By: Madaline George

As the new year began, so did a new page in the long and storied history of Palestine’s bid for international statehood recognition.

On January 16, 2015 the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) opened a preliminary investigation into possible war crimes committed in the territory of Palestine since June 13, 2014. This is in line with OTP policy following an Article 12(3) Declaration, such as Palestine submit to the Court on December 31, 2014; OTP opened an investigation into the situation in Ukraine eight days after Ukraine lodged a declaration under article 12(3) accepting the jurisdiction of the court. A preliminary examination is a process for determining if there is a reasonable basis to proceed with an investigation. Pursuant to Article 53(1) of the Rome Statute, the Prosecutor shall consider issues of jurisdiction, admissibility and the interests of justice.

The move to open a preliminary investigation follows Palestine’s accession to the Rome Statute on January 2, 2015, the same day in which Palestine presented documents for accession to 15 other international conventions and treaties, a United Nations (UN) press release confirmed. (Note that last April, Palestine presented letters for accession to 15 international conventions and treaties). On January 6th the UN announced that Palestine would formally become an ICC member on April 1, following the ‘waiting period’ mandated by Article 126(2) of the Rome Statute.

This is but the latest development in the relationship between Palestine and the Court and it would be useful to review the events leading up to this moment.

On December 9, 2014, at the 13th Meeting of the International Criminal Court Assembly of State Parties (ASP), Palestine was unanimously recognized by the 122 States Parties as an ‘observer state’ for the first time. They had previously been considered an “observer entity.” Rule 94 of the Rules and Procedures of the ASP provides that at the beginning of every ASP the President may invite non-state parties to attend the proceedings, subject to the adoption of the Assembly. Among those announced as invitees at the start of proceedings was the “State of Palestine.” States parties were invited to object, with none doing so. The outgoing President of the ASP noted that this is not indicative of any future decision the Court’s judicial organ may take on this matter in the future.

Several States Parties made reference to Palestine’s observer State status in their statements, such as Brazil, who commended the Assembly’s “decision to invite the State of Palestine to be present… as an observer State” (emphasis in original).

In its statement during General Debate, Palestine declared that “there is in fact a consensus among the Palestinian people, their political organizations and their leadership to join the ICC. The time to join will be decided by our leadership at an appropriate time. We may very well be the 123rd State party to join the ICC.” It appears they feel that time has come.

Israel and the United States, as observer states, also made reference to this development in their statements, expressing the opinion that this was a “procedural” matter and that they do not consider that Palestine satisfies the criteria for statehood.

On December 31, Palestine submitted to the ICC a Declaration under Article 12(3) of the Rome Statute for acceptance of jurisdiction of the Court for crimes “committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”

A brief ICC Press Release was published the following day acknowledging that the Registrar of the Court had received this document, and explaining that acceptance of jurisdiction differs from accession to the Rome Statute. Accession is the process by which a State becomes a party to a treaty. It is also important to note that acceptance of jurisdiction does not automatically trigger an investigation.

Article 125 of the Rome Statute provides that accession is open to “all States” and those wishing to join must deposit an instrument of accession with the Secretary-General of the UN.  The Secretary-General has the competence to determine if the applicant constitutes a “State” or not; in cases where this is unclear or controversial, established practice is to defer to the guidance of the General Assembly.

As previously noted, two days after its Article 12(3) Declaration, Palestinian President Mahmoud Abbas submitted documents related to accession to the Rome Statue to the United Nation Secretary General, who acts as the depository of the Rome Statute.

In a January 6th statement posted to the UN website, UN Secretary-General Ban Ki-moon confirmed that Rome Statute will enter into force for the State of Palestine April 1, following the grace period stipulated by Article 126(2) of Rome Statute.  The court’s jurisdiction will date back to June 13, 2014 for crimes committed on Palestinian territory.

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This is not the first time Palestine has moved to accept jurisdiction of the Court. Given changes in circumstances, it may be informative to briefly consider this prior attempt.

On January 22, 2009, Ali Khashan, acting as Minister of Justice of the Government of Palestine, lodged an Article 12 declaration of acceptance of ICC jurisdiction for “acts committed on the territory of Palestine since 1 July 2002.”  Three years later, on April 3, 2012, the Office of the Prosecutor (OTP), then run by Prosecutor Luis Ocampo, issued a decision refusing to go forward with a preliminary examination. The decision stated that jurisdiction under Article 12 of the Rome Statute is a precondition to examination of other jurisdictional considerations, and notes that Article 12 refers to a “State” filing a declaration. Citing uncertainty as to Palestine’s status as a “State” and noting that it is outside of OTP’s authority to make such a determination,  the decision deferred to the General Assembly. At the time, Palestine’s status at the United Nations General Assembly was still that of an observer and not of a non-member observer State.  This decision left open the possibility of future jurisdiction over possible 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.”

About 7 months after the OTP’s decision on Palestine was issued, Palestine’s status at the UN changed. At the 44th plenary meeting on November 29, 2012, the UN General Assembly passed a Resolution granting non-member observer State status to Palestine by a vote of 138 to 9, with 41 abstentions.

The (new) Prosecutor, Fatou Bensouda, then made it clear that she considered this development to mean that Palestine could now join the Rome Statute.