Statement of the Prosecutor clarifies Palestine's eligibility to ratify Rome Statute

A previous post reported ICC Prosecutor Fatou Bensouda’s press release announcing a preliminary investigation into the Palestine-Israel situation. There is currently continued confusion concerning Palestine’s eligibility for accession to the Rome Statute. The Prosecutor’s press release addressed this issue.

In her statement, the Prosecutor distinguishes between the eligibility of Palestine’s  Rome Statute article 12(3) declaration lodged on January 22, 2009 and Palestine’s more recent ratification of the Rome Statute and simultaneous presentation of a new, second declaration. When Palestine lodged the first declaration with the ICC in 2009, Palestine’s status at the United Nations (UN) existed as “an observer entity.” There were no general international law provisions to guide the Court on how it should respond to this situation. It therefore made its own decision that Palestine was not a state eligible to make the declaration.

As the Prosecutor pointed out in her statement, the UN General Assembly granted Palestine “non-member observer State” status on November 29, 2012. Palestine thereafter presented both the second declaration and a document of ratification to UN Secretary General (UNSG), Ban Ki Moon. This invoked his responsibilities under international law as “depository” of the Rome Statute. These responsibilities are to manage ratifications of those treaties which designate him for this status. Acting in this capacity as depository, the UNSG independently determined, in light of the General Assembly’s 2012 decision, that Palestine now had statehood status and eligibility to ratify the Rome Statute. He therefore accepted Palestine’s accession to the Rome Statute on January 6, 2015, following Palestine’s deposit of the instruments of accession. Under international law, once the depository has acted, officials or judges of the ICC are pre-empted from making any determination about Palestine’s eligibility to ratify the Rome Statute, a fact underscored in the Prosecutor’s statement.

We accept and agree with the Prosecutor’s explanation of this pre-emption.

Written by Michaela Connolly