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).