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Home Articles posted by Daphné Richemond-Barak

Of Temporal Jurisdiction and Power Struggles in the ICC’s Palestine Investigation

Published on January 22, 2020        Author: 

 

It’s been five years since Palestine made the much-awaited move of requesting the International Criminal Court to investigate crimes allegedly committed by Israel “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Like last month’s decision of the Prosecutor announcing her intention to open an investigation, it was made public in the midst of the holiday season. At the time, Palestine invoked Article 12(3) of the Rome Statute – which gives a state not a party to the Rome Statute the right to accept the jurisdiction of the Court on a one-time basis. A day after it made this request, Palestine acceded to the Rome Statute. 

Shortly thereafter, I re-traced the steps taken by Palestine to gain access to the International Criminal Court up and until December 2014. Those steps were part of a wider effort to expand Palestine’s participation in international bodies, from UNESCO to WIPO and the International Court of Justice (first by appearing in the Wall advisory proceedings, later by bringing a contentious case against the United States).

That Palestine chose to make a declaration under 12(3) and accede to the Rome Statute was intriguing to say the least. The reason behind this double move by Palestine was, I argued, to be found in its impact on the temporal jurisdiction of the Court. Palestine sought to grant the Court with the broadest possible temporal jurisdiction, one that includes crimes committed before and after December 2014. This was a deliberate strategy, which bore its fruits in the Prosecutor’s recent decision.

Becoming a party to the Rome Statute granted the Court’s temporal jurisdiction vis-à-vis crimes committed after the entry into force of the Statute – in this case acts committed after April 1, 2015. The declaration made under Article 12(3) extended such jurisdiction to crimes committed between June 13, 2014 and April 1, 2015. This explains why Palestine was able to request the investigation of acts that occurred prior to April 1, 2015.

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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.

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