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Paper on the Issues Arising out of the Palestinian Declaration to the ICC under Art. 12(3) of the Rome Statute

Al-Haq, a Palestinian NGO based in the West Bank, has recently published a paper authored by Michael Kearney and Stijn Denayer on “Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute” (a matter we have previously covered here).

The Palestinian declaration for a self-referral to the ICC has become a particularly important case study due to the implications that are expected to arise out of its resolution. To note only a few, the  ICC that has often been nicknamed the ‘Court for Africa’ is hereby being granted another opportunity to challenge this perception of its practice and unofficial mandate. Further, it is also a challenge for the international community  that is being asked to confirm its  recognition of Palestinian statehood as it has done in numerous precedent  (such as Palestine’s representation in the UN, its embassies worldwide and its participation as a state in the proceeding on the ICJ Wall Opinion), by accepting that Palestine should also be considered a state for the purpose of the Rome Statute. Another aspect of the importance of this case is the affront that the rejection of the declaration would arguably present to the ICC, one of the most forceful  (at least in theory) international accountability mechanisms in existence, as much as to a notable extent also to the whole premise of international law and the effectiveness of its enforcement mechanisms. The ICC Prosecutor has yet to decide on the case.

The abstract is as follows:

In early 2009 the Palestinian Authority submitted a declaration under Article 12(3) of the Rome Statute recognizing the jurisdiction of the International Criminal Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ In the first instance this paper argues that whereas the existence or otherwise of a state of Palestine remains moot at best for the purpose of international law and international relations broadly speaking, a compelling argument can be made that for the purposes of the Statute only, a determination by the Court that Palestine is a state that can engage with the Court would be valid and in line with the Court and the Statute’s statutory requirements. The paper, drawing on the criteria being relied upon by the Office of the Prosecutor in order to decide whether the PA, as an institution established by the PLO, has the necessary ‘capacity’ to transfer its jurisdiction to the Court, then addresses the extent of the PA’s jurisdiction over international crimes. It demonstrates that the PA can legitimately prosecute individuals responsible for crimes within the jurisdiction of the ICC regardless of the nationality of the individuals concerned and that the PA has the ability to enter into international agreements. It concludes by asserting that the ICC may validly consider Palestine to be a state for the purposes of Article 12(3) of the Rome Statute and may accept the transfer of jurisdiction from the PA to the Court in line with the Statute and the principles of international law.

The paper can be downloaded from Al-Haq’s website, and SSRN.

2 Comments

  1. Andyy Andyy 29 December 2009

    It seems that only the poor countries or in other words the third countries follow the international law and treaties whereas the other countries violates the treaties. In their eyes their own legislations takes precedent over the international law and treaties. I will not go into the details which treaties are subject to violations but there are thousand of cases. And if you analyze these cases you will find that human rights is always violated by other states and is not condemned.

  2. Joe Joe 31 December 2009

    Well, of course, Andyy. We always want people to play by the rules we make until they don’t suit our purposes anymore. But we’ll still hold other people accountable for them. Any five year-old can tell you how that works.

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