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.

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 ↩

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. ↩