between ‘examining referrals and substantial information’ ‘and’ conducting ‘investigations and prosecutions,’ which may be useful indication of cumulative phases of the exercise of the prosecutor’s duties. (Bergsmo/Kruger, p. 704, MN 5) supra notes 2, 23, 26

  32. 32.

    Article 4(2) (1), (Ruckert, p.93, MN 9, 10), see supra notes 2.

  33. 33.

    (Pellet, submission at para 16) in supra note 7,

  34. 34.

    Lionel Nichols, “What is a reasonable basis under 15.3,” Kenia decision, supra note 25

  35. 35.

    “At the Rome Conference in 1998, ‘Resolution E’ was adopted. The Resolution provides that--while those present at Rome were unable to reach consensus on a definition of Terrorism and Drug Trafficking for inclusion in the Statute—it is “recommended” that a future Review Conference reconsider the inclusion of these crimes. At the Informal Consultation of the NYWG held in June 2009, the majority of those present noted that there would unlikely be substantive discussion of the matter at the 2010 Conference. Instead, they felt, the issue should be considered at Review Conferences that followed. The most common reasons cited for this perspective were the present lack of a comprehensive definition of terrorism in international law (though some argued against this), and a desire to ensure sufficient time and attention was paid to Crime of Aggression as the more pressing matter at the Conference.” Excerpt from the Dutch proposal submitted at the Assembly of State Parties during the Rome Conference in Kampala, June 2010. Supra note 13.

  36. 36.

    Cherif Bassiouni, Negotiating the Treaty of Rome, Heinonline-32Cornell—32 Cornell Int’l.j.469 (1999) at page 469

Your proposition "to relocate the academic debate from international law to the legal boundaries provided for solely by the Rome Statute" seems completely unworkable and artificial to me.

The legal boundaries provided by the Statute do include international law. For example:

*The jurisdiction of the Court under Article 8 2.(b) encompasses "Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law"

*Article 21 states that the "applicable law" includes "applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;" and "failing that general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime"

The rules governing recognition of statehood, belligerency, and insurgency are an integral part of the international laws and customs of war. The Montevideo Convention explains that "Even before recognition the state has the right to defend its integrity and independence". Many, if not most other countries have long since accepted the legal personality of the State of Palestine "with all the rights and duties determined by international law". Some states acted tacitly at first, but recently states have expressed their recognition in no uncertain terms - despite strong objections from the State of Israel.

The Prosecutor plays no role in challenging the determinations of statehood made by any of the State parties to the Rome Statute. If a "genuine dispute" exists regarding a material fact (such as statehood) and it might effect the outcome of a case under governing law, then it is a legal question that the trier of fact and law will have to decide as a preliminary matter. That is true despite the fact that the alleged crimes might be entangled in the usual political disputes.

A Reply to Mr. Harlan’s Position1

It is necessary to relocate the debate in order to clearly perceive the legal questions at stake in the matter of the PNA Acceptance of Jurisdiction. I firmly believe that this action by the PNA is inherently intermingled with public law, and while public law and politics can coexist, criminal justice and politics cannot. The Statute is the result of a political legal compromise aimed at individual criminal liability, contrary to the ICJ which is aimed at state responsibility.

A relevant and appropriate legal debate regarding this matter should only touch on the following: the regularity of a prosecutorial referral per Articles 13(c), 12.3 and 15 the interpretation of the phrase “a state not a party to the Statute”, as used in Article 12(3) and Rule 44, and the recognition of statehood by the ICC and its prosecutor. This is grounded in a number of reasons.

Firstly, as I argue in my article, although the Statute provides for mechanisms through which a non-State Party can accept the jurisdiction of the Court on an ad hoc basis, the PNA has yet to be officially recognized as a “state” previously to the lodging of a Declaration pursuant to Article 12.3, and as such does not fulfill the requirements of the Statute. Internationalists argue that the wording of Article 12.3 may be implicitly extended “to tacitly recognized states by international practice”. Criminalists contest this contention based on the wording of the overarching relevant provisions used to in the Statute itself—most notably Articles 1, 4(2), 21(1)(a), and 13(c), 15 in junction with 12(3).

Secondly, in principle, the Statute indeed includes all international law sources that existed at the time of its ratification. However, this is one of the reasons the Statute demands that its core subject matters be strictly construed. Recognition of statehood is in direct connection with matters regarding the competence of the ICC, and the Statute clearly states that these matters are to be construed solely under Article 21(1)(a) because they are related to assignment of referral.2 If the Statute does not expressly say that it grants the Court the authority to make a determination on statehood, then the ICC and its Prosecutor cannot infer that this authority exists simply from the absence of such a provision.

In fact, the Statute’s founders intentionally refrained from authorizing the ICC to perform such a duty. A close reading of the Statute’s provisions leads to the conclusion that the limits of the jurisdictional scope of the Court cannot be expanded or restricted by the organs of the Court and its prosecutor, mainly because such an action negates the will of the framers to reject universal jurisdiction.

There indeed exists a solution in the Statute for such constitutional prejudicial questions, and this is done through the amendment procedures enumerated in the Statute. The Statute provides for amendment procedures under Articles 121, 122, and 123. This means that the question of the expansion or restriction of the notion of statehood should be dealt with by State Parties in a previous parliamentary determination. Until today, as Professor Bassiouni asserted, the framers’ language in the Statute meant only a State Party or Non State Party could fall under the Court’s jurisdiction. This is why it is not legally possible under the Statute to extract international instruments from secondary sources of law per 21(1)(b)—such as the Montevideo Convention for Statehood Interpretation—and apply them as if they were above the intent of the Statute framers.

Furthermore, the enumeration in Article 21 of “in the first place [the] Statute…,” “in the second place, where appropriate, treaties and rules of international law”, and “failing that, general principles of law”, indicates that the Rome Statute also has superiority over other treaties, customs, and general principles applied by the Court.3 The PNA’s Acceptance of Jurisdiction is thus, in my opinion, a blatant deviation from the limited scope of jurisdiction under the Statute.

Thirdly, the regulation of referrals under Articles 13, 14, and 15, is a subject matter related to the scope of jurisdiction and to the scope of the assignment of powers, by the Rome Statute, to the ICC and its Prosecutor pursuant to Articles 1 and 4(2). My reasoning leads me to maintain that the Montevideo Convention, and all other sources of law regarding armed conflict, should be interpreted in light of the provisions of the Statute under Article 21(1)(a). As such, I argue that the mechanisms used by the Prosecutor pursuant to Article 13 and Article 15 in conjunction with 12(3) clearly imply that Article 12(3) is included in the assignment of referral. Notably, in case of assignment of referral the statute confine the interpretation of such notion to be dealt by its text only. Therefore article 12.3 can be construed following the overarching provision of the statute, to avoid an unlawful expansion of the jurisdictional parameters.

The ICC has supported this notion in its case law. For example, the Court has held:

On the interpretation of Article 21(1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either sub-paragraphs (b) or (c) of paragraph 1 of Article 21 of the Statute.4

From the Court’s wording it follows that the notion of statehood is dealt with in the text of the Statute and confirmed by its commentators; therefore there is no room left for recourse of secondary sources of law (b) or (c). The Statute is exhaustive and conclusive on the subject matter of the limited jurisdiction pursuant to article 1, 4(2) and 21(1)(a).

It is clear, at least to me, that the lodging of the PNA declaration and the initiation of the preliminary examination in Gaza was ultra vires. The reconsideration of the Goldstone report is also evidence of the notion.5 The Gaza question arouses challenging legal questions basically because expert of international are confronted with conflicting sources of law which have not been studied by the academy. Undoubtedly, the law of the Statute will always prevail over general contested international criminal law sources. These cannot be resolved by principles of interpretation. The impasse requires a review of the statute.

The example you chose to counter my argument should receive the same analysis as explained above, since Article 8 is a jurisdictional matter as well. Moreover, the Statute clearly lists all crimes included in the jurisdiction of the ICC. Your reference to Article 8(2)(b) is incompletely quoted. To quote you,

‘The jurisdiction of the Court pursuant to Article 8 2.(b) encompasses “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.”

Here, you failed to refer to the second part of the sentence, which clearly recounts the list of crimes drawn from the established framework of international law at the establishment of the ICC. The Rome Statute commentator Triffeterer supports this argument in Part 1 of his book when he says regarding Article 1 that only “the most serious crimes of international concern, as referred to in this Statute fall within the jurisdiction of the Court.” This implies that there are “serious crimes” not falling within its jurisdiction. In addition, Triffeterer says that Articles 6, 7, and 8, includes definitions of single crimes falling under the crimes of genocide, crimes against humanity, and war crimes, which are only listed ‘for the purpose of this Statute.’ He continues:

‘Thus certain crimes can exist, the definitions of which are not included in the Statute, but which are nevertheless punishable directly under international law. But they cannot, at least as the Statute stands now, be investigated and prosecuted by the ICC…Article 8(2) (b) states ‘Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts…’

As you can see, there is a limited list of crimes relevant to the Statute, and it is impossible to extend this list of crimes to those punishable under other criminal tribunals by any other means than the amendment mechanism enumerated in the Statute.6

Fourthly, if an entity is not officially recognized as a state, it cannot trigger individual criminal responsibility under the Statute. This is strictly a political matter. The Court works with consenting states only; it does not create duties for third states or entities. Contrastingly, certain politics and public law may create criminal responsibility to states not party to specific treaties. This is valid in cases where International or national criminal tribunals can exercise universal jurisdiction. However, this is not the case under the Rome Statute, as the compromise adopted by the majority rejected universal jurisdiction. The notion of statehood is directly connected to universal jurisdiction subject matter in public law, and the scope of jurisdiction under the Rome Statute excludes universal jurisdiction. In cases referred to the Court by the UN, the Security Council has the authority to trigger the ICC, not the victims or other actors. The same reasoning applies for prosecutorial referrals—it is not a declaration under Article 12(3) which triggers the Court, but the Prosecutor complaint himself. Even so, this faculty does not provide the Prosecutor with the certainty that he will be authorized to open a preliminary investigation under Article 15(3) and Article 53. Under the Statute, the victims and other actors can only refer to the OTP communication or information related to alleged crimes as stated in Article 15(1). The Rome Statute has opted for a State complaint solely.

Furthermore, nothing in the Statute alludes that the power to recognize statehood is given to the Court or its Prosecutor by the State Parties, which is also in accordance with Articles 1 and 4(2).7 The judges can make a determination about the regularity of the prosecutorial referral and can interpret Article 12(3), but they cannot make a determination of statehood. This is because the ICC is an international organization and not an autonomous criminal tribunal. In the words of Wiebke Ruckert:8

The legal nature of an institution is a consequence of the method of its establishment9…Unlike a state, an international organization does not possess the totality of international rights and duties recognized under international law; its powers are limited by its purpose and functions as specified in its constituent document10…Further, Article 4(2) of the Statute circumscribes all such means of expansion of the Court ‘s power, given its requirement that the Court powers and functions be provided in the Statute not elsewhere…Under general international law, a subsequent treaty between the parties supersedes an earlier treaty. Here, by contrast the states parties have agreed to a differentiated system of and procedure for amendments, as laid down in Articles 121 to 12311…The insertion of Article 4(2) thus shows that the powers and functions of the ICC are not to be based upon subsequent practice, but upon the Statute itself.12

In other words, new powers and functions of the Court, such as the power to recognize the statehood of Palestine, can be achieve only through amendments.13

Fifthly, a tacit recognition of Palestine cannot fulfill the requirement of Article 12(3), and the ICC has no power to recognize the statehood of Palestine. The ICC cannot make such a political determination.14 The Rome Statute states parties cannot make this recognition before it is made legitimate according to established international law. For the same reasons, states parties cannot define the crime of terrorism before its established international law officially defines it.

There are many notions which are not settled in international law. The notion of armed conflict, for example, has been extensively construed as to include terrorist attacks.15 This definition is thus included in the Statute. However, the ICC cannot create substantive general international criminal law. For this reason, although terrorism is a violation of the Geneva Convention and has been found as an its element of the crimes have been defined by the jurisprudence of the Sierra Leone criminal tribunal, it cannot be tacitly considered a punishable crime under the Statute. International experts must first reach a consensus about the nature of such a crime, and then submit a proposal to the assembly of state parties to amend or review the Statute in light of this.

In short, if you can find a provision that assigns the function of recognizing statehood to the Court and its prosecutor, or can prove that my legal findings per articles 1, 4(2) and 21(1) (a) violates internationally recognized human rights per Article 21(3), my central argument will be invalidated. Claims of such a nature are the only valid justifications of the Prosecutor’s actions.

Notably, the recognition of Palestine by the ICC and its Prosecutor amounts to a change in statutory law. That is why change in law by the international community is not permitted under the Statute, especially with regard to subject matter concerning the parameters of the Court’s jurisdiction. A deviation from what has been explicitly assigned to the ICC and its Prosecutor jeopardizes and subsequently weakens the validity of the Rome Statute. In the short term, it may seem to be just for the sole reason of the interest of victims, but in the long range the inclusion of an element of universal jurisdiction in the Statute will put an end to the ICC, and victims will lose a permanent Court. Additionally, such judicial deviation from the Statute violates Articles 21(1)(a) and 21(3).16 Moreover, if the PNA’s Acceptance of Jurisdiction is considered legitimate, all other non-state entities ought to have the same treatment as the PNA.17 Surely you can see why such an extensive interpretation of the limited jurisdiction of the ICC is absurd and can lead to discrimination and human rights violations of other victims of international crimes which did not attract the attention of the ICC Prosecutor.

In conclusion, if the Court authorized the Prosecutor to investigate in Gaza, it will have acted beyond its jurisdiction. It is not valid to assert, as Professor Pellet did, that the ICC has “the competence of its kompetenz”. Rather, it is the Rome Statute itself that holds this faculty, especially with regards to jurisdictional parameters.18

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    Mrs. Rosette Bar Haim’s legal position on the interpretation of Article 12(3) of the Rome Statute available online

  2. 2.

    The Statute clearly asserts that “For the field of governing the jurisdiction and functioning of the Court, the Statute and its secondary legal sources based on the Statute, like the Rules, are equally applicable while for assignment (referral) of jurisdiction only the Statute is relevant. As support for a wide notion of the words governed by the provisions of this, Statute article 21, Applicable Law, is also relevant.” Otto Triffterer Article 1 “applicable standards” at page 62, MN 22 and 23, In Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos Verlagsgesellschaft, 1999.

  3. 3.

    ICL Database and Commentary—Rome Statute Article 21(1) (a) available online

  4. 4.

    That ICC Appeal Chamber Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal in ICC-01/04-168, Situation in RDC, paragraph 33. Also in the Lubanga judgment in ICC-01/04-01/06-772, 14 December 2006 at pp. 34 note 80. The Court hold that “The previous decision of the Appeals Chamber in Situation in the Democratic Republic of the Congo Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal is instructive on the interpretation of article 21(1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either sub-paragraphs (b) or (c) of paragraph 1 of article 21 of the Statute.”

  5. 5.

    Available online

  6. 6.

    Otto Triffterer, “Preliminary remarks: The permanent ICC-Ideal and reality,” In Triffterer (2008) at page 36, margin 59

  7. 7.

    The jurisdiction and functioning of the Court and its Prosecutor shall be governed by the provisions of this Statute since “The power to exercise its jurisdiction, thereby limiting this jurisdiction to what has been assigned to the Court theoretically in this Statute, thus excluding any other source of law, except an amendment of the Statute. This theoretical basis is in practice limited further, since the exercise depends on the fact that a situation has been referred to the Court according 13, 14 and 15.” In Otto Triffterer (1999) Article 1 at page 61, MN 21 and Article 4(2) at page 95, MN15.

  8. 8.

    Wiebke Ruckert in Triffterer (2008), Article 4(2)—legal status and power of the Court, at page 121-127

  9. 9.

    ibid. at p. 121, margin 1

  10. 10.

    Ibid. at page 123, margin 6; supra note 24, Reparation for injuries suffered in the service of the UN, Advisory opinion, ICJ. Rep. 174, 178/179 (1949), and supra note 29 at 174, 180.

  11. 11.

    Ibid. at page 126, margin 13

  12. 12.

    ibid. at margins 14 and 15 “with regards to the acquisition of new powers and functions through subsequent treaties, the insertion of the passage” as provided for in the Statute “complements the provisions on amendments to and review of the Statute in article 121 to 123.”

  13. 13.

    ibid. at margin 16

  14. 14.

    See the UCLA Law Forum “The Darfur debate and Article 98.”

  15. 15.

    See ICTY Appeals Chamber, Tadić, Interlocutory Appeal on Jurisdiction (1995), § 70.

  16. 16.

    It was previously construed by Alain Pellet as follows: “Indeed endowed with limited jurisdictions the Court cannot depart from the terms of the Statute and can only act within its framework; which both confers and limits the Court’s jurisdiction.” Alain Pellet at page 1079, supra notes 159, 160, in Antonio Cassese, Paola Gaeta, John R.W.D. Jones. The Rome Statute of the International Criminal Court, Oxford: Oxford University Press, 2002.

  17. 17.

    Many entities inside states are waiting for a prosecutorial referral under the ICC, namely: Algeria, Bhutan, Myanmar, Sri Lanka and others and Israel, Lebanon, Iran, they all have send communication to the Prosecutor under 15.1.

  18. 18.

    See Pellet’s submission at paragraph 16. “Les effets de la reconnaissance par la Palestine de la compétence de la CPI” (English translation) February 18, 2010

People what is Gaza? It's just a post 1948 Egyptian annexed territory. I see in real ascent that Gaza should be returned to Egypt because all peace processes since 1950 were set before by King of Egypt.

As for Hamas they are authoritative by now over those territories from Khan Younis to the old railway.

Anyways around Hamas must become Egyptians and rule Egypt.

I really wonder why Palestinians want a territory that has already owned by Egypt, people in that enclave are not Palestinians according to Arab post war divide.

This Question does not rise at all. The Egyptians are setting a siege on their own people.

If you check the documents section of this article, you'll find that Palestine is a full member of the League of Arab States and enjoys treaty and diplomatic relations with Egypt.

In 1950 the US District Court for the District of Columbia ruled that Palestine was a separate foreign state. It noted that the Executive branch of the US government had recognized it as such in 1932 with respect to the operation of the most favored nations provision in treaties of commerce. See the ruling in Kletter v Dulles

The Restatement (Third) of the Foreign Relations Law of the United States § 201 Reporters Note 3 says "The United States will treat States the territory of which is under foreign military occupation as continuing to exist." Egypt occupied the territory of Gaza under a UN armistice agreement and administered it as an Arab League trustee, but it never annexed it. So in a de jure sense, Gaza was part of the territory of Palestine and it has not subsequently become part of any other sovereignty.

If the US court of Washington DC recognized Palestine as a sovereign state since 1932, then the only regime which denies Palestine is Israel with no backing, thus ICC has to take the case and prosecute it. It is also important to file case of jewish settlers’ savage action of threatening foreign Diplomats at security check points.

The United States is not a State party to the Rome Statute. I was just illustrating some points made by Professor Quigley - that the United States had recognized the State of Palestine in accordance with the provisions of conventional international law & that it customarily treats States as continuing to exist if their territory is under foreign occupation. The Baltic States provide an example of an undertaking that lasted for many decades.

In cases like Kletter, those routine determinations of statehood continue to have legal consequences in our national courts afterward as a matter of intertemporal law. Palestine remains the "country of origin" for many resident immigrant aliens who came here during the Mandate era. Palestinian nationality or origin also had its basis in the Treaty of Lausanne and is a federally protected characteristic. The ICC exercises complementary jurisdiction. It will produce very strange results going forward if it adopts a different definition of the term "State" than the one currently employed by State Parties to the Rome Statute. 110 or more countries recognize Palestine as a "State" with all the rights and duties determined by international law. The obligation of the Court in making Palestine's Article 12(3) declaration effective has an erga omnes character. It isn't minting new states in a situation where the national courts of other countries already accept the legal personality of an entity as that of another existing state. The ICC is merely perfecting the secured interests of those other members of the international community of states by taking the necessary steps to apply the rules they have adopted for the conduct of their mutual relations..

In 1995 the State Department published a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said "The use of the term "Palestine" is historical fiction; it encourages the Palestine entity concept; its "revived usage enrages" individual Israelis". Crawford replied "It is difficult to see how it "enrages" Israeli opinion. The practice is consistent with the fact that, ''in a de jure sense'', Jerusalem was part of Palestine and has not since become part of any other sovereignty. Crawford added that it was not a simple matter since there was a ''quota nationality'', in regard to which U.S. legislation and regulation continued to employ the term Palestine at that time. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341.

US immigration law still reflects that the trusteeships and mandates were states. U.S. Title 8, Chapter 12, § 1101. Definitions says "(a) As used in this chapter— (14) The term “foreign state” includes outlying possessions of a foreign state, but self-governing dominions or territories under mandate or trusteeship shall be regarded as separate foreign states."

Other treaties contained similar provisions to the ones found in the Treaty of Lausanne. Article 434 of the Treaty of Versailles stipulated that Germany was required to recognize the dispositions made concerning the territories of the former Ottoman Empire, "and to recognize the new States within their frontiers as there laid down." The other Central powers and the treaty articles that required them to recognize the new States were:
*Bulgaria Article 60 of the Treaty of Neuilly;
*Hungary Article 74 (2) of The Treaty of Trianon
*Austria Article 90 of The Treaty of Saint-Germain-en-Laye

So, Palestine was a "state" as defined in national and international law. If you look for bilateral and multilateral agreements between modern-day Palestine and other states, you'll find evidence that Palestine has ratified or signed many other instruments as a "State" in accordance with the terms of conventional international law.

The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean hands” manifest by their open defiance of the authority of the ICC and its objectives.

The PNA and its State supporters in the Arab League2 request that OTP accept the PNA’s declaration even though it is a non-state actor and does not fall under the jurisdiction of the court and even though a finding by the OTP that it did have jurisdiction would have far reaching political consequences not only for the Middle East peace process, but also for the credibility of the ICC. Yet, the PNA and the Arab League are marred by “unclean hands” based on their lack of commitment to the rule of law and human rights and their brazen defiance of the Rome Statute and the Court’s authority.

Under the ancient legal principle of nemo auditur propriam turpitudinem allegans or the “clean hands” doctrine, someone who has acted wrongly, either morally or legally, should not be helped by a court when complaining about the actions of someone else.3 The International Court of Justice further explains that one of the fundamental principles governing international relationships “is that a party which disowns or does not fulfill its own obligations cannot be recognized as retaining the rights it claims to derive from the relationship.”4

The Preamble of the Rome Statute recognizes that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that “such grave crimes threaten the peace, security and well-being of the world.” It reiterates that such crimes “must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” Far from adhering to such principles, however, the PNA and the Arab League are among their foremost violators. According to the NGO Freedom House, no members of the Arab League can be considered “Free” countries. Only four out of the twenty two members of the League are ranked “Partly Free” and the other eighteen members are ranked “Not Free”.5

Systematic and shocking violations of international human rights and humanitarian law occur on a daily basis. These abuses include slavery in Mauritania; gender and religious apartheid in Saudi Arabia; indiscriminate attacks on the civilian populations by the governments of Sudan, Somalia, Yemen, Algeria, Syria, Iraq, as well as by the Palestinian National Authority; incitement to genocide in Sudan, Syria, and by the PNA; and lack of judicial due process and serious limitations to outright denial of the rights of freedom of expression, religion, and assembly by all League members. These practices are as far as can be from upholding the principles and objectives promoted by the Court.

Even more disturbingly, however, the PNA and the Arab League have brazenly and repeatedly defied the authority of the Court regarding the indictment and arrest warrant issued against Sudanese President Omar al-Bashir. The following are just some examples of this outrageous conduct:

  • On March 30, 2009, Bashir attended the Arab League Summit in Doha less than one month after the Court issued a warrant for his arrest. “An independent group called the Doha Center for Media Freedom condemned Mr. Bashir’s participation in the summit meeting and said that it was hypocritical for Arabs to want Israel to be investigated for its actions in Gaza” and then “complain about it if a friendly country is involved.” ”6
  • At the Doha Summit, PNA President Abbas stated, “We must … take a decisive stance of solidarity alongside fraternal Sudan and President Omar al-Bashir.”
  • Arab League Secretary General, Amr Moussa, said that League member states would “continue our efforts to halt the implementation of the warrant.”7

This inexcusable conduct surrounding the Bashir arrest warrant is even more shocking in the case of the PNA. In its declaration, the PNA represented to the Court that it agreed to “recognize[e] the jurisdiction of the Court,” and to “cooperate with the Court without delay or exception, in conformity with Chapter IX of the Statute.” On January 23, 2009, the Registrar of the Court wrote to the PNA acknowledging receipt of its declaration and informed it that its acceptance of the Court’s jurisdiction obligated it to “the provisions of Part 9 and any rules thereunder.”8 Part IX of the Rome Statute mandates many duties on States accepting the Court’s jurisdiction including:

Article 86

General obligation to cooperate

States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.

Article 89

Surrender of persons to the Court

1…States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.

The PNA cannot possibly expect to receive the benefit of the Court to open cases against Israelis, when it is engaging in such flagrant disregard for its obligations under the Rome Statute—obligations to which the PNA expressly agreed. This is especially true in this case, where acceptance of the PNA’s declaration is not within the terms of the Rome Statute and would require considerable legal acrobatics to effectuate, greatly implicating the credibility of the Court. The relationship with the Court is reciprocal. There is no reason why the Court should go out of its way to accommodate the demands of a non-State entity, to which it owes no obligation, all the more so when that entity has no respect for the Court’s objectives and authority. The OTP should not be a victim to such blatant manipulation. As Prosecutor Moreno-Ocampo himself has stated,

It is the lack of enforcement of the Court’s decisions which is the real threat to enduring Peace. Allowed to remain at large, the criminals exposed are continuing to threaten the victims, those who took tremendous risks to tell their stories; allowed to remain at large, the criminals ask for immunity under one form or another as a condition to stopping the violence. They threaten to attack more victims. I call this extortion, I call it blackmail. We cannot yield.9

And just one last point in response to the comment of Professor Bassiouni who claims that although the Court would not be able to accept the PNA declaration based on Article 12(3), the Prosecutor could act proprio motu pursuant to Article 15. Article 15 does not grant the Prosecutor unlimited power to open investigations in all circumstances. The wording of Article 15 clearly authorizes the Prosecutor only to “initiate investigations proprio motu” solely on “crimes within the jurisdiction of the Court.” Crimes that fall within the jurisdiction of the Court are laid out in Article 12. If the pre-conditions to jurisdiction specified in Article 12 are not satisfied, there is no jurisdiction and the Prosecutor may not proceed with an investigation. There is simply no basis to interpret the Statute otherwise.

The proprio motu power of the Prosecutor was one of the most hotly contested issues at the Rome Conference. There was a great concern that an unlimited power granted to the Prosecutor “could lead to partiality, manipulation and politicization.”10 As a result, the Rome Statute’s “negotiating States turned to strengthening procedures, reducing the discretionary powers available to the Prosecutor, and setting high admissibility thresholds.” It is simply not true that the Prosecutor was granted the authority to ignore the established bases for jurisdiction in the Rome Statute when exercising his proprio motu powers.

The PNA declaration is part of a decades-long political campaign that has frequently co-opted international legal institutions in order to avoid the difficult work of political compromise. It was in this context that the PNA lodged its declaration with the OTP. The attending publicity surrounding the PNA action and the association of Israel with “war crimes” was the primary goal. Indeed, more than two years after presenting its declaration to Moreno-Ocampo, the PNA has yet to file a finalized submission to the Court arguing its legal position. The legal basis for the PNA’s declaration is flimsy at best and the OTP would be wise to reject it sooner rather than later.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

  1. 1.

    This comment is an abridged version of a brief filed with the Office of the Prosecutor on October 22, 2010. The full brief is available online.

  2. 2.

    The Arab League met with Prosecutor Moreno-Ocampo on several occasions in support of the PNA declaration.

  3. 3.

    The ’Lectric Law Library, available online.

  4. 4.

    Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding the Security Council Resolution 276, 1971 I.C.J. 16, 46 (Advisory Opinion).

  5. 5.

    See Freedom House.

  6. 6.

    Michael Slackman, et. al., Often Split, Arab Leaders Unite for Sudan’s Chief, New York Times, March 30, 2009, at A5.

  7. 7.

    Slackman, ibid.

  8. 8.

    Letter of Silvana Arbia to Ali Khashan, Jan. 23, 2009.

  9. 9.

    Address by Luis Moreno-Ocampo, International Conference “Building a Future on Peace and Justice,” (June 25, 2007), available online

  10. 10.

    Rod Rastan, “The Power of the Prosecutor in Initiating Investigations,” Symposium on the International Criminal Court, February 3-4, 2007, at 5, available online.

I find part of Herzberg's argument troubling. She essentially argues that because (1) the Rome Statute must not allow grave crimes to go unpunished and (2) the PNA and Arab League frequently commit grave crimes, therefore (3) the ICC should not exercise jurisdiction over the grievous crimes committed in Palestine.

Although I agree that there are other reasons for the Court to not exercise jurisdiction, I don't believe the above argument is one of them. The Rome Statute's preamble states that "the most serious crimes . . . must not go unpunished . . . ." The Statute further states that the States Parties are "determined to put an end to impunity for the perpetrators of these crimes . . . ."

Given these two provisions, I believe the PNA's unclean hands are irrelevant to determining whether the Court should exercise jurisdiction. The Court's goal is to fight impunity. Thus, the Court's exercising jurisdiction notwithstanding the PNA's past crimes fulfills this goal both in the present (preventing impunity in the current conflict) and in the future (preventing impunity through deterrence). Moreover, given this goal of fighting impunity, I don't see a convincing argument that the Court's not exercising jurisdiction fulfills this goal.

Danterzian,

I thought that all of Ms. Herzberg's arguments were unconvincing.

*The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an unrecognized community that would otherwise be prohibited in cases where the victim is a state. In Military and Paramilitary Activities in and against Nicaragua, the ICJ ruled that the "Definition of Aggression" contained in United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 reflected customary international law. It does not require that the victim be universally recognized as a state before an armed attack upon it can be determined as an act of aggression or a material element of another crime. Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used "in any other manner inconsistent with the purpose of the United Nations".

*Judge Stephen M. Schwebel served as President of the International Court of Justice (ICJ) and the representative of the United States on the UN Special Committee on the Question of Defining Aggression. He said there was nothing to prevent members, and everything to compel them, to interpret "States" as embracing entities whose statehood is disputed. He felt it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. He noted that was demonstrated by the events of the postwar years.The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation - and there has been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the definition of aggression which says that the term "State" is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. See "Justice in international law", Cambridge University Press, 1994, ISBN 0521462843, page 573-574

*The State Parties recently adopted an amendment to the Rome Statute that uses the term "State" to define the acts that constitute the crime of aggression “in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974." That resolution contains the explanatory note mentioned by Judge Schwebel

*Article 31 of the Rome Statute does not include: tu quoque arguments; the related equitable doctrine of “unclean hands”; or political negotiations as grounds for excluding individual criminal responsibility. Other tribunals and Prosecutors have rejected those defenses. See the remarks of Judge Goldstone (below) and:

*Sienho Yee, "The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment", Chinese Journal of International Law (2004) 3(1): 87-134;
**Judgment of the Trial Chamber in Case Kupreškić et al., (January 2000), para. 765;
**Judgment of the Trial Chamber in Case Kunarac et al., (February 2001), para. 580;
**Judgment of the Appeals Chamber in Case Kunarac et al., (January 2002), para. 87;
**Judgment of the Trial Chamber in Case Limaj et al., (November 2005), para. 193.

*There have been conflicting reports about support for the Arab League position on the Bashir warrant. See for example Jordan dissents from Arab position on ICC warrant for Sudan’s Bashir", Sudan Tribune, March 23, 2009.

*The African Union has formally requested that the Security Council defer prosecution of Bashir until a later date in order to facilitate the implementation of the partition of Sudan. Wikileaks revealed that the UK government had taken the position that deferral is a "card not to sell cheaply" while the Comprehensive Peace Agreement is being implemented. See Sudan/ICC: UK Strategy With Potential Bashir ICC Indictment

*Judge Richard Goldstone said prosecutors should not tailor what they are doing to reports of what's happening on the ground in negotiations. They should indict the responsible individuals if that is where the evidence leads. He related that the political assessment of UN Secretary-General Boutros-Ghali over the timing of the indictment of Radovan Karadzic had been incorrect. Had he not been indicted, the Dayton Accords would not have been brokered. Simon Wiesenthal stressed that if Karadzic were ever indicted he should know that if he didn't immediately face trial, he would be hunted for the rest of his days. Wiesenthal felt that was the only way to deter other would-be-criminals. Like Bashir, Karadzic managed to avoid arrest and trial for a time. See You Tube, "Conversations with History - Richard J. Goldstone", and Richard Goldstone "For Humanity: Reflections of a War Crimes Investigator", Yale University Press (August 11, 2000), ISBN 9780300082050, pp 93-103

*The letter from the Registrar that Ms. Herzberg quoted says that, pending a judicial determination, Palestine has the obligations of a State Party for the purposes of Article 86 of the Rome Statute. She proceeds to argue that, under the terms of that provision of conventional international law, Palestine is an entity with the obligations of a State, but none of the corresponding rights. This, despite the fact that Palestine has been recognized by members of the Assembly of State Parties, such as Jordan, Comoros Islands, Djibouti, Argentina, & etc.

"The Darfur Debate" is the current topic on the forum. None of the invited experts, except for Dr. Gaeta, have cited an obligation that would apply to Palestine, i.e. Sudan is a UN member state. It has agreed to accept the decisions of the Security Council acting on its behalf and to carry them out in accordance with Articles 24 and 25 of the UN Charter. So, Sudan has an obligation to surrender Bashir to the Court. Palestine is not a member of the UN, nor a signatory of the Genocide Convention. Dr. Gaeta says that "State parties to the Rome Statute are not obliged to comply with the ICC request to arrest and surrender Al Bashir until he no longer remains a sitting Head of State, since such request does not conform with Article 98, par. 1, of the Rome Statute."

The situation in Darfur was referred to the ICC by the Security Council via a Chapter VII resolution, 1593 (2005). The resolution took "note of the existence of agreements referred to in Article 98-2 of the Rome Statute" and decided "that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;"

The accompanying Security Council Press Release cited an explanation that had been given by Representative Ellen Margrethe Løj:

Denmark had only been able to support the text after some alterations were made, she said. Regarding the formulation on existing agreements referred to in article 98-2 of the Rome Statute, she noted that that reference was purely factual and referred to the existence of such agreements. Thus, the reference was in no way impinging on the Rome Statute. The result was a valid compromise leading to the first referral of a situation to the ICC.

Palestine and Sudan are member States of the Organization of the Islamic Conference (OIC). Representatives of Member States on mission to other OIC States enjoy diplomatic privileges and immunities under the terms of the "Agreement on Immunities and privileges for The Organization of The Islamic Conference (1976)"; a similar "Convention on Privileges and Immunities of the League of Arab States"; and customary international law. Even if Palestine has the obligations of a State Party to the Rome Statute, pending a judicial determination on its Article 12(3) Declaration, that would not derogate from its existing obligations under international agreements with a third State, like Sudan according to the terms of Article 98. In addition, the Permanent Observer of the Organization of the Islamic Conference (OIC) to the United Nations advises that Palestine is one of the State parties that have ratified/acceded to the OIC Convention on Combating International Terrorism. That convention contains an agreement on extradition procedures between the State Parties for many crimes that would normally fall under the jurisdiction of the ICC.

The Court should avoid interpretations of the Statute which would leave any part of the provision to be interpreted without effect. It would be untenable for OIC-State parties to the Rome Statute like Jordan or the Court itself to decide "in good faith" that Palestine is a "State" for the purpose of exercising rights in international or special agreements on immunity or extradition - in line with the general principles of international law and Articles 86, and 98 of the Rome Statute - while at one and the same time claiming that Palestine is not a "State" for the purposes of Article 12(3). A construction which would leave without effect any part of the language of the Statute, should be rejected. See for example P.St.J. Langan (ed), "Maxwell on the Interpretation of Statutes", Sweet & Maxwell; 12th Revised edition edition (August 14, 1969), pp 36 & 45.

In the "Reparations" case, the ICJ said that the members of the UN had created an Organization with its own legal personality. The Court noted that one indication was its capacity to conclude agreements and conventions to which the Organization is a party occupying a position distinct from its members. In circumstances involving the responsibility of a State, the United Nations, as an Organization, has the capacity to bring an international claim against the responsible de jure or de facto government without prejudice to questions of UN membership or recognition of that entity by each of its member states. The Organization is entitled to ask the member states to respect those positions. Articles 4 and 87 of the Rome Statute say that the ICC has its own international legal personality and that it can exercise its jurisdiction on the territory of any non-member State by concluding a special agreement.

Professor Fletcher and Ms. Herzberg say that the Courts have no business making determinations of statehood. It is true that the jurisdiction of the Court is limited to "natural persons" under the terms of Article 25, but that does not preclude it from answering legal questions regarding the existence of statehood. For example, the International Law Commission said “An individual cannot incur responsibility for the crime of aggression in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.” Motions based upon disputes concerning the existence of statehood and challenges to jurisdiction based upon state sovereignty have come up in the other international criminal tribunals. Those questions will inevitably have to be answered during criminal proceedings in the ICC.

For example, in "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)", the Amici Curiae motion argued that all "grave breaches" counts in the Croatia Indictment before January 15, 1992, had to be dismissed because the Prosecution failed to establish that Croatia was a state before that time, making the conflict one of a non-international nature. So, there was a genuine dispute regarding the existence of statehood that could have effected the result of the case under governing law. "The Trial Chamber noted that the best known definition of a state is provided by the Montevideo Convention, Art.1 which reads: "The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States." The most decisive of these is the last. Based upon negotiations with other international actors the Trial Chamber concluded there was sufficient evidence that Croatia was a state.

Many, if not most of the State Parties to Montevideo Convention have already recognized the State of Palestine and have established normal diplomatic relations. Many of those countries are also members of the Assembly of State Parties to the Rome Statute. That Convention does not contain a dispute resolution regime or a compromissory clause. Once again, a construction which says that Palestine is a State for the purpose of Article 98, or Article 86 as Ms. Herzberg insists, but not for the purposes of article 12(3) is completely untenable.

Three years ago you correctly said: "The Rome Statute's preamble states that "the most serious crimes . . . must not go unpunished . . . ." The Statute further states that the States Parties are "determined to put an end to impunity for the perpetrators of these crimes . . . ."

  1. The recognition of a Palestinian state would be the only time that the ICC has recognized a state that was not a signatory to the Geneva Conventions.
  2. When Hamas was not a state, then the Geneva Conventions applied as there are provisions for this.
  3. When Hamas becomes a state, as of that date, the Geneva Conventions no longer apply for the ICC.
  4. The UN Security Council has legal jurisdiction for non-signatories of the GC's but the ICC has none.

Does an ICC recognition of Hamas as a state grant Hamas impunity to commit war crimes and crimes against humanity in regard to the ICC?

I regret that I do not understand the question. The ICC does not recognize states, and the Palestinian Authority has apparently acceded to the Geneva Conventions. If there is a Palestinian state, it is not 'Hamas'. The Geneva Conventions apply ONLY to states. and the UN Security Council has no 'legal jurisdiction' that I see is relevant. It can, under the ICC Statute, refer a situation to the ICC and thus grant the ICC jurisdiction over a crime committed in the territory of any state, including non-member states.
Whatever 'ICC recognition' means in the question, nothing grants anyone impunity to commit international crimes.

Hi everyone,

I understand this debate is still open for contribution despite the fact it has become dormant. Given Palestine's recent admission to UNESCO, I thought it was important to say something about this and also to pick up on some of the comments that have already been made.

Palestine’s admission to UNESCO reflects an emerging state practice favouring recognition of Palestinian state

The admission of Palestine to UNESCO as a Member State (subject to its signing and ratifying the UNESCO Constitution) may help shed further light on what appears to be an emerging state practice, recognising it as a state despite the traditional western criterion of statehood under the Montevideo Convention (some academics such as Professor Mendes have contested the Montevideo Convention’s customary status and applicability to situations of belligerent occupation). While of itself UNESCO membership may not indicate a new state practice favouring recognition of a Palestinian state is emerging, the contrary is true when existing acts of recognition as well as the UNESCO membership are taken together. These have been highlighted by Professor Quigley as well as Dr. Kearney by reference to, amongst other things, the Mandate of Palestine, the 1947 UN Partition Plan, Article 80 of the UN Charter and the subsequent 1988 Declaration of Independence as affirmed by the General Assembly Resolution 43/177. All of these in some way or another uphold Palestine’s pre-existing status as a state.

In relation to UNESCO membership, over 100 states (a two-third majority) voted in favour of Palestine’s admission as a full member with voting rights. Under UNESCO’s Constitution, only states can be admitted as member states. The other category of membership, namely, associate member, applies to territories or groups of territories (which are considered to lack responsibility for the conduct of their international relations). No voting rights are attached to this type of membership. It is, therefore, of some significance that Palestine has been accepted as a Member State to which only state’s can be admitted. As a Member State, it enjoys the same rights, but also the same obligations as states and does so equally with those states. More importantly, it has been granted full voting rights within UNESCO, meaning it can exercise the same privilege as states. It is fairly safe to say that a non-state would not be able to enjoy such privileged membership. It would seem that Palestinian statehood has been implicitly recognised (as demonstrated by a two-third majority vote in Palestine’s favour). Arguably, this lends support to the proposition that a new state practice favouring recognition of Palestinian statehood is emerging.

It is interesting that UNESCO has referred to the Member State as “Palestine” i.e. the name under which Palestine enjoyed sovereignty according to British Mandate as a Class A type mandate (as pointed out in Professor Quigley’s historical analysis). This is the name used in the written announcement delivered by UNESCO of Palestine’s admission under the Constitution.

Emergence of a new modern state practice based on a constitutive theory of statehood

There has been a lot of discussion in this debate about the application of the Montevideo Convention, however, it would seem modern state practice is moving beyond the traditional criteria of statehood found in the Montevideo Convention towards a modern constitutive theory of statehood reflecting contemporary situations (such as secessionist movements around the world and legitimate claims of self-determination). The cases of Bosnia, Kosovo, Congo and East Timor serve as examples where the question of statehood did not seem to follow the Montevideo criteria, requiring a substantially independent government that functioned independently in a variety of government spheres to qualify as a state. In contrast, the constitutive theory relies on recognition alone by other states to found statehood.

In relation to Palestine, application of the Montevideo Convention appears dubious in light of the fact it fails to account for the actual context and particular facts of belligerent occupation under which the question of statehood arises. On this basis, it is questionable whether the Montevideo Convention applies to belligerent occupation given its application to more traditional settings and contexts.
The restrictive approach adopted by Professors Fletcher and Ronen seems unduly rigid and narrow since it fails to account in any way the particular facts of belligerent occupation and the extent to which the military occupation has impacted the question of Palestinian statehood. For example, in respect of the Montevideo criteria of ‘defined territory’, the mechanical approach squarely fails to recognize and altogether ignores the fragmentation arising from the expansion of Jewish settlements and construction of the separation wall, contrary to international law, within the occupied territory. The application of the Montevideo Convention would therefore seem highly dubious. More significantly, this approach may actually prove an obstacle to fighting impunity, and actually facilitate an ‘impunity zone’. Thus, it leaves open the question of whether a different criterion and approach is required for situations of belligerent occupation in a way that allows for a contextual approach rather than an exceedingly narrow one.

To this end the strict approach to the Montevideo Convention seems wholly inconsistent with the interpretive principle laid down in Article 21(3) of the Rome Statute which requires that the application and interpretation of law be consistent with internationally recognized human rights and the principle of non-discrimination. The logical conclusion is that the interpretation of what is a ‘state’ should be favourable to human rights. This is achieved by admitting the Palestinian Declaration on the basis of pre-existing statehood under the constitutive theory, which would lead to the investigation and possible punishment of those responsible for serious breaches against the basic values of the whole international community. To not admit it would be tantamount to allowing a zone of impunity, contrary to the object and purpose of the Rome Statute.

Inconsistency between application of the Montevideo Convention and the object & purpose of the Rome Statute

A restrictive or mechanical approach is inconsistent with the object and purpose of the Rome Statute, which calls for an end to impunity and prevention of atrocities. If the ICC Prosecutor were to reject Palestine’s Declaration for want of statehood, this would mean that potential crimes amounting to atrocities would go unpunished, but also potentially facilitate a zone of impunity, a position that is clearly contrary to the object and purpose of the Rome Statute. Rather, the application of the constitutive theory to belligerent occupation as opposed to the traditional criteria of statehood under the Montevideo Convention would result in atrocities being investigated and perpetrators to be brought to account before an independent court. Accepting Palestine’s Declaration would ensure justice is not only done, but is seen to be done by the entire world, but especially the victims. In my mind, this would only enhance the credibility of the court since inaction and selectivity of cases in the face of grave breaches of the Geneva Convention and international crimes within the ICC’s jurisdiction could well cast doubt on the ICC’s credibility as a world court charged with the responsibility of ending impunity and preventing atrocities.

Protection of human rights as a modern thrust of the international community

Moreover, this approach is backed by the current thrust within the international community to broaden as much as possible the protection of human rights and, by the same token, make those who engage in heinous breaches of such rights criminally accountable (Professor Cassese). The very logic of this trend shatters the idea that the Palestinian Declaration is inadmissible for want of statehood based on the Montevideo Convention or interpretations of it. The better view and the one more consistent with the object and purpose of the Rome Statute is that the interpretive principle in Article 21(3) favours a wider interpretation of the meaning of ‘state’ under the Rome Statute in a manner that allows the court to end impunity and punish the most serious crimes of concern to the international community as a whole, that is, by admitting the Palestinian Declaration. This is consistent with the object, purpose and contextual rule of the Rome Statute as well as the interpretive principle in Article 21(3).

Hi Souheir,

The rules by which States are granted permission to deposit treaty instruments after joining one of the UN specialized agencies, like UNESCO, are contained in The Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties under the heading The "Vienna formula"; the,"all States formula"; the practice of the General Assembly. As a member of UNESCO, Palestine unambiguously satisfies the criteria to accede to multilateral treaties opened under the most strict "Vienna formula".

In accordance with the terms of Article 125, the Secretary General acts as depositary for the Rome Statute. It is open for accession under the least strict "All States formula" . The Vienna formula was developed in response to the misuse of the veto by permanent members of the Security Council. A small number of States have always exploited weaknesses in the discredited declarative and constitutive theories of statehood to virtually control the existence of unrecognized communities and peoples. Ambassador Christian Wenaweser, president of the ICC Assembly of State Parties, said in an interview that a vote by a simple majority to recognize Palestine as an observer state would allow it to join the ICC and ask the court to investigate any alleged war crimes and other charges against Israel committed on Palestinian territory after July 2002, including Israel's 2008-09 assault on the Gaza Strip.

Despite remarks to the contrary from some of the guest experts here, many, if not most of the High Contracting Parties to the Montevideo Convention have recognized the 1988 Declaration of the State of Palestine in line with the criteria contained in Article 1 of the Convention. In "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)", the Montevideo Convention criteria were part of the test used by the Court to establish the statehood of Croatia during a period of time when its status was hotly disputed. The most decisive factor is the existence of relations with other States.

One of the official submissions in the "Background on Gaza" section here is "League of Arab States, Documents on the status of Palestine", October 14, 2009. It contains a table of treaties that should have been dispositive. Palestinian Authority Ministers had signed the "The Arab Convention for the Suppression of Terrorism, adopted by the Council of Arab Ministers of the Interior and the Council of Arab Ministers of Justice, Cairo, April 1998 and the Convention on Privileges and Immunities of the League of Arab States. Those are international agreements between members of the ICC (Jordan, Djibouti, Comoros Island, and Tunisia) and a "third State", as defined in Article 98(1) of the Rome Statute. The Court is bound to respect or take into account those agreements regarding immunity and extradition for crimes falling within the jurisdiction of the Court.

Palestine can't logically be a "third State" for the purpose of Article 98(1) and, at one and the same time, be considered a non-State actor for the purposes of Article 12(3). The inclusion of a reference to United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 in the new amendments regarding the crime of aggression is also a decisive factor. The General Assembly adopted a broad definition of the term State in that resolution. It can be employed without regard to recognition or UN membership in order to extend the protection of the UN Charter to unrecognized communities. That's in line with the principle of self-determination and the provisions of the Montevideo Convention that, prior to recognition by others, a State has the right to defend its integrity and independence.

Professor Fletcher said that the Courts have no business making determinations of statehood. However the International Law Commission said

“An individual cannot incur responsibility for the crime of aggression in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.”

Motions based upon disputes concerning the existence of statehood and challenges to jurisdiction based upon state sovereignty have come up in the other international criminal tribunals. Those questions will inevitably have to be answered during criminal proceedings in the ICC. The Court is bound to treat any entity as a State if it has entered into treaties on immunity and extradition with other State Parties to the Rome Statute.

If for the sake of discussion we accept that Palestine is a state, must we also accept that the Treaty of Oslo that it signed is determinative for most of these legal issues?

When did the state of Palestine cease to exist?
Where is the documentation showing the British and/or the Palestinians, signed off on the Palestinian state?

Where is the documentation showing the British and/or the Palestinians, signed off on the Palestinian state?

The British signed-off when they asked the UN to terminate the mandate and refused to administer it after 15 May 1948. US State Department Legal Advisor Ernest Gross advised that, once the Palestinian communities were emancipated from international tutelage, the law of nations recognized their right to establish states and operate governments in the territories they inhabited. Israel signed-off on an armistice agreement with a government that represented the Palestinians through the device of a federal union called "Jordan".

During the Security Council’s 433rd meeting, the Israeli representative, Abba Eban, stated that the armistices were “a provisional settlement which can only be replaced by a peace agreement” and:

The armistice lines do not merely separate armed forces. They mark the clearly defined areas of full civil jurisdiction. The Government, the courts, the legislatures, the security authorities of each respective State operate smoothly and unchallenged up to the appropriate armistice line. These lines thus have the normal characteristics of provisional frontiers until such time as a new process of negotiation and agreement determines the final territorial settlement. They are also stabilized by the mutual undertakings of the parties and by the fullest international sanction for as long as the Armistice Agreements are valid.

The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.

S/PV.433

The parties to the Statute have agreed to give third states the right to accept the jurisdiction of the Court. The recent decision of the Prosecutor to reject the Article 12(3) Declaration of the State of Palestine was ultra vires in accordance with the rules governing the rights and obligations of third states under treaties contained in Articles 35-37 of the Vienna Convention on the Law of Treaties.
English [PDF]

The Prosecutor can't revoke or modify an obligation under the Statute after it has been accepted in a written declaration by a third state without first obtaining the consent of the other parties to the Statute. He can't revoke the rights of Palestine under the Statute without its consent either.

Article 5 of the Vienna Convention states that the Convention applies to any treaty which is the constituent instrument of an international organization [like the Rome Statute] and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.”

State members of UN specialized agencies are included in the categories of States which are automatically recognized as being competent to conclude treaties under the customary rules that were codified and reflected in Articles 6, 81, and 83 of the Vienna Convention. The Secretary-General and the international community of states have a customary and conventional obligation to deal with Palestine as a State. Those rules are reflected in the so-called "Vienna formula". They are discussed in the "Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties" (ST/LEG/7. rev 1). English [PDF]

It is hard to see how Palestine's status as a UN observer can even be a relevant factor, when the customary rules of international treaty law, that govern the Rome Statute itself, are codified in a Convention which accepts all members of UN specialized agencies as a category of States capable of concluding agreements - and Palestine is already a full member state of UNESCO.

The General Assembly has unambiguously recognized them a States too. See for example the resolutions inviting “States Members of the United Nations, States members of the specialized agencies, States Parties to the Statute of the International Court of Justice and States that the General Assembly decides specially to invite” to the international diplomatic conferences that codified the law of treaties, e.g. UN GA resolution 2166 (XXI) and the Rome Statute of the ICC. See UN GA resolution 49/53 of 9 December 1994 and UN GA resolution 50/46 of 11 December 1995

The General Assembly resolution granting Palestine observer status also acknowledged that Palestine enjoys full membership in several organizations of States, e.g. the League of Arab States, the Asian Group of States, & etc. See A/RES/52/250 (1998)

Lets not forget the new crimes and Gazas' right to returned property

A prosecutor only has authority as granted by the state party Under Charter. The courts duty is to insure that for want of jurisdiction the prosecutor is limited, or Barred from exercising that jurisdictional authority again.

The states people have as an inherent right to the protection and defense of the State of Rome, and does not require to be a member of the Statute as a Political House to be deemed fit to be protected, in advent human rights, slave rights, children rights, which fall into indigenous rights. It could be well established that Romes Statute has been existing since the time of Jesus the first police officer and that is the First case law regarding jurisdiction and authority abuse [Civil juries found that Jesus was not the complainants king, and that those complaining are not his people] [that complainer sought further Orders for no excuse other then to hear themselves].

Therefore, the Gaza Issue would be an investigation, as Allowed by the Statute of Rome.

What is the culpability of the US government in the Gaza crimes? So often the USA acts as a sponsor of egregious crimes, rather like a mafia don whose vassals murder politicians. Sure, US leaders have plausible deniability much as the mafia don does, because there is a distance between the US and Israel's murderous goons, but everyone knows there is political and military cooperation, funding, and in some cases even direct orders to commit crimes. The US operates an empire based on unpayable debts, much as how the mafia demands protection money that are like debts, and this is why our military has bases all over the world.

Dear Pr.Kearney,
I am a former Sussex LLM student who is in New York as visiting scholar trying to investigate issue arising from the ambivalent relationship between the ICC and the US. I am interested in the Gaza conflict topic regarding the possibility that the Prosecutor could start an investigation notwithstanding Palestine status.
If this is the case, which crimes do you think that have occurred most: crimes against humanity or war crimes?

A crime against humanity is always also a war crime. The exception to this would be if the offender was a state not a signatory to the Geneva Conventions.

Israel is not a signatory to Conventions III and IV of the Geneva Conventions so the ICC would need to apply the older definitions to Israel. Since the alleged violations are all about III and IV, Israel could not be prosecuted for these alleged violations.

Is Palestine a signatory to the Geneva Conventions?

If not, can that government's decision to hide offensive military facilities within UN schools then be prosecuted? If not a state, then the Geneva Conventions provide war crimes jurisdiction, but if Palestine is a state, I think not.

Palestine may then act with "impunity" while under ICC jurisdiction because it is a state, an impunity that it would not otherwise have?

How may the ICC apply the Geneva Conventions to a non-signatory state?

You claim that the ICC "prosecutor has in hand a consent declaration from the state on whose territory the alleged crimes were committed".

There are at least four possible entities here, which of these are the state (or states)?

1-2. Palestine has two putative states, Gaza and the West Bank.

  1. Recently there is a new entity, the unity government. (Perhaps an EU analog?)
  2. Israel is sometimes claimed to be an occupying power.

Which of these has under the relevant national law standing to petition the ICC?

If the national law is mute, how would the ICC determine who speaks on this?

If the national law is mute, which national legal system would have primary responsibility with the ICC in a secondary role?

If the national law is mute, which national legal system would the ICC apply? Would it be Israeli law because there is no Palestinian law?

Amnesty International suggested that Gaza has no valid legal system (October 3, 2012, NY Times) . "Human Rights Watch on Wednesday accused Hamas, the Palestinian militant group that governs the Gaza Strip, of running a criminal justice system rife with arbitrary arrests, torture and unfair trials. Hamas officials responded sharply, challenging the methodology of the group’s research."

If Gaza is found to be a state without a legal system, procedurally then how would an ICC review proceed?

If Palestine is a state, then is the Treaty of Oslo (which it signed) both binding and dispositive?