Double Duty at the ICC

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 5^th, 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 31^st. 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 7^th, when the Court published a second press release on the matter announcing that Palestine had acceded to the Rome Statute on January 2^nd, 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 12^th, 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.