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