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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?”
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.