Can the ICC Prosecutor Investigate Gaza? ICC Prosecutor Opens the Debate

Can the ICC Prosecutor Investigate Gaza? ICC Prosecutor Opens the Debate

Last year, the Palestinian National Authority filed a declaration accepting the jurisdiction of the International Criminal Court.  This declaration is controversial, to say the least, because it could potentially give the ICC jurisdiction over Israeli military forces operating in Gaza or the West Bank.  Today, the ICC released a summary of the submissions it has received on whether the Palestinian’s declaration should be accepted (Full list after the jump).  Of particular note: Professor John Quigley’s strong (but to me still unpersuasive) argument in favor of Palestine Statehood and David Davenport’s measured and careful recommendation that the ICC avoid delving into the Palestinian statehood morass and reject the Palestinian declaration (Ken Anderson and I, along with several other scholars, signed on to this submission).  Weirdly, the one document missing appears to be from the Palestinian National Authority itself.  In any event, I would be very surprised if the ICC sided with Prof. Quigley, both for legal and policy reasons.

John Quigley, Memo to the Prosecutor, 23 March 2009; The Palestine Declaration to the International Criminal Court: The Statehood Issue, and The Statehood of Palestine: law and sovereignty in the Middle East Conflict, 19 May 2009

European Centre for Law and Justice, Legal Memorandum opposing accession to ICC jurisdiction by Non-State entities, 9 September 2009

The International Association of Jewish Lawyers and Jurists, Opinion in the matter of the jurisdiction of the ICC with regard to the Declaration of the Palestinian authority, 9 September 2009

Palestinian National Authority, Working Draft, 13 October 2009

League of Arab States, Documents on the status of Palestine, (Arabic ) 14 October 2009

Daniel Benoliel and Ronen Perry, Israel, Palestine and the ICC, 5 November 2009

David Davenport, Kenneth Anderson, Samuel Estreicher, Eugene Kontorovich, Julian G. Ku, and Abraham D. Sofaer, The Palestinian Declaration and ICC jurisdiction, 19 November 2009

Al Haq, Position paper on issues arising from the PA submission of a Declaration to the Prosecutor of the ICC under article 12(3) of the Rome Statute, 14 December 2009

Alain Pellet, Les effets de la reconnaissance par la Palestine de la compétence de la CPI, 18 February 2010 (English translation)

Errol Mendes, Statehood and Palestine for the purposes of Article 12(3) of the ICC Statute: a contrary perspective, 30 March 2010

Topics
Courts & Tribunals, International Criminal Law
Notify of
Benjamin Davis
Benjamin Davis

Isn’t this a “constitutive/declarative” debate again?
Best,
Ben

Michael Kearney
Michael Kearney

Response… Julian, As one of the authors of Al-Haq’s position paper on this question I would like to thank you for highlighting the OTP’s summary of submissions and promoting the debate. Since you are one of the signatories to David Davenport’s paper, I would like to take issue with some of the key points made therein. I won’t at this stage go into the other papers since this will already be a fairly long response. As Davenport’s paper accepts, there is no universally accepted definition of statehood under international law (p8). Statehood therefore, is a question of political recognition and of power. Neither of these considerations can be accepted as the sole arbiters as to whether a people are to be protected by or excluded from the rule of international law. Rather than follow the political question – that of whether Palestine is an actual state on a par with states such as Switzerland or Syria – Al-Haq has rooted its consideration of the matter strictly in international law. Al-Haq’s paper considers whether the PA exercises jurisdiction over the crimes set forth in the Rome Statute of the ICC, and whether the meaning of ‘state’ for the purposes of the… Read more »

Milan
Milan

Julian,

I would be curious to know what your position is on Kosovo’s statehood.  Isn’t the argument for Kosovo as an independent state weaker than the argument for Palestine? Kosovo has been recognized by approximately sixty-seven countries, for example, whereas Palestine has been recognized by well over a hundred.

In any event, it is interesting that this question has arisen at the same time that the ICJ will be considering the issue of Kosovo’s statehood.  The United States, of course, has been one of the chief proponents of Kosovo but presumably would not be pleased if its arguments on behalf of Kosovo were applied to Palestine. 

COLINDALE London
COLINDALE London

900 civilians – non-combatants, men women and 320 children were killed by the IDF in three blood-soaked weeks in January 2009, just 16 short months ago. Shot, bombed and burned on the authorization of the then prime minister EHUD OLMERT and his government cohorts, EHUD BARAK and TZIPORAH LIVNI. Those responsible have yet to be brought before the ICC in the Hague to face charges of war crimes. Judge Richard Goldstone is an eminent jurist who has great experience in examining evidence and determining guilt in human rights violations around the world over very many years. He is highly respected in his field and whatever trumped-up allegations are made about him we must remember that those allegations are invariably made by the alleged guilty party or its supporters. I salute the courage of Judge Goldstone who will be remembered for his integrity and professionalism long after the voices of propaganda have been stilled. The task now is to ensure that those responsible for the atrocity in Gaza, in January 2009, MUST BE BROUGHT TO TRIAL! Democracy depends on the rule of law and justice. Without these, we have little future. The ultimate task is to force Israel to declare how many… Read more »

Sahib
Sahib

Michael, Thank you for your considered and well argued response. I certainly agree with the aims of the Al Haq paper and specifically, your statement above. However, I have two points upon which clarification would be greatly appreciated: First, I do not doubt that as a matter of humanity and for considerations of demolishing impunity, the ICC should accept jurisdiction. However, you note quite correctly that: “Statehood therefore, is a question of political recognition and of power.” I think everyone can accept that Crawford’s opus was an attempt to bring into the legal sphere what shall always remain an essentially political consideration. However, if the argument is based on what the ICC should do as a matter of policy, and this is the crux of part of your argument; it requires one to elevate the policy consideration of eradicating impunity above sensitive political policy considerations in an already unstable region. It strikes me that there is no automatic way to form a hierarchy between these seemingly competing policy perspectives: and therefore nothing persuasive to put to the ICC on the policy front. Second, even if one moves beyond the political and engages the legal argument; which, I think is required… Read more »

duh
duh

Thanks for the link, Anne.

How is that information on the funding of your “NGO monitor” coming?

Tom
Tom

Dear Colindale, (1) What about the rockets fired from Gaza into the Southern Israeli towns?  The gazans used to have a rather poor excuse – because a few thousand Isralis lived in the strip but they were forcibly removed by the Israeli government back in what 2005 or 2006 ??  So we had gaza firing rockets into Israeli civilian areas and the Israelis defended themselves.  If the gazans had not fired rockets there would have been no conflict. (2) War Crimes??  Hamas firing rockets with the intent to terrorize civilians and target civilian populations.   Sounds like war crimes being committed by gaza to me.  Yet you could not care less about the rocket firing.  Hmm  why not. Sound like you are not fair and have an agenda.  Funny how folks like you single out Israel when in fact dozens of other nations act in ways you could criticize but you do not. (3)  It is hornbook “knowledge” that Hamas –  a known terrorist entity – hides behind civilian infrastructure to enable the Hamas “fighters” to proclaim the Israelis are hurting civilians.  I for one find this conduct to be reprehensible (on a personal level) and legally – indefensible outrageous… Read more »

Adam
Adam

Turn about being fair play, if the ICC were to accept that the existence of a Palestine state, comprised of what exactly and governed by what entity TBD – I suppose – claims filed against this “state” with the ICC would require consideration. It is an interesting theory, but as an admitted supporter of Israel intrigued by the ostraches closing one eye and getting ready to stick their heads into the ground to avoid having to concede the crimes of the PA and Hamas, let’s all be adults and acknowledge the activities of these two entities against the civilian population of Israel, an actual state and member of the UN. My own perspective, historically speaking, is that when the Israelis pulled out, the PA and Hamas had the opportunity to establish a state just as happened when the British pulled out at the end of the Mandatory Period. The difference is that the focus of the now-Israelis was to ultimately establish a state and thus had a shadow state in place to step out of the darkness. Neither the PA and Hamas actually have anything comparable–this is proven simply by the fact that the opportunity to demonstrate this fact, in… Read more »