Monday, April 27, 2015

ICC and Palestine-Israel: Q&A

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.

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:

Written by Michaela Connolly