On September 2, 2014, the International Criminal Court Prosecutor, Fatou Bensouda, issued a statement, “The Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine.” The conclusion? The Court has no jurisdiction over any claims arising out of events in Palestine.
As the statement says, the “Rome Statute, the ICC’s founding treaty, is open to participation by states. [The] Prosecutor . . . can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC Statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the Statute.” Those requirements for ICC jurisdiction have not been satisfied. Here are the predicates for that conclusion:
- In 2009 the Palestinian Authority sought to accept the ICC’s jurisdiction, but the Prosecutor in April 2012 after “thorough analysis and public consultations” concluded that the Palestinian Authority’s “observer entity” status at the UN at that time meant that it could not sign up to the Rome Statute. As Palestine could not join the Rome Statute, the former Prosecutor concluded that it could not lodge an article 12-3 declaration bringing itself under the ambit of the treaty either, as it had sought to do. “ (Emphases added.)
- On November 29, 2012, Palestine’s status was upgraded by the UN General Assembly (UNGA) to “non-member observer State” through the adoption of resolution 67/19. The [Prosecutor’s] Office examined the legal implications of this development for its purposes and concluded that while this change did not retroactively validate the previously invalid 2009 declaration lodged without the necessary standing, Palestine could now join the Rome Statute.”
- “To date, [however,] the Rome Statute is not one of the treaties that Palestine has decided to accede to, nor has it lodged a new declaration [accepting the Court’s jurisdiction] following the November 2012 UNGA resolution.”
- “It is a matter of public record that Palestinian leaders are in the process of consulting internally on whether to do so; the decision is theirs alone to make and the ICC Prosecutor cannot take this decision for them.”
If the requirements for jurisdiction over events in Palestine were established, the Prosecutor said she “will vigorously pursue those – irrespective of status or affiliation – who commit mass crimes that shock the conscience of humanity.”
Finally, the statement said, “The Office of the Prosecutor of the ICC has never been in a position to open such an investigation for lack of jurisdiction. We have always, clearly and publicly, stated the reasons why this is so.” Indeed, in November 2013, the Office of the Prosecutor released its Report on Preliminary Examination Activities 2013, which on pages 53-54 set forth basically the same analysis and conclusion in the just released statement.
 A prior post discussed the U.N. General Assembly resolution upgrading Palestine’s status and the resulting Prosecutor’s investigation of that development on ICC jurisdiction. Earlier posts in 2011 and 2012 also touched on the jurisdictional issue regarding Palestine while another post provided an introduction to the ICC..