29 Nov 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.
[…] news: Kevin Jon Heller has a new post up at Opinio Juris expounding a very different view. He cites Côte D'Ivoire's April 18, 2003 acceptance of the ICC's […]
So, if the Rome Statute is ratified with retroactive jurisdiction adopted, could those people holding official positions within the Palestinian government be subject to prosecution for acts perpetrated years ago before the establishment / since of the governing authority?
If this is the case, adopting retroactive jurisdiction of the ICC seems a rather foolish and dangerous move by the Palestinian government!
On the political question of the advisability of ICC referral, I think you’ve oversimplified. For Fatah, presumably the dream scenario (which would be admittedly very hard to execute) would be to see radical Hamas leadership and Israelis in the dock together. What better way to internationally legitimize your (nascent?) state than show a willingness to have (perhaps painful) international law enforcement against both outsiders and its own citizens? And for the ICC, it would be fatal to its credibility if it packed its bags after investigating Palestinian crimes.
I don’t underestimate the difficulty of such a tap-dance for Fatah. The STL has illustrated that allowing international intervention can be a formula for civil war. But I don’t think Fatah is so naive as to think Palestinians will not come under scrutiny. They want another Goldstone report.
Miles: that’s an excellent point. Thanks.
Adam: yes, assuming that the officials in question can be connected to the crimes via a traditional mode of participation, such as co-perpetration, aiding and abetting, or command responsibility.
Ivory Coast was a state long before 2002, so that example does not really fit the Palestine scenario. If we ignore for the sake of convenience the UNSC referral in the case of Sudan, could the newly estblished state of South Sudan make a similar declaration to accept retroactively the jurisdiction of the ICC to cover crimes that were committed in a period when South Sudan was not yet an independent state? Given the accession criteria (any state), statehood seems to be the very minimal requirement for the ICC to do its work. Any retroactive declaration to cover a period in which Palestine was still “an entity” looks like a circumvention of this criteria, and should not be accepted, no matter how much I am personally in favour of an ICC case to investigate both sides of the conflict.
RJ1983, it’s an interesting question. But I think it’s wrong to say that Palestine was “an entity” until today’s vote. More than 100 states have recognized Palestine for years — since before the Rome Statute entered into force. As Bill Schabas has pointed out, the ICC did not have to wait for the UNGA to upgrade Palestine’s status; it could — and should — have recognized Palestine long before now.
KJH, if I recall correctly Schabas has argued that on the basis of Palestine’s admission to UNESCO (as an organization that largely reflects the UN membership), which was in November 2011. The fact that 100 states have recognized Palestine before that should not detract from the main issue here: an objective indication of Palestine’s statehood only existed from the moment of admission to UNESCO (in line with the practice of the UN registrar to treat aspiring member states as states proper if they came within the reach of the Vienna formulation) at the earliest, or in any case from today onwards.
Well, could they be charged with violating the UN 181 decision? Where it reads: “…Appeals to all Governments and all peoples to refrain from taking any action which might hamper or delay the carrying out of these recommendations” or perhaps elements in the Cease-Fire agreements? Or are they liable only from, say, 1964 when the PLO was founded?
“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.” If you cannot prosecute Israeli settlements as a violation of Art. 49(6) of GC IV and Art. 8 of the Rome Statute – then the crime itself is non-prosecutable. Why have these provisions in the first place? As pointed out by Michael Kearney in some previous comments, Art. 49(6) violations go to the heart of the dispute in the region and is the biggest war crime-obstacle to the solution of the conflict. It is a textbook example of Art. 49(6) violations – if they actually exist. Novel and difficult such prosecutions may be, the ICC should find means and ways to address the issue – that is why States created the Court in the first place. As for Hamas launching rockets against civilian population – surely a war crime, and probably not a tough case to crack. Two things though: 1) with the… Read more »
With respect to the question of establishing jurisdiction retroactively back to 2002, I must say that I have some hesitations regarding the interpretation suggested. It needs to be noted that article 11(2) of the Statute does not offer this option to a State that becomes a party to the Statute. The exception mentioned, a declaration under article 12(3), relates to the possibility that a State may have already have made a declaration as a State (not as a party) before becoming a party. This may suggest that in such a case the jurisdiction would apply retroactively to the moment that the declaration was made. The interpretation suggested, and which appears to be supported by the Court through its actions in relation to Ivory Coast (i.e. decision of the Pre-Trial Chamber, 22 February 2012, ICC-02/11), places States parties and non-States parties in an unequal position. Hence, a (more) restrictive interpretation seems warranted.
[…] Juris had several articles on the implication of the UN decision for Palestine: One article, posted here, said that “In the wake of today’s long-overdue vote to upgrade Palestine to observer-state […]
Isn’t the central issue a question of whether yesterday’s vote was or was not a decision that made Palestine a state? 12(3) is only available to states, and given that OTP’s decision that it could not exercise jurisdiction over Palestine earlier this year due to statehood concerns raises a serious issue – either Palestine has always been a state, in which case the OTP straightforwardly got it wrong and yesterday’s vote is merely an administrative decision of the UN to upgrade the status of Palestine with no statehood implications. Or, yesterday’s vote was a decision that effectively granted Palestine statehood (Abbas’ ‘birth certificate’ idea), in which case as far as I can tell, 12(3) would not work retroactively since Palestinian statehood would be dated from the 29th November 2012. In effect, this seems to be a consequence of the very vague international law on statehood, and the fact that the objective legal criteria, such as they are, are subordinated wholesale to political reality.
Kevin do you have an answer to this? It definitely doesn’t seem as simple to me as saying that 12(3) is an open path for the Palestinians.
Response…
Agreed that the case against Hamas is easier as far as targeting civilians, but the settlements case is an easy one not involving complex questions of Complementarity, proportionality etc..
Also by the way one can argue the PA won’t care much for Hamas people being at the dock, but that could be politically wrong (or right).
I have to agree with André. Article 12(3) can only be utilized by non-states parties. However, Palestine could presumably file a declaration first and then ratify the Statute. I don’t believe that ratification would nullify the declaration.
Another interesting strategy that the Palestinian government could employ is ratification with an Article 124 declaration. Such a strategy would exclude any potential future war crimes outside of the Court’s jurisdiction for seven years. However, the Court would still have jurisdiction over crimes against humanity. In this case, Israel would be the only object of the Prosecutor’s scrutiny. Such crimes which would presumably occur following ratification include deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, persecution against any identifiable group, and potentially even murder, other inhumane acts, and apartheid.
In light of everything that was said above, and especially Aeyal Gross’s first point, I am struck by the following report from The Guardian: “The Israeli prime minister, Binyamin Netanyahu, has ordered the construction of thousands of new homes in Jewish settlements in the occupied territories in what will be widely interpreted as retaliation for the United Nations vote to recognise a Palestinian state on Thursday.” Add to the mix Articles 8(2)(b)(viii) and 25(3)(b) of the Rome Statute, and Netanyahu’s action, as reported, would seem to be ill-advised from an international legal perspective.
With respect, Andre and Zach’s interpretation of the provisions in question makes little sense. Why would the drafters of the Rome Statute have created two radically different jurisdictional regimes for member states and non-member states — especially one that gives the latter more freedom than the former? Moreover, that “unequal” relationship between member state and non-member states is actually illusory. Zach and Andre’s interpretation does not actually limit new member states: as Zach himself notes, to accept the Court’s jurisdiction retroactively, all that state would have to do is make an ad hoc declaration one day before it ratifies the Rome Statute. Again, why would the the drafters have created such a regime? The policy underlying the Court’s temporal jurisdiction also makes clear that my interpretation is the correct one. The drafters made prospective jurisdiction the norm because they were worried that states would not ratify the Rome Statute if it meant their previous crimes could be investigated. There is no such concern if a State is willing, for whatever reason, to accept that possibility. So there is no reason why the drafters would have wanted to prevent member states from accepting the Court’s jurisdiction retroactive to the date the… Read more »
Mohamed El Zeidy, it is worth noting, shares my interpretation. See here.
With equal due respect, Kevin, you are absolute right in saying that it would make little sense that the drafters of the Rome Statute would have created two radically different jurisdictional regimes for States parties and third States (let me use this term instead of the somewhat confusing term non-States parties). But the reason why you say that my interpretation does not make sense is because you are caught up in your own frame of interpretation to the effect that establishing jurisdiction retroactively is permissible to begin with. Let’s look at this in some logical steps. 1. The Rome Statute does not allow the establishment of jurisdiction retroactively for States that become a party to the Statute. This follows from the first part of article 11(2), but note that it does not expressly formulate a negative rule, a prohibition, to this effect; rather it stipulates in a positive manner that jurisdiction will be established from the moment of the Statute’s entry into force for the new State party; 2. Article 11(2) makes a limited exception to this, referring to the possibility that the State that becomes a party has made an earlier declaration under article 12(3).… Read more »
Andre, It’s an elegant argument, and I agree that there is no textual way to determine which of our interpretations is correct. The Court, however, agrees with me and with El Zeidy. Pre-Trial Chamber III specifically held in its Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire (3 October 2011) that “the Court has jurisdiction over crimes allegedly committed in Côte d’Ivoire since 19 September 2002, on the basis of the Declaration of acceptance of 18 April 2003 and the letters of December 2010 and May 2011” (para. 15). PTC III, in other words, expressly affirmed Cote D’Ivoire’s right to accept the Court’s jurisdiction retroactively. The Rome Statute does permit, in short, retroactive acceptance of jurisdiction. And if that is the case, I would respectfully submit the rest of my argument follows. If a non-member state can accept jurisdiction retroactively, any state that intends to join the Court can simply ratify the Rome Statute one day after it retroactively accepts jurisdiction on an ad hoc basis. And if that scenario is possible — as it clearly is — then it makes no sense to interpret the 11(2)/12(3) regime… Read more »
Kevin, I take your point about the decision indicated, and the Pre-Trial Chamber does indeed conclude that it possesses jurisdiction from 19 September 2002 onwards notwithstanding that the declaration of Ivory Coast was only made 18 April 2003. However, it may be noted that the PTC does not provide any supporting argument for its interpretation, and –considering what it actually said- there is no evidence that it even considered the issue. On that basis it may be concluded that the PTC determined its jurisdiction with retroactive effect, but I don’t think it follows that this is also the proper interpretation of the Rome Statute. However, assuming for the sake of argument that your interpretation is correct, it does not follow that we should take the further step of allowing States parties also to make declarations to establish the jurisdiction of the Court with retroactive effect to 2002. That interpretation goes against the specific wording of the first part of article 11(2) and would therefore be contra legem. Again, that leaves only the possibility for third States to make the declaration under article 12(3) shortly before ratifying the Rome Statute; but with the same result as I indicated earlier, namely that… Read more »
Kevin’s and Andre’s discussion is very interesting, and I find Andre’s interpretation to be very creative and, at a minimum, worthy of consideration. Their discussion however revolves about states transferring jurisdiction to the Court. While the issue of retroactive transfer of jurisdiction is complicated enough, the case of Palestine is even more complicated because for at least some (and I would say most) of the time since July 2002 it was clearly not a state. I therefor strongly disagree with the assumption that Palestine (assuming arguendo it is now a State) could transfer retroactive jurisdiction to the Court going back to 2002. As the Rome Statute makes clear, only a “State” (or the Security Council) can transfer jurisdiction to the Court. As the OTP has made clear, the Court does not have universal jurisdiction. It can only exercise jurisdiction that has been transferred to it. The Statute cannot change historical facts. As was already asked above by RJ1983, could South Sudan which became independent in 2011 transfer jurisdiction to the Court over acts committed in southern Sudan before its independence, or since 2002? Could Kosovo transfer jurisdiction to the Court for acts committed prior to its (disputed) declaration of independence in 2008, or… Read more »
R.Oribatz,
The reason why Kosovo and South Sudan cannot make a retroactive acceptance of jurisdiction that predates their formation is because doing would impinge upon Serbian and Sudanese sovereignty, respectively. Assuming that Palestine was not a state in 2002, it could still make a retroactive acceptance of jurisdiction that far back as no such impingement upon another state’s sovereignty would occur. Although Israel occupies the Palestinian territories, it does not and never has had legal sovereignty over them and I doubt that anyone would argue that in 2002 Egypt, Jordan, or the United Kingdom had any residual sovereignty. If the Palestinian territories were effectively terrae nullius in 2002, would anything stop a State of Palestine from accepting jurisdiction that far back?
“That interpretation goes against the specific wording of the first part of article 11(2) and would therefore be contra legem.”
But it is consistent with the second part, which is admittedly ambiguous. So it cannot be considered “contra legem.” It is also more teleologically consistent than the position that ascribes to the drafters the intention of treating non-member states more favorably than member states.
Kevin, in responding to my argument that States parties cannot make declarations establishing retroactive jurisdiction for the Court, observes that his interpretation to the contrary is consistent with the second part of article 11(2) and therefore cannot be considered contra legem. Though he admits that the wording concerned is ambiguous, his argument fails to take into account that the second part of article 11(2) makes reference to article 12(3), which precisely refers to declarations being made by third States (non-member States). Consequently, his interpretation is not consistent with the second part of article 11(2). In fact, the interpretation put forward by Kevin, namely that member States are allowed to make a declaration providing the Court with retroactive jurisdiction, leads to a an interpretation that is contrary to the specific wording of articles 11(2) and 12(3) read together. His further argument is that his interpretation is teleologically more consistent than my interpretation that (in his words) treats non-member States more favourably than member States. As to the use of the telos of the Rome Statute, its object and purpose, this is necessarily limited by the actual meaning of the terms of the specific provisions of the Rome Statute.… Read more »
To follow on Marko’s point – here is a piece I published today in Haaretz
http://www.haaretz.com/opinion/following-un-vote-on-palestine-israel-may-now-find-itself-at-the-hague.premium-1.481919
Which follows on my previous piece
http://www.haaretz.com/news/diplomacy-defense/palestinian-statehood-of-confusion.premium-1.481541
Once again, Andre’s response ignores the fact that the Pre-Trial Chamber has already approved retroactive acceptance of jurisdiction by a non-member state. He is obviously free to disagree with the PTC’s interpretation, but it cannot simply be ignored. It is also worth noting that Andre has yet to offer a convincing explanation of why the drafters of Arts. 11(2) and 12(3) would have refused to permit either member states or non-member states (much less only the former) to accept jurisdiction retroactively. I think it behooves him to do so, given that such refusal would be inconsistent with the object and purpose of the Rome Statute, which is to prevent impunity. Not requiring states to accept jurisdiction retroactively was an eminently sensible decision by the drafters, because such a requirement would have deterred ratification. But there is absolutely no reason why the drafters would have wanted to prevent states from accepting jurisdiction retroactively, should they choose to do so.
In the absence of any convincing rationale to the contrary, I think we can safely conclude that the PTC was right — and that any ambiguity in the language of Arts. 11(2) and 12(3) simply reflects bad drafting.
First of all, Kevin, I have not ignored the PTC’s decision, but have instead offered some explanation why we should not read too much into it: it does not devote any argument to the question of retroactive jurisdiction; and there’s no indication it was even aware that this could be controversial. Your assumption that the PTC has ‘approved’ retroactive acceptance of jurisdiction thus rests on shaky grounds. Secondly, I don’t think I carry a burden of proof regarding the motivations that the drafters may have had for disallowing retroactive jurisdiction; what I do note is that the first part of article 11(2) specifically only envisages prospective jurisdiction and therefore disallows retroactive jurisdiction. Note that this part addresses the Court and not the State becoming a party: this entails that the Court has no discretion as to the prospective character of its jurisdiction. Thirdly, if there is any ambiguity of language that should perhaps lead us to the travaux préparatoires, though I do not have the time or the inclination to go there. Nevertheless, the ambiguity lies at most with article 12(3), which does not mention that a declaration will only have prospective effect. To conclude from this, as Kevin does,… Read more »
Just out of curiousity, but w.r.t. “be careful what you wish for” why does Abbas need to refer the Israeli assault on Gaza to the ICC?
Why doesn’t he refer Israel’s ongoing and relentless colonization of the West Bank, which is very clearly defined as a war crime under Article 8(2)(b)(viii).
It is:
a) an open ‘n’ shut case
b) the perpetrators are readily identifiable
c) not something that can entangle any Palestinian
Colonizing an occupied territory is a war crime and, furthermore, it is a war crime being committed by one side, and one side only.
So why not start with that?
Reminder: states refer situations, not specific crimes. The Palestinians can only refer the situation in Gaza; it would be up to the OTP to decide which crimes (Israeli or Palestinian) to prosecute.
“The Palestinians can only refer the situation in Gaza; it would be up to the OTP to decide which crimes (Israeli or Palestinian) to prosecute.”
OK, but I did ask what would happen if the Palestines only referred “the situation in the West Bank” to the OTP, and made no mention whatsoever of “the situation in Gaza”.
In which case OTP would have a crime (colonization of occupied territory) that it could investigate, and a perp (Israeli cabinet ministers) that it could prosecute.
But it wouldn’t have any crime that it can pin on any Palestinian, since there are no rockets being fired from the West Bank.
Remember, the Israelis themselves have made an enormous effort over many decades to separate the fate of the Gaza Strip from the fate of the West Bank, and this may well be a situation where it comes back and bites them on the bum
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I must respectfully disagree with this article’s concluding paragraph: “From a legal perspective, [the ICC Prosecutor] 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.” The Report of the UN Fact-Finding Mission on the Gaza Conflict (the Goldstone Report) not only cites the Israeli targeting of civilians during military operations, but goes as far as attributing this targeting to Israeli state policy (see ¶ 704 – 885, Section XI). Should the ICC exercise jurisdiction, both Hamas operatives and Israeli soldiers will likely end up in the dock. The article argues that Israel’s potential crimes are “fraught with ambiguity and difficult to prove.” Yet hundreds of pages of evidence documented by international organizations suggest otherwise. The Dahiya doctrine, in which the Israel Defense Forces (IDF) target civilian infrastructure with disproportionate force to induce civilian suffering and establish deterrence, was articulated by Gadi Eizenkot, an Israeli Major-General, who said that the doctrine would be implemented “in every village from which shots were fired in the direction of Israel. We will wield… Read more »