Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

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Patryk Labuda

Kevin, regarding your last point: the OtP is clearly not bound by a referral purporting to limit its jurisdiction to just one party to the conflict (vide Uganda’s initial self-referral of just the Lord’s Resistance Army — the OtP came back and said it could also investigate the government (which it never did of course)). But what about territory? I agree that there is no reason why Palestine could not refer just Gaza. There is precedent for that. The question is whether the OtP could take a referral of Gaza and interpret it broadly to include the West Bank. And why would it do so? The OtP appears to have done something similar with Uganda (initially the government referred the situation in Northern Uganda – now the website labels it as the situation in Uganda) but not Sudan (where Darfur is the only area (situation) under investigation). If Palestine uses 12 (3), this seems more like a self-referral… but then again here we have two territories that are not even connected. It’s not clear to me why the OtP would want to broaden the scope of the inquiry if it doesn’t have to? This seems a little different from northern… Read more »

Kevin Jon Heller

Patryk,

I have next to nothing to add to your comment. I completely agree.

anon
anon

Why would they want to keep it limited to Gaza? They probably have a much better chance of getting a ruling that harms Israel if they include the West Bank as well.

Of course, any referrals would kill any prospects of a national unity government as Hamas would not appreciate being investigated, and thus such request will not be filed.

John
John

Is there some reason why the ICC is saying that Palestinian was a State (for the purposes of the Rome Statute at least) only after the GA Resolution?

Or is this the OTP doing everything possible to avoid getting dragged into the whole Israel-Palestine mess as it is still trying to establish itself?

Statehood is certainly not dependent on recognition (even if it is by the UN) and the Rome Statute is open to accession by all States.

Kevin Jon Heller

John,

You’ve answered your own question…

Hostage
Hostage

Response…First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis. That may be her position at the moment, but after three years of studying the proposition, in September of 2012, she specifically described the “rejected” 2009 request from Palestine as such, but claimed it was nonetheless possible for the Court to employ it to gain jurisdiction and begin investigations. In the alternative, Abbas and Monsour could just go back to the General Assembly and get another resolution affirming and clarifying that, 1) when the Secretary General began accepting deposits of instruments from Palestine for multilateral treaties in 2003, that he was simply following the practice of the Assembly in line with unequivocal indications from the Assembly in its own resolutions that it considered Palestine to be a State and full member of several international state-based intergovernmental organizations, even though it did not fall within the “‘Vienna formula” at that time; and 2) That when a treaty is open to participation by entities, the Secretary General… Read more »

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