International Criminal Court Prosecutor Opens Examination Of Situation In Palestine Weeks After PA Grants ICC Jurisdiction

By Darren Smith, Weekend Contributor

150px-International_Criminal_Court_logo.svgIn a sign of additional international scrutiny to come for the conflicts within the areas administered by the Palestinian Authority, the International Criminal Court (ICC) received a declaration on January 1st granting the ICC jurisdiction within Palestine. Following this, and the behest of the PA, the ICC Prosecutor opened an examination into the events occurring within PA administered territories.

Israel is not a party to the Rome Statute and as of 2002 “unsigned” its acceptance. Like the United States had formerly, both nations did not fully ratify the treaty and have since declared they have no intention of doing so.

The Registrar of the International Criminal Court received a document lodged under Article 12(3) of the ICC Rome Statute transmitted by the Palestinian government declaring Palestine’s acceptance of ICC jurisdiction since June 12, 2014

Acceptance of the ICC’s jurisdiction differs from an act of accession to the Rome Statute, the ICC’s founding treaty. The United Nations Secretary General acts as the depositary of the Rome Statute. The next day, Palestine transmitted to the United Nations documents relating to its accession to the Rome Statute and other treaties. The UN is presently reviewing these documents.

In the document accepting ICC jurisdiction, Palestine President Mahmoud Abbas signed and declared the following:

Declaration accepting the Jurisdiction of the International Criminal Court

President Mahmoud Abbas
President Mahmoud Abbas

In conformity with Article 12, paragraph 3, of the Rome Statute of the International Criminal Court, (‘the Statute’), the Government of the State of Palestine hereby 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 June 12, 2014.

This declaration is without prejudice to any other declaration the State of Palestine may decide to lodge in the future.

Accordingly, the State of Palestine undertakes to cooperate with the Court without delay or exception, in accordance with Chapter IX of the Statute.

This declaration shall be valid for an unspecified period of time and shall enter into force upon its signature.

Mahmoud Abbas
President of the State of Palestine

Within relatively short time, the ICC issued the following press release regarding a preliminary examination of events and grievances expressed by the Palestinian Authority.

Today, Friday, 16 January 2015, the Prosecutor of the International Criminal Court (ICC), Mrs. Fatou Bensouda, opened a preliminary examination into the situation in Palestine.

The Prosecutor’s decision follows the Government of Palestine’s accession to the Rome Statute on 2 January 2015 and its declaration of 1 January 2015, lodged under article 12(3) of the Rome Statute – the Court’s founding treaty – accepting the jurisdiction of the ICC over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”

Upon receipt of a referral or a valid declaration made pursuant to article 12(3) of the Statute, the Prosecutor, in accordance with Regulation 25(1)(c) of the Regulations of the Office of the Prosecutor, and as a matter of policy and practice, opens a preliminary examination of the situation at hand. Accordingly, the Prosecutor has opened a preliminary examination into the situation in Palestine. The Office will conduct its analysis in full independence and impartiality.

Chief Prosecutor Fatou Bensouda
Chief Prosecutor Fatou Bensouda

A preliminary examination is not an investigation but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with an investigation pursuant to the criteria established by the Rome Statute. Specifically, under article 53(1) of the Rome Statute, the Prosecutor must consider issues of jurisdiction, admissibility and the interests of justice in making this determination. The Office gives due consideration to all submissions and views conveyed to the Office during the course of a preliminary examination, strictly guided by the requirements of the Rome Statute in the independent and impartial exercise of its mandate.

There are no timelines provided in the Rome Statute for a decision on a preliminary examination. Depending on the facts and circumstances of each situation, the Office will decide whether to continue to collect information to establish a sufficient factual and legal basis to render a determination; initiate an investigation, subject to judicial review as appropriate; or decline to initiate an investigation.

Background and legal analysis

The Office previously conducted a preliminary examination of the situation in Palestine upon receipt of a purported article 12(3) declaration lodged by the Palestinian National Authority on 22 January 2009. The Office carefully considered all legal arguments submitted to it and, after thorough analysis and public consultations, concluded in April 2012 that Palestine’s status at the United Nations (UN) as an “observer entity” was determinative, since entry into the Rome Statute system is through the UN Secretary-General (UNSG), who acts as treaty depositary. The Palestinian Authority’s “observer entity”, as opposed to “non-member State” status at the UN, at the time meant that it could not sign or ratify the Statute. As Palestine could not join the Rome Statute at that time, the Office concluded that it could also not lodge an article 12(3) declaration bringing itself within the ambit of the treaty either, as it had sought to do.

On 29 November 2012, the UN General Assembly (UNGA) adopted Resolution 67/19 granting Palestine “non-member observer State” status in the UN with a majority of 138 votes in favour, 9 votes against and 41 abstentions. The Office examined the legal implications of this development for its own purposes and concluded, on the basis of its previous extensive analysis of and consultations on the issues, that, while the change in status did not retroactively validate the previously invalid 2009 declaration lodged without the necessary standing, Palestine would be able to accept the jurisdiction of the Court from 29 November 2012 onward, pursuant to articles 12 and 125 of the Rome Statute. The Rome Statute is open to accession by “all States,” with the UNSG acting as depositary of instruments of accession.

On 2 January 2015, Palestine deposited its instrument of accession to the Rome Statute with the UNSG. As outlined in the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, “the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the [General] Assembly in implementing such a clause […].” The practice of the UNGA “is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State.” In accordance with this practice and specifically UNGA Resolution 67/19, on 6 January 2015, the UNSG, acting in his capacity as depositary, accepted Palestine’s accession to the Rome Statute, and Palestine became the 123rd State Party to the ICC. It was welcomed as such by the President of the Assembly of States Parties to the Rome Statute.

Likewise, on 7 January 2015, the Registrar of the ICC informed President Abbas of his acceptance of the article 12(3) declaration lodged by the Government of Palestine on 1 January 2015 and that the declaration had been transmitted to the Prosecutor for her consideration.

The Office considers that, since Palestine was granted observer State status in the UN by the UNGA, it must be considered a “State” for the purposes of accession to the Rome Statute (in accordance with the “all States” formula). Additionally, as the Office has previously stated publicly, the term “State” employed in article 12(3) of the Rome Statute should be interpreted in the same manner as the term “State” used in article 12(1). Thus, a State that may accede to the Rome Statute may also lodge a declaration validly under article 12(3).

For the Office, the focus of the inquiry into Palestine’s ability to accede to the Rome Statute has consistently been the question of Palestine’s status in the UN, given the UNSG’s role as treaty depositary of the Statute. The UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to article 125, and equally, its ability to lodge an article 12(3) declaration.

The Office of the Prosecutor of the ICC conducts independent and impartial investigations and prosecution of the crimes of genocide, crimes against humanity and war crimes. The Office of the Prosecutor has opened investigations in nine situations: Uganda; Democratic Republic of the Congo; Darfur (Sudan); Central African Republic; Kenya; Libya; Côte d’Ivoire and Mali. The Office is also conducting preliminary examinations relating to the situations in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria and Ukraine.

While initial in this examination and jurisdictional acceptance, a long process surely is to ensue given previous examinations and prosecutions. But the invitation of the ICC into the conflicts in Palestine could bring an additional factor to a historically contentious and protracted impasse.

By Darren Smith


International Criminal Court

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

38 thoughts on “International Criminal Court Prosecutor Opens Examination Of Situation In Palestine Weeks After PA Grants ICC Jurisdiction”

  1. Oh, I am so tired of people playing the “anti-semitism” card whenever anyone dares criticize Israeli policy regarding the occupied territories. I hope the ICC brings a good case against Israel.

    1. Old Nurse, my kin, it in the nature of occupation, as historically practiced in the region, to do a bit of genocide. Normal. Expected. Vendetta. Blood feud based on heritage. I suspect that things will continue as normal regardless of the outcome of the case.

  2. Carlyle said …

    As for the San Remo accords, your mention of them is the first that I have ever seen this term.

    And that is the core of your biased thinking vis a vis Israel and the middle east. It has been the governing international law on the subject since 1922…recognized, for themselves, by virtually every other middle east nation state.

    As I said earlier, I doubt we have much to exchange in commentary. That might change if you enlighten yourself.

    Do you understand my paraphrasing of the French terms?

  3. Aridog.

    you just don’t get it. I’m not about to entertain the folly of focusing on singular events

    History considered as what actually happened in the past to bring about current situations is simply a collection of writings about singular events. If the atrocity in Haifa were the only situation of proto-Israelis ethnic cleansing of Palestinians it would not be legitimate to accuse Israel of Ethnic cleansing but there are many other descriptions extant and it is legitimate to ask, how high the count of these has to be before we can accuse Israel. One has to remember that a colonial settler state such as Australia, Brazil, Indonesia, Israel or the US has the ability to exclude many instances of atrocities against the willfully felonious indigines from legitimate history and this may make it look as if ethnic cleansing has not occurred when in fact it has.

    As for the San Remo accords, your mention of them is the first that I have ever seen this term.

    The only question that concerns me is this, if someone treated people like me or people with whom I have some feelings of affiliation the way Israel and its accomplices, the UK the US and others treated the non-Jewish Palestinians between 1880 and the current day, would we consider that treatment legal or fair?

    1. Carlyle – I have read the stuff on Haifa and have yet to figure out how the Israelis are terrorists. Could you walk me through your thinking?

  4. Aridog.

    Something went wrong with my link in the previous post. The document is a PDF and referencing a PDF in Linux seems to have quirks.

    The document is the one in the hit list titled “The Shelling of Haifa revisited from Technion Noodle.

  5. Carlyle … you just don’t get it. I’m not about to entertain the folly of focusing on singular events, whether true, false, or distorted, as representative of the whole. How you seem obsessed by 1/8 of 1% of the world population is puzzling. You have still not acknowledged, or challenged, the legality of the San Remo Accords. To paraphrase the French on this subject, just presume:

    Je suis juif

    Je suis musulman

    Je suis chrétienne

    Je suis bouddhiste

    Je suis tout le monde

    …because that is the essence of how I see the world and my place in it. There have been times where that outlook saved my life. I doubt we’ve anything else to exchange. I refuse to dally in the swamp who who has done what horrors to whom, when all sides are guilty. I much prefer looking for the good done by all sides.

  6. Aridog.

    This is the age of Google, if you do not like the particular article on the shelling of refugees in Haifa which I selected use Google Advanced and input the following search string “The shelling of Haifa 1948” you will get more than enough hits and a few of them will be from publications that you find credible.

  7. Paul C .. yes, we won the majority of battles by far, and Gen Giap agrees with that assertion. He also clearly states that after Tet ’68 they knew they could win in the political fields in the USA what they could not win on the ground in Vietnam. We didn’t just lose the peace, we gave it away and dear old Walter was among the first to make that a national issue in media.

    Looking back, I’m not sure we could have salvaged a democratic republic for Vietnam, given the west’s errors in 1946 forward. By 1959 the Viets in the south had two enemies, the north and us, as far as many were concerned…political oppression from the north or interference from the west in what began as a colonial war initially, once the Japanese were expelled.

    1. Aridog – you forget that Walter was a world-renowned military strategist.

  8. Carlyle … let me cite two well known people who said opposite things about Vietnam post 1968 Tet Offensive by the NLF & PAVN. Walter Cronkite said the US forces lost the war then, while Vo Nguyen Giap, a PAVN Commanding General said the opposite. Read his memoirs. Most Americans seemed to agree with Cronkite, and few have ever read Giap. History is a b**ch when you view it from one side only.

  9. Carlyle…I realize you did post a citation to “+972″…is that your idea of an unbiased source with rigorous analysis of history? If so, why not just post “The Protocols of the Elders of Zion” as scholarly analysis?

  10. Carlyle Moulton … interesting how you just gloss over the San Remo Accords and their intent. Right or wrong, those accords define the borders of virtually every nation state in the middle east to this very day, as I’ve cited before. I gather that more people agree with them than disagree by default due to that simple territorial reality. I’d be very interested in any citations you can post that support your “numbers” who, when, & where line of thought. My personal experience with this numbers game, in war mind you, is that it is usually bunk.

    Also interesting is your citation of “Nazis” without a breath of thought, as if there is any similarity, between Jews and Nazis or Palestinian Arabs and Nazis. How many actual Palestinian Arabs do you know and have spoken with at length? Me? I just live within a community population, for over 30 years now, that is 90% Arab Muslim, of various groups, including Palestinian Arabs. Nothing any have said seriously reflects your line of thought. I find them a quite bright people in fact. Yes, they have disputes with Israelis but not at the level you cite as fact, without citation. That, of course, might be reticence to talk about it with a non-Muslim, however their community conduct doesn’t infer that reason….in fact most are very outspoken to whomever will listen. And not surprisingly they are in the main very willing to listen to others as well.

    Full disclosure: I consider Muslim Arabs in the USA to be just as American as I am, or anyone else for that matter. I’ve seen, first hand up close and personal, what their entrepreneurial instincts can do to save a neighborhood from squalor, virtually rebuilding the one I live in for that matter. I’ve seen Jews, sundry Europeans, and Asians do the same things. My “thing” is to look for the best in people, not cite the worst, which is invariably a minority of any group….none-the-less, in places elsewhere, a minority who can dominate everyone else by acquisition of sheer power. Ethnicity, religion, culture, whatever, has nothing to do with the power seeking of the radicals everywhere. I am pleased to not find here where I live.

  11. If there is a better justification for antisemitism meaning hatred of Jews than the behaviour of Israel from 1880 until today I do not know what it is.

    Well justified shame about failure to impede the German Jewish Holocaust rendered the worlds nations extremely sensitive to perceived unfairness to Jews and so the world pretended not to notice when the Zionazis ethnically cleansed Palestine of 700,000 non Jewish Palestinians. Before Israel declared its existence non-Jews were the majority in Palestine when the 700,000 were gone the Zionists could establish their state and allow it to be democratic because their competitors could not use this democracy to impede Zionazi aims.

    Says Aridog

    Israel’s independence upon the departure of the British and the end of the Palestine Mandate were those borders they hold today. The day following the Israeli declaration of independence they were attacked from all sides.

    For a long time the whole world has accepted the Zionazi story of events in 1947 and 1948. This story has Arab radio stations telling Palestinian Arabs to flee to give the Arab nations’ armies a clear field of fire to slaughter jews, the Palestinians fled therefore forfeiting any right of return and their property as well. The wicked Awubs then attacked poor widdle Iswael but plucky little Iswael having stored up massive stockpiles of weapons and trained thousands of fighters during Britain’s incompetent administration, incompetent in failing to prevent such stockpiling and military training and a failure to protect the rights of the non-Jewish majority, outgunned and outnumbered all of the Arab armies.

    It may well be that Arab radio stations did broadcast warnings after Iswael leaked their ethnic cleansing intentions to surrounding Awub governments. The Arab armies did not attack in reponse to Israel’s declaration of its state but in response to the ethnic cleansing. 700,000 Palestinians were etnically cleansed and 10,000 of them killed to start the others moving.

    The Zionazis developed 4 sucessive iterations of their plan to launch the new state, plans aleph, beth, gimel and dalit the final one plan D being the one implemented. Ethnically cleansing enough non-Jews to allow the state to be both Jewish and Democratic was a fundamental part of plan D.

    This article on the ethnic cleansing of Haifa by means of shelling a crowded market place ca serve as an example.

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