Skip to main content
SpringerLink
Log in
Book cover

Is There a Court for Gaza? pp 497–512Cite as

In Defence of Functional Interpretation of Article 12(3): A Response to Yaël Ronen

  • Chapter
  • First Online:

Abstract

In a recent article, Dr. Yaël Ronen considers the declaration on 21 January 2009 by the Palestinian National Authority (PNA) that recognized the Court’s jurisdiction over the events which took place in Gaza in 2008–2009. Dr. Ronen surveys a host of considerations militating both in favor of and against the assumption of jurisdiction by the ICC Prosecutor. The question was raised by the declaration Dr. Ronen ultimately concludes that the Prosecutor would be well advised to refrain from assuming jurisdiction:

Hersch Lauterpacht Chair. Public International Law, Law Faculty, Hebrew University. This paper was first published in Journal of International Criminal Justice (2010) 8(2), 329–343. The editors wish to thank OUP for kindly granting permission to republish the article [For author's acknowledgments, please refer to J Int Crim. Justice (2010)].

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD   169.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    SupraChap. 13; previously published as Ronen 2010. For a copy of the declaration, see Palestinian National Authority—Minister of Justice, Declaration Recognizing the Jurisdiction of the International Criminal Court, 21 January 2009, http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf. Although the declaration was issued in response to the events in Gaza 2008–2009, its language is much broader and covers all “acts committed in the territory of Palestine since 1 July 2002”.

  2. 2.

    See supra, Chap. 13, at Section 13.6 (Ronen 2010, pp. 26–27).

  3. 3.

    See Kaul 2002, pp. 583, 587.

  4. 4.

    See e.g., Hawkins et al. 2006, p. 14 (international criminal court centralize expertise needed for prosecuting certain crimes).

  5. 5.

    See e.g., Corell 2005, pp. 11, 16 (“we cannot allow the impunity to continue. The international community has to act in situations where States responsible for bringing perpetrators to justice are either unable or unwilling to do this. It is important to note that it is only in these situations that the ICC would have a role to play”).

  6. 6.

    For a comparable discussion see, Deen-Racsmany 2001, pp. 606, 610–611 (comparing between delegation to the ICC and extradition); Cameron 2004, pp. 65, 77 (comparing ICC delegation with the exercise of representative jurisdiction—instances in which a custodial state is trying individuals who cannot be extradited on behalf of the territorial state).

  7. 7.

    For example, the International Military Tribunal in Nuremberg can be understood as embodying either the universalistic approach (an international court acting on behalf of the international community) or the delegation-based power approach (an international court acting with the authorization of the four occupying powers in Germany). Scharf 2001, pp. 67, 103–109.

  8. 8.

    See e.g., Meissner 2005, p. 27 (“In the case of Security Council referrals, however, the Court’s jurisdiction becomes truly universal”).

  9. 9.

    Cassese et al. 2002, pp. 1901–1902; Kaul 2002, p. 609; Meissner 2005, p. 46. But see Scheffer 2002, pp. 47, 65 (“The U.S. legal position was that customary international law does not yet entitle a state, whether as a Party or as a non-Party to the ICC Treaty, to delegate to a treaty-based International Criminal Court its own domestic authority to bring to justice individuals who commit crimes on its sovereign territory or otherwise under the principle of universal jurisdiction, without first obtaining the consent of that individual's state of nationality either through ratification of the Rome Treaty or by special consent, or without a referral of the situation by the Security Council”).

  10. 10.

    Proposal Submitted by the Republic of Korea, UN Doc. A/CONF.183/C.1/L.6 (17 June 1998). The idea that the custodial state may be one of the relevant authorizing states (but together with the territorial state) also appears in the ILC Draft Statute. Draft Statute for an International Criminal Court, 1994-II Yearbook of the International Law Commission 52, U.N. Doc. A/CN.4/SER.A/1994/Add.1 (Part 2).

  11. 11.

    The Jurisdiction of the International Criminal Court: An Informal Discussion Paper Submitted By Germany, UN Doc. A/AC.249/1998/DP.2 (13 March 1998).

  12. 12.

    Crawford 2003, pp. 109, 137 [“If a particular state party to … (one of) the international criminal conventions had both custody of and jurisdiction over the accused, that custodial state could transfer the accused to the ICC—and at the same time in effect transfer its jurisdiction over the accused”]; Kaul 2002, p. 591 (“all states may exercise universal criminal jurisdiction…. Contracting Parties of the Statute can confer through ratification this right on the new institution).

  13. 13.

    The three main Oslo Accords are the 1993 DOP [The Declaration of Principles on Interim Self-Government Arrangements between Israel and the Palestine Liberation Organization, 13 September 1993, 32 I.L.M. (1993) 1525], the 1994 Cairo Agreement [Israel-PLO Agreement on the Gaza Strip and Jericho Area, 4 May 1994, 33 I.L.M. (1994) 622]; and the 1995 Interim Agreement [Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, 8 September 1995, Article XXXI(7) 37 I.L.M. (1997) 551 (hereinafter ‘Interim Agreement’)].

  14. 14.

    Palestinian Declaration of Independence, 15 Nov. 1988, http://middleeast.about.com/od/documents/a/me081115f.htm.

  15. 15.

    The PLO and Israel have undertaken not to take unilateral steps that “will change the status of the West Bank and Gaza Strip pending the outcome of the permanent status negotiations.” Interim Agreement, Article XXXI(7). But see Al Haq Position Paper 2009, para 13–15 (discussing Prof. Quigley and Dugard’s views on Palestinian statehood).

  16. 16.

    Davidson 1999, p. 178 (describing the PNA as ‘the interim governmental body established to assume partial responsibility for administration in the self-rule areas as provided in the September 1993 Declaration of Principles’); Husseini 2003, p. 505. (‘Under the Agreements, the PA functions as an interim, semi-autonomous self-government’).

  17. 17.

    In actuality, given the considerable, though not full overlap between the composition of the leadership of the PLO and PNA, confusion exists as to whether certain functions are performed by one organisational framework or the other. See Nabulsi 2006, pp. 233, 243.

  18. 18.

    See below text accompanying notes 40–41.

  19. 19.

    For example, the WHO accorded Puerto Rico associate membership and Palestine and Taiwan observer status; Taiwan, Puerto Rico and the PLO are members of the International Olympic Committee and the International Trade Union Confederation; the PLO is a member of the Arab League; Puerto Rico is an associate member of the World Tourism Organization and the PLO has observer status before that organization. See also, Lin 2004, pp. 133, 149–155 (discussing Taiwan’s participation in a number of international organizations); Krasner 1999, pp. 15–16 (discussing the implications of the membership of pre-independence Philippines, India, Belarus and Ukraine in the UN); Desierto 2008, pp. 387, 399 (discussing the participation of British India in the work of the League of Nations); Mushkat 1992, pp. 105, 106–107 (discussing the participation of Hong Kong in the work of the WTO, WHO, IAEA and Interpol).

  20. 20.

    For example, Taiwan has bilateral investment treaties with six countries (Thailand, Belize, Macedonia, the Marshall Islands and Swaziland) (http://www.unctadxi.org/templates/docsearch.aspx?id=779) and Palestine has established full diplomatic relations with almost 70 countries (http://en.wikipedia.org/wiki/List_of_diplomatic_missions_of_Palestine).

  21. 21.

    See generally, Krasner 1999, p. 15, Worster 2009, pp. 115, 129, Cohan 2006, pp. 907, 927–929.

  22. 22.

    Statute of the International Court of Justice (Annex to UN Charter), Article 66(2)(“The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time-limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question”). See also ICJ Rules of Court, Rules 105, 108.

  23. 23.

    Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2003 ICJ 428 (“[The Court decides] further that, in light of General Assembly resolution AIRESIES-10114 and the report of the Secretary-General transmitted to the Court with the request, and taking into account the fact that the General Assembly has granted Palestine a special status of observer and that the latter is co-sponsor of the draft resolution requesting the advisory opinion, Palestine may also submit to the Court a written statement on the question within the above time-limit”).

  24. 24.

    Accordance With International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government Of Kosovo, decision of 17 Oct. 2008 (“[The Court decides] further that, taking account of the fact that the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo of 17 February 2008 is the subject of the question submitted to the Court for an advisory opinion, the authors of the above declaration are considered likely to be able to furnish information on the question; and decides therefore to invite them to make written contributions to the Court within the above time-limits”).

  25. 25.

    Cf. Swiss Federal Council, Note of Information sent to States parties to the Convention and Protocol, 13 September 1989, excerpt at www.icrc.org/IHL.NSF/WebSign?ReadForm&id=375&ps=P (justifying its decision not to register Palestine as a state party to the Geneva Conventions by reference to the uncertainty relating to the status of Palestine).

  26. 26.

    Rome Statute of the International Criminal Court, 17 July 1998, preamble, 2187 U.N.T.S. 90 (hereinafter ‘Rome Statute’) (“Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes… Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole”).

  27. 27.

    Vienna Convention on the Law of Treaties, 23 May 1969, Article 31(1), 1155 U.N.T.S. 331, Article 31(1).

  28. 28.

    SupraChap. 13, Section 13.6.

  29. 29.

    See e.g., R v Al Jedda, [2007] QB 621, at para 108 (per Brooke LJ) (“He is not being arbitrarily detained in a legal black hole, unlike the detainees in Guantanamo Bay in the autumn of 2002”). On the need to reduce “legal vacuums” in human rights litigation see Loizidou v Turkey, 1996-VI Eur. Ct. H.R. at para 49 (“Since the Republic of Cyprus obviously cannot be held accountable for the part of the island occupied by Turkey, it must be Turkey which is so accountable. Otherwise the northern part of Cyprus would constitute a vacuum as regards responsibility for violations of human rights, the acceptance of which would be contrary to the principle of effectiveness which underlies the Convention”). But see Bankovic v Belgium, 2001–XII Eur. Ct. H.R. at para 80 (“the desirability of avoiding a gap or vacuum in human rights’ protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention”).

  30. 30.

    See e.g., Simpson 2004, 47, 59.

  31. 31.

    SupraChap. 13, Section 13.6.

  32. 32.

    See Rome Statute, Article 53(1)(c).

  33. 33.

    Note that the three mentioned polities have all claimed formal statehood, and thus represent a stronger prima facie case than the PNA that does not regard itself as a state.

  34. 34.

    For a discussion, see Schabas 2007, pp. 76–77 (noting that more than 50% of international boundaries may be contested and that such disputes may cause difficulties for the ICC).

  35. 35.

    See e.g., Committee on the Exercise of the Inalienable Rights of the Palestinian People. Programme of Work for 2008, UN Doc. A/AC.183/2008/1, at para 9 (“The Committee reiterates its long-standing position that the Palestine Liberation Organization is the sole legitimate representative of the Palestinian People”).

  36. 36.

    See e.g., Fletcher 2005, pp. 547, 555 (“Today, there are more likely to be instances in which states such as the Congo and the Sudan are ‘unable genuinely to carry out the investigation or prosecution’”). The recognition afforded to the PLO reflect on the status of the PNA, the PLO’s subsidiary.

  37. 37.

    Island of Palmas (Netherlands v US), 2 RIAA (1928) 829, 842 (“Spain could not transfer more rights than she herself possessed”).

  38. 38.

    Interim Agreement, supra n. 13. See also ibid, at Article XVII(1) (“the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: a. issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis; and b. powers and responsibilities not transferred to the Council”

  39. 39.

    See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 136, at para 77 (“a number of agreements have been signed since 1993 between Israel and the Palestine Liberation Organization imposing various obligations on each party. Those agreements inter alia required Israel to transfer to Palestinian authorities certain powers and responsibilities exercised in the Occupied Palestinian Territory by its military authorities and civil administration. Such transfers have taken place, but, as a result of subsequent events, they remained partial and limited”).

  40. 40.

    But see Al-Haq 2009 at para 36 (“The exclusion of Israelis from PA jurisdiction as provided for in the Interim Agreement cannot legitimately be considered as extending to the international crimes of war crimes and crimes against humanity as to do so would be incompatible with international law”). Note that similar arguments were however rejected by international courts with relation to sovereign immunity and head of state immunity. Al-Adsani v. UK, judgment of 21 Nov. 2001 [2001] E.C.H.R. (App 35763/97); Arrest Warrant of 11 April 2000 (DRC v. Belgium), 2002 ICJ 3. Furthermore, Article 98 of the ICC Statute supports the proposition that states may validly undertake to exclude international crimes from the jurisdiction of the Court.

  41. 41.

    For a discussion, see Singer 2004, pp. 268, 280–291.

  42. 42.

    But see Al-Haq 2009, para 28 (“state practice over the past decade has demonstrated that the limits placed on the PA in this regard by Oslo are no longer recognized or considered legitimate by the international community and as such the question whether the PA presently has the ability to enter into international agreements can only be answered positively”).

  43. 43.

    While it is not fully clear whether the PLO possesses jurisdiction over the Palestinian territories for the purposes of the Statute, the aforementioned aversion against creating “legal black holes” would support considering the PLO as the international representative of the PNA for the purpose of delegation. Still, the PLO, which is a signatory to the Oslo Accords, is equally bound by the jurisdictional limits specified therein.

  44. 44.

    See e.g., Shany 2007, pp. 369, 381. But see Watson 2000, p. 91 et seq; Orkand 2006–2007, pp. 390, 426–429.

  45. 45.

    See e.g., Security Council Resolution 1515 2003 (endorsing the “Roadmap to a Permanent Two-State Solution”); A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, 20 April 2003, Phase I, http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Performance-Based+Roadmap+to+a+Permanent+Two-Sta.htm (“Israel withdraws from Palestinian areas occupied from September 28, 2000 and the two sides restore the status quo that existed at that time”).

  46. 46.

    Technically, under the functional approach proposed here, the Prosecutor may still assume jurisdiction over crimes committed by Non-Israeli in the Palestinian Occupied Territories. Such a course of action is, however, highly problematic, as it will lead to Court to literally apply the Statute in a one-sided manner.

References

  • Al Haq Position Paper (2009) On Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute, 14 December 2009

    Google Scholar 

  • Cameron I (2004) Jurisdiction and Admissibility Issues Under the ICC Statute. In: McGoldrick D, Towe P, Donnelly E (eds) The Permanent International Criminal Court: Legal and Policy Issue, Hart Publishing, Oxford, p 65

    Google Scholar 

  • Cassese A, Gaeta P, Jones J (2002) The Rome Statute: A Tentative Assessment. In: Cassese A, Gaeta P, Jones J (eds) The Rome Statute of the International Criminal Court, Oxford, p 1901

    Google Scholar 

  • Corell H (2005) International Criminal Law—How Long Will Some Miss the Missing Link? Case West Res J Int Law 37:11–16

    Google Scholar 

  • Cohan J (2006) Sovereignty in a Postsovereign World, Fla J Int Law, 18:907

    Google Scholar 

  • Crawford J (2003) The Drafting of the Rome Statute. In: Sands P (ed) From Nuremberg to The Hague, Cambridge University Press, p 109

    Google Scholar 

  • Davidson C (1999) The Challenge to Democratization: Arafat and the New Elite. Fletcher Forum World Aff 23:171

    Google Scholar 

  • Deen-Racsmany Z (2001) The Nationality of the Offender and the Jurisdiction of the International Criminal Court. Am J Int Law 95:606

    Google Scholar 

  • Desierto D (2008) Postcolonial International Law Discourses on Regional Developments in South and Southeast Asia. Int J Legal Info 36:387

    Google Scholar 

  • Fletcher P (2005) Justice and Fairness in the Protection of Crime Victims. Lewis Clark Law Rev 9:547

    Google Scholar 

  • Hawkins D et al. (2006) Delegation under Anarchy: States, International Organizations and Principal-Agent Theory. In: Hawkins D et al. (eds) Delegation and Agency in International Organizations, Cambridge University Press, p 14

    Google Scholar 

  • Husseini H (2003) Challenges and Reforms in the Palestinian Authority. Fordham Int Law J 26:500

    Google Scholar 

  • Kaul H-P (2002) Preconditions to the Exercise of Jurisdiction. In: Cassese A, Gaeta P, Jones J (eds) The Rome Statute of the International Criminal Court, Oxford, pp 583, 587

    Google Scholar 

  • Krasner S (1999) Sovereignty: Organized Hypocrisy. Princeton University Press, Princeton

    Google Scholar 

  • Lin C (2004) The International Telecommunication Union and the Republic of China (Taiwan): Prospect of Taiwan’s Participation. Ann Surv Int Comp Law 10:133

    Google Scholar 

  • Meissner P (2005) The International Criminal Court Controversy: An Analysis of the United States' Major Objections Against the Rome Statute, University of Michigan

    Google Scholar 

  • Mushkat R (1992) Hong Kong as an International Legal Person. Emory Int Law Rev 6:105

    Google Scholar 

  • Nabulsi K (2006) Justice as the Way Forward. In: Hilal J (ed) Where Now for Palestine? The Demise of the Two-State Solution. Zed Books, London, p 233

    Google Scholar 

  • Orkand S (2006–2007) Coming Apart at the Seamline—The Oslo Accords and Israel’s Security Barrier: A Missed Opportunity at the International Court of Justice and the Israeli Supreme Court. González J Int Law 10:390

    Google Scholar 

  • Ronen Y (2010) ICC Jurisdiction over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities. J Int Crim Just 8:3 [Also in this Volume, Chapter 13]

    Google Scholar 

  • Scharf M (2001) The United States and the International Criminal Court: The ICC’s Jurisdiction Over the Nationals of Non-Party States: A Critique of the U.S. Position. Law Contemp Prob 64:67

    Google Scholar 

  • Scheffer D (2002) Staying the Course with the International Criminal Court. Cornell Int Law J 35:47

    Google Scholar 

  • Schabas W (2007) An Introduction to the International Criminal Court, 3rd edn. Cambridge University Press, Cambridge

    Google Scholar 

  • Shany Y (2007) Faraway So Close: The Legal Status of Gaza After Israel’s Disengagement. Yearbook Int Hum Law 369:2005

    Google Scholar 

  • Simpson G (2004) Politics, Sovereignty, Remembrance. In: McGoldrick D, Towe P, Donnelly E (eds) The Permanent International Criminal Court: Legal and Policy Issues, Hart Publishing, Oxford

    Google Scholar 

  • Singer J (2004) Aspects of Foreign Relations Under the Israeli-Palestinian Agreements on Interim Self-Government Arrangements for the West Bank and Gaza. Is Law Rev 28:268

    Google Scholar 

  • Swiss Federal Council (1989) Note of Information Sent to States Parties to the Convention and Protocol. http:www.icrc.org/IHL.NSF/WebSign?ReadForm&id=375&ps=P

  • Watson G (2000) The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements, Oxford University Press, Oxford

    Google Scholar 

  • Worster W (2009) Law, Politics, and the Conception of the State in State Recognition Theory. Boston Univ Int Law J 27:115

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Hebrew University, Jerusalem, Israel

    Yuval Shany

Authors
  1. Yuval Shany
    View author publications

    You can also search for this author in PubMed Google Scholar

Editor information

Editors and Affiliations

  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

Rights and permissions

Reprints and permissions

Copyright information

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

About this chapter

Cite this chapter

Shany, Y. (2011). In Defence of Functional Interpretation of Article 12(3): A Response to Yaël Ronen. 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_14

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation