Why
did the ICC make a decision about Palestine’s statehood in 2009 and not do so
in 2015?
On
January 2009, the Palestinian Authority (PA) tried to exercise a non-State
Party’s right to file a declaration of acceptance of ICC jurisdiction. With no
guidance on this question from the United Nation’s General Assembly (UNGA) or
international law, the Office of the Prosecutor (OTP) had no other option but
to make a determination on the statehood status of the PA. The OTP determined
that the PA was not a state eligible to make the declaration. In January 2015, Palestine
presented Ban Ki-Moon, the UN Secretary General (UNSG), with both a second
declaration and a document of ratification. This invoked his administrative
responsibilities under international law as the depository of the Rome Statute.
In light of the UNGA 2012 decision granting Palestine “non-member observer
State” status, the UNSG determined
that Palestine now
had statehood status and eligibility to ratify the Rome Statute. Accordingly,
when Palestine approached the ICC thereafter, it was already a State Party to
the Statute, leaving the ICC with no decision to make on Palestinian statehood.
Does
the ICC’s involvement in situations and cases constitute an intervention?
In
describing the Court’s involvement in cases and situations, use of the term intervention implies that the ICC takes
the initiative in seeking these out. This is not the case. As delineated in the
Rome Statute, there are several ways through which a situation may be brought
to the Court. Situations can be referred to the Prosecutor by State Parties and
by the UN Security Council. Non-State Parties may also bring a situation
forward through lodging a declaration. Additionally, the Prosecutor may
initiate an investigation proprio motu
with respect to a crime falling within the Court’s jurisdiction. In making this
determination, the Prosecutor takes into consideration any information brought
forward on crimes under the Court’s jurisdiction, including information sent by
individuals, groups, States, intergovernmental or non-governmental
organizations. The Prosecutor does not act on his or her own accord, but
through the information brought to his/ her office. Before proceeding to a
formal investigation, the Prosecutor must have the approval of the Pre-Trial
Chamber.
As
Palestine came to the ICC as a State Party, why did it also come forward with a
declaration?
When
a State accedes to or ratifies the Rome Statute, it accepts jurisdiction of the
Court from the day on which it becomes a Party onward. Through submitting a
declaration, the Government of Palestine further accepted jurisdiction of the
Court for acts committed since June 13, 2014. It is only through such a
declaration that a State may accept retroactive jurisdiction from the ICC.
Should
the ICC be active in peacekeeping, peace-building, or the resolution of
conflicts?
The
Court exists as an institution having the power to exercise its jurisdiction
over persons for the “most serious crimes of international concern.” The ICC
operates as an international criminal court. It was not established to engage
or partake in peacekeeping, peace-building or the resolution of conflicts. In
order to avoid interference in peace negotiations by ICC prosecutions, the Rome
Statute instructs ICC judges to comply with a UNSC resolution requesting
deferral of action on a case for one year.
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| ICC Second Vice-President Judge Kuniko Ozaki presents Minister of Foreign Affairs of Palestine, Dr. Riad Al-Malki, with a special edition Rome Statute (Photo: ICC). |
Read further on the differences between Palestine's 2009 and 2015 declarations here: http://amicc.org/icc/cases.
Written by Michaela Connolly
