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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?”
Professor Cherif Bassiouni raises an important point regarding the applicability of Article 15 of the Rome Statute. Thus far, most contributors have focused on Article 12(3) rather than Article 15 in considering whether the ICC should have jurisdiction over alleged war crimes in Gaza. The prevailing consensus seems to be that the ICC lacks the power to exercise universal jurisdiction.
Article 15(1) provides the ICC Prosecutor with the power to initiate investigations proprio motu. This means the Prosecutor can act independently of State Parties to the Rome Statute and the Security Council. To do so, the Prosecutor must have a proper basis and ‘information on crimes within the jurisdiction of the Court.’ The application of Article 15 is closely connected with Article 12(3) which defines the preconditions for the Court’s exercise of jurisdiction.
The drafters of the Rome Statute were particularly concerned with delineating the proper scope of the Court’s jurisdiction and limiting the discretion of the Prosecutor. Upon ratifying the Rome Statute, a State accepts the jurisdiction of the Court with respect to crimes listed in Article 5. These crimes include: the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 11 sets out the jurisdiction ratione temporis. It states that the Court has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute.
The Rome Statute contains several other provisions which limit the Court’s jurisdictional reach. For example, Article 124 is a transitional provision which allows a State to declare that it does not accept the jurisdiction of the Court with respect to war crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory.
Article 13 sheds light on how the Court may initiate investigations. It sets out three possibilities. Thus, the Court may exercise its jurisdiction with respect to a crime referred in Article 5 if: (a) a situation is referred to the Prosecutor by a State Party in accordance with Article 1; (b) a situation is referred to the Prosecutor by the Security Council; or (c) if the Prosecutor initiates proceedings in accordance with Article 15.
The inclusion of Article 15 ensures that the Prosecutor can bring proceedings notwithstanding the absence of a referral by a State or the Security Council. The Article acknowledges that the Prosecutor has some degree of authority and may initiate a case independently.
Article 15(2) requires the Prosecutor to analyze the seriousness of the information received. The Prosecutor may seek additional information from States, organs of the United Nations, intergovernmental or nongovernmental organizations, or other reliable sources that he or she deems appropriate. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she must request an authorization from the Pre-Trial Chamber in order to be able to commence investigations. The Pre-Trial Chamber has the power to approve or reject a request for authorization and thus is intended to oversee the exercise of prosecutorial discretion. Under Article 15(4) it is envisaged that the Chamber will authorize the commencement of the investigation if upon examination of the Prosecutor’s request it considers that there is a reasonable basis to proceed and the case appears to fall within the jurisdiction of the Court.
Article 15 has raised substantial concerns about the proper role of the ICC Prosecutor in international affairs. More specifically, some States have expressed concerns about the possibility of politically motivated prosecutions. The perceived risk here is that the Prosecutor may unduly interfere with matters traditionally considered to be within the domain of the State.
What then is the appropriate approach for the ICC Prosecutor in the Israel-Gaza conflict? Israel is not a State Party to the Rome Statute and Palestine does not seem to satisfy the traditional criteria for statehood.
Can the Prosecutor invoke Article 15 to overcome these jurisdictional obstacles? The purpose of the ICC is to end impunity. The Preamble to the Rome Statute emphasizes that the Court was designed to ensure that “the most serious crimes of concern to the international community as a whole must not go unpunished.” However, the Court will only be able to fulfill this mission if a State on whose territory the alleged crimes have been committed or a State whose national is accused has ratified the Rome Statute. This appears to be a significant limitation which cannot be overcome by reference to Article 15.