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Is There a Court for Gaza? pp 469–495Cite as

ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities

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Abstract

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. Finally, it examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition.

Senior Lecturer, Sha’arei Mishpat College, and Hebrew University, Faculty of Law. This article was published in Journal of International Criminal Justice (2010) 8(1), 8–27. The editors wish to thanks OUP for kindly granting permission to republish the article. [For author's acknowledgments, please refer to J Int Crim. Justice].

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Notes

  1. 1.

    The applicability of Article 12(3) ICCSt to the Palestinians has been discussed previously as a theoretical question: Schabas 2007, p. 81.

  2. 2.

    Macintyre and Sengupta 2009.

  3. 3.

    Briefing to the UN Security Council based on data from Palestinian Ministry of Health, by Under-Secretary-General Holmes, UN Doc. S/PV. 6077, 27 January 2009, at 2.

  4. 4.

    Israel Ministry of Foreign Affairs, The Operation in Gaza—Factual and Legal Aspects, July 2009.

  5. 5.

    Data provided by the Israeli Ministry of Foreign Affairs, 2008, Israel justifies its action by reference to the continuous attacks from the Gaza Strip on civilian communities in Israel. In 2008 alone, nearly 3,000 rockets and mortars were fired at Israeli civilian targets, Israel Ministry of Foreign Affairs, 2009, para 3.

  6. 6.

    Id.

  7. 7.

    E.g. UN Doc. S/PV.6061, 6 January 2009, and UN Doc. S/PV.6061 (Resumption 1), 7 January 2009; Statement by 31 international lawyers, ‘Israel’s bombardment of Gaza is not self-defence—it’s a war crime’, The Sunday Times 2009; Israel Ministry of Foreign Affairs 2009, 52–76; Human Rights Watch 2009b; Amnesty International, 2009b.

  8. 8.

    General Assembly Demands Full Respect For Security Council Resolution 1860, UN Doc. GA/10809/Rev. 1, 16 January 2009 (Statement of Bolivia), available online at http://un.org/News/Press/docs/2009/ga10809.doc.htm; Human Rights Watch, 2009a; Amnesty International 2009c, Amnesty International 2009a; ACRI and Organizations 2009; The ICC Prosecutor has received over 210 appeals from Palestinians and NGOs to investigate the Israeli–Palestinian conflict, Interview with Luis Moreno-Ocampo, Al Jazeera 2009. These include complaints predating the Gaza Conflict, RNW International Justice, ‘ICC starts analysis of Gaza war crimes allegations’, 3 February 2009, available online at http://www.rnw.nl.

  9. 9.

    Human Rights Council Resolution S-9/1 on the Grave Violations of Human Rights in the Occupied Palestinian Territory, Particularly due to the Recent Israeli Military Attacks Against the Occupied Gaza Strip, UN Doc. A/HRC/S-9/L.1, 12 January 2009.

  10. 10.

    Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009 (hereafter ‘Goldstone Report’), paras 1886, 1891, 1921, 1950.

  11. 11.

    Goldstone Report, para 1969.

  12. 12.

    Human Rights Resolution S-12/1 The human rights situation in the Occupied Palestinian Territory, including East Jerusalem, UN Doc. A/HRC/RES/S-12/1 B, 16 October 2009, para 3.

  13. 13.

    Declaration recognizing the Jurisdiction of the International Criminal Court, available online at http://www.icc-cpi.int/NR/rdonlyres/4F8D4963-EBE6-489D-9F6F-1B3C1057EA0A/279764/20090122PalestinianDeclaration.pdf.

  14. 14.

    The Independent Fact Finding Committee appointed by the League of Arab States (hereafter ‘Arab League Committee’) criticized the ICC for exceeding its authority by ‘changing the Government of Palestine into the PNA’ in its response to the declaration. Given the fact that the declaration was submitted on PNA letter head, this assertion is puzzling. Report of the Independent Fact Finding Committee on Gaza: No Safe Place, Presented to the League of Arab States, 30 April 2009, para 594, available online at http://www.arableagueonline.org/las/picture_gallery/reportfullFINAL.pdf [the Executive Summary in included in this Volume, infra Annex to Chap. 17—ChM].

  15. 15.

    The present article uses the term ‘admission’ to distinguish admissibility of the declaration from acceptance of jurisdiction within the declaration.

  16. 16.

    E.g. Boyle 1990, and response by Crawford 1990; Quigley 2002. The same arguments are essentially reproduced in Quigley 2009; Prince 1989; Silverberg 1989–1999; McKinney 1994–1995; de Waart 1994–1995; Becker 1998; Blum et al. 1988; Kohen 2006; Goldsmith 2003, p. 94, ft 18, considers the question briefly specifically in the context of Article 12(3) ICCSt. To the issues raised traditionally, one may add certain challenges that have emerged in the last few years, such as the legal and practical consequences of Israel’s disengagement from the Gaza Strip, and the implications of the political rift between the West Bank and the Gaza Strip.

  17. 17.

    Cf. Quigley 2009 who considers the question of statehood in the same context as the present article but only relates to that context in the penultimate paragraph of the conclusion.

  18. 18.

    On the one hand there is an international commitment to the unity of the two areas as a single political entity. On the other hand, since June 2007, when Hamas took over control of the Gaza Strip, the PNA has lost control over that area. One may argue that a state of Palestine asserted by the PNA must be limited to the West Bank; alternatively, if the Gaza Strip constitutes a sovereign state, its government is not the PNA but the Hamas, which has not lodged any declaration with the ICC. Resolution of this issue requires an analysis of the relationship between the PNA and Hamas, which is outside the scope of this article.

  19. 19.

    See ‘OTP response to communications received concerning Iraq’, available online at http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77-4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.

  20. 20.

    Acceptance can be effected by accession to the ICC Statute or by an ad hoc declaration, Articles 13, 12(3) ICCSt.

  21. 21.

    RNW International Justice, supra n. 8; Simons 2009.

  22. 22.

    On Israel’s position toward the ICC see Shany 2003; Goldstone 2003; Blumenthal 2002, p. 593.

  23. 23.

    According to the press, the ICC Prosecutor ‘is considering’ taking such a step against an Israeli reserve officer who is also a national of South Africa, see Ephron 2009.

  24. 24.

    See also Akande 2003, pp. 634–635.

  25. 25.

    Article 13 ICCSt.

  26. 26.

    Deen-Racsmany 2001, pp. 611–612.

  27. 27.

    Article 53(2)(c) ICCSt.

  28. 28.

    In February 2006 the ICC Prosecutor made public his reasons not to initiate investigations on the basis of the nationality nexus with respect to crimes allegedly committed on the territories of Iraq and Venezuela, both non-parties to the ICC Statute. ‘OTP response to communications received concerning Iraq’, supra n. 19, and ‘OTP response to communications received concerning Venezuela’, available online at http://www.icc-cpi.int/NR/rdonlyres/4E2BC725-6A63-40B8-8CDC-ADBA7BCAA91F/143684/OTP_letter_to_senders_re_Venezuela_9_February_2006.pdf.

  29. 29.

    Article 13(b) ICCSt.

  30. 30.

    For a review of US policy toward the ICC see ASIL 2009, at 5–17.

  31. 31.

    JTA 2009. Previously, the US did not oppose the referral of the situation in Sudan to the ICC (SC Res. 1593(2005), 31 March 2005). At the same time, the statement of the US Permanent Representative to the UN, supra n. 7, does not offer much prospect for the US acquiescing in a referral of the Gaza Conflict to the ICC.

  32. 32.

    Goldstone Report, para 1971. The Arab League Committee also suggested that if the Security Council fails to refer the situation to the ICC, the League of Arab States should request the General Assembly to ‘endorse Palestine’s declaration’, in a meeting constituted in terms of the Uniting for Peace Resolution, GA Res. 377(V)A, 3 November 1950.

  33. 33.

    Zaum 2008, pp. 160–161

  34. 34.

    GA Res. 377(V), supra n. 32, para 1.

  35. 35.

    But see the ICTR stating that international peace and security cannot be said to be re-established adequately without justice being made, thus rejecting the claim that establishment of the ad hoc Tribunal was in excess of the Security Council powers under Chapter VII of the UN Charter. Decision on the Defence Motion on Jurisdiction, Kanyabashi (ICTR-96-15-T), Trial Chamber, 18 June 1997, § 27. This does not mean that any individual measure in the context of the international criminal tribunals is mandated under Chapter VII.

  36. 36.

    Supra n. 32, para 1.

  37. 37.

    Neither Jordan nor Egypt, both of which had previous territorial links to the Palestinian territories, can be considered the territorial states. Jordan, an ICC state party, purported to annex the West Bank in 1950. Only two states have ever recognized this annexation. In 1988 Jordan renounced its legal and administrative claims to the West Bank (Jordan: Statement concerning Disengagement from the West Bank and Palestinian Self-Determination, 31 July 1998, 28 International Legal Materials (ILM) (1988) 1637). Reliance on a territorial nexus to Jordan is therefore weak because it is based on a disputed claim that has voluntarily been terminated twenty-one years ago. It may also be contrary to the peremptory obligation to respect the right of the Palestinians to self-determination within (at least) the West Bank and Gaza Strip (East Timor Case (Portugal v Indonesia), International Court of Justice, 30 June 1995, ICJ Reports (1995) 90, at 120, § 29; ILC Draft Articles on State Responsibility for Internationally Wrongful Acts, UN Doc. A/56/19 (2001), 113, commentary to Article 40, § 5). Finally, the Jordan territorial link does not cover the Gaza Strip. The latter had been from 1948 until 1967 under Egyptian military rule. Egypt (not an ICC state party) held the Gaza Strip under occupation from 1948 to 1967, never claiming sovereignty over it. In an era of post-conflict State-building occupation, the notion that an occupying power as representing the interests of the population, including through delegation of jurisdiction to the ICC, is not unthinkable. But a leap of logic would be required to regard Egypt as the relevant occupying power rather than Israel, which is either the current occupant or the most recent occupant.

  38. 38.

    Williams and Schabas 2008, p. 569 marginal 15; Stahn et al. 2005, p. 423. For a critique of this view see Freeland 2006, p. 224.

  39. 39.

    ICC Office of the Prosecutor Press Release 2009. The ICC Prosecutor has announced that if he finds that he can investigate the Gaza situation on the basis of a territorial nexus, he will examine the conduct of both sides, interview with Luis Moreno-Ocampo, supra n. 8. This statement is in line with Rule 44(2) ICC RPE, which is intended to prevent an interpretation of Article 12(3) ICCSt. which allows a one-sided declaration aimed at the adversary while sheltering the declaring state. Williams and Schabas 2008, at 559. In the circumstances, the problem does not seem to arise as the declaration is drafted in a general manner. For doubt as to the effectiveness of rule 44(2) see J. Goldsmith 2003, pp. 92 ft 11.

  40. 40.

    http://www.pna.gov.ps/Government/gov/recognition_of_the_State_of_Palestine.asp (broken link).

  41. 41.

    Palestine has been a member of the OIC since the establishment of the organization in 1969, http://www.oic-oci.org/member_states.asp.

  42. 42.

    http://www.nam.gov.za/background/members.htm.

  43. 43.

    Pact of the League of Arab States, Annex on Palestine (emphasis added).

  44. 44.

    Letter dated 18 November 1988 from the Permanent Representative of Jordan to the United Nations addressed to the Secretary-General, UN Doc A/43/827-S/20278, 18 November 1988, § 16.

  45. 45.

    Dajani 1997, pp. 48–49.

  46. 46.

    Lowe 2007, p. 164.

  47. 47.

    MacQueen 2006.

  48. 48.

    Raič 2002, pp. 414–415.

  49. 49.

    GA Res. 2248(S–V), 19 May 1967, GA Res. 2372(XXII), 12 June 1968.

  50. 50.

    Namibia was not admitted to the UN until South Africa withdrew from its territory in 1990.

  51. 51.

    Decree No. 1 (1974), UN Doc. A/9624/Add.1.

  52. 52.

    Crawford 2006, pp. 447–448.

  53. 53.

    Dajani 1997, p. 60.

  54. 54.

    Quigley 2009 and Boyle 1990, p. 302.

  55. 55.

    GA Res. 43/177, 15 December 1988, paras 1, 3.

  56. 56.

    Permanent Missions to the United Nations No. 295, April 2006, last updated with ST/SG/SER.A/295/Add.5, 3 October 2006. For a detailed description of Palestine’s status in the UN see Dajani 1997, pp. 53–56.

  57. 57.

    The PLO’s observer status, granted in GA Res. 3237(XXIX), 22 November 1974, was upgraded in GA Res. 43/160A, 9 December 1988, paras 1, 2. The same privilege was only ever granted to SWAPO, in the same resolution. Palestine’s rights were expanded in GA Res. 52/250, 7 July 1998. Palestine is invited under Rule 37 of the Security Council provisional Rules of Procedure and permitted to participate in Security Council debates with the same rights of participation as those conferred upon a UN member state which is not a member of the Security Council. Shaw 2008, p. 246. In the proceedings on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court, taking into account Palestinian’s special status and that it was co-sponsor of the draft resolution requesting the advisory opinion, permitted Palestine to submit to the Court a written statement on the question within the time limit fixed for member states. It also permitted it to participate in the oral hearings. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Order of 19 December 2003, [2003] ICJ Reports (2003) 428, at 429. The OIC and the Arab League—clearly non-state entities—were later given the same permission, ICJ Press Releases Press Release 2004/1 (14 January 2004) and 2004/2 (22 January 2004) respectively.

  58. 58.

    But see Dajani 1997, pp. 82–89, who rejects this proposition in so far as concerns the situation prevailing in 1997.

  59. 59.

    Crawford 2006, p. 211.

  60. 60.

    O’Connell 1956, p. 415; Restatement (Third) of the Foreign Relations Law of the United State, Section 201. Cf. Crawford 2006, p. 211 and Lowe 2007, p. 165, who see the absence of an unequivocal claim of statehood as the only bar to recognition of Taiwan as an independent state. Roth criticizes this approach both in principle and on factual grounds, indicating certain equivocal statements and practice on the part of the Taiwanese leadership. Roth 2009.

  61. 61.

    The term ‘PNA’ is not mentioned in any of the Israeli–PLO agreements. It is the term used by the Palestinians to indicate the collective of institutions which, as acknowledged by the Palestinians, were established in the framework of the agreements. Website of the Permanent Observer Mission of Palestine to the UN, available online at http://www.un.int/palestine/thepaintro.shtml. The relationship between the PNA and the PLO is a question which exceeds the scope of this article.

  62. 62.

    E.g. Palestine Liberation Organization, Negotiations Affairs Division, 2009 Negotiations Primer, at 12, available online at http://www.nad-plo.org/news-updates/magazine.pdf (‘The PLO’s primary goals in engaging in direct negotiations with Israel are… fulfilment of the Palestinian right to self-determination through the establishment of an independent and sovereign Palestinian state in the West Bank and Gaza Strip with East Jerusalem as its capital…’); A/63/PV.57, 24 November 2008, at 9, 11 (‘Moreover, the Palestinian people and their leadership remain convinced that… the international community will ultimately fulfil its responsibilities by upholding international law and the Charter of the United Nations so as to achieve a peaceful settlement that will give our people the freedom for which they have waited so long and allow them to take their rightful place among the nations of the world…’ and ‘We also call for their help in realizing the Palestinian people’s inalienable rights, including their right to self-determination and to their independent State of Palestine…’).

  63. 63.

    Declaration of Principles on Interim Self-Government Arrangements, 13 September 1993, 32 ILM 1525 (1993); Agreement on the Gaza Strip and the Jericho Area, 4 May 1994, 33 ILM (1994) 622. Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed 28 September 1995, 36 ILM 557 (1997) (hereinafter ‘Interim Agreement’); Dajani 1997, p. 90 notes that the Declaration of Principles and Interim Agreement elicited the support of the Palestinian population only insofar as they were transitional.

  64. 64.

    Quigley 2009 argues that Israel’s demand in 1993 that the PLO recognize it implied Israel’s recognition of a Palestinian state, since only states may recognize others. Since an existing state does not require recognition from a new state (although Quigley does suggest that post-1988 Palestine is identical to post-Ottoman Palestine, essentially claiming that the mandate territory constituted a state and disregarding events since 1948), Israel’s demand had purely political objectives. It therefore makes no sense to attach any implicit legal significance to it. Israel’s demand in 1993 was political in the same sense that today it demands that Hamas recognize its right to exist, without in any way implying that it is the government of a state in the Gaza Strip.

  65. 65.

    Both statements in Legal Consequences of the Construction of a Wall (Advisory Opinion), Oral Proceedings CR 2004/1, 23 February 2004, para 22.

  66. 66.

    Ibid., para 33 (emphasis added).

  67. 67.

    Crawford 2006, p. 211. As demonstrated by the Taiwanese applications for participation in the work of the UN, even a request to perform a function reserved for states can be drafted sufficiently vaguely so as to avoid a claim of statehood or even that the request itself implies a claim of statehood. Mainland Affairs Council, Position Paper Regarding the Referendum on Joining the United Nations Under the Name of Taiwan, 7 September 2007 available online at http://www.mac.gov.tw/english/english/un/02e.pdf.

  68. 68.

    The mention of the PNA alongside the ‘Government of Palestine’ may have been intended to enable the ICC Prosecutor to interpret the declaration as claiming statehood without being explicit about it. Alternatively, it may serve to emphasize that the PNA is the only legitimate executive arm of government for all of Palestine, and avoids any charge of illegitimacy that may be claimed if it is attributed in any way to Hamas.

  69. 69.

    Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967 UN Doc A/62/275, 17 August 2007, paras 9–10; Goldstone Report, para 279; A/HRC/RES/S-12/1 C preambular para 5 (21 October 2009); Bashi and Mann 2007; Report of the Arab League Committee, para 15; Scobbie 2004–2005. The official Palestinian position is unclear. PNA President Mahmoud Abbas referred in his speeches in the UN exclusively to ‘siege’ and ‘blockade’ over the Gaza Strip, UN Doc A/63/PV.11, 26 September 2008, at 38, S/PV.6061, 6 January 2009, at 5. But see also statements of Palestine referring to the Gaza Strip as occupied territory and to Israel as the occupying power in it in the context of the 2008–2009 offensive, e.g. S/PV.6201, 14 October 2009, at 6, S/PV.6216 (Resumption 1), 11 November 2009, at 20, 21.

  70. 70.

    Crawford 2006, p. 73.

  71. 71.

    For present purposes it does not matter whether this took place in 1988 or through the implementation of the Interim Agreement, supra n. 63.

  72. 72.

    E.g. the case of Guinea-Bissau, MacQueen 2006.

  73. 73.

    Philp and Hider 2009.

  74. 74.

    Supra n. 18.

  75. 75.

    Crawford 2006, p. 219. This is by no means a novel notion: R. Roxburgh 1921, pp. 128, 133.

  76. 76.

    E.g. Giegrich 1999, p. 195.

  77. 77.

    Preambular para 5 ICCSt.

  78. 78.

    Bergsmo and Pejic 2008, pp. 595, 598.

  79. 79.

    Kirgis 1990, p. 220. Kirgis’ example, however, is unsatisfactory: he notes divergence of meaning between domestic US law and international law.

  80. 80.

    Vienna Convention on the Law of Treaties (adopted May 23, 1969, entered into force 27 January 1980) 1155 UNTS 331 (hereafter ‘VCLT’) Article 31.

  81. 81.

    Kirgis 1990, p. 221.

  82. 82.

    Kaul 2002, pp. 607–610, Akande 2003.

  83. 83.

    Interim Agreement, supra n. 63, Annex IV (Protocol Concerning Legal Affairs) Article 1.

  84. 84.

    Under the Interim Agreement criminal jurisdiction over Israelis remains with Israel. The Interim Agreement was foreseen to exist for a period of five years, until an agreement were concluded on the permanent status of the West Bank and Gaza Strip. Such agreement was never concluded, leaving the continued validity of the Interim Agreement since 1999 a matter of controversy. Israel maintains that the Interim Agreement continues to govern relations between Israel and the PNA and therefore the PNA does not have jurisdiction over Israelis. Another view is that the Interim Agreement has expired by its own terms in 1999. This may imply either that Israel’s occupation has then ended, provided that the PNA continued to exercise at least the powers and responsibilities allocated to it under the Agreement (Benvenisti 1993, p. 551), or that any powers and responsibilities delegated to the PNA reverted in 1999 to Israel: Singer 1994. This leads to a further question, whether at any time since 1999 Israel has ceased to be the occupying power in the Gaza Strip. According to a third view, even if the Interim Agreement continues to exist, Israel’s disengagement from the Gaza Strip and its designation of the Gaza Strip as ‘hostile entity’ imply the lapse of its claim, under the Interim Agreement, to exclusive criminal jurisdiction over Israelis for acts committed within the Gaza Strip. By default, such jurisdiction now lies with the PNA, which may also delegate it to the ICC (Report of the Arab League Committee, supra n. 14, paras 601, 604). Since the Report emphasizes that Palestine is a state unconstrained by the Israeli–PLO agreements (para 602), it is not clear why the question of its criminal jurisdiction was treated separately.

  85. 85.

    In this respect the view taken by the Arab League Committee is inconsistent, as it claims both that Israel continues to be the occupying power, and that the Palestinians have criminal jurisdiction.

  86. 86.

    See sources supra n. 69; for a contrary view see Shany 2005, p. 369.

  87. 87.

    Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo (Request for advisory opinion submitted by the General Assembly of the United Nations), International Court of Justice, CR 2009/24, statement by Serbia § 44.

  88. 88.

    Articles 17, 19 ICCSt. It would probably be unrealistic to suggest that a question on the meaning of ‘state’ would arise with respect to the right to accede to the Statute ICC (Article 125(3) ICCSt.).

  89. 89.

    Indeed, there is a trend of increasing assimilation of permanent residents to nationals in terms of the State’s human rights obligations toward them. At present this trend seems limited to domestic implementation. States still distinguish between nationals and permanent residents for purposes of international protection. One may argue in favor of such an assimilation along lines similar to those put forward with respect to states: permanent residence is a sufficiently-stable relationship with a State so as to justify the imposition on the individual of certain obligations without putting the individual at an unexpected detriment. Moreover, since non-accession of a state to the ICC Statute does not confer immunity on its nationals, such residence-based jurisdiction does not encroach on the state of nationality’s sovereignty. On the other hand, interpreting the Statute in this way would be clearly contrary not only to the ordinary meaning of the term but also to the intention of the drafters (VCLT, supra n. 80, Article 32).

  90. 90.

    Appeals Judgment, Tadić (IT-94-1), Appeals Chamber, 15 July 1999 para 168; Appeals Judgment, Delalić et al. (IT-96-21), Appeals Chamber, 20 February 2001, paras 56–73.

  91. 91.

    Ibid.

  92. 92.

    A matter which is no longer an issue with respect to the Geneva Conventions, in which membership is universal.

  93. 93.

    Opinion no 1 § 1 of the Badinter Arbitration Committee, appendix to Pellet 1992; Grant 1999, Chap. 2.

  94. 94.

    E.g. the cases of Croatia and Bosnia and Herzegovina, which were recognized while not yet in effective control over most of their territories. Rich 1993, p. 49; Türk 1993, p. 69.

  95. 95.

    Statement on Membership of the Republic of Kosovo in the IMF, Press Release no 08/179, 15 July 2008, available online at http://www.imf.org/external/np/sec/pr/2008/pr08179.htm, Reuters, ‘IMF recognizes Kosovo, begins to weigh membership’, 15 July 2008, available online at http://www.reuters.com/article/newsMaps/idUSN1528175520080715. A request for an advisory opinion on the status of Kosovo is currently before the International Court of Justice, GA Res. 63/3, 8 October 2008.

  96. 96.

    Transcript of a Press Briefing by David Hawley, Senior Advisor, External Relations Department, International Monetary Fund, Washington, DC, 7 May 2009, available online at http://www.imf.org/external/np/tr/2009/tr050709.htm.

  97. 97.

    Embassy of Switzerland, Note of Information sent to States parties to the Convention and Protocol, 13 September 1989. On 21 June 1989 the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the UN informing the Swiss Federal Council "that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto."

    The 1989 attempt at accession is also indicative of the lack of international recognition of a Palestinian state at the time. This is particularly blatant when contrasted with the practice in the case of accession by the Provisional Government of Algeria in the 1960s, see Talmon 1998, pp. 123–125.

  98. 98.

    According to a news report, the Palestinians are pursuing membership in the ICC through accession to the Statute. Ma’an News Agency 2009. The report suggests that these efforts are made vis a vis the ICC Prosecutor. However, accession is done by deposition of the relevant instrument with the UN Secretary General, who is the ICC Statute’s depositary.

  99. 99.

    See Loizidou v Turkey (Merits), ECtHR, 18 December 1996, Reports of Judgments & Decisions 1996-VI 2216, para 23.

  100. 100.

    Articles 15(1), 15(4) and 42 ICCSt.

  101. 101.

    Article 53(3) ICCSt.

  102. 102.

    Article 112(2) ICCSt. A notable exception is the transitional power in Article 112(2)(a) ICCSt. to adopt recommendations of the Preparatory Commission, among which are proposals on aggression.

  103. 103.

    Arsanjani 2001, p. 50.

  104. 104.

    Bos 2002, p. 308.

  105. 105.

    Article 119(2) ICCSt.

  106. 106.

    Norwich et al. v. the Palestinian Authority and Yasser Arafat, Jerusalem District Court Civil Case 2538/00, Judgment, 30 March 2003, para 11, confirmed in Palestinian Authority v. Dayan et al., Request of Right to Appeal 4060/03, High Court of Justice, Judgment, 17 July 2007, para 4.

  107. 107.

    Elon Moreh College v State of Israel, Jerusalem District Court, Judgment on Civil Case Request 1008/06, 24 June 2006, para 12, reversed by Elon Moreh College v State of Israel et al., Judgment on Civil Appeal 5093/06, 6 August 2008.

  108. 108.

    The possibility of granting immunity to a ‘political entity that is not a state’ has since been made available in the 2008 Foreign States Immunity Law, Article 20.

  109. 109.

    Brubacher 2004, p. 83.

  110. 110.

    E.g. Article 305(1) of United Nations Convention on the Law of the Sea, Article XII(1) of the Agreement establishing the WTO.

  111. 111.

    Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Trial Chamber, 2 October 1995, para 70 (‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’).

  112. 112.

    Examples of exceptions were ‘A’ Mandated territories which were treated as states for the purpose of nationality but were much less certainly states for other purposes. The Free City of Danzig was a state for the purposes of Article 71(2) of the Rules of the Permanent Court, but whether it was a state for all purposes has been doubted, Crawford 2006, p. 31.

  113. 113.

    The same scenario would be applicable to South Ossetia and Georgia. Even if jurisdiction is based on the territorial nexus with a member state, Serbia, the problem may arise with respect to the decision on admissibility, when the question might arise whether ‘[t]he case is being investigated or prosecuted by a State which has jurisdiction over it’ (Article 17(1)(a) ICCSt.).

  114. 114.

    GA Res. 34/37, 21 November 1979, para 7.

  115. 115.

    The SADR claims to be a state. For present purposes, it is taken as an example of a non-state entity in effective control over territory and population.

  116. 116.

    The ICJ found that at the time of Spanish colonization, neither Morocco’s nor Mauritania’s ties to Western Sahara were of territorial sovereignty. Western Sahara Advisory Opinion, International Court of Justice, Reports (1975) 12, para 162; GA Res. 63/15, 18 December 2008, preamble.

  117. 117.

    If the existence or absence of a territorial claim is taken as a criterion for admitting a declaration under Article 12(3) ICCSt., Israel could theoretically block admission of a Palestinian declaration simply by making a claim to the territory of the Gaza Strip and the West Bank. This is nonetheless an improbable scenario, given Israel’s policy in the last 42 years and its formal disengagement from the Gaza Strip in 2005.

  118. 118.

    Jordan is reported to have been contemplating submitting a referral of the Gaza situation to the ICC Prosecutor, Malkawi 2009.

  119. 119.

    The seminal commentary on the ICC Statute does not even mention the issue of non-state entities in the context of Article 12, Williams and Schabas 2008.

  120. 120.

    ASP Newsletter Special Edition #1 (May 2009), at 8, available online at http://www.icc-cpi.int/NR/rdonlyres/027351FC-E588-4440-AD59-340593F49A3A/0/NewsletterASP1ENGweb_version.pdf.

  121. 121.

    Preamble, ICCSt.

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  1. Sha’arei Mishpat College, Hod HaSharon, Israel

    Yaël Ronen

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  1. Yaël Ronen
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  1. , Law Faculty, University of Milan, Via Festa del Perdono 7, Milan, 20122, Italy

    Chantal Meloni

  2. , International Section, Lelio Basso Foundation, Via Della Dogana Vecchia 5, Roma, 00186, Italy

    Gianni Tognoni

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© 2011 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors

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Ronen, Y. (2011). ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_13

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