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The ICC prosecutor takes a (preliminary) look at the Gaza Strip

Just as the first-ever trial at the ICC got on its way, several news agencies reported early this week that the prosecutor of the court would conduct a “preliminary analysis” of alleged crimes committed by Israelis during the recent offensive in the Gaza Strip (AFP; IHT; AP). Leaving the obviously one-sided character of the underlying allegation aside for a while let me briefly address some interesting legal aspects.

This issue certainly raises the question of whether or not the ICC could have jurisdiction over the recent events in the Gaza Strip. According to the Rome Statute, which sets up the applicable legal framework in this regard, the court may exercise its jurisdiction if any of the following three conditions are met: (I) the UN Security Council refers the situation to the court (Art. 13(b)); (II) the State to which the Gaza Strip belongs becomes a party to the Statute (Art. 12(1)); (III) the State to which the Gaza Strip belongs accepts the jurisdiction of the court on an ad hoc basis (Art. 12(3)).

That the UN Security Council would decide to refer the situation to the ICC is quite unlikely.

Option II is complicated by the fact that neither Israel nor Palestine is a party to the Rome Statute. Why is this a problem? Even if Israel or Palestine would sign and ratify the Statute today (more on this in a minute) the court’s jurisdiction would still, according to Art. 11(2) Rome Statute, only be opened up “with respect to crimes committed after the entry into force of this Statute” for this particular party. Meaning that the events of the past couple of weeks and months would not be covered. Of course the abovementioned also presupposes that the party acceding to the Statute is a State, since the Rome Statute can be signed only by States according to the wording of e.g. Art. 125. Assuming for a while that Palestine is the one most interested in drawing the court’s attention to the Gaza Strip, if you follow this line of argument it thus could really come down to the question of whether or not Palestine is a State. And since instruments of ratification etc. shall be deposited with the Secretary General of the UN (Art. 125(2)) it would essentially be up to the UN Secretary General to determine statehood for Palestine.

In view of the difficulties one would face under option II, let’s turn to the third alternative, namely the ad hoc acceptance of the court’s jurisdiction pursuant to Art. 12(3). This option seems, at least at first sight, to be more workable as it circumvents the problem of the limited jurisdiction ratione temporis mentioned above. Art. 11(2) states that the court may exercise jurisdiction even with regard to crimes committed before the entry into force of the Statute for that particular State if a declaration pursuant to Art. 12(3) has been made. But leaving the problematic of the ratione temporis behind us we are nevertheless once again faced with the issue of statehood for Palestine. Assuming that not Israel but instead Palestine would have an interest in lodging such an ad hoc declaration, which would enable the court to exercise jurisdiction, we are still faced with the requirement that Palestine be a State in order for the declaration to be accepted by the Registrar (see Art. 12(3)). The Palestine National Authority has obviously sought this path by recognizing the court’s jurisdiction on January 22 (apparently the Palestinian Justice Minister Ali Kashan after a meeting with the ICC prosecutor filed a declaration with the ICC registrar recognizing the court’s jurisdiction). According to this scenario it would be the Prosecutor, the Registrar of the ICC and at a later stage the pre-trial chamber of the court who would be faced with the question of whether or not Palestine is a State. So the essential difference from option II (besides the problem of jurisdiction ratione temporis) is that not the UN Secretary General but the Prosecutor, the Registrar and the pre-trial chamber are the ones who would determine Palestine’s statehood for the purpose of deciding the court’s ability to exercise jurisdiction.

Just to clarify, it should be mentioned that if Israel would accept the court’s jurisdiction this would only enable the court to exercise jurisdiction over Israeli nationals, not over all conduct occurred on the territory of the Gaza Strip.

To sum up, the prosecutor is probably well advised to “carefully examine all relevant issues, including on jurisdiction” and to emphasis to the public and the various parties affected by any decision that “the preliminary analysis conducted by the office of the prosecutor is not indicative that an investigation will be opened.”

11 Comments

  1. Henning Lahmann Henning Lahmann 4 February 2009

    Clear and convincing analysis. Thanks Dominik, it’s good to see that we still have some unbiased voices here at the International Law Observer.

  2. Guy Guy 4 February 2009

    As opposed to Henning Lahmann, I am not convinced.
    Why, exactly, the Prosecutor (and the Registrar, and…) is the one who will determine if Palestine is a state? That doesn’t make a lot of sense. Since when prosecutors have the authority to recognize states? Am I missing something here?

  3. Dominik Zimmermann Dominik Zimmermann 4 February 2009

    Guy,
    the Prosecutor (or any of the other entities mentioned above) would obviously determine statehood merely “for the purpose of deciding the court’s ability to exercise jurisdiction” (see the post at para. 5 in fine). Accepting or dismissing statehood does not have any effect beyond this context.

  4. Guy Guy 4 February 2009

    Obviously. But I don’t like that “merely” you have there. It’s a pretty serious matter. I don’t think giving prosecutors the authority to recognize states – even if it’s solely for that “tiny” matter – makes much sense.

  5. Dominik Zimmermann Dominik Zimmermann 4 February 2009

    In this I totally agree with you. In my mind it is somewhat odd to have the prosecutor make a decision on Palestine’s statehood. But this only underlines the seriousness in which the prosecutor will find himself when and if he would make a decision for the purpose of determining the court’s ability to exercise jurisdiction. On the other hand, the possible effects of the prosecutor’s potential (!) decision shouldn’t be overstated. The prosecutor hasn’t got the “authority” to recognize states, especially not in the sense that his determination would bind e.g. other states.

  6. Habtamu Habtamu 6 February 2009

    Israel withdraw from Gaza in 2006 and announced that ” it has no any international responsibility” over the Gaza strip. This is a good justification to argue that Palastine is a State. In other words, when they said they don’t bear any responsibility concerning Gaza, they are indirectly refering to other State which will take the responsibility of the Strip, that is PALASTINE.

  7. Valentina Azarov Valentina Azarov 6 February 2009

    Habtamu,
    First of all, the Gaza Strip remains occupied under international law (confirmed by the official position of the UN). I refer you to an older post on this question for further references, here: http://internationallawobserver.eu/2008/10/24/the-occupation-of-the-gaza-strip-and-the-continued-renouncement-of-responsibility/. It’s unilateral statement made by officials from the Israeli government on the day of disengagement from certain areas in the Strip in July 2005 does not hold legal force.
    Secondly, the Palestinian territories are presently governed by a belligerent occupant, i.e. the military occupation regime of Israel, and in some areas of public life (mostly in full corroboration with the Israeli military authorities) the interim government of the Palestinian Authority (PA). It should be noted and recalled that the latter does not have de facto authority in the Gaza Strip since following the 2006 democratic elections when the Hamas group was elected to power by the Palestinian people and had since been administrating the Gaza Strip, separately from the PA’s administration in the West Bank. The former, Hamas, is not part of the PA and does not affiliate with them in any way, whether operatively or politically. Therefore, there is no way to attribute responsibility for what is going on in Gaza to the PA.
    When the responsibility for what takes place in the Strip today remains for the large part in the hands of the Israeli occupying powers (all subject to the provision of Art 6 of the Fourth Geneva Convention that outlines the parameters and scope of the occupant’s responsibility and obligations towards the occupied territory and population), and the PA has no control de facto and no status de jure in the Strip, the proposition that statehood could be afforded even for the purpose of the specific legal implication that is the invocation of the jurisdiction of the ICC over the Strip is problematic to say the least.
    Finally, I would also refer you to a recent report in the EUObserver complimenting some of the information considered above, here: http://euobserver.com/24/27542.

  8. […] ICC and Palestine Posted on February 11, 2009 by olewpedersen Following Dominik’s post below with regard to the Prosecutor of the ICC launching a “preliminary analysis” into the fighting […]

  9. Professor Insight Professor Insight 7 March 2009

    I’m not sure if I agree with the first part of the analysis in paragraph 4 of this entry about article 11 because it doesn’t take into account the ‘unless’ clause of 11(2). As I read Article 11(2) combined with 12(3), a State accepting jurisdiction can make a declaration that the Court has jurisdiction dating back to July 2002, the date of entry into force of the ICC Statute.

  10. Harlan Harlan 19 June 2009

    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 have never recognized 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 to question or ignore them.

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