Palestine and the ICC

On 31 July 2014, a report of The Times of Israel covered that the Palestine had decided to accede to the Rome Statute, the founding treaty of the International Criminal Court (ICC). The exact time for this submission to the ICC has not been published. It seems that there is no declaration or application until now.

The purpose of its signatory was to investigate the war crimes committed by the Israel.It also put itself on the other side of the scale. However, before the application or submission of the Palestine, debates arose regarding the legal authority of the Palestine to sign the Rome Statute. Whether or not a consent of the Hamas to the signatory is necessary?

On the one hand, since 2005, the president of the Fatah government of Palestine is Mahmoud Abbas. He has been a chairman of the Palestine Liberation Organization (PLO) since 2004. However, on the other hand, the Gaze area, which is occupied by Israel, has been governed by the Hamas since 2007 civil war, a de facto government, which indiscriminately launched rocket against Israel civilians and civilian targets.

Discussions on the test for the effective control and the different definitions of effective control can be found in Blogs. [see: Guest Post: Effective Control and Accepting ICC Jurisdiction;  Can the PA Ratify the Rome Statute? (A Response to Eugene).]

Discussions concerning the validity of the 2009 Declaration also arose. I would like to make a factual research regarding the ICC and the PA declaration.

–In 1994

According to the Oslo Accords, Israel and PLO established an interim self-government body, Palestinian National Authority (PA). The Palestinian National Authority (PA) governed the Area A and B, Gaze Strip and West Bank. The Executive Committee of the PLO is recognized as the “Provisional Government of the PA”.

–In 2006

Following an election, the Hamas party succeeded. However, after 2007 Civil War between the Fatah and Hamas in the Gaze Strip, the Hamas-governed the Gaze Strip. Therefore, the Palestinian National Authority only exercises its power over West Bank and Area A and B, though it claimed authority over the whole Palestinian territories. The unity government of the Palestinian National Authority collapsed.

–On 29 January 2009

Palestinian National Authority (PA) made its 2009 Declaration recognized the jurisdiction of the International Criminal Court (ICC) over the crimes committed on the territory of Palestine since 1 July 2002.

–On 3 April 2012

After 3 years consideration, Luis Moreno-Ocampo, former Prosecutor of the International Criminal Court, formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the ICC Office of the Prosecutors (OTP).

The rejection reasons are as follows:

  1. Palestinian Authority indeed made a one-off declaration to accept the jurisdiction of the Court.
  2. However, only a State can confer jurisdiction on the international criminal court by becoming a party to the Rome Statute or by making an ad hoc declaration accepting the court’s jurisdiction.
  3. The international criminal court does not have the competency, but the UN General Assembly plays the role, to determine who was or was not a State.

If the court decided to accept the Declaration, it implied that the PLO was a State. It seems that the ICC only looked to the formal decision of the General Assembly, ignoring the fact that the objective criteria of statehood have been met by the PLO.

[This idea is closely related to the legal status of Taiwan]

–On 29 November 2012

The United Nations General Assembly (UNGA) made a resolution 69/17, which recognized Palestine’s non-member observer State status in the UN. The UNGA did not give the resolution 69/17 retroactive effect. It means that the Palestine only became statehood since 29 November 2012.

Caution:  The application for membership in 2011 was signed “Mahmoud Abbas President of the State of Palestine, Chairman of the Executive Committee of the Palestine Liberation Organization”. It means that the UN recognized the PLO as the State of Palestine, not the Palestinian National Authority as the State of Palestine.

For further information regarding the relationship among the State of Palestine, the PA and the PLO, please retrieve State of Palestine, Palestinian National Authority, and the Palestinian Liberation Organization.

–On 5-6 January 2013

The President of PA declared to change the name of Palestinian National Authority (PA) into the State of Palestine.

It appears that the interim government finished its task and the official government was established.

–On March 20 2013

Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC.

During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She said that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration.

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012.

—On 2 April 2014

The Palestine ratified the Convention respecting the laws and customs of war on land and the Geneva Conventions.

–On 9 April 2014

The Palestine accessed into the Vienna Convention on Diplomatic Relations and the Vienna Convention on the Law of Treaties.

–On 2 June 2014

A new Palestine United Government was backed by both the Hamas and Fatah, indicating toward the end of the separate governance since 2007. However, Israel advocated other States do not rush to recognize the new government.

–On 3 August 8 2014

Bar Human Rights Committee of England and Wales ask the OTP to investigate Gaze. They Request for the initiation of an investigation, pursuant to Article 15 and Article 12(3) of the Rome Statute. They held that the International Criminal Court haves jurisdiction over war crimes in Gaze, based on the 2009 Declaration.

[It seems that the British layers are so naïve to challenge the answer to the legal effect of the 2009 Declaration.  But maybe they are right, and maybe Prosecutor Bensouda is wrong. ]

–On 5 August 8 2014

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

Since no application has been submitted to the ICC, this statement is reasonable. It also indicated some ideas of the ICC. First, the 2009 Declaration is void. Second, the temporal jurisdiction is based on the Resolution (67/19). It means that the court has jurisdiction over crimes only after 29 November 2012. Third, the statement refers to the territory of Palestine. It means that an ad hoc declaration limited to Gaze Stripe may be rejected.

Q: Does the Palestine can apply to accede to the Rome Statute or to make an ad hoc Declaration regarding the Gaze Area?

On 8 May 2014, the Office of the Prosecutor relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. The legal test of the ICC said that,

The legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.

It is true that the Palestine does not have “effective control” over all territories of Palestine. And the ICC may reject its accession. In addition, as professor Eugene Kontorovich said,

the ’effective control’ is a double-edged sword for Mahmoud Abbas. On the one hand, his lack of it would bar accepting ICC jurisdiction. On the other hand, his lack of it is also what prevents him from being held responsible for the war crimes there.”

It seems that the decision of the application to be a State Party to the Rome Statue is at the hand of the international Criminal Court, and the Egyptian test may be an obstacle for its application. However, the situation in Palestine is different from the Egypt. The legal test for effective control may not be applicable. It was submitted that the Palestine has right to apply for the accession to the Rome Statute, while the consideration and procedure should be based on the Rome Statute.

With regard to an ad hoc declaration, the answer should be based on the following criteria.

Q: What are the criteria to assess the validity of an ad hoc Declaration?

–Did the authority that made it have authority? [State+ Effective Control?]

–Did the declaration specifically refer to the Situation in Gaze Strip / Palestine? [The declaration should not be limited to one side of the conflicts.]

–Did the declaration specify the temporal parameter for the jurisdiction giving to the International Criminal Court?

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