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

by Kevin Jon Heller

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.

http://opiniojuris.org/2014/08/05/breaking-otp-rejects-jurisdiction-situation-palestine/

8 Responses

  1. 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 Uganda v. Uganda.

  2. Patryk,

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

  3. 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.

  4. 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.

  5. John,

    You’ve answered your own question…

  6. 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 has no problem permitting states falling within the “Vienna formula” (like Palestine after November 2011) to do so in accordance with para 79-81 of the Summary of Practice of the Secretary‐General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1 (1999).

    Response … 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.

    Article 12(3) declarations are accepted on behalf of the Court through the Registrar, who remains the official channel of communications in accordance with the Court’s own Rules of Procedure. It’s hard support the idea that the UNGA did not intend to give Res. 67/19 retroactive effect, when the recitals in the preamble reaffirmed resolutions in which it had acknowledged that the 1988 UDI of the State of Palestine was made “in the exercise of an unalienable right” and that an additional factor it considered relevant was the role played by the PLO Executive Committee since then, acting as the Provisional Government of the State of Palestine, in accordance with a “Declaration on the Formation of the Provisional Government of the State of Palestine, dated 15 November 1988. It cited that in a footnote and it had circulated the declaration at the time as a UN document: A/43/928 (1988). Under the applicable principles of customary international law, recognition of statehood is retroactive and validates the acts of the government so recognized from the commencement of its existence. Resolution 67/19 did exactly that, by highlighting the date when the provisional government of Palestine originally came into existence.

    In any event, if the Prosecutor is going to be pedantic, then the date of the UNESCO vote a year earlier would have to be dispositive. While the Prosecutors have paid lip service to the claim that the Practice of the Secretary General or the General Assembly must be consulted, they continue to make unauthorized statements and determinations on behalf of those two UN organs without any consultation whatever. For example, in the mid-1950s the General Assembly adopted the practice of inviting all UN member states, all UN specialized agency member states, and all parties to the ICJ Statute to participate in its general multilateral treaties. See for example Articles 4 and 5 of A/RES/1040 (XI) Convention on the Nationality of Married Women (29 January 1957). The ILC draft articles and commentary on the law of treaties employed by the Vienna Diplomatic Conference noted that, by 1962, inclusion of that formula in treaties had become a standing practice, although some felt that general multilateral treaties should be open to participation by “every state”. Google: a_conf_39_ilcdraftart.pdf

    The ability of states falling under the so-called “Vienna formula” to become parties to any treaty open to participation by entities was an integral part of “the understandings” adopted by the General Assembly during its 2202nd Plenary Session on 14 December 1973. That fact is reflected in paras 79-86 of the Summary of Practice of the Secretary‐General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1. Ocampo cited that in his 3 April 2012 thesis. His analysis there brings to mind the old saying “It is not only not right, it is not even wrong.” When his excuses for inaction became irrelevant, Bensouda simply invented new ones.

    Response … 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.

    The written referral of the situation to the Prosecutor is a separate procedure according to the court’s rules. There’s really no reason to conflate the two in an Article 12(3) declaration, which is only intended to serve as an acceptance of the exercise of the Court’s jurisdiction for an crimes listed in Article 5. I think the Court has objected to attempts by states to limit the scope of its jurisdiction under the terms of ad hoc declarations. So maybe she’s trying to avoid that.

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