Valentina Azarov (pictured left) is Lecturer in Human Rights and International Law, Al-Quds Bard College, Al-Quds University, Palestine. Chantal Meloni (pictured right) is Adjunct Professor of International Criminal Law, University of Milan, Italy and Alexander von Humboldt fellow, Humboldt University of Berlin.
In a recent post on ‘Palestine, non-Member Observer Status and ICC Jurisdiction’, Kai Ambos raises important points that require, in our view, some basic clarifications. While many of these arguments have been made previously by eminent experts and practitioners, they have become particularly relevant with the recent accessions by Palestine to 20 international treaties (see here and here) including some of the most important international human rights and humanitarian law instruments, as well as a letter dated 8 May 2014 addressed to President Abbas by 17 human rights groups calling for Palestine to seek access to the ICC.
Arguably the most critical issue raised by Ambos concerns the 2009 Declaration lodged by the Palestinian government pursuant to Article 12(3) of the International Criminal Court Statute accepting the jurisdiction of the ICC. Ambos claims that this Declaration is void because, in his view UN General Assembly Resolution 67/19 (2012), which granted “non-member observer state status” to Palestine does not possess retroactive effect. However, as explained below, a GA resolution is not constitutive, nor even declarative of the existence of a ‘State’, since, strictly speaking, formal recognition is a state act (Crawford 2006, 27-28). It merely provides further indication of Palestine’s treatment as a ‘State’ by international actors. In fact, as will be argued, the ICC could have exercised its jurisdiction over Palestine on the basis of the 2009 Declaration, even prior to the UN GA Res 67/19.
Validity and ‘Retroactivity’ of the 2009 Declaration
At the outset, Ambos claims that the 2009 Declaration was “not validly lodged,” citing a November 2013 Report on Preliminary Examination Activities by the ICC Prosecutor’s Office (OTP). However, there are conspicuous differences in the language used by the ICC Prosecutor in this report and in its decision of 3 April 2012 not to open an investigation. The official 2012 decision does not hold that the declaration was not validly lodged. Rather, in that ‘decision not to decide’ (see Dapo Akande), the Prosecutor stated that the ‘Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12.’ The 2013 report quoted by Ambos is a communication of the office’s activities that clearly carries less weight than an official decision. It is not meant to have dispositive value but is merely part of the OTP’s regular reporting duties: “In order to promote transparency of the preliminary examination process the Office aims to issue regular reports on its activities and provides reasoned responses for its decisions either to proceed or not proceed with investigations” (par. 13).