Monday, 22 February 2010

Legal Advice on Palestine's ICC Declaration from Alain Pellet

Professor Alain Pellet, of the University of Paris-Nanterre, and former president of the International Law Commission, has prepared a legal opinion supporting the view that Palestine is a ‘state’ for the purposes of article 12(3) of the Rome Statute. As a result, he concludes, Palestine’s declaration last January (see this blog) validly gives jurisdiction to the International Criminal Court, and enables the Prosecutor to launch prosecutions relating to war crimes committed in Gaza, in accordance with article 15 of the Statute.
Article 12(3) of the Statute allows a State that is not a State party to the Statute (i.e., a member of the Court) to nevertheless give jurisdiction to the Court. It raises the question of Palestine's status as a 'State' under international law. Professor Pellet argues that rather than consider this question in an abstract and general sense, it should be narrowed. This issue is whether or not Palestine is a State for the purposes of article 12(3), that is, for the simple purpose of giving the Court jurisdiction over international crimes, rather than for all purposes.
Professor Pellet invites people to add their names to his opinion, by communicating with William Bourdon ( He asks that he be copied on any correspondence ( If readers prefer to make comments or suggestions, they may also submit them to this blog.


Hostage said...

Prof Pellet noted that Israel has consistently claimed that the West Bank and Gaza are not subject to its sovereignty and its territorial
jurisdiction. He cites an Israeli report which also advances the corollary argument that, as a consequence of the interim agreements, the PA had the power, responsibility, and jurisdiction for ensuring the rule of law and protection of the human rights of the Palestinian population of the West Bank and Gaza in accordance with internationally accepted norms and principles. The Israeli report describes a "changing reality" that strongly suggests the PA does have jurisdiction that can be transferred to the ICC.

The relevant portion of the report says "a variety of security issues, have been transferred to the Palestinian Council, which in any event is directly responsible and accountable vis-a-vis the entire Palestinian population of the West Bank and the Gaza Strip with regard to such issues. In light of this changing reality, and the jurisdiction of the Palestinian Council in these areas, Israel cannot be internationally responsible for ensuring the rights under the ICCPR in these areas."

"The fact that the Palestinian Council does not represent a State, does not, in itself, preclude its responsibility in the sphere of human rights protection. In fact, this is also evident under Article XIX of the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, according to which the Palestinians have taken it upon themselves to exercise their powers and responsibilities 'with due regard to internationally accepted norms and principles of human rights and the rule of law'."

See CCPR/C/ISR/2001/2, para 8 or E/1990/6/Add.32, para 6-7

lizzyarrow said...

Thanks very much this is really helpful info!

Simon Mebrahtu said...

Well, let’s take a slightly different hypothetical which helps us to appreciate Prof Pellet’s assertion. Let’s assume a state governed by a very repressive regime which is committing the crimes over which the ICC has jurisdiction. The repressive regime, of course, has no interest in signing and ratifying the Rome Statute. Really, who wants to sign his death warrant! And it may be that UN Security Council referral is impossible because the said regime is a friend to China. At this age of democracy, it is less controversial that it is the will of the people that must be the source of authority and the people under repressive regime certainly have a huge interest in having their abusers face justice before the ICC – a huge will to ratify the Rome Statute, if you like. Let’s take this conclusion as true: A truly democratic state supports the ICC.

Can the ICC say that, when it comes to states under repressive governments, it doesn’t matter whether or not they have ratified the Rome Statute? Consent is central to the Law of Treaties and, very unfortunately, with many states, that consent is at the hand of a dictator – just a one man.

If the ICC is going to accept Palestine as a state cable of making the declaration under article 12(3) of the Rome Statute, I’ll then rush to argue that the ICC also have jurisdiction on non-member states now governed by repressive regimes committing one of the three crimes over which the ICC has jurisdiction. Personally, I’ve huge interest in the ICC taking Palestine as a state capable of making the article 12(3) declaration.

As I type this comment, I am reading that 11 members of parliament in Eritrea died in prison after being in hellish jail for the last 9 years with no whatsoever contact with the Sun. A dozen journalists were also reportedly dead. Credible studies show that the level of atrocities in Eritrea amount to crimes against humanity and in terms of gravity, they are more grave that the situation in Kenya which has attracted the ICC’s attention. Eritrea has signed the Rome Statute but has not ratified it. I know that the man who signed is the same man, just one man, who ratifies. I know the man will not ratify his death warrant. I also know that the UNSC is not going to refer the matter to the ICC. Now, where do I go for justice? I see justice in arguing that we should not wait for potential ICC defendants to ratify the Rome Statute.

jacek kowalewski said...

Recently I participated in a group effort to figure out how a non-state organized group becomes bound by international humanitarian law (IHL) applicable to non-international armed conflict (NIAC).
I have prompted quite a vigorous discussion with a suggestion that apparently follows similar reasoning to the one of prof. Pellet: let us treat the group as a state only for the purpose of this particular determination (whether the group is bound by IHL in NIAC). The treatment might be justified by the factors borrowed from the material field of application of the Second Additional Protocol to the Geneva Conventions (Article 1. thereof): military organization and capacity comparable to state armed forces (that I termed also as an assault against state monopoly to armed force), and control over a territory.
The majority of my interlocutors disagreed, claiming, first and foremost, that this would be a too complex legal construction to, on the one hand, treat the group as a state and, on the other hand, to continue to view the conflict as NIAC (armed conflicts between states are always classified as international ones).
Moreover, they added, such a determination might be interpreted as a practice of recognition of a new state, a result the international community is at least hesitant to welcome.
At that point, somebody reminded us about Article 96. para 3. of the First Additional Protocol to the Geneva Conventions. It provides for a right to deposit a unilateral declaration by which a non-state actor may undertake to apply the Geneva Conventions of 1949 and the Protocol. The problem is, another person raised, that the threshold the actor itself must meet under the Protocol is extremely high, and in fact was never fulfilled (Article 1. para. 4., "[fight] against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination" – which renders the conflict international).

[Thanks to Etienne, one of the participants of the debate, who furnished me with references to this blog's post about the PA declaration.]

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