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..
We just reviewed the current status of the investigative situations and cases of the International Criminal Court (ICC).  Now we look at two other major issues facing the ICC–Syria and Palestine, last year’s meeting of the Court’s Assembly of States Parties and the Chief Prosecutor’s statement about this month’s being genocide awareness month.
Syria. As we know from many news sources, popular demonstrations against Syrian President Bashar al-Assad commenced in March 2011 and immediately grew throughout the country. In April 2011, the Syrian Army was deployed to quell the uprising, and soldiers were ordered to open fire on demonstrators. After months of military sieges, the protests evolved into an armed rebellion. By January 2013 the U.N. estimated the war’s death toll had exceeded 60,000, and a month later this figure was updated to 70,000. Another 6,000 reportedly were killed in March 2013.
To respond to this horrible suffering, many have called for the ICC to become involved. One who has repeatedly done so is the U.N. High Commissioner for Human Rights, Navi Pillay. Here are some examples:
During a debate on Syria by the U.N. Human Rights Council in February 2012, she said she believed that the situation of Syria should be referred to the ICC by the U.N. Security Council.
On June 7, 2012, she said, “We continue to witness a serious deterioration of the human rights situation in Syria, which demands our full attention and engagement.” There is evidence of “a pattern of widespread or systematic attacks against civilian populations, and may amount to crimes against humanity and other international crimes. There are indications that the situation in Syria – at least in certain areas – amounts to an internal armed conflict. This would have legal implications, triggering the possibility of commission of war crimes, in addition to crimes against humanity. It makes the call I made to the Security Council to consider referring the case of Syria to the International Criminal Court even more urgent.”
At a February 13, 2013, Security Council meeting, she said, “The lack of consensus on Syria and the resulting inaction has been disastrous and civilians on all sides have paid the price. We will be judged against the tragedy that has unfolded before our eyes.” She said that referring Syria to the ICC could have a very significant preventive effect because it “would send a clear message to both the government and the opposition that there will be consequences for their actions”.
The Syrian government obviously opposes such a referral. In January 2013 it said it “regrets the persistence of these countries [that signed the joint statement favoring referral] in following the wrong approach and refusing to recognize the duty of the Syrian state to protect its people from terrorism imposed from abroad.” The statement also accused some of the countries signing the statement of “deceit and double standards” in blaming Syria while financing, training and hosting “terrorists.”
Because Syria is not a state party to the ICC’s Rome Statute, the only way for the Syrian situation to get before the ICC is by a referral from the U.N. Security Council. But so far that has been impossible because Russia and China as permanent members of the Council would veto such a referral as they already have vetoed resolutions to impose sanctions on Syria. For example, this past January the Russian Foreign Ministry said the joint request by over 50 countries for such a referral was “ill-timed and counterproductive to resolving the main task at this moment: an immediate end to the bloodshed in Syria.”
Palestine. In November 2012 the U.N. General Assembly, 138 to 9 with 41 abstentions, voted to grant non-member observer state status to the Palestinian Authority. Those voting “No” included Israel, U.S. and Canada. The abstainers included the U.K. and Germany.
Israel and the U.S. are concerned that the Palestinian Authority (PA) may use its new U.N. status to try a press for an ICC investigation of Israeli practices in the occupied territories. The PA could: (1) attempt to become a State Party at the ICC by ratifying the Rome Statute and then referring alleged crimes to the ICC; or (2) remain a non-State Party but make a declaration accepting the Court’s jurisdiction over a particular set of crimes.
In either option the PA would have to refer an entire situation or train of events to the ICC that would permit the ICC Prosecutor to investigate or prosecute any crime within that situation allegedly committed by anyone, including alleged crimes by Palestinians against Israelis. The State Party option would require the PA to ratify the Rome Statute and then present a document certifying the ratification to the U.N. Secretary-General, who is responsible for administering the Rome Statute. He would have to decide whether the PA was a state competent to ratify. Should he so decide, the Prosecutor and the rest of the ICC would be obliged to proceed as with any other State Party.
In the non-State Party option of a declaration of acceptance of jurisdiction followed by a referral, the ICC Prosecutor would have to make the first decision on whether the PA was a state competent to make the referral. This decision could be challenged in the Pre-Trial Chamber by the PA, or by another state involved in the situation giving rise to the referral, such as Israel.
The PA has in fact already tried this option by submitting a report of alleged crimes and declaration of acceptance of jurisdiction to the ICC Prosecutor in 2009. In April 2012, however, the Prosecutor released a statement that at he was not empowered to decide on the PA’s statehood status. Instead, the Prosecutor said, a U.N. body such as the Security Council or the General Assembly, or the ICC’s Assembly of States Parties, would have to make this determination. After the General Assembly’s recent action, the press has reported that the current Prosecutor is giving the earlier PA declaration further consideration.
Assembly of States Parties. Last November the Assembly of States Parties (ASP) held its 11th session and adopted a budget and made certain elections.
The ASP approved an amendment to the Court’s Rules of Procedure (new Rule 132 bis) that will permit a single judge to perform the functions of a Trial Chamber for the purposes of trial preparation. The amendment was agreed by consensus and is expected to expedite ICC trial preparation.
The ASP also had a general discussion of complementarity, i.e., the principle and practice of the ICC’s deferring to criminal prosecutions in national court systems. Helen Clark, the former prime minister of New Zealand and current administrator of the U.N. Development Program, spoke about the role international development agencies, such as UNDP and others, can contribute to domestic capacity for dealing with ICC crimes. She also urged governments to take responsibility to deliver justice.
U.S. Ambassador-at-Large for Criminal Justice, Stephen J. Rapp, congratulated the ASP for this crucial discussion on both the policy and practice of complementarity. He stressed the importance to governments – States Parties and non-States Parties alike – to strengthen domestic judicial capacity in a manner that is both concerted and coordinated. He also said the U.S. supports ICC prosecutions and building national justice systems by funding support of complementarity; using the tools of diplomacy to support complementarity; providing technical and legal assistance to national systems; and improving fugitive tracking efforts.
There also was discussion about an initiative to adopt a treaty on crimes against humanity that has been prepared by the Whitney R. Harris World Law Institute at the Washington University in St. Louis School of Law.
Genocide Awareness Statement by Prosecutor. In light of this April’s being genocide awareness month, the Court’s Chief Prosecutor called on “all States, whether parties to the Rome Statute or not, to cooperate with the ICC in seeking/pursuing accountability for genocide.” In particular, this meant enforcing the ICC’s warrant for the arrest of Sudanese President Omar al Bashir, who is charged with “genocide by killing, causing serious bodily injury or mental harm and by deliberating inflicting conditions of life calculated to bring about the physical destruction of the Fur, Masalit and Zaghawa ethnic groups in Darfur.”