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International Criminal Court: Prosecutor Declares It Lacks Jurisdiction to Determine Whether Palestine Is a State

(Apr. 13, 2012) On April 3, 2012, the Office of the Prosecutor (OTP) of the International Criminal Court issued a decision holding that the OTP lacks jurisdiction to investigate alleged international crimes committed within the Palestinian territories. (Office of the Prosecutor, International Criminal Court, Situation in Palestine (Apr. 3, 2012).)

On January 22, 2009, the Palestinian National Authority (PNA) lodged a declaration with the Registrar of the ICC pursuant to article 12(3) of the Rome Statute to investigate “acts committed on the territory of Palestine since 1 July 2002.” (Id.) The article stipulates that “a State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to a crime in question.” This allows states not party to the Statute to accept the ICC's jurisdiction. (Rome Statute of the International Criminal Court, art. 12, ¶ 3, July 17, 1998, A/CONF. 183/9, UNITED NATIONS TREATY COLLECTION.)

According to the OTP, the first step in the determination of jurisdiction is to establish “whether the declaration lodged by the PNA meets statutory requirements.” The OTP, in interpreting and applying article 12, held that it did not have the competence to legally determine whether Palestine qualifies as a state under the Rome Statute. Instead, according to the OTP, “the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of [the] General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.” (Situation in Palestine, supra.)

Despite declaring that the ICC Prosecutor does not have jurisdiction to determine whether Palestine is a state under the Rome Statute, the OTP adds that it

could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction. (Id.)

Amnesty International criticized the statement and called “for an independent judicial determination of the issue by the ICC judges, rather than a political determination by external bodies where the matter will likely remain unresolved indefinitely while victims continue to be denied justice.” The international human rights organization also felt that “delegating this decision to a political body undermines the vital independence of the Court and exposes the ICC to political influence over justice issues.” (Document: Amnesty International's Response to the ICC Office of the Prosecutor's Statement that It Cannot Investigate Crimes Committed During the Gaza Conflict, Amnesty International website(Apr. 4, 2012).)

There was also a wide reaction from international law experts on the decision. Dr. Kevin Jon Heller felt that, although the decision may have been politically sound, on the question of “which organ of the ICC gets to decide whether Palestine can accept the Court's jurisdiction,” the answer is far less certain. (Kevin Jon Heller, Which Organ of the ICC Decides Whether Palestine Is a State? (Updated), OPINIO JURIS (Apr. 4, 2012, 9:35 am).)

Professor Dapo Akande criticized the OTP's approach of using the same procedure to determine the acceptance of declarations under article 12(3) as the one that is used to decide whether a state can accede to the Rome Statute. He writes, “[i]t does not seem to follow that because the Secretary General has responsibility for deciding on questions of accession to the Statute, he must also be the one that decides on declarations made by States under Article 12(3).” (Dapo Akande, ICC Prosecutor Decides that He Can't Decide on the Statehood of Palestine. Is He Right?, EJIL:TALK! (Apr. 4, 2012).) Professor William Schabas similarly criticizes this point and states that the OTP decision “ducks the issue and misinterprets the Rome Statute.” He writes that although the Secretary General has the competence to decide “whether an entity can join the Court,” the question “posed by article 12(3) is simply a question of fact, like so many other questions of fact that must be determined, in the first place, by the Prosecutor and, in the second place, by the judges.” (William A. Schabas, The Prosecutor and Palestine: Deference to the Security Council, PHD STUDIES IN HUMAN RIGHTS (Apr. 8, 2012, 9:49 am).)