My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

6 Responses

  1. I thought that the wording of article 11(2) of the Statute allows for the “retroactive” (in respect of the entry into force of the Statute for a State becoming a Party) jurisdiction of the Court only if a State … has accepted the jurisdiction of the Court under 12(3) prior to becoming a Party and not for a lodging such a declaration after having become a Party. Also 12(3) seems exclude retroactive acceptance by Parties to the Statute.

  2. Jean Paul,

    Some have argued that, and there is no question 11(2) and 12(3) are not models of drafting clarity. But I don’t see any reason why the drafters of the Rome Statute would have permitted non-parties to accept retroactive jurisdiction but not parties — or would have required the formalistic solution of a state intending to become a party filing an ad hoc declaration one day before ratifying the Rome Statute. (Unless you think the proprio motu/state referral distinction is important enough to justify that asymmetry, which I don’t.) See also Alex Wills’ post at OJ, in which he argues parties are permitted to file ad hoc declarations no less than non-parties:

    I find Alex’s point about RPE 44(1) to be particularly telling.

  3. Actually, you already addressed this aspect in

    …including the possibility of any (!) State party referring the situation to the Prosecutor, thereby circumventing PT-Chamber review.

  4. Kevin,
    I got the point. Nevertheless also RPE 44 isn’t a model of drafting clarity. RPE 44(1) seems to permit States Party to make a declaration under article 12(3). Nevertheless RPE 44(2) seems, on the contrary, to suggest such declarations are made solely by States not Party, and such States are to be informed about the effect of their declaration under article 12(3) (…).
    Besides from RPE 44(1), I agree that there is no reason to justify an asymmetry and a different treatment of acceptance by States not Parties under 12(3) and accession under 11(2). It was not my initial intention to express my disagreement with the retroactivity of the acceptance of the Court’s jurisdiction under 12(3) because the Court has already taken position. Nonetheless I disagree with the possibility for States not Party to retroactively accept the jurisdiction of the Court.
    This said, a formalistic approach, also in respect of 12(3) seems to me to be justified by art. 24(3) of the VCLT which I believe establishes a presumption against retroactivity.
    Perhaps also those formalistic provisions on the entry into force of amendments of the Statute for States which have accepted the amendments may support a formalistic approach to art. 11(2) and also 12(3). I’m aware that the above are not strong legal arguments and I’m also aware of being on the less popular side.

  5. Response…I tend to agree with much of what you said in the interview. I think the bottom line is that helping to end conflicts was one of the stated aims of the UN when it convened the Rome Conference: “Why Do we Need an International Criminal Court? … To achieve justice for all … To end impunity … To help end conflicts … To remedy the deficiencies of ad hoc tribunals … To take over when national criminal justice institutions are unwilling or unable to act … To deter future war criminals.

    Every time the ICC has been publicly criticized for avoiding one of those aims, its brand name has tanked pretty fast. So, I tend to disagree that the ICC can make the situation any worse by doing its job and failing, than 130 years of colonization, armed conflicts, and politicization have already accomplished. The Prosecutors may think they know how to slow walk things, but few other conflicts have their own worldwide network of solidarity activists. Palestine’s supporters haven’t been concentrating their efforts on the ICC up until now. They’ve been busy bashing Abbas, Israel, and their facilitators. What are the Prosecutors going to do when the Church of Scotland, the Methodists, Presbyterians, a few thousand university student bodies, trade unions, & Palestinian or allied UN delegations file complaints and take to the streets to publicly protest inaction, while demanding that the Prosecutors and Judges responsible be suspended, disciplined, or removed from office for “Repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases, or in the exercise of judicial powers”? The international community of states has repeatedly ignored strong opposition and voted to give the PLO and Palestine the privilege to access and participate in the business of various UN bodies or agencies and the international courts. I don’t think the Prosecutors will be acting wisely if they continue to ignore its expressed will on this particular issue.

  6. Jean Paul,

    In addition to the blog post Kevin referred to above, my recent article (details at addresses many of these concerns more comprehensively than is possible here. Section 3 argues that states parties can make article 12(3) declarations, and covers the interpretation and drafting history of Rule 44(1) in more detail.

    Section 2 discusses some of the objections to article 12(3) declarations being made retroactively, including by reference to VCLT article 28.

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