Yes, Palestine Could Accept the ICC’s Jurisdiction Retroactively
In the wake of today’s long-overdue vote to upgrade Palestine to observer-state status, there seems to be persistent confusion concerning what would happen if Palestine ratified the Rome Statute. In particular, a number of commentators seem to think that it is unclear whether the ICC would have jurisdiction over crimes committed prior to Palestine’s ratification. (See Colum Lynch at FP, for example.) In fact, the Rome Statute leaves no doubt whatsoever that Palestine could (but would not be required to) accept the Court’s jurisdiction retroactive to 1 July 2002, the date the Rome Statute entered into force. The relevant provisions are Articles 11(2) and 12(3) (emphasis added):
11(2): If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
12(3): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
Though not the picture of drafting clarity, the two provisions make clear (1) the default position is that the ICC will have jurisdiction only over crimes committed after a state ratifies the Rome Statute, but (2) the state in question may file a declaration with the Registrar accepting the Court’s jurisdiction retroactively.
It is worth noting that Palestine would not have to ratify the Rome Statute to refer the situation in Gaza to the ICC. It could also accept the Court’s jurisdiction on an ad hoc basis, pursuant to Article 12(3). And it could do so retroactively, as the Cote d’Ivoire precedent indicates. (Cote d’Ivore, a non-member state, accepted the Court’s jurisdiction on 18 April 2003 retroactive to 19 September 2002.)
Finally, I’ll say it once again: Palestine should be careful what it wishes for. I think it is highly likely that, if the OTP investigated the situation in Gaza, Palestinians would end up in the dock long before Israelis. From a legal perspective, Fatou Bensouda would find it much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory. The latter crimes are fraught with ambiguity and difficult to prove. I know I wouldn’t start with them, were I the Prosecutor.