In fact, the Statute’s founders intentionally refrained from authorizing the ICC to perform such a duty. A close reading of the Statute’s provisions leads to the conclusion that the limits of the jurisdictional scope of the Court cannot be expanded or restricted by the organs of the Court and its prosecutor, mainly because such an action negates the will of the framers to reject universal jurisdiction.

There indeed exists a solution in the Statute for such constitutional prejudicial questions, and this is done through the amendment procedures enumerated in the Statute. The Statute provides for amendment procedures under Articles 121, 122, and 123. This means that the question of the expansion or restriction of the notion of statehood should be dealt with by State Parties in a previous parliamentary determination. Until today, as Professor Bassiouni asserted, the framers’ language in the Statute meant only a State Party or Non State Party could fall under the Court’s jurisdiction. This is why it is not legally possible under the Statute to extract international instruments from secondary sources of law per 21(1)(b)—such as the Montevideo Convention for Statehood Interpretation—and apply them as if they were above the intent of the Statute framers.

Furthermore, the enumeration in Article 21 of “in the first place [the] Statute…,” “in the second place, where appropriate, treaties and rules of international law”, and “failing that, general principles of law”, indicates that the Rome Statute also has superiority over other treaties, customs, and general principles applied by the Court.3 The PNA’s Acceptance of Jurisdiction is thus, in my opinion, a blatant deviation from the limited scope of jurisdiction under the Statute.

Thirdly, the regulation of referrals under Articles 13, 14, and 15, is a subject matter related to the scope of jurisdiction and to the scope of the assignment of powers, by the Rome Statute, to the ICC and its Prosecutor pursuant to Articles 1 and 4(2). My reasoning leads me to maintain that the Montevideo Convention, and all other sources of law regarding armed conflict, should be interpreted in light of the provisions of the Statute under Article 21(1)(a). As such, I argue that the mechanisms used by the Prosecutor pursuant to Article 13 and Article 15 in conjunction with 12(3) clearly imply that Article 12(3) is included in the assignment of referral. Notably, in case of assignment of referral the statute confine the interpretation of such notion to be dealt by its text only. Therefore article 12.3 can be construed following the overarching provision of the statute, to avoid an unlawful expansion of the jurisdictional parameters.

The ICC has supported this notion in its case law. For example, the Court has held:

On the interpretation of Article 21(1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either sub-paragraphs (b) or (c) of paragraph 1 of Article 21 of the Statute.4

From the Court’s wording it follows that the notion of statehood is dealt with in the text of the Statute and confirmed by its commentators; therefore there is no room left for recourse of secondary sources of law (b) or (c). The Statute is exhaustive and conclusive on the subject matter of the limited jurisdiction pursuant to article 1, 4(2) and 21(1)(a).

It is clear, at least to me, that the lodging of the PNA declaration and the initiation of the preliminary examination in Gaza was ultra vires. The reconsideration of the Goldstone report is also evidence of the notion.5 The Gaza question arouses challenging legal questions basically because expert of international are confronted with conflicting sources of law which have not been studied by the academy. Undoubtedly, the law of the Statute will always prevail over general contested international criminal law sources. These cannot be resolved by principles of interpretation. The impasse requires a review of the statute.

The example you chose to counter my argument should receive the same analysis as explained above, since Article 8 is a jurisdictional matter as well. Moreover, the Statute clearly lists all crimes included in the jurisdiction of the ICC. Your reference to Article 8(2)(b) is incompletely quoted. To quote you,

‘The jurisdiction of the Court pursuant to Article 8 2.(b) encompasses “Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.”

Here, you failed to refer to the second part of the sentence, which clearly recounts the list of crimes drawn from the established framework of international law at the establishment of the ICC. The Rome Statute commentator Triffeterer supports this argument in Part 1 of his book when he says regarding Article 1 that only “the most serious crimes of international concern, as referred to in this Statute fall within the jurisdiction of the Court.” This implies that there are “serious crimes” not falling within its jurisdiction. In addition, Triffeterer says that Articles 6, 7, and 8, includes definitions of single crimes falling under the crimes of genocide, crimes against humanity, and war crimes, which are only listed ‘for the purpose of this Statute.’ He continues:

‘Thus certain crimes can exist, the definitions of which are not included in the Statute, but which are nevertheless punishable directly under international law. But they cannot, at least as the Statute stands now, be investigated and prosecuted by the ICC…Article 8(2) (b) states ‘Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts…’

As you can see, there is a limited list of crimes relevant to the Statute, and it is impossible to extend this list of crimes to those punishable under other criminal tribunals by any other means than the amendment mechanism enumerated in the Statute.6

Fourthly, if an entity is not officially recognized as a state, it cannot trigger individual criminal responsibility under the Statute. This is strictly a political matter. The Court works with consenting states only; it does not create duties for third states or entities. Contrastingly, certain politics and public law may create criminal responsibility to states not party to specific treaties. This is valid in cases where International or national criminal tribunals can exercise universal jurisdiction. However, this is not the case under the Rome Statute, as the compromise adopted by the majority rejected universal jurisdiction. The notion of statehood is directly connected to universal jurisdiction subject matter in public law, and the scope of jurisdiction under the Rome Statute excludes universal jurisdiction. In cases referred to the Court by the UN, the Security Council has the authority to trigger the ICC, not the victims or other actors. The same reasoning applies for prosecutorial referrals—it is not a declaration under Article 12(3) which triggers the Court, but the Prosecutor complaint himself. Even so, this faculty does not provide the Prosecutor with the certainty that he will be authorized to open a preliminary investigation under Article 15(3) and Article 53. Under the Statute, the victims and other actors can only refer to the OTP communication or information related to alleged crimes as stated in Article 15(1). The Rome Statute has opted for a State complaint solely.

Furthermore, nothing in the Statute alludes that the power to recognize statehood is given to the Court or its Prosecutor by the State Parties, which is also in accordance with Articles 1 and 4(2).7 The judges can make a determination about the regularity of the prosecutorial referral and can interpret Article 12(3), but they cannot make a determination of statehood. This is because the ICC is an international organization and not an autonomous criminal tribunal. In the words of Wiebke Ruckert:8

The legal nature of an institution is a consequence of the method of its establishment9…Unlike a state, an international organization does not possess the totality of international rights and duties recognized under international law; its powers are limited by its purpose and functions as specified in its constituent document10…Further, Article 4(2) of the Statute circumscribes all such means of expansion of the Court ‘s power, given its requirement that the Court powers and functions be provided in the Statute not elsewhere…Under general international law, a subsequent treaty between the parties supersedes an earlier treaty. Here, by contrast the states parties have agreed to a differentiated system of and procedure for amendments, as laid down in Articles 121 to 12311…The insertion of Article 4(2) thus shows that the powers and functions of the ICC are not to be based upon subsequent practice, but upon the Statute itself.12

In other words, new powers and functions of the Court, such as the power to recognize the statehood of Palestine, can be achieve only through amendments.13

Fifthly, a tacit recognition of Palestine cannot fulfill the requirement of Article 12(3), and the ICC has no power to recognize the statehood of Palestine. The ICC cannot make such a political determination.14 The Rome Statute states parties cannot make this recognition before it is made legitimate according to established international law. For the same reasons, states parties cannot define the crime of terrorism before its established international law officially defines it.

There are many notions which are not settled in international law. The notion of armed conflict, for example, has been extensively construed as to include terrorist attacks.15 This definition is thus included in the Statute. However, the ICC cannot create substantive general international criminal law. For this reason, although terrorism is a violation of the Geneva Convention and has been found as an its element of the crimes have been defined by the jurisprudence of the Sierra Leone criminal tribunal, it cannot be tacitly considered a punishable crime under the Statute. International experts must first reach a consensus about the nature of such a crime, and then submit a proposal to the assembly of state parties to amend or review the Statute in light of this.

In short, if you can find a provision that assigns the function of recognizing statehood to the Court and its prosecutor, or can prove that my legal findings per articles 1, 4(2) and 21(1) (a) violates internationally recognized human rights per Article 21(3), my central argument will be invalidated. Claims of such a nature are the only valid justifications of the Prosecutor’s actions.

Notably, the recognition of Palestine by the ICC and its Prosecutor amounts to a change in statutory law. That is why change in law by the international community is not permitted under the Statute, especially with regard to subject matter concerning the parameters of the Court’s jurisdiction. A deviation from what has been explicitly assigned to the ICC and its Prosecutor jeopardizes and subsequently weakens the validity of the Rome Statute. In the short term, it may seem to be just for the sole reason of the interest of victims, but in the long range the inclusion of an element of universal jurisdiction in the Statute will put an end to the ICC, and victims will lose a permanent Court. Additionally, such judicial deviation from the Statute violates Articles 21(1)(a) and 21(3).16 Moreover, if the PNA’s Acceptance of Jurisdiction is considered legitimate, all other non-state entities ought to have the same treatment as the PNA.17 Surely you can see why such an extensive interpretation of the limited jurisdiction of the ICC is absurd and can lead to discrimination and human rights violations of other victims of international crimes which did not attract the attention of the ICC Prosecutor.

In conclusion, if the Court authorized the Prosecutor to investigate in Gaza, it will have acted beyond its jurisdiction. It is not valid to assert, as Professor Pellet did, that the ICC has “the competence of its kompetenz”. Rather, it is the Rome Statute itself that holds this faculty, especially with regards to jurisdictional parameters.18

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Mrs. Rosette Bar Haim’s legal position on the interpretation of Article 12(3) of the Rome Statute available online ↩

2. 2.

   The Statute clearly asserts that “For the field of governing the jurisdiction and functioning of the Court, the Statute and its secondary legal sources based on the Statute, like the Rules, are equally applicable while for assignment (referral) of jurisdiction only the Statute is relevant. As support for a wide notion of the words governed by the provisions of this, Statute article 21, Applicable Law, is also relevant.” Otto Triffterer Article 1 “applicable standards” at page 62, MN 22 and 23, In Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court, Baden-Baden: Nomos Verlagsgesellschaft, 1999. ↩

3. 3.

   ICL Database and Commentary—Rome Statute Article 21(1) (a) available online ↩

4. 4.

   That ICC Appeal Chamber Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal in ICC-01/04-168, Situation in RDC, paragraph 33. Also in the Lubanga judgment in ICC-01/04-01/06-772, 14 December 2006 at pp. 34 note 80. The Court hold that “The previous decision of the Appeals Chamber in Situation in the Democratic Republic of the Congo Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 March 2006 Decision Denying Leave to Appeal is instructive on the interpretation of article 21(1) of the Statute, particularly whether a matter is exhaustively dealt with by its text or that of the Rules of Procedure and Evidence, because in that case no room is left for recourse to the second or third source of law to determine the presence or absence of a rule governing a given subject. This is said without implying that if the Statute was not exhaustive on the subject, abuse of process would find its place as an applicable principle of law under either sub-paragraphs (b) or (c) of paragraph 1 of article 21 of the Statute.” ↩

5. 5.

   Available online ↩

6. 6.

   Otto Triffterer, “Preliminary remarks: The permanent ICC-Ideal and reality,” In Triffterer (2008) at page 36, margin 59 ↩

7. 7.

   The jurisdiction and functioning of the Court and its Prosecutor shall be governed by the provisions of this Statute since “The power to exercise its jurisdiction, thereby limiting this jurisdiction to what has been assigned to the Court theoretically in this Statute, thus excluding any other source of law, except an amendment of the Statute. This theoretical basis is in practice limited further, since the exercise depends on the fact that a situation has been referred to the Court according 13, 14 and 15.” In Otto Triffterer (1999) Article 1 at page 61, MN 21 and Article 4(2) at page 95, MN15. ↩

8. 8.

   Wiebke Ruckert in Triffterer (2008), Article 4(2)—legal status and power of the Court, at page 121-127 ↩

9. 9.

   ibid. at p. 121, margin 1 ↩

10. 10.

    Ibid. at page 123, margin 6; supra note 24, Reparation for injuries suffered in the service of the UN, Advisory opinion, ICJ. Rep. 174, 178/179 (1949), and supra note 29 at 174, 180. ↩

11. 11.

    Ibid. at page 126, margin 13 ↩

12. 12.

    ibid. at margins 14 and 15 “with regards to the acquisition of new powers and functions through subsequent treaties, the insertion of the passage” as provided for in the Statute “complements the provisions on amendments to and review of the Statute in article 121 to 123.” ↩

13. 13.

    ibid. at margin 16 ↩

14. 14.

    See the UCLA Law Forum “The Darfur debate and Article 98.” ↩

15. 15.

    See ICTY Appeals Chamber, Tadić, Interlocutory Appeal on Jurisdiction (1995), § 70. ↩

16. 16.

    It was previously construed by Alain Pellet as follows: “Indeed endowed with limited jurisdictions the Court cannot depart from the terms of the Statute and can only act within its framework; which both confers and limits the Court’s jurisdiction.” Alain Pellet at page 1079, supra notes 159, 160, in Antonio Cassese, Paola Gaeta, John R.W.D. Jones. The Rome Statute of the International Criminal Court, Oxford: Oxford University Press, 2002. ↩

17. 17.

    Many entities inside states are waiting for a prosecutorial referral under the ICC, namely: Algeria, Bhutan, Myanmar, Sri Lanka and others and Israel, Lebanon, Iran, they all have send communication to the Prosecutor under 15.1. ↩

18. 18.

    See Pellet’s submission at paragraph 16. “Les effets de la reconnaissance par la Palestine de la compétence de la CPI” (English translation) February 18, 2010 ↩