Tuesday, 10 February 2009

Gaza Declaration by Palestinian Authority

The Palestinian Authority has made a formal declaration to the International Criminal Court, invoking article 12(3) of the Rome Statute: http://www.mediafire.com/?enqlmfidumu. The declaration has been acknowledged by the Registrar of the Court: http://www.mediafire.com/?rxm2xty4p2i.
There is also a short description of the Gaza issue on the website of the Court: http://www.icc-cpi.int/NR/exeres/4F8D4963-EBE6-489D-9F6F-1B3C1057EA0A.htm.
This possibility was discussed a few weeks ago on this blog. According to article 12(3), a non-party State accepting the jurisdiction of the Court on an ad hoc basis. The provision requires such a State to lodge a declaration with the Registrar by which it accepts the exercise of jurisdiction by the Court ‘with respect to the crime in question’. The Statute describes such a State as an ‘accepting State’. The final sentence in Article 12(3) says that ‘[t]he accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9’.
In the third edition of my book, Introduction to the International Criminal Court, I considered this possibility:

One intriguing application of Article 12(3) concerns States that do not yet exist. Could Palestine, for example, which is not a Member State of the United Nations and which is not generally recognised as an independent State, declare that it intends to join the Court upon obtaining statehood and to accompany its accession to the Rome Statute with a declaration under Article 12(3) giving the Court jurisdiction over its territory for all acts perpetrated since 1 July 2002?

The question now is whether Palestine actually exists as a State. The mere making of such a declaration constitutes an act of statehood. The Prosecutor will now assess whether Palestine is a State, and therefore whether the declaration is actually effective. Then, he may decide to begin an investigation, in accordance with article 15, but only with authorisation of a Pre-Trial Chamber.
Perhaps another State party to the Rome Statute – like Jordan, for example – might consider referring the ‘Situation in Palestine’ to the Court in accordance with article 14.

1 comment:

Harlan said...

I don't think the prosecutor has any standing to turn down an investigation from a state that has been recognized as such by some of the other contracting parties.

The recognition of the status of statehood depends exclusively on the individual decisions of other existing states.

There is no criteria for statehood that is legally binding on all members of the community of nations. The UN has no organ capable of reaching a decision that is binding on its own members in that regard. For example, many UN member states do not recognize Israel’s statehood.

The real question should be whether or not any other contracting party in the ICC Assembly of States has recognized the State of Palestine and entered into bilateral relations. Once those sort of determinations have been made by another state, the prosecutor has no standing under the Statute to question or ignore them.