Last January, the United Nations Secretary General issued a note indicating that the Rome Statute, the treaty that establishes the International Criminal Court (ICC), will enter into force as to the State of Palestine on 1 April, 2015.
On 7 January of this year, the President of the Assembly of States Parties to the Rome Statute welcomed “the deposit by the State of Palestine of the instrument of accession” as well as the Agreement on the Privileges and Immunities of the International Criminal Court (APIC).
“I hereby confirm receipt, on 1 January 2015, of your 31 December 2014 ‘Declaration Accepting the Jurisdiction of the International Criminal Court’ which was lodged with me pursuant to article 12(3) of the Rome Statute, and in which you state that “the Government of the State of Palestine recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.
“Pursuant to Rule 4(2) of the Rules of Procedure and Evidence, a declaration under article 12(3) of the Rome Statute has the effect of the acceptance of jurisdiction with respect to the crimes referred to in article 5 of the Statute of relevance to the situation, as well as the application of the provisions of Part 9 of the Statute and any rules thereunder concerning to States Parties.
“I hereby accept the declaration and I have transmitted it to the Prosecutor for her consideration. This acceptance is without prejudice to any prosecutorial or judicial determinations on this matter.”
In August 2014, ICC Prosecutor Fatou Bensouda explained in an article published in The Guardian her position with respect to the lack of ICC jurisdiction on crimes committed in Gaza. It must be recalled that on 21 January, 2009, Palestine sent a similar declaration to ICC stating that “the Government of Palestine recognises the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since July 2002.”
A select group of experts in international law issued a statement arguing that this 2009 declaration allowed the ICC to exercise its jurisdiction on acts committed in Gaza. The declaration provoked intense discussion among legal experts, some of whom opposed, while others supported, Palestine’s initiative (see a summary of submissions sent to the ICC, available here). After three long years, the Prosecutor Office, in his decision of 3 April, 2012, concluded that: “The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction.”
This decision caused deep disappointment among scholars: in a collective letter written in August 2012, a group of prominent experts indicated that: “from 2009 to 2012 the former Prosecutor gave the impression that it was for his Office to decide the question of Palestinian statehood for the purposes of Article 12(3) of the Rome Statute and encouraged international jurists to express their views on the statehood of Palestine for the purposes of making such a determination. We are disappointed that after three years the Prosecutor should decline to answer this question and instead refer it to the United Nations or the Assembly of States Parties.”
In addition to the accession to the Rome Statute and the declaration made by Palestine to the ICC (and that have provoked reactions of Israel and United States), there are other relevant international treaties to which Palestine has become State Party since 31 December, 2014 (and that have provoked no reaction).
Concerning the UN Convention of 1997 on International Watercourses, a recent note on a specialised site on international water regulations indicated that Israel is now the only state in the Jordan River Basin to not have joined the treaty. The accession to the Convention on Cluster Munitions of 2008 by Palestine was celebrated by Costa Rica’s Ministry of Foreign Affairs this week. In 2006, top official in Israel publicly admitted that Israel used more than one million cluster munitions in South Lebanon, a number that corresponds to around 1,800 cluster bombs.
treaties to which Palestine acceded in April 2014
treaties and Protocols to which Palestine has acceded since December 2014
Concerning this last set of treaties signed by Palestine in April 2014, as well others treaties signed on 31 December last year, it must be noted that no one questioned the capacity of Palestine as a state to accede to them or explained in a press conference why the US says it’s “deeply troubled by the Palestinian action”. This peculiar treatment concerning the Rome Statute recalls a secret diplomatic cable of 2010 from the Israeli army’s head of international law department, Liron Libman, and made public by Wikilealks: “Libman noted that the ICC was the most dangerous issue for Israel and wondered whether the U. could simply state publicly its position that the ICC has no jurisdiction over Israel regarding the Gaza operation.”
It also recalls an extremely strange proposition made by UK diplomats to Palestine delegates a few hours before the voting of a resolution at United Nations General Assembly on 29 November, 2012, made public this time by the Washington Post: “The UK suggested that it might vote ‘yes’ if the Palestinian Authority offered assurances that it wouldn’t pursue charges in the International Criminal Court, but apparently came away unsatisfied.”
Finally, this special treatment concerning the Rome Statute confirms public declarations made directly this time by US Ambassador to the United Nations, Samantha Power. In an article entitled “US is ‘absolutely adamant’ that Palestine not go to ICC and wreck the peace process”, the current US representative before the United Nations in New York declared that: “The ICC is of course something that we have been absolutely adamant about. Secretary Kerry has made it very, very clear to the Palestinians, as has the President. I mean, this is something that really poses a profound threat to Israel [sic].”
To publicly affirm that an international jurisdiction like the ICC “poses a profound threat” to a country considered as an ally could be considered a first in the history of international law – or at least international criminal law. Some observers could even understand this kind of declaration as a strange form of confession.
Nicolas Boeglin is a Professor of International Law at the Law Faculty of the University of Costa Rica (UCR).
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.