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- Harlan: 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... (more)
- Harlan: 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 "... (more)
- Souheir: 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... (more)
- Rosette Bar Haim: 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,... (more)
- Harlan: 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... (more)
- danterzian: 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... (more)
- Herzberg: 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... (more)
- Harlan: 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... (more)
- Harlan: 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... (more)
- Harlan: 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?... (more)
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?”
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.