magnify
Home EJIL Analysis Double Duty at the ICC

Double Duty at the ICC

Published on January 12, 2015        Author: 

After days of speculation, the clouds have begun to clear over Palestine’s strategy at the ICC. Ever since the Security Council rejected a draft resolution on December 30, 2014 designed to upgrade Palestine’s status to full Member State of the UN and imposing a 12-month deadline on a negotiated solution to the Israeli-Palestinian conflict, the media overwhelmingly reported that Palestine signed the Rome Statute. Yet there was no word on the ICC website and no official information confirming these reports.

The uncertainty grew as the holidays came to an end. Finally, on January 5th, the ICC issued a press release. Contrary to all expectations, however, it appeared that Palestine had submitted a declaration under Article 12(3) of the Statute on December 31st. When using this procedure, states confer jurisdiction to the Court on a one-time, ad hoc, basis. By using this procedure, states do not become party to the Rome Statute, the founding document of the International Criminal Court.

This ad hoc mechanism is no stranger to Palestine. It already attempted to confer jurisdiction to the Court via Article 12(3) in 2009. It took three years for the Prosecutor to reject Palestine’s request. Though it rejected the request, the Prosecutor indicated that things might be a bit different were Palestine to become a non-member state. Palestine was, in fact, granted that status in November 2012. Given these elements, there is little doubt today that the Prosecutor will accept the latest declaration lodged by Palestine “for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”

More facts surfaced on January 7th, when the Court published a second press release on the matter announcing that Palestine had acceded to the Rome Statute on January 2nd, only a few days after submitting the ad hoc declaration.

The question that inevitably comes to mind is: Why do both? Why sign the treaty if a declaration requesting an investigation has already been submitted? And, conversely, why submit a declaration if the intention is to sign the treaty just a few days later? Clearly, if Palestine chose to submit an ad hoc declaration and ratify the Rome Statute – there must have been a reason.

When a state becomes a party to the ICC, the Court “may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State” (Article 11(2) of the Statute). In the case of Palestine, this means that the Court may investigate only events that occurred following the entry into force of the treaty for Palestine, namely April 1, 2015 (as the Prosecutor noted with respect to the Union of the Comoros in its decision not to investigate events that took place aboard the Mavi Marmara).

Importantly, Article 11(2) also envisages the possibility that a state may, in addition to becoming a party, lodge an ad hoc declaration. When this happens, the Court is empowered to investigate situations that occurred prior to the entry into force of the treaty for that state (confirmed in the Court’s acceptance of the ad hoc declaration lodged by Cote d’Ivoire conferring Court jurisdiction for acts committed prior to the declaration). This allowed Palestine to request the retroactive investigation of acts committed before April 1, 2015 (specifically, those occurring beginning June 13, 2014, the day after the kidnapping and killing of three Israeli teenagers in the West Bank which marked the beginning of Operation Brother’s Keeper). For Israel, this means that the kidnapping/killing itself, which took place on June 12th, would remain outside the Court’s jurisdiction and thus could not be investigated by the ICC. In contrast, the retroactive ad hoc declaration does give the Court a mandate to investigate Operation Protective Edge – provided the Court reaches the conclusion that Gaza constitutes “occupied Palestinian territory”, and keeping in mind that this would also subject Palestinians to the jurisdiction of the Court.

The rules governing retroactivity thus differ significantly under the two procedures. Whereas retroactivity is ruled out in the case of accession to the treaty, it is made possible via an ad hoc declaration.

This raises some questions as to the political expediency of signing and ratifying the Rome Statute for states. It certainly explains, however, why Palestine submitted both an ad hoc declaration under Article 12(3) and an instrument of accession to the Rome Statute in the span of only a few days. The Prosecutor would do well to take full measure of the scope and limits of the Court’s mandate under each of these procedures and the implications of their combined use.

Print Friendly
 

17 Responses

  1. Alicia Koeppen

    Dear Daphné,

    thank you very much for your interesting article. I too have been looking at the most recent steps Palestine took with regard to the ICC and was suprised to find out that they launched both an ad hoc declaration and formally joined the Rome Statute – but then, your post explains the underlying reasons pretty well.

    Another aspect that struck me about the ad hoc declaration is the fact that its wording only transfers jurisdiction over the “occupied Palestinian territories, including East Jerusalem” – this in contrast to the 2009 declaration which spoke of “acts committed on the Palestine territory”. Can the PA effectively limit the ICC’s retroactive (territorial) jurisdiction in order to exclude the Gaza strip and consequently crimes committed by Hamas during the most recent conflict? Is the ICC bound by the territorial scope in such a declaration?

    Best,
    Alicia

  2. I normally do no respond to blogs but in this case I feel a bit compelled since this blog states something very obvious which, in addition, has already been extensively discussed on EJILTalk, see http://www.ejiltalk.org/palestine-un-non-member-observer-status-and-icc-jurisdiction/ and http://www.ejiltalk.org/?s=Kai+Ambos, both with further references. Why reinvent the wheel?

  3. Daphne Richemond-Barak

    Dear Kai, thanks for your feedback. I believe our disagreement lies in your belief that the question of retroactivity has been settled. In my view this is not the case, and there is still room for flexibility as this stage of the Court’s history – including in how the Court will relate to the combined use of the two mechanisms and in its assessment of whether the current use of these mechanisms is that intended by the drafters of the Statute. Moreover, the piece is meant to explain what may look like a double and thus confusing attempt at granting jurisdiction to the Court. The piece was born out of repeated queries to that effect and should be read as an attempt to make sense of the events of the past two weeks – which the posts you refer to naturally could not address as they were written months ago.

  4. Hostage

    Dear Daphne, during a UN press conference regarding Palestine’s delivery of an accession document for the Rome Statute, the Ambassador made it clear that another retroactive declaration had been delivered the day before(@7:06) http://youtu.be/CWa0jZxlbGY

    He said that Palestine had requested retroactivity with regard to jurisdiction over crimes committed during the last war in Gaza and was reserving its right to retroactivity with regard to other crimes. So I doubt that the question of retroactivity has been completely settled.

  5. Daphne Richemond-Barak

    I agree!

  6. Sadie Blancahrd

    This comment has been deleted at the commenter’s request.

  7. Hostage

    Re: Can the PA effectively limit the ICC’s retroactive (territorial) jurisdiction in order to exclude the Gaza strip and consequently crimes committed by Hamas during the most recent conflict? Is the ICC bound by the territorial scope in such a declaration?

    I don’t believe the question will ever arise. The Prosecutor held that Gaza remains part of the occupied Palestinian territories in the analysis provided as part of the decision not to investigate events that took place aboard the Mavi Marmara. Similarly, the PA and Arab League member states have repeatedly introduced correspondence for circulation as UN documents and draft resolutions in UN organs regarding “Human rights violations emanating from Israeli military attacks and incursions in the OPT, particularly in the occupied Gaza Strip …”.

  8. Alicia

    @ Hostage:
    Just to clarify: So you think the PA did not try to limit the territorial scope of the ICC’s jurisdiction by chosing a different wording than in the 2009 declaration because they were fully aware of the widespread interpretation of “occupied territories” as including the Gaza strip?

  9. Hostage

    Re: “So you think the PA did not try to limit the territorial scope of the ICC’s jurisdiction by chosing a different wording than in the 2009 declaration”

    No, I do not. The comments of the Palestinian ambassador made during the UN press conference, that I cited and linked to above, indicated that this latest Article 12(3) declaration was submitted in order to accept the Court’s jurisdiction retroactively. He explicitly stated that was done so that the Court can investigate and prosecute the persons responsible for crimes committed in Gaza during the recent conflict.

  10. János György Drienyovszki

    Re: Can the PA effectively limit the ICC’s retroactive (territorial) jurisdiction in order to exclude the Gaza strip and consequently crimes committed by Hamas during the most recent conflict? Is the ICC bound by the territorial scope in such a declaration?

    Dear Alicia,

    I think your questions is a really compelling one. In the case of accession, some states attached declarations and reservations limiting or defining the territorial jurisdiction of the Court (see Argentina and New Zealand). Based on such logic Article 12(3) declarations may also limit the territorial jurisdiction even retroactively. However, as Hostage rightly points out, in the view of the OTP “the occupied Palestinian territories” do include the Gaza strip (http://www.icc-cpi.int/iccdocs/otp/OTP-COM-Article_53%281%29-Report-06Nov2014Eng.pdf/Para. 16), therefore if the ICC ever decides to open an investigation, the Gaza strip would indeed be covered by the territorial jurisdiction of the Court based on Palestine’s declaration of 31st December.

  11. Ori

    János, even though the Prosecutor considers Gaza occupied Palestinian territory, that is not the same as saying that it is part of the purported State of Palestine. If effectivités over territory is necessary for it to be considered part of a State, it is dubious whether Gaza can be included as part of Palestine, considering the former is controlled by Hamas.
    Incidentally, the same resolution providing Palestine with non-member State status also recognises that its borders are yet to be finalised, creating further perplexities regarding the jurisdiction ratione loci delegated to the ICC.

  12. Chris

    As an aside, I found Kai Ambos’s post monumentally arrogant. Positioning himself first as generally too important to respond to blogs, then attempting to denigrate the author’s work as “obvious” and reinventing the wheel, was not only arrogant but also wrong.

  13. Daphne Richemond-Barak

    Janos, “if the ICC ever decides to open an investigation, the Gaza strip would indeed be covered by the territorial jurisdiction of the Court based on Palestine’s declaration of 31st December” (http://www.icc-cpi.int/iccdocs/otp/OTP-COM-Article_53%281%29-Report-06Nov2014Eng.pdf – as you aptly refer to) – my sense is that the Prosecutor’s finding that “the prevalent view within the international community is that Israel remains an occupying power in Gaza despite the 2005 disengagement” does not provide a sufficient basis for assuming that Gaza is necessarily covered by the 12(3) declaration. The elements raised by Ori will also play a role in reaching a definite and substantiated conclusion on this matter.

  14. Hostage

    I agree with the points made by János. Alicia and others here might also find William Schabas’ article on “Territorial Declarations and the Rome Statute” of interest. http://humanrightsdoctorate.blogspot.com/2010/08/territorial-declarations-and-rome.html

    Re: “If effectivités over territory is necessary for it to be considered part of a State, it is dubious whether Gaza can be included as part of Palestine, considering the former is controlled by Hamas.”

    That’s a doubtful proposition. The Assembly of State Parties formally accepted Palestine as an ICC observer state. Article 17 stipulates that “inability” due to a total or substantial collapse or unavailability of the State’s national judicial system actually serves to trigger the ICC’s jurisdiction, not prevent it owing to a lack of “effective control”. In any event, Hamas was represented by the Palestinian unity government that was sworn in on 2 June 2014. The Vienna Convention on the Law of Treaties and customary practice would only require that the Declaration be made by an official with “full powers”, like the President or Foreign Minister of the unity coalition or some other official that they in-turn had provided with the necessary credentials. The latest declaration was signed by President Abbas, after he had obtained written acceptance from the Hamas Politburo for the exercise of ICC jurisdiction.

    Re: “the same resolution providing Palestine with non-member State status also recognises that its borders are yet to be finalised, creating further perplexities regarding the jurisdiction ratione loci delegated to the ICC.”

    The Court is simply required to apply the relevant treaties and the principles and rules of international law. There’s no need to “reinvent the wheel” on that account. The ICJ cited UN Security Council resolution 62 and the resultant armistice lines in its legal analysis of the status of the Palestinian territory in the 2003 Wall case. The “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” says:

    Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.

    The armistice lines were formally adopted as a Article 40 provisional measure under the terms of two UN Security Council Chapter 7 resolutions (62 and 73) and agreements signed by Israel. They cannot be altered except by mutual consent of all the parties concerned.

  15. Ori

    Hostage, three short points: First, the mere fact Hamas is part of a unity government does not mean its forces – and thus their control over Gaza – are attributable to the purported State of Palestine.
    Second, referring to article 17 is begging the question: is Gaza part of the State of Palestine. The acceptance as an observer State does not answer that.
    Third, an armistice agreement is not an agreement providing title to territory.

  16. Hostage

    @Ori The people and territory of Gaza remain part of the State of Palestine that was declared in 1988. As such, the Palestinian people have continued to insist that their leaders form a unity government that has been afforded observer and full member state status in the ICC.

    The Cairo agreements called for 3,000 PA forces to be added to the uniformed Hamas security force that provides for municipal policing and operates the border crossings – and for all to be employed by the new cabinet. Right at this moment the Gaza Police union is on strike and staging sit-ins at the unity government offices over payment of wages. In October the unity government made partial payment of wages to 24,000 other Hamas civil servants who help “control” the territory. So they certainly seem to agree that they are employed by the state and that the government is responsible for payment of their wages. The main questions is whether or not they will cooperate with UN and ICC missions and allow the Offices of the Registrar and Prosecutor do their jobs. The Cairo agreements also included written consent from all of the factions to the new government’s accession to the Rome Statute. Many observers agree that Israel has imposed sanctions, withheld tax revenues needed for salaries, and has launched raids and attacks from the moment the agreements were signed in order to interfere with the political independence and territorial integrity of the State of Palestine. Although the Oslo Accords and subsequent peace proposals have all required Israel to treat the West Bank and Gaza as as one territory unit for political, legal, economic, and other purposes, Israel has always violated the terms and created isolated and economically deprived Palestinian enclaves.

    Re: Third, an armistice agreement is not an agreement providing title to territory.

    On the contrary, the government of Israel has always employed the armistice agreements to claim the right to exercise legal jurisdiction over territory. During the Security Council’s 433rd meeting, Abba Eban stated that the armistice lines clearly defined the State’s jurisdiction and had the normal legal characteristics of frontiers:

    “The armistice lines do not merely separate armed forces. They mark the clearly defined areas of full civil jurisdiction. The Government, the courts, the legislatures, the security authorities of each respective State operate smoothly and unchallenged up to the appropriate armistice line. These lines thus have the normal characteristics of provisional frontiers until such time as a new process of negotiation and agreement determines the final territorial settlement.

    The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated.” http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.433

  17. Balance

    As an update:
    ‘The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine
    ICC-OTP-20150116-PR1083
    Today, Friday, 16 January 2015, the Prosecutor of the International Criminal Court (ICC), Mrs. Fatou Bensouda, opened a preliminary examination into the situation in Palestine.

    The Prosecutor’s decision follows the Government of Palestine’s accession to the Rome Statute on 2 January 2015 and its declaration of 1 January 2015, lodged under article 12(3) of the Rome Statute – the Court’s founding treaty – accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”

    http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1083.aspx