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Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. Read the rest of this entry…

 

Prosecution of Former Nazi Camp Guards: About Restoring Society’s Trust in Law and Participation in a Criminal Enterprise

Published on May 20, 2013        Author: 

The recent debate in Germany about the prosecution of former Nazi concentration camp guards – all about 90 years old – and the detention of one on 6 May near Stuttgart reminds us of the controversy about the trial against John Demjanjuk in the district court (Landgericht) of Munich in 2011. The controversy is by no means limited to Germany but takes place in all countries (for example Cambodia) where old men and sometimes women are held accountable for long passed crimes (for example the crimes of the Khmer Rouge). What these trials have in common is the old age of the accused, who may not survive to the end of their trials. Indeed, Demjanjuk died before the appeal against his conviction was decided. More recently, former Khmer Rouge senior official  Ien Sary died on 14 March 2013, during his trial by the Extraordinary Chambers in the Courts of Cambodia . Typical of these trials are also the enormous difficulties in finding appropriate evidence such a long time after the facts. Moreover, given that camp guards normally just follow orders of mid- or top-level responsible they are only small cogs in the machinery of destruction set up by the criminal system and their individual criminal responsibility is difficult to establish. We will return to this problem at the end of this essay.

On a more fundamental level, one is always confronted with the question of the justification or rationale of such trials in terms of the purposes of punishment. Offender-related rationales, especially re-socialization or rehabilitation, are hardly plausible in the context of system criminality, especially when the perpetrators are facing death anyway. The likelihood of convicted system criminals re-offending in a new system is next to zero. System criminals do not need to be re-socialized through punishment since they have not been deviant in the societies in which they lived in . Indeed, they carried out the atrocities demanded by the former criminal system, for example keep running a concentration camp. If this (their) system is replaced by a new one they usually quickly adapt to this one too and turn into the normal citizens they have always been, except for the period of the criminal system. These citizens are good neighbours who do not come into conflict with the law. Their conflict concerns their conduct in the former criminal system. Thus, they are investigated for past instead of present conduct. In sum, former system criminals neither have to be reintegrated into the new society nor is it necessary that this society must be protected against them, especially if they are harmless old men today.

What about retribution (just deserts) then? Does it justify prosecuting these people? Read the rest of this entry…

 

ICC OTP Report on the Situation in Colombia – A critical analysis

Published on February 1, 2013        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Preliminary Remarks

On 14 November 2012 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) published the “Interim Report” on the “Situation in Colombia”. The Report is exceptional for the fact that the OPP usually does not submit such kind of country report at this (preliminary) stage of the proceedings; instead, the Office’s activities are reported in its Annual Report on Preliminary Examination Activities. The reason why this is different in this case is “the high level of public interest” in the Colombian situation. In fact, the very existence of the Report demonstrates the seriousness with which the Office continues to monitor the situation in Colombia.

Despite all its shortcomings, the Report still deserves praise in that it constitutes a unique effort to subsume the complex Colombian situation under the legal regime of the Rome Statute. In fact, the OTP offers the first “official” and impartial account of the Colombian violence in ICL terms and this constitutes an advance in itself, not least with regard to the domestic discussion in Colombia. More concretely speaking, however, the Report offers a mixed picture. While some issues are treated adequately, contributing significantly to an accurate assessment of the Colombian situation, especially with regard to the topic of the “false positives”, the treatment of other aspects leaves more questions than answers. In this sense, the Report makes it difficult to determine with some precision the further course of the OTP’s evaluation of the Colombian situation. Indeed, the Report does not provide for clear standards that could serve as a framework for current and possibly future peace negotiations. Perhaps the question of an “alternative punishment” is the most important one effectively left open by the Report. Clearly, the report reflects the complexities of the Colombian situation which make it so difficult to come to a balanced and satisfactory judgment with a view to possible intervention by the ICC. It may well be argued that this situation demonstrates more than any other the importance of cooperation and mutual learning between local and international criminal justice.

Read the rest of this entry…

 
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Diplomatic Asylum for Julian Assange?

Published on September 11, 2012        Author: 

Professor Kai Ambos is Chair of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August-Universität Göttingen, Germany (since May 2003) and Judge at the Provincial Court (Landgericht) of Lower Saxony in Göttingen

Julian Assange’s medal-worthy self-staging as a militant for worldwide freedom of opinion has diverted attention away from the fact that the dispute over his extradition has nothing to do with Wikileaks, but rather with the enforcement of a European arrest warrant from November 2010. In this arrest warrant Assange is charged with rape, sexual harassment and unlawful coercion against two Swedish women in Sweden. According to the fundamental principle of mutual recognition as basis of the European arrest warrant, such a warrant is to be enforced by the executing member state (in this case Great Britain) without any further ado. The fact that Assange was however able to go through three  tiers of the English judicial system – with the proceedings leading up to the Supreme Court Decision of 30 May 2012 lasting one and a half years – can be explained, among other things, by the fact that the implementation of the European arrest warrant within the member states varies greatly.

Against this background – exhaustion of the local legal remedies – Assange’s escape into the Ecuadorian embassy on 19 June 2012 is to be seen as the continuation of his fight with political means. Hence, it is not very surprising that in the detailed explanation given by the Ecuadorian Ministry of Foreign Affairs (on 16 August 2012 ) for the granting of diplomatic asylum no mention is made of the actual accusations against Assange (see Comunicado No. 042). Instead, President Rafael Correa on 18 August 2012 in his state-owned TV program declared that the conduct Assange is accused of was not even punishable in Latin America (see Enlace Ciudadano No. 285). If this were to be true (which is fortunately not the case, see Art. 505 et seq. of Ecuador’s own Criminal Code), it would catapult the continent back to the unbridled machismo era. In any case, Ecuador granted Assange diplomatic asylum because it considered that there was an imminent threat of him being further deported to the United States where he would be politically persecuted and cruelly treated (see Comunicado No. 042).

However, Ecuador’s decision to grant diplomatic asylum to Julian Assange is flawed as a matter of law. Nonetheless, its embassy in London remains inviolable. The Ecuadorian argument does not stand up in the light of sober legal analysis as it misreads the fundamental structure of (European) law of extradition and it employs a legal concept – “diplomatic asylum” -that is not universally recognized in international law (see this EJIL:Talk! post ). An automatic further extradition to a third state is neither possible in general extradition law nor in the European arrest warrant system. Read the rest of this entry…