I wish all the readers of this blog a very happy New Year and thank you for your support over the years. Do not hesitate to spread the word about spreading the jam!
The new year started with a bang: Palestine has decided to join the International Criminal Court (ICC). It seems unavoidable to write about the issue and there have been a flurry of commentaries in the past week (more particularly see the great overviews from David Luban at Just Security and Amanda Taub at Vox) which comprehensively cover a number of legal issues that arise now and are likely to arise in the future. I won’t re-hash these issues now, as there will be ample time to do so when (if) the time comes.
The one point I want to focus on here is the question of Palestine’s retroactive acceptance of jurisdiction back to last summer. Indeed, in addition to joining the ICC (which, on principle, only has prospective effect as per Article 11(2) of the Rome Statute), Palestine also lodged a declaration under Article 12(3) accepting the Court’s jurisdiction back to the 13 June 2014, in order to cover last summer’s war in Gaza.
This raises the interesting question of whether Palestine can actually do this and whether this falls within the parameters of both Article 12(3) and 11(2).
It should be recalled the content of these articles:
11(2): If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.
12(3): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.
This issue led to a fascinating debate between Kevin Jon Heller and André de Hoog in the comments section of Kevin’s post on the issue back in November 2012 (see here). I suggest you read the discussion in full, but in a nutshell, Kevin argued that these articles combined allow for a State to retroactively accept the jurisdiction of the ICC, like Palestine just did, or even back to 2002. André, on the other hand, contested that 12(3) could be retroactive and argued that 11(2) only safeguards pre-existing declarations and that a State party cannot use Article 12(3).
I partly agree with both of them, but believe that the discussion is possibly even more complicated than they made it! I’d like to point out from the outset, that I am going to assume for the remainder of the discussion that Palestine is a State, so as not to make things even more complex. If in fact Palestine were deemed not to be a State, then it coud neither join the Statute (which is uncontroversial as a statement) nor lodge a 12(3) declaration (which has led to more heated debate, particularly on this blog, as you can see here, here and here).
So, moving on to the question at hand. I believe it is important to first discuss the possible scope of Article 12(3), before discussing its interaction with Article 11(2).
- The scope of Article 12(3)
First a preliminary point about article 12. One thing that I have always found puzzling about it is that it is not technically phrased as a jurisdictional provision. We often present it that way, because this is the way we all understand the issues of territoriality and nationality in criminal law: as jurisdictional issues. However, Article 12 is called “preconditions to the exercise of jurisdiction”, which is a strange formulation. This suggests a distinction between the material, temporal and personal jurisdiction of the Court on the one hand, and these other criteria (territoriality and nationality) on the other.
Which means that technically, if an Article 5 crime is committed after 2002 by an individual, then the Court has jurisdiction, but cannot exercise it if the crime was committed neither on the territory of a State Party nor by a national of such a State. This interpretation, if accepted (which most of the people I have spoken to about it do not, to be honest), has consequences for the interpretation of article 12(3). Mostly, it means that declarations under article 12(3) cannot be made in the abstract, if there has been no prior action on the part of the OTP to establish jurisdiction over particular crimes. Arguably, this would limit the use of such declarations, as the Ivory Coast one and both Palestinians ones would essentially be deemed to be premature, in the absence of any activity on the OTP’s end to determine the existence of the “crime in question” under Article 5, as prescribed by article 12(1). But on the other hand, it would remove this strange feeling that 12(3) declaration are essentially “referrals” for non-state parties (even if it still requires the Prosecutor to open an investigation proprio motu after that). A second consequence of this understanding of Article 12 relates to the temporal scope of 12(3) declarations, to which I now turn.
In relation to the temporal scope of Article 12(3) declarations, I agree with Kevin. André seems to argue (and I’m happy to be corrected on this) that 12(3) does not allow retroactive recognition of jurisdiction. I find this argument unconvincing in light of the language of Article 12(3) and more generally my understanding of Article 12, which seems to presuppose the existence of a crime, which cannot be investigated because it was committed, for example, on the territory of a non-State party, thus requiring acceptance of that State for the ICC to be able to exercise jurisdiction. This means that 12(3) declarations would necessarily be retroactive. In fact, one can wonder, if prospective declarations are even allowed given this language of Article 12. Allowing such open-ended declarations creates ersatz ratifications for a State which seems to be giving 12(3) a more extensive scope than its content suggest. In the Ivory Coast situation for example, a seemingly open-ended declaration lodged in 2003 was deemed sufficient to cover events taking place some 7 years later!
How does that apply to Palestine? Well, if my extreme interpretation of Article 12 is followed, then the declaration is premature. Putting that aside, there is absolutely nothing wrong with Palestine, as a State, recognizing the jurisdiction of the ICC retroactively. In fact, that is for me the only possible interpretation of Article 12(3).
- The interaction between 12(3) and 11(2)
So far, so good. The question remains how this can be combined with Palestine also joining the Court and the articulation between Article 12(3) and article 11(2). Here, I would tend to side with André, for the following reasons.
What is clear for me from the Article is that only non-State parties can use it. A State party cannot. So in a scenario where a State has joined the Court at date T and the Prosecutor wants to investigate crimes committed on the State’s territory or by its national at T minus X, it cannot obtain a 12(3) declaration from that State. Now, I can see how Kevin would find this thoroughly illogical at some level, but this is what the Statute say. The expression “a State which is not a party to the this Statute” does not leave much room to the interpretative imagination.
Moreover, there is some logic there. Article 12 and Article 11 do not have the same subject-matter. Article 11 is about temporal jurisdiction, whereas article 12 is about territoriality and nationality. Therefore, I believe it would be a misuse of article 12(3), especially in my general understanding of article 12 as described above, to use it to grant temporal jurisdiction to the Court. That is not what it was designed for. In this sense, the word “retroactive” generally used (including by me previously) is misleading, because it suggests a link to temporal jurisdiction. However, it is one thing to say that a 12(3) declaration necessarily applies to crimes that took place before the declaration, it is another to say that it grants any kind of temporal jurisdiction to the Court that it would not already have.
In other words, the standard temporal jurisdiction of the Court is 1 July 2002, date of entry into force of the Statute (Article 11(1)). Within that time-frame, a non-State party can file a 12(3) declaration to solve the territoriality/nationality problem of Article 12. However, once a new State joins, Article 11(2) kicks in and supersedes Article 11(1) and I do not believe that a 12(3) declaration can remedy that. Therefore, I agree with André that the last part of article 11(2) merely safeguards existing 12(3) declarations and does not allow new ones, nor does it allow a State to make a 12(3) declaration at the same time as ratification to retroactively recognize the jurisdiction of the Court back to 2002 (especially if one agrees with my restricted view of the possible uses of Article 12(3) in the first place).
Kevin, in his response to André, said that all a State has to do in that case, is to lodge a 12(3) declaration one day before joining the Court, and then it would avoid this difficulty and that this shows the absurdity of our understanding of Article 11(2). This is possibly technically true, but I would suggest that Kevin’s example, rather than illustrate a problem with our understanding of Article 11(2) possibly in fact shows a problem with most people’s understanding of Article 12(3), which I tried to correct earlier on in this post.
- A summary
In sum, there are 3 conclusions from the previous developments:
1) In the current understanding of Article 12(3), there is no difficulty in Palestine’s recognition of jurisdiction from June 2014.
2) the fact that Palestine also joined the Court at the same could cause difficulty if it is deemed that the declaration under 12(3) was lodged by Palestine as a State-Party already. But my understanding is that there is a delay between depositing the ratification instruments and the actual entry into force of the Statute for Palestine, so this should not be a problem. [Update: In fact, as per Article 126(2) of the Rome Statute, the entry into force for Palestine would be 1 April 2015. Thanks Sharon for pointing that out, I could not recall the article last night]
3) looking to the future, this means for me, that, whatever take one has on this 12(3) declaration, there will in any case now be no possibility for more 12(3) declarations going back further than June 2014. In other words, any crimes committed on the territory of Palestine between 2002 and 2014 can no longer be investigated and prosecuted by the OTP. This might seem like a strange consequence, but it is the only possible reading of Article 12(3) in my view. Is that what the Palestinians had in mind? I don’t know…
To conclude on a general note, I personally think that the OTP should stay as much away from this situation as it can. It will be a lose-lose situation from a political, practical and legal perspective. Of course, this advice will most likely not be heard and the OTP will have to be seen to be doing something, if only the opening of a preliminary examination. Especially after Bensouda did an op-ed in the Guardian actually inviting the Palestinians to give her jurisdiction over Gaza! I found this completely inappropriate for her to do this at the time, but the fact is that now, she cannot just do nothing. Did the Court really need this? Possibly not… but it definitely opens interesting times for political and legal commentators alike. I expect more specifically that people working on the relationship between peace, justice and international criminal law, like my friend Mark Kersten, are waiting expectantly for what will come next.
One thing is certain, this will be a big test for the Court. Of course, the ICC has faced challenges before, both in terms of difficulties in investigations (Darfur, for example) and from a political legitimacy perspective (Kenya and the AU). But Israel and Palestine is a whole different league. Every discussion takes on an additional emotional dimension when it comes to that conflict (which is partly why I rarely blog about the issue, expect on very specific technical dimensions). In other words, if the ICC screws up this one, it could have serious consequences for the institution. What scares me is that history has unfortunately showed that there doesn’t seem to be a way NOT to screw up when it comes to the Israeli-Palestinian conflict… Which means that, at the risk of sounding dramatic, the ICC will now not only only have to prove all the usual suspects of critics wrong, but will have to in fact prove History itself wrong. A daunting task…