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Monday, July 5, 2010

Palestine and the ICC (follow-up): asking the right question and giving the wrong answer

Following our (really long) online debate some months back (see here and here), Michael Kearney has published another opinion on the declaration of the PA under article 12(3) of the Rome Statute. It very clearly highlights the different approaches to Palestinian Statehood and argues (along with Alain Pellet, who issued his own opinion on this) that a functional approach should be adopted to allow the declaration of the PA under 12(3). The paper might be called "asking the right question", but I fear once again that it's not giving the right answers...
I won't redo all the debate again, but I have two nagging questions that remain unanswered for me in this reasoning.

1) One argument is that the PA has criminal jurisdiction over the crimes, so it can transfer the jurisdiction. But how is material jurisdiction over the crimes relevant for 12(3)? This provision follows 12(2)  which provides that:
In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
 There is no mention of material jurisdiction here. It's territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. If not this would have two strange consequences 1) let's imagine a State where a certain war crime was committed but where the prosecution of such a crime would not be possible under its national criminal code. It could still become a Party or make a 12(3) declaration. Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters... 2) at the other extreme, it would mean that any State having implemented universal jurisdiction could make a 12(3) declaration. Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three...

2) A simple question: would you agree that the phrasing of the provision which talks about a "State which is not a Party to this Statute", implies that an entity that can make a declaration under 12(3) is also an entity that can actually sign the Rome Statute? I personally don't see any other interpretation of 12(3), and in that case, it begs the further question: if you're supporting the PA's declaration, why not support its signature of the Statute? That would certainly send a strong message to the international community and force the ASP to come up with a clear answer as to what is a "State" for the meaning of the Rome Statute.

I look forward to some answers!


  1. My paper doesn’t suggest, explicitly or implicitly, that an additional criterion exists for article 12(2). The question is whether Palestine qualifies as a state for the purpose of the Rome Statute. Material jurisdiction has nothing to do with territory or nationality, nor should it have any impact on whether a state can submit an article 12(3) declaration, or otherwise ratify the Statute.

    In this instance, the emphasis on the scope of Palestinian jurisdiction is simply an indicator that the UNGA, when considering Palestine’s responsibility vis-à-vis international law, acted on the premise that Palestine shared the duty of states to investigate and prosecute for violations of GCIV. The resolution in question noted that Israel had the same duty. This represents recognition, albeit implicit, that Palestine is a state. Along with all the other factors that support this conclusion, and in line with the functional approach to consideration of this specific question, the conclusion is that the Prosecutor should accept the declaration as valid ie that for the purposes of the Statute, Palestine is a state.

    This should be the same conclusion whether Palestine is submitting a 12(3) declaration or whether Palestine seeks to ratify the Statute.

  2. Thank you for this clarification Michael. I suppose that our disagreement now boils down to whether the interpretation of the GCIV by the AG and its application to Palestine is persuasive or not.
    But just one more point from a methodological perspective: even if i were to accept that the AG is correct in its application of the obligations deriving from GCIV to Palestine, thus, you are right, implying that it is a State for the meaning of the Geneva Conventions, it doesn't necessarily mean that it a State for the purposes of the ICC Statute. Indeed, your own point in the paper is to say, that one can avoid the general discussion of what is a State OUTSIDE the Statute (based on general concepts of State recognition in international law), but you then yourself draw the determination of Statehood from an OUTSIDE determination in the field of IHL...
    In any case, I enjoy our exchanges and look forward to what is likely to be a long debate on the matter :-)