Saturday, December 1, 2012

In case of Palestine, no sense in retroactive jurisdiction at the International Criminal Court

Yesterday Opinio Juris included a post arguing that "Yes, Palestine Could Accept the ICC’s Jurisdiction Retroactively."
With all due respect to its author, my friend and colleague Kevin Jon Heller, there seems a legitimate doubt whether a Palestine could ratify the Rome Statute of the ICC in its status, newly recognized by the U.N. General Assembly, of nonmember state permitted to participate in the work of the UNGA. Moreover, the argument against Palestine being able to take the ratification backwards in time appears even stronger.
As to current jurisdiction, there would have to be both:
► Acceptance by the ICC either of the instrument of ratification, or of a declaration pursuant to Article 12(3) of the Rome Statute, which states:
'If the acceptance of a State which is not a Party to this Statute is required ..., that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question....'
and then:
►Determination by the court that there is a "state" for Rome Statute purposes.
Why this is complex, is that jurisdiction under the Rome Statute covers crimes committed (a) on a state's territory, and (b) by its nationals. If there is a dispute as to the state's "territory" and/or therefore "nationals," how does jurisdiction work? This is indeed unclear.
As noted already by one commenter responding to Kevin, the case becomes even more complicated if you try to argue the ratification would be able to be retroactive to July 1, 2002, using an Article 12(3) declaration.
Even if an entity becomes a "state," should there be jurisdiction that it can invoke back to a time when (a) there were no clear "nationals" of that state, and (b) there was no clear "territory" of that state, and in fact, even according to the General Assembly there was only an "observer" and not a "state"? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)
Let's not get carried away here.
We are in a rush to declare the consequences of potential jurisdiction when indeed there are many legal questions that remain. The Côte d'Ivoire precedent here is not true precedent, as it covers none of these complexities.
But I do completely agree with Kevin when he states:
'Palestine should be careful what it wishes for.'
If the ICC has jurisdiction over a situation, then it indeed would have jurisdiction over all sides.
Perhaps the lack of clarity here suggests that it would be prudent for all actors over whom there might be jurisdiction to refrain from committing Rome Statute crimes. Wouldn't that be a nice outcome of Thursday's vote?

1 comment:

Kevin Jon Heller said...

Jennifer,

I agree that the Palestine situation is an unusual one -- one certainly not contemplated by the drafters of Articles 11 and 12. I also would not be surprised if the Court refused to permit Palestine to accept jurisdiction retroactively because of the uncertainty concerning Palestine's statehood. But it is critically important to avoid assuming that Palestine did not become a state until the UNGA vote. That vote might have been necessary to convince the ICC to permit Palestine to ratify the Rome Statute or to accept the Court's jurisdiction on an ad hoc basis, but it was not necessary to establish Palestinian statehood. The UNGA doesn't get to determine who is -- and who is not -- a state. So the Court would also be well within its rights to decide that Palestine was a state prior to the UNGA vote.