Category Archives: Security Council

Why a Syria UNSC Referral to the ICC is not necessarily a good idea (and why we should be allowed to say that)

I’ve so far stayed away from the online discussions on the draft resolution for a UN Security Council Referral of the Syria situation. My impression was that any comment on the content of the draft was essentially science fiction, as there is little chance that the Resolution will pass, given that Russia is likely to veto it.

(on the substance, briefly, 1) I don’t share Kevin Jon Heller’s criticism of the UNSC not wanting to finance their referrals. The drafters of the Rome Statute wanted UNSC referrals, I think it was a bad idea, and possibly one that is contrary to international law, but they got it and cannot now complain, in my opinion and 2) in relation to possible limitations to the personal jurisdiction of the Court in the Resolution, I already expressed here, in relation to Libya, my thoughts that such limitation does not render the referral illegal, it merely raises a question of opposability in case someone falling within it were to be prosecuted)

However, given the last few days of online frenzy on the promotion of the referral in preparation for tomorrow’s vote, it is difficult to resist any longer. As summarized here, nearly 60 countries seem to support the referral as well as a high number of NGOs, who consider that a referral is the best way to bring justice to victims of the Syrian civil war. This is creating considerable peer pressure and States who do not publicly support this effort are considered to be necessarily “wrong”:

I am however not convinced by this quasi-unanimous call for the ICC to intervene in Syria, and this for several reasons.

1) From the perspective of the ICC

I don’t really see why the ICC would want to get involved in that situation. While a referral might be publicly welcomed by Court officials, I can only imagine the anxiety attacks that people at the institution, especially at the OTP, must be going through at the mere thought of the referral being approved. Investigating crimes in a serious manner in Syria right now would be a logistical nightmare, that probably would make Darfur look like a walk in the park.

Putting logistics aside, I’ve heard people say that this would be an opportunity for the ICC to get out of Africa. But I don’t see how this would be a good place to start, given the complex geopolitical considerations at play in the region. I think that dragging the ICC into this seriously polarized political conflict would ultimately (rightly or wrongly, but that is not the point) affect its credibility. I recently told a diplomat I met in the Hague that if his country really supports the ICC, it should oppose a referral of the Syria. I hope he did…

2) From a broader perspective: the ICC and conflict resolution

More generally, I naively remain amazed at how the ICC has now automatically become part of all conversations on any conflict situation. It is too big a discussion to go into here in too much detail, but the ICC has been integrated in all kinds of debates about transitional justice, jus post bellum and RP2. However, the link between international prosecutions and political transitions remains to be convincingly established in my opinion. Or at the very least, someone should justify on more solid ground than “we need to bring justice to victims” why such prosecutions can and should have such a central role in conflict and post-conflict situations.

This is particularly true in a case of ongoing crisis as in Syria. I don’t honestly see how a referral to the ICC will make any difference to the humanitarian crisis that has been unfolding for the past years. It looks like a veil for the inactivity of the international community in not doing anything to put an end to the atrocities. When someone is being beaten up in the street, you don’t send a judge, you send a policeman.

In relation to this,  supporters of the referral mention a possible deterrent effect. But this argument is always very shaky. Even if one buys the idea (disputed by many) that criminal law in general can have a deterrent effect, this will only be the case in a pacified society when criminal activity is the exception rather than the norm. This is hardly transposable to a conflict situation, where there is hardly any social contract remaining in which a pacified and socially accepted application of criminal law might have a deterrent effect.

In addition to that, I don’t see the evidence of such an effect to date. I must have missed the memo that shows that eastern Congo, the Central African Republic, Darfur or Uganda are now havens of peace thanks to ICC intervention…

This is not to say that accountability issues should not be part of the discussion at all. There is no denying that impunity no longer seems to be a credible policy option in any political transition. But there is a important chronological dimension that cannot be ignored. There is a right timing for implementing the different components of a transition, and, to make things more complicated, that timing is never the same in each case. But we do need to accept that not everything can be done immediately in dealing with a situation such as Syria. My feeling is that the most irrelevant action to take right now is a referral to the ICC. Other actions (military and/or diplomatic) would seem to be obvious priorities here. And I suspect that these considerations, rather than some vicious moral failure, lies at the heart of why virtuous states such as Sweden or Canada are not supporting the referral at this point in time.

Mark Kersten is, as usual, more careful and measured than I am in discussing this issue here, noting that we don’t know enough on the possible positive or negative effects of ICC intervention in various situations. This might be true to some extent, but I do think that the burden lies on those supporting the ICC to show that it does indeed have the promised positive effect.

In that respect, what ultimately continues to bother me is that supporters of the ICC have, in my opinion, oversold what this Court can do. As a result, the first thing you see in the press when some unrest occurs somewhere is a call for the ICC to intervene (see recently in Ukraine). This leads, in my view, to a dumbing down of discussions of complex situations, which need to be broken down into digestible “good vs bad” and “victim vs perpetrator” categories which simply do not reflect the reality of what is going on, nor help make policy choices and as a consequence prepare a manageable political transition. Indeed, not everything can be seen through the lens of international criminality when dealing with a political situation. If not, because both sides to a conflict are likely to commit crimes, does it mean that one supports no one? It’s like saying that because both sides in the second world war committed war crimes, that we cannot choose sides between them. Of course we can.

Some years ago, when the Ivory Coast post-electoral violence was unfolding, I asked the question of how to distribute responsibility among a myriad of possible entities. Ultimately, it raises the following question: if all those who committed crimes in civil wars are put in jail, who will be in charge of the transition? It might seem like a simplistic question, but I still have not received an adequate answer…

 

A short Comment on Libya, Hypocrisy and Selective Outrage

I am usually not a big fan of “double-standard” discussions, which are usually the source of endless “why here and not there” debates, which are often ultimately excuses either for inaction or for diminishing the importance of a specific action. But I must admit the current situation (pun intended, see previous post) in Libya does lend itself pretty well to this type of analysis.

For one, the referral by the UN Security Council (extensively discussed from a legal perspective here), begs the question of when a situation rises to the point of justifying a referral. William Schabas raised this point in his own comments:

But if the Security Council will move in this way given reports of devastating attacks on civilians, why did it not move in the same way the last time there were such attacks in the same region? I’m referring to Gaza and operation Cast Lead which took place only two years ago, and only hundreds of kilometres away from where Gaddafi is currently massacring his own people.

 Although I do not share the typical demagogic singling out of Israel (to stay in line with this post, why mention that situation, rather than an other?), it is a valid question generally. There are a number of situations since the entry into force of the Rome Statute which might have warranted referrals, not just Gaza, but also Ivory Coast, or Sri Lanka, for example. Usually the answer to this is that whoever asks the question is being naive and that it’s a question of politics. Maybe. But it doesn’t mean that the question shouldn’t be asked. In relation to this, and linked to the debate I was having in the comments section of my previous post, I believe that given the extensive power given to the Security Council under Chapter VII, 1) that chapter should be redrafted to provide for clearer safeguards and guidelines on its use, and 2) the UNSC should be reformed to avoid its overtly political use by the veto-wielding powers. I know that is being naive too, but there is no harm in being a dreamer once in a while…

Second of all, the UN General Assembly has voted to suspend Libya from the Human Rights Council. Of course, one can wonder with the International law Prof Blog, why it got elected there in the first place. And it becomes even more laughable when you actually read the composition of the Council. It is presided by Thailand, with its spotless human rights record. Cuba, a paragon of democracy, provides a vice-president, so does Slovakia, a country which has not be singled out by UN Bodies and the Council of Europe for practicing forced sterilization on Roma women. Other members include such such human rights safe-havens as Russia, Saudi Arabia, China and Pakistan. Past members included Algeria, Egypt, Tunisia and Sri Lanka. The members of the defunct Commission on Human Rights all had equally good track records in terms of Human Rights. So the singling out of Libya for a suspension makes perfect sense.

I am not saying that identifying this hypocrisy would justify in any way not reacting to what is happening in Libya. in simple terms, it’s not unfair to get caught, just because others haven’t. But one must take a step back and reflect on the reasons why a cause gets a spotlight at a given moment, and others do not. Actors on the international scene “choose” a topic and it suddenly enters the zeitgeist. There is a complex sociological web of political actors, NGOs, media outlets which frame priorities and frame minds to look in a certain direction and not another, as the over-emphasis on Darfur and its “genocide debate” or on Israel and anything it does, shows. Not to sound cynical or anything, but some causes sell when others don’t. And this applies to NGOs as well, which, in the darker corners of the castles where they put away their shining armors when the night comes, discuss humanitarian markets and compete for them for donations and exposure, in order to sell their own causes as others would sell used cars. But that is maybe a little too cynical, and I’m, once again, straying off topic.

Libya and the ICC: On the Legality of any Security Council Referral to the ICC

The UN Security Council resolution on Libya has received a lot of exposure in the past few days. Most notable international law blogs have commented upon it. I more strongly recommend Xavier Rauscher’s posts over at the International Jurist (here and here), Kevin John Heller’s insights over at Opinio Juris, Marko Milanovic’s take at EJIL Talk! and William Schabas’ thoughts. Given this amount of analysis, I thought I would avoid blogging just to repeat what everyone had said.

but there is one issue that has not been discussed and that is the legality of the referral mechanism as a whole.

As the readers of this blog might know, I remain convinced that the power given to the Security Council, by a treaty other than the UN Charter to effectively make that treaty binding on a non-State party is contrary to international law. I discussed this issue before in relation to the Darfur referral (here and here). You could tell me that I should let bygones be bygones, that the system exists and that I should just live with it. But, I realized I couldn’t do so when reading the debate over at Opinio Juris on the “legality” of the following paragraph of the Resolution:

6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State.

The debate turned around the question of whether this limitation was “lawful” or of “dubious legality” and “ultra vires”. And then I asked myself a very simple question? “ultra vires” and “unlawful” in relation to what law or power? It cannot be the ICC Statute, because the UN Security Council is not bound by the ICC Statute, it is only bound by its constitutive treaty, i.e. the UN Charter. And it cannot be the UN Charter, because there is famously no boundaries to the use of Chapter VII. So the UN Security Council can say what it wants and the whole debate actually shows the legal absurdity of the whole UNSC referral system.

Which brings me back to my initial point, the legality under international law of the mechanism as a whole. I cannot see in what reading of the general rules of the international law, the Security Council can be empowered to make a treaty binding on a State without its consent. Even more so if this power does not arise from the UN Charter itself.

If I do play along with the existing system for one minute, I still don’t see the problem with paragraph 6 from the ICC’s perspective. Kevin John Heller put forward a hypothetical scenario in this respect:

 What would happen in the following, obviously fanciful, scenario?  Gaddafi is toppled and turned over to the ICC, which initiates a prosecution against him. The SC authorizes a peacekeeping mission in Libya, and during the mission a US peacekeeper commits a war crime.  The ICC prosecutes him, concluding that paragraph 6 has no legal force. If the paragraph is not severable and the referral is void, what happens to the prosecution of Gaddafi?

But there are no formal requirements for the content of a referral in the Statute other than the fact that it must be done under Chapter VII. More generally, referrals, whether from States or the UNSC, are not “binding” and don’t have “legal force”. They can say what they want, and therefore no issues of “legality” actually arise. As long as a “situation” is referred, as defined by the Statute, it only triggers the Prosecutor to move along, and ultimately, his prosecutorial discretion will prevail and any case that arise will be evaluated within the ICC framework based on its jurisdictional criteria. The Prosecutor has said so much in his policy paper on preliminary examinations, where he points out, for example, that he is not bound by a list of possible indictees that a UN report or a truth commission will have set up, or limited to prosecuting one side of a conflict (although this is factually what he has done in Uganda, but that is a different issue). Bottom line, the ICC is not bound by any frivolous extra bits in a referral. Once a State or the UN Security Council has referred a situation, limiting prosecution to blonds with green glasses, or blue men from Mars is not unlawful. It’s just irrelevant.
To those who would argue that SC referrals are different that other referrals because they concern non-State parties to the ICC, I would answer that is exactly why you should have refrained from putting it in the Statute in the first place. Once it is in there, the same rules apply in my opinion.

UPDATE: I’ve continued debating this in the comments section of Opinio Juris, which compels me to make Three extra points here. 1) There is no statutory definition of a “situation” and the case law is quite vague on this issue, so I’m surprised at the over-reliance on this term in the analysis, when the term itself is so empty. 2) more generally, I insist that this is not an issue of legality, in the absence of any “legal nature” of the referral and conditions of its “legality”. Referrals are essentially political triggers that don’t need to conform to any legal guidelines and previous practice shows that. The Uganda referral mentioned a vaguely defined region (‘northen Uganda’) and limited the crimes to those committed by the LRA. 3) linked to the previous one, there are other ways of dealing with the issue that the “legality/illegality” approach. To take Kevin’s above quoted hypothetical, a Libyan defendant who would contest the referral would just receive the answer that he fits within the limits of the referral. It is only if a UN peacekeeper from the US (for example) is prosecuted that he might claim the protection of the resolution, with the Court considering that the paragraph is either “operable”n or “inoperable”.

In conclusion, save for contesting the mechanism as a whole, I think that there is nothing wrong with the SC referral as it stands.

Scoop: The ICC informs the Security Council of Sudan’s lack of Cooperation

Pre-Trial Chamber I issued a decision this week informing the Security Council on the lack of Cooperation from Sudan in the Harun and Ali Kushayb case. In itself, it’s not a surprising decision, given Sudan’s stated refusal to cooperate with the Court, although one can hardly imagine that the Security Council didn’t know already, given that the Prosecutor himself, in his yearly reports to the UNSC, has repeatedly complained of Sudan’s lack of cooperation.


The decision is however debatable in many ways. Others have already pointed out some of the problems. I agree with Professor Sluiter that it is problematic that Sudan wasn’t heard in the proceedings, which doesn’t give a very good image of the process, especially given the absence of a right of appeal. Also, the presentation of the reasoning is indeed quite enigmatic. But I do find the criticism of the “French style” of drafting a little unfair. The French, unfortunately, do not have the monopoly of poor and unclear reasoning, and it is possible to refer to countless “common law style” decisions that are equally enigmatic… I also agree with Professor Schabas in his criticism of the more than doubtful use of the concept of “inherent powers”, with the sole reference to Blaskic, given the ambition of the drafters to explicitly avoid this kind of reasoning.


In addition to the previous comments, I would like to add a few words on the main reason why this decision is so unsatisfactory, which brings us back, beyond the poor legal reasoning of judges, and as is often the case, to the poor drafting of the Statute itself.


Cooperation of States is generally covered by Article 87 of the Statute. It lays down the procedure to be followed by the Court in presenting requests for cooperation. However, it deals mostly with State parties. In this sense, the obligation to hear Sudan, if politically desirable, was not in fact a legal requirement under the Statute and Regulation 109 of the Court, as suggested by Professor Sluiter, because the latter regulation refers explicitly to Article 87(7), which applies to non-compliance by State parties only.


In relation to non-State parties, one has to look at article 87(5), which reads as follows:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

As we can see, it seems difficult to apply this provision to Sudan. For one, under sub-paragraph (a), given that Sudan has neither done an ad hoc arrangement or an agreement, the legal basis for a request for cooperation can only be the “any appropriate basis”, in which one could easily put the Security Council Chapter VII referral resolution which explicitly called on Sudan to cooperate with the Court. 
But what about the possibility under consideration here, that is to notify the Security Council of non-compliance? This is where the problem arises: subparagraph (b) only refers to this possibility for non-State Parties that have entered into an agreement with the Court, which is clearly not Sudan’s case. Which means that in fact a literal application of the Statute prevents the Court from notifying the Security Council of the non-cooperation of a non-State Party.
This is a terrible oversight in the drafting process. Once the drafters had allowed the Security Council to refer a situation in a non-State party, the logical consequence should have been to allow the Court to make a notification of non-compliance like with any other State and Article 87(5)(b) should have provided for that kind of event. The judges wouldn’t have had to resort to flimsy argumentation if the drafters had done their homework.


This being said, with this drafting anomaly in mind, the judges could have still done a better work. For example, if one accepts that a Security Council Resolution is an “appropriate basis” under 87(5)(a) and that 87(5)(b) is logically meant to apply to situations covered by 87(5)(a), then the theory of the useful effect (effet utile) could allow the judges to read the “appropriate basis” part in 87(5)(b) and therefore permit a notification to the Security Council. Of course, it’s not perfect, but it would at least give a statutory basis to the procedure, avoiding the more debatable reference to “inherent powers”.


Finally, this poses the question, once again, of the opportunity of the Security Council referral mechanism as it was set up, especially when it allows a situation in a non-State party to be brought before the Court. I’ve expressed my skepticism before on this issue, more particularly on the alleged power given to the Security Council to effectively make a State comply with the provisions of a treaty that it didn’t sign. You can call it my “French style” approach to international law, but this has always seemed to me to be contrary to basic principles of international law…

Of Legal Reasoning and Wishful Thinking: The ICC and Gaza

In December, a well established Palestinian Human Rights organisation issued a Position Paper on whether the ICC should recognise the Palestinian’s Authority’s submission of a declaration to the OTP under article 12(3) of the Statute. For memory, this article provides that:

“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.”

 The position paper argues that one should not adopt the general international law definition of statehood, and that in line with the “spirit” of the Statute, the question should be whether the PA has a jurisdictional authority over the crimes and can therefore transfer this authority to the ICC. The answer is positive (unsuprisingly… and I say that not because I doubt the intellectual honesty of the drafters of the policy paper, but because I doubt they would have published the paper had the conclusion be otherwise…).
I find the argumentation pretty smart, but ultimately flawed and unconvincing. Here are a few issues I have with the policy paper.

The question of a different definition of “State” in 12(3)
Here for me lies the biggest flaw in the argumentation. The policy paper refers, among other things to the fact that the Security Council can refer a “situation” to the ICC, as in the Darfur case, that doesn’t cover a State as defined in international law and therefore that it has some flexibility to circumscribe the investigation of the ICC . That is true… but irrelevant. As we say in French, “comparaision n’est pas raison”. There is no link between the definition of a “situation” in the Rome Statute and the definition of “State” in article 12(3). Indeed, the Security Council could very well refer, for example, the situation in the western provinces of China and the repression of the ouigours and that would not mean that the Xingjian region would itself be recognise as being able to make a declaration under 12(3). These are two different legal issues altogether.
More importantly, 12(3) refers to a “State which is not a Party to the Statute”. The Statute itself therefore considers that a “State” is an entity capable of joining the ICC Statute. In order for the PA to use 12(3), it must be established that it has the capacity to join the Rome Statute and is therefore a State itself, under general international law, which the Policy Paper itself recognized as difficult to establish under current international circumstances. I have difficulty in interpreting 12(3) differently against its wording.

The limits of “the object and purpose” approach to treaty interpretation
One paragraph(paragraph 20) of the Paper is particularly troubling and I quote it in full to be accurate:

“The Court has not been long in existence but it is clear from the cited examples that past precedent suggests a tendency to interpret the mechanisms of the Rome Statute expansively, while respectful of the rule of law, and in a manner which prefers fulfilment of the aims of the Statute over a narrow and unduly legalistic reading of international criminal law. It would be contrary to the purposes set forth in the Statute’s Preamble to exclude from the scope of the Court’s jurisdiction a geographical zone in which war crimes and crimes against humanity are perpetrated, on the sole premise that it is not generally recognized either as constituting a state, or a part of any state. Given the Preamble’s affirmation “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and its determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, it is not unreasonable, indeed, it must be expected, that in interpreting the meaning of ‘state’ for the purposes of Article 12(3) of the Rome Statute, an expansive approach, divorced from the political considerations which otherwise tend to guide state recognition, and rooted firmly in the principles and purposes of the UN Charter, must be followed.” (my emphasis)

This shows a tendency in a lot of Human Rights activists of interpreting broadly international instruments. It is at the basis for a lot of the case law of the ad hoc tribunals and at the ECHR. Taking the high moral ground allows people who have a more traditional approach to treaty interpretation to be labelled “ennemies of the cause”. If I don’t accept a HR-friendly expanding of a legal text to cover more situations than initially envisioned, it shows that I’m against HR. That is a dangerous route and plays with the limits of law and morals. It is one thing to recognize the atrocious nature of certain human conducts, it is another to go beyond the law to apply directly a moral rule. As a lawyer, I cannot agree with this “common sense” approach which basically renders the rule of law meaningless.
The “on the sole premise” comment I put in bold above shows the way things are considered. We appear as petty lawyer technocrats who can’t see the bigger moral picture. But it is not “on the sole premise”! It is the application of the Statute, a document negotiated, drafted and entered into force based on that drafting. If we follow the “common sense” approach, we might as well give up any rules of international law and at the least any certainty in its application. Who is to decide what is best for whom? I think it is the advocates of this approach who fail the see the bigger picture: that in most cases (with the adequate checks and balances of course) the rule of law implies the mediation of process in the establishment and change of rules in order to avoid arbitrariness. You can’t just change the rules just because you think its right or wrong. I perfectly recognise the inadequacies in the international lawmaking process, which is pervaded by selfish State interests. But I don’t think that the solution, on the long run, is to bypass the legal process entirely, even if it offers a short-term solution to a apparent loophole.
As for the “political neutrality” called for by the Paper, it is very nice, but totally unconvincing. Human Rights often cloud themselves in the shroud of universal morals detached from politics. But everything is political, in the strongest sense of the term. Societies make choices in governance. Nothing is imposed from above. Al Haq should recognise that it has a political agenda, and there is no shame in that. Like I said before, I doubt they would have published a policy paper saying that the PA was not able to make a declaration and that is perfectly understandable. But let’s not pretend to live in an apolitical utopia of HR and goodwill to all men. This is not the nature of men, and more importantly, clouds issues that are key in understanding the world. But i’ve gone off on a little of a tangent here… back to the issue…

Other relevant criteria
Having interpreted 12(3) as it did, the Policy Paper moves on to answer three questions as posed by the OTP to decide whether to accept the declaration under 12(3). In this sense, the OTP is contributing to the interpretational confusion of article 12(3) by even accepting to discuss the issue. The 3 questions are as follows:

1. Does the PA have the capacity to enter into international agreements?

2. Does the PA have the capacity to try Palestinians on criminal charges?

3. Does the PA have the capacity to try Israeli citizens on criminal charges?

I won’t go into a detailed consideration about these three questions and the argumentation put forward by Al Haq. More generally, I don’t see how these considerations are relevant.to the application of 12(3). 12(3) only refers to the exercise of 12(2) (blatantly absent from the Policy Paper!!!) which gives the two following jurisdictional criteria:

“the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national.”

 12(3) doesn’t exist in a void and has to be read in conjunction with 12(2). Therefore, accepting that the PA is a State under 12(3) is also recognizing that it is State under 12(2) which refers to two very traditional attributes of the State: territory and nationality. Presumably, the PA is not giving its “authorisation” for 12(2)(b), given that the alleged perpetrators will be Israeli, so 12(3) must apply in this case to 12(2)(a), thus indirectly accepting that the PA is a State with some territorial sovereignty. Pretty close to Statehood in the traditional sense.
Outside this consideration, the 3 questions posed are broadly irrelevant. The first one is, if one accepts the Policy Paper’s interpretation of 12(3). If the PA is not a State, it must still have the capacity to enter into a cooperation agreement with the ICC. But the other two are not. The criminal jurisdiction over the crimes is not helpful to apply 12(3). As the Policy Paper itself argues, most international crimes carry a certain obligation to exercise universal jurisdiction. Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? it doesn’t make sense. Again, the two considerations for 12(3) are those contained in 12(2): nationality and territory.

Why the confusion?
Why have these criteria been considered at all, including by the OTP? This is a totally uninformed guess, but I think there might be confusion as to the extent of 12(3). As I said before, it is linked to 12(2) and the jurisdictional links that circumscribe ICC jurisdiction. But 12(3) is not an additional trigger mechanism. There are only three: referral by a State Party, the Security Council and the exercise of proprio motu powers by the Prosecutor (are people actually still holding their breath on that one?). The conditions put forward by the OTP and the Policy Paper are better fit to the triggering of a case or the admissibility of the case, not the existence of the territorial and national jurisdiction over the case, which is what 12(2) and 12(3) are concerned with. Even if the declaration were to be accepted, it would still be required that a State or the Security Council refer the situation, or that the prosecutor seize himself of the situation.

Conclusion
This is once again a case of mass delusion in my opinion, of wanting the Statute to say something it doesn’t and therefore pretending that it does. The challenges of combating international crimes must be met, but not at the cost of legal certainty. Now that I think about it, the Policy Paper is wrong in saying that the Statute does not provide for situations like this, thus allowing alleged crimes go unpunished. The Security Council, as the Paper mentions, can refer any situation with a lot of discretion, irrespective of the status of the territory or the nationality of the alleged perpetrators. Of course, the US will never allow a case involving Israel to be referred to the ICC, but this reveals a problem with the Security Council, where the fight should be taken, not the ICC Statute, which, as a treaty is bound by a fundamental rule of international law, that an agreement binds only those who consented to it. Of all people, Human Rights activists should agree with this concept of liberty that you can’t impose something on someone against his will…