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

by Julian Ku

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

9 Responses

  1. Isn’t this a “constitutive/declarative” debate again?

  2. 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 Rome Statute can properly be interpreted to include an entity such as Palestine.

    Davenport’s paper stresses that the PA does not have the requisite domestic jurisdiction over the crimes in question on the basis that in line with the Oslo Accords, the PA does not have any criminal jurisdiction over citizens of Israel (pp 1, 3-4, 13). This is correct with regards common crimes, but not with regards most of the international crimes which fall under the jurisdiction of the ICC. As detailed in Al-Haq’s position paper: ‘crimes over which the ICC has jurisdiction, including grave breaches of the Geneva Conventions, crimes against humanity, and genocide are crimes under customary international law, and many are widely recognised as being subject to universal jurisdiction. There is an obligation upon all states to enact effective penal sanctions in domestic law and an obligation to search for and to try or extradite persons suspected of grave breaches on the basis of universal jurisdiction, regardless of the nationality of the perpetrator.’ (Al-Haq, para 33)

    The grave breaches of the Geneva Conventions documented in the Goldstone Report are alleged to constitute war crimes and possibly crimes against humanity. The UN General Assembly resolution that endorsed the Report, urged: ‘in line with the recommendation of the Fact-Finding Mission, the undertaking by the Palestinian side, within a period of three months, of investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, towards ensuring accountability and justice.’

    Al-Haq has concluded that: “This represents an acknowledgement by the international community that, whether there exists a Palestinian state or not, ‘the Palestinian side’ not only has the ability to investigate and prosecute international crimes but also that it has the duty to do so. Such investigations, to be in conformity with international standards must be directed against all those responsible for the alleged crimes and not discriminate on grounds of nationality. Article 146(2) of the Fourth Geneva Convention is explicit in stating that each High Contracting Party “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” (Al-Haq, para 34).

    The exclusion of Israelis from PA jurisdiction as provided for in the Oslo Interim Agreement cannot legitimately be considered as extending to the international crimes of war crimes and crimes against humanity as to do so would be incompatible with international law. As an entity acknowledged by the international community as having both the capacity and responsibility for investigating and prosecuting serious violations of international human rights and humanitarian law the PA must therefore be acknowledged as having the capacity and responsibility for investigating Israelis suspected of being responsible for such actions.

    At page 2 Davenport cites Denmark’s exclusion of the Faroe Islands and Greenland from the reach of the ICC as an example of non-state entities which are not sovereign states, and who therefore cannot ratify the Rome Statute or make an article 12 declaration. While this is correct, to make a comparison with the PA is faulty since whereas Denmark reserves full sovereignty over those territories, Israel holds no title to or sovereignty over any part of the occupied Palestinian territory. Sovereignty over that territory rests in no-one other than the Palestinians themselves and thus there is no competing claims to sovereignty as there would be should Greenland attempt to ratify the Statute.

    At pages 2-3 Davenport suggests that past ICC practice indicates no intention to include Palestine or the PA as a ‘state’, citing in support Palestine’s inclusion with ‘other organisations’ at the Rome conference, and subsequent prepcom meetings. It must be borne in mind that during the Rome conference in 1998 the Oslo process was very much still in effect and that the international community, as well as Israel and the Palestinians gave the appearance of being committed to moving towards the establishment of an independent Palestinian state. A commitment to multilateral political negotiations, decreed that to have listed Palestine as a state at that point, or even during the subsequent prepcom meetings, would have served only to sabotage the peace process. Such a status at such meetings therefore would not have been a Palestinian priority.

    The suggestion that even were Palestine a state, it could not submit a declaration since it has failed to establish territorial control over Gaza is mistaken. Davenport here relies on Article 42 of The Hague Regulations namely the test of effective control (p 9). This is an obviously incorrect approach since this is a test whose purpose is to determine whether territory can be considered occupied by a belligerent power. Both the PA and de facto Hamas government are operating under Israel’s belligerent occupation of Palestinian territory, and such a test is thus only relevant in considering whether Israel is the occupying power. It is of no relevance in any other regard and certainly cannot be applied against Palestinians in their own territory.

    In any event, a state need not have full control over all its territory in order to ratify the Rome Statute or submit an article 12 declaration. To accept such a rule would mean that Syria could not ratify the Rome Statute so long as Israel continued to occupy the Golan Heights. Proof of this can be seen in relation to Cyprus. Cyprus is a state party to the Rome Statute despite half its sovereign territory (the TRNC) being under full (effective) control of a foreign occupation.

    In conclusion, while Davenport cites the necessity of the ICC having to balance between values of sovereignty and internationalism, his arguments suggests no attempt at considering the facts of the matter at hand. The OTP and the Court must balance between such values it is true, but to do so they must root their approach in international law, and not simply exclude Palestinians from the rule of law on a political basis, nor on a mistaken reading of the relevant law.

    Given that there is no universally accepted definition of a state in the Rome Statute or in international law we must turn to the facts of the matter. On balance, it must be accepted that (1) the Palestinians are the only sovereign in the West Bank and Gaza, on all the territory occupied by Israeli in 1967, which is a single self-determination unit, (2) that the PA and de facto Hamas government are under a duty (as proclaimed by the UN General Assembly) to investigate and prosecute all those responsible for grave breaches of the Geneva Conventions, war crimes, and crimes against humanity, whether Israelis, Palestinians or of any other nationality, and (3) that by accepting the PA’s article 12 declaration, the OTP will not be exceeding its authority, but merely giving effect to the Rome Statute’s purpose of combating impunity and of promoting the principles and purposes of the UN by ensuring that no-one is excluded from the writ of international justice nor from the protection of international law.

    Davenport writes that it is beyond the authority of a criminal court or its prosecutor to break new ground by establishing a status not recognised by other international courts or organizations, and that Palestine is either a state or not a state, that neither international law nor the Rome Statue can recognize any middle ground. (p 9) This is correct, but by considering the following facts, for the purposes of the Rome Statute, Palestine can legitimately considered to be a state with the capacity to submit a valid Art 12(3) declaration:

    a. The existence of a state of Palestine, although controversial, is nonetheless a reality in the opinions of many states.
    b. The PA satisfies many of the basic criteria of statehood and effects many of the duties and responsibilities of states.
    c. The Palestinians have an internationally recognised right to self-determination and to an independent state.
    d. The Palestinians in the OPT are living under a foreign military occupation which is frustrating their ability to effectively exercise their right to self-determination through an independent state.
    e. The PA has the ability to enter into international agreements.
    f. The PA has the capacity to exercise criminal jurisdiction over Palestinians and other non-nationals.
    g. The PA as a party bound by customary international law to investigate and prosecute grave breaches of international humanitarian law has the duty to prosecute anyone alleged to have committed such crimes, a duty which cannot discriminate on grounds of nationality, and which therefore brings Israeli nationals within the scope of PA jurisdiction.
    h. The ICC may decide what constitutes a state for the purposes of the Rome Statute by criteria different from what is used for other purposes in international relations and international law.

    To decide otherwise would not only permit continued impunity to reign but would be a manifestly unreasonable interpretation of the Rome Statute.


    Michael Kearney

  3. 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. 

  4. 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 secret nuclear warheads she has amassed and to ensure that the UNSC resolves to make the Mideast a WMD-free zone, now. Otherwise, we are all in danger wherever we live.

  5. 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 if the Palestinian argument is to have any persuasion before the ICC – there still remains a problem. You state:

    ” ‘the Palestinian side’ not only has the ability to investigate and prosecute international crimes but also that it has the duty to do so.”


    “As an entity acknowledged by the international community as having both the capacity and responsibility for investigating and prosecuting serious violations of international human rights and humanitarian law the PA must therefore be acknowledged as having the capacity and responsibility for investigating Israelis suspected of being responsible for such actions.”

    The problem does not lie with Palestine responsibilities. Rather the problem lies in your argument that Palestine has the capacity to investigate and prosecute for the crimes. You center this not only on the above quotes but also the UN GA Resolution of 2 November 2009. However, the UN GA resolution’s operative para. 4 does not recognise Palestine as being able to carry out the investigations: only that it should do so in accordance with its undertakings. There is no evidence that this has been done – let alone to international standards. I remain unconvinced that this capacity to investigate and actually engage in the criminal procedural aspects required of statehood are satisfied to such a degree as one would require under: (a) the legal test of Statehood (admittedly the requirement here is vague at best); (b) the obligations of Palestine towards crimes under the Rome Statute.

    Whilst, I agree with the tenor of your argument and certainly the result you are attempting to achieve, I would be greatful if you could provide a few comments on the above two points.



  6. Thanks for the link, Anne.

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

  7. 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 misconduct.
    (4) You know, its one thing to have sympathy for the gazans and wish them well in their quest for statehood but frankly their actions trouble me and I think the Israelis used jutifiable force to protect their civilians poulation from rocket fire.  This constant anti-Israel barrage is wearing thin.

  8. 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 the words of Abba Eban (paraphrased, of course), passed them by, at their own choice.

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