Letter from the ICC to the Palestinian Authority

This is the full text of the letter sent by Chief Prosecutor of the International Criminal Court, Fatou Bensouda, to the legal representatives of the Palestinian Authority.

Dear Mr. Devers,

I write with reference to the documents you submitted to my Office on 25 July and 30 July 2014 (ref: OTP-CR-233/14) respectively, on behalf of your clients, the Minister of Justice of Palestine, H.E. Mr. Saleem al-Saqqa, and the General Prosecutor of the Court of Justice of Gaza, Mr. Ismail Jahr.

The documents dated 25 July 2014 were submitted in accordance with article 15(1) of the Rome Statute (“Statute”), while the document submitted on 30 July 2014 sought to accept the exercise of the jurisdiction of the International Criminal Court (“ICC” or “Court”) pursuant to article 12(3) of the Statute. With respect to this latter document, kindly note the following:

Under article 12 of the Statute, States can confer jurisdiction on the Court by becoming a Party to the Statute (article 12(1)) or by lodging an ad hoc declaration accepting the Court’s jurisdiction (article 12(3)). As you are no doubt aware, my predecessor, former Prosecutor Mr. Luis Moreno Ocampo, issued a decision on 3 April 2012 in relation to the declaration lodged by the Government of Palestine on 22 January 2009, in which he determined that the preconditions to the exercise of jurisdiction under article 12 of the Statute were not met.¹ Following the adoption of UN General Assembly (“UNGA”) Resolution 67/19 on 29 November 2012, which changed Palestine’s status at the United Nations to non-member observer State, I have explained that this UNGA resolution did not have retroactive application and as such, did not cure the legal invalidity of the 2009 declaration.² This is because, at the time this declaration was lodged (i.e. in 2009), Palestine’s status at the UN as “observer entity” meant that it did not have the ability to accept the Court’s jurisdiction through ratification of the Statute or alternatively through an article 12(3) declaration. Following the adoption of UNGA Resolution 67/19, Palestine can activate the Court’s jurisdiction either through accession to the Statute or by lodging a new declaration with the ICC Registrar pursuant to article 12
(3) accepting the exercise of jurisdiction by the Court.

Additionally, in accordance with article 7 of the Vienna Convention on the Law of Treaties (“VCLT”), only the Head of State, Head of Government and Minister of Foreign Affairs are considered lawful representatives of a State by virtue of their functions and without having to produce full powers, for the purpose of expressing a State’s consent to be bound by a treaty.³ Other persons are considered as representing the State for that purpose if they produce appropriate full powers, or it appears from the practice of the States concerned or from other circumstances that the intention of that State was to consider that person as representing the State for such purposes and to dispense with full powers.⁴

On 5 August 2014, I met the Minister for Foreign Affairs of Palestine, H.E. Mr. Riad Malki, where I provided clarifications that he requested on the different mechanisms for a State to accept the jurisdiction of the ICC and generally regarding the legal framework of the Rome Statute. At that meeting, I sought to confirm whether or not your communication dated 30 July 2014 was transmitted on behalf of the Palestinian Authority, as a result of which, I did not receive a positive confirmation. Accordingly, there is no legal basis for my Office to consider and/or treat the 30 July 2014 communication as emanating from a representative of Palestine endowed with the required full powers to seize the Court’s jurisdiction pursuant to article 12(3) of the Statute.

For these reasons, and in accordance with the practice of my Office, the communication dated 30 July 2014 shall be treated as a communication pursuant to article 15 of the Statute and not as a declaration pursuant to article 12(3).

My Office remains available to provide any further clarifications you may require on these issues.

Yours sincerely,

Fatou Bensouda
Prosecutor
International Criminal Court

Footnotes

1. ICC-OTP, Update on Situation in Palestine, 3 April 2012
2. ICC-OTP, Report on Preliminary Examination Activities 2013, 25 November 2013, para. 238.
3. Pursuant to article 2l(l)(b) of the Statute, the Court shall apply “applicable treaties and the principles and rules of international law,” in the absence of applicable guidance in the Statu te and the Rules of Procedure and Evidence. The UN Office of Legal Affairs considers that the VCLT “full powers” provisions apply to “declarations or notifications in the nature of binding instruments that would extend or modif y the commitments of a participant, such as … declarations made under Article 36, paragraph 2, of the Statute of the International Court of Justice. This practice takes into account the importance of these notifications or declarations, which are as binding on the State as would be an instrument of accession.” Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, UN Office of Legal Affairs, U.N. Doc. ST/LEG/7/Rev.l, para. 105
4. See the Vienna Convention on the Law of Treaties (1969), articles 2.l(c) and 7.1; UN Legal Counsel, “Full Powers Guidelines,” LA41TR/221/Full Powers Guidelines/2010.

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