A Closer Look – Non-Party States’ ad hoc Declarations Before and After 1 January 2015: the General Legal Effects of the Palestinian bid to the International Criminal Court

This week we kick off our brand new feature called “A Closer Look” where we delve deeper into legal issues and the broader context in which those issues play out. For our first feature we look at the contentious issue of whether Palestine’s bid to join the International Criminal Court (ICC) is a legally valid one. To help us understand the legal issues we are grateful for this article by Luigi Prosperi,  post-doctoral fellow at the Political Science Department of Sapienza University of Rome. He is also a member of the LUISS Guido Carli Research Center on International and European Organization and an editor of “Rivista OIDU” (www.rivistaoidu.net), which is the online journal of the Sapienza PhD Programme on “International legal order and human rights” (which he completed in 2013).

He was a Visiting Fellow at European University Institute of Florence from September to December 2014, working on a project on the prosecution of crimes against cultural properties.

He has been studying international criminal law since his PhD years at Sapienza (2009-2013). On 16 July 2013 he defended a thesis (in Italian) on “International criminal law as a combined system of centralized and diffused prosecution of international crimes”. We are delighted and humbled to have Luigi contribute to Progressive Lawyer and I know you will find this informative.

Image courtesy of the ICC
Image courtesy of the ICC

In addition to inflaming political debates, the recent Palestinian bid to join the International Criminal Court has turned the spotlight on one of the most controversial features of the International Criminal Court system: namely, the power of non-party States to accept the Court’s jurisdiction with respect to crimes committed on their territory or by their nationals.

Just two days before depositing the instruments of accession to the Rome Statute, in fact, the Palestinian authorities lodged an Article 12, para. 3 declaration at the ICC Registry.

It is not the first time a Palestinian Authority lodges such a declaration: in a precedent, on 3 April 2012 the Prosecutor decided that the one submitted more than three years before (on January 2009) and subscribed by the Palestinian National Authority couldn’t be taken into account since it didn’t come from an entity which the competent organs of the UN or eventually the Assembly of States Parties to the Rome Statute had recognized as a State. A legal issue which was finally resolved, as the Prosecutor noted in a statement issued on 16 January, on 29 November 2012, when the UN General Assembly adopted Resolution 67/19, granting Palestine “non-member observer State” status in the UN (with a majority of 138 votes in favour and only 9 against).

Neither it is the first time a non-party State accepts the ICC jurisdiction: in addition to the cited PNA declaration, the Registry received analogous documents from the Ivory Coast (in 2003, later confirmed by the new President Ouattara in 2010 and 2011) and Ukraine (in 2013). An Ugandan “Declaration on Temporal Jurisdiction”, dated 27 February 2004, served the purpose of extending the temporal scope of the investigation on LRA crimes until 1 July 2002 (since the Republic of Uganda ratified the Statute on 14 June 2002, it would have entered into force on the following 1 September).

According to para. 3 of Article 12, the ad hoc declarations can be deposited by non-party States “whose acceptance is required under para. 2 of the provision”, in order to establish the Court’s jurisdiction on the territory or over citizens that otherwise would fall outside its scope. As many observers noted, the fact that the appropriateness of the provision was undisputed and that the underlying principle enjoyed broad support in the preparatory work of the Statute contributed to an underestimation of the delicate problem its wording could have risen: the risk of “manipulating” the ICC jurisdiction through reference, in the declaration, to a specific incident or a single crime.

Since most signatory States agreed on a different interpretation, they decided to include in the Rules of Procedure and Evidence (adopted by consensus on 30 June 2002) a clarifying provision: Rule 44, para. 2, which states that when a non-party State lodges (or declares to the Registrar its intent to lodge) such a declaration, “the Registrar shall inform the State concerned that the declaration (…) has as a consequence the acceptance of jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation”. Even if this could fit for the purpose of preventing one-sided manipulations by means of narrowing the scope of the jurisdiction ratione materiae, it didn’t solve two additional, related issues: those of the legitimacy and the effects of the limitations ratione temporis and ratione loci.

To date, only one investigation has been opened on the situations referred to the Prosecutor according to para. 3 of Article 12: that on the post-electoral violence in Ivory Coast.

After the receipt of two letters subscribed by the new President Ouattara (on 14 December 2010 and 3 May 2011), on 3 October 2011 the Pre-Trial Chamber finally authorized Prosecutor Moreno Ocampo to commence an investigation with respect to the crimes allegedly committed on the territory of that State since 28 November 2010. Regrettably, this decision doesn’t clarify the mentioned legal issues. Moreover, as to the validity ratione temporis of the declaration, having taken into account the fact that the new President confirmed the intention of the newly elected authorities to cooperate with the Court, the Chamber concluded that it didn’t need to assess whether the declaration made in 2003 could, on its own, cover crimes allegedly committed in 2010 or 2011 (paras. 14-15).

In a following decision on the appeal of the former President, Mr Laurent Koudou Gbagbo (who had been arrested on 6 April 2011 by Ouattara’s forces and transferred to The Hague on 23 November 2011, after the issuance of an international arrest warrant), against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings, the Appeals Chamber stated that “the phrase «crime in question» in article 12 (3) of the Statute neither limits the scope of a declaration to crimes that occurred in the past nor to crimes committed in a «specific situation»”, but also noted that this doesn’t mean “that a State, when accepting the jurisdiction of the Court, may not further limit the acceptance of jurisdiction within the parameters of the Court’s legal framework” (para. 84). Since the Ivory Coast declaration didn’t restrict the Court’s jurisdiction, the judges didn’t provide any further clarification on the interpretation to be given to the latter expression.

Generally speaking, as said, Article 12 is designed to broaden the scope of the Statute’s applicaton by providing non-party States the power to accept the ICC jurisdiction on an ad hoc basis. Even though the effects of the reference to “the crime in question” have been mitigated through the adoption of the cited Rule 44(2), the wording of Article 12 implies that a declaration is different from the referral by a State party or by the Security Council. In fact, a non-party State making such a declaration is not entitled to trigger the jurisdiction of the Court, in the sense of obligating the Prosecutor to proceed with an investigation. It took almost 10 years – and the outbreak of new violence – for Ivory Coast authorities to trigger an international action; and 3 years for Palestinian National Authority to be considered an entity which couldn’t lodge a declaration.

The recent Palestinian declaration would therefore represent a much more challenging test for ICC organs, not only from a political, but especially from a legal perspective. Even if on 16 January the Prosecutor confirmed that after UN GA Resolution 67/19 of 29 November 2012 that entity has to be considered a State, at least to the purpose of applying the Rome Statute, Fatou Bensouda would have to address the issue of the legality and the effects of the limitation ratione loci (and indirectly ratione materiae) of the Court’s jurisdiction.

In this spirit, since under the declaration the Prosecutor could only focus on the crimes “committed in the occupied Palestinian territory, including East Jerusalem”, it has to be determined if this definition served a political purpose (of linking this initiative with that of the Human Rights Council, which on 23 July 2014 instituted an Independent Commission of Inquiry “to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalemsince 13 June 2014”); or if, being the Prosecutor legally bound by its wording, it imposes a preliminary determination of what territory does constitute the “occupied Palestinian territory” – with the additional effect of limiting not only the territorial, but also the subject-matter scope of the Court’s jurisdiction (namely, the power to investigate the war crimes allegedly committed by Israel in the West Bank). An assessment, the latter, that in the end could even bring the Prosecutor to the conclusion that, constituting such a limitation a way of “manipulating” international justice, it could vitiate the declaration itself.

In conclusion, it would neither be the need for a reappraisal of the nature of the entity (having been confirmed, on 16 January, that after UN GA Resolution the Palestine has to be considered a State), nor the political pressure exercised by Israel and its allies, but the relevance and sensitiveness of the preliminary determinations concerning the legitimacy and the general legal effects of the limitations of the Court’s jurisdiction, provided by the declaration lodged on 1 January 2015 by the President of Palestine, that could convince Prosecutor Bensouda to go through an in-depth analysis (and probably a demand for legal advices, leading to delays analogous to those related to the 2009 declaration) before submitting the Article 53(1) Report.

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