Palestine Accession to Rome Statute & or. Intl. Instruments

Last January 6th, United Nations Secretary General issued a note indicating that the Rome Statute, the treaty that establishes the International Criminal Court (ICC), will enter into force as to the State of Palestine on April 1st , 2015 (see official note of Secretary General acting as depositary of Rome Statute). On January 7th, 2015, the President of the Assembly of States Parties to the Rome Statute welcomed the deposit by Palestine of the instrument of accession as well as the agreement on the Privileges and Immunities of the International Criminal Court (APIC) (see official ICC press release).

On the very same day, ICC Registar sent a letter to Palestine authorities (see letter) confirming the reception of the declaration (see full text of this document) made by Palestine on December 31, 2014 pursuant article 12(3) of Rome Statute: "Excellency, I hereby confirm receipt, on 1 January 2015, of your 31 December 2014 “Declaration Accepting the Jurisdiction of the International Criminal Court” which was lodged with me pursuant to article 12(3) of the Rome Statute, and in which you state that “the Government of the State of Palestine recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the Court committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014.” Pursuant to Rule 4(2) of the Rules of Procedure and Evidence, a declaration under article 12(3) of the Rome Statute has the effect of the acceptance of jurisdiction with respect to the crimes referred to in article 5 of the Statute of relevance to the situation, as well as the application of the provisions of Part 9 of the Statute and any rules thereunder concerning to States Parties. I hereby accept the declaration and I have transmitted it to the Prosecutor for her consideration. This acceptance is without prejudice to any prosecutorial or judicial determinations on this matter".

In August 2014, ICC Prosecutor Fatou Bensouda explained in an article published in The Guardian her position with respect to the lack of jurisdiction of ICC on crimes committed in Gaza (see article). It must be recalled that on January 21st, 2009, Palestine sent a similar declaration to ICC in these terms: « the Government of Palestine recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since July 2002 ». A selected group of experts in international law considered in 2010 that this declaration made in January 2009 allowed ICC to exercise its jurisdiction on acts committed in Gaza (see collective document entitled: “Les effets de la reconnaissance par la Palestine de la compétence de la CPI”): the declaration made in 2009 by Palestine to ICC provoked an intense exercise among legal experts, some of them opposing, others supporting Palestinian initiative (see summary of submissions sent to ICC available here). After three long years, Prosecutor Office, in his decision of April 3rd 2012, Prosecutor Office concluded that: “The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction”. This decision caused a deep disappointment among scholars: in a collective letter of August 2012, a group of prominent experts indicated that “From 2009 to 2012 the former Prosecutor gave the impression that it was for his Office to decide the question of Palestinian statehood for the purposes of Article 12(3) of the Rome Statute and encouraged international jurists to express their views on the statehood of Palestine for the purposes of making such a determination . We are disappointed that after three years the Prosecutor should decline to answer this question and instead refer it to the United Nations or the Assembly of States Parties”.

In addition to the accession to Rome Statute and the declaration made by Palestine to ICC (and that have provoked reactions of Israel and United States), there are other relevant international treaties to which Palestine has become State Party since December 31, 2014 (and that have no provoked reactions). The complete list of treaties and Protocols as well as declarations that Palestine has acceded is the following:

1. Convention on the Political Rights of Women - 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the ‘New York Convention’) - 3. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal - 4. Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity - 5. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) - 6. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III) - 7. Convention on the Law of the Non-Navigational Uses of International Watercourses - 8. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents - 9. United Nations Convention against Transnational Organized Crime - 10. Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel - 11. United Nations Convention on the Law of the Sea - 12. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity - 13. Agreement on the Privileges and Immunities of the International Criminal Court - 14. Rome Statute of the International Criminal Court - 15. Declaration in accordance with the Rome Statute of the International Criminal Court - 16. The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons - 17. The Treaty on the Non-Proliferation of Nuclear Weapons - 18. Convention on Cluster Munitions (Source: UNISPAL note reproducing the letter of President M. Abbas of Dec 31, 2014).

Concerning United Nations Convention of 1997 on International Watercourses, a recent note in a specialized site on international water regulations indicated that: "In addition, with Palestine’s accession to the Convention, Israel is now the only state in the Jordan River Basin to not have joined the treaty. Jordan, Lebanon, and Syria – all riparians to the Jordan River Basin – became Parties to the Convention in 1999, 1999, and 1998, respectively". The accession to the Convention on Cluster Munitions of 2008 by Palestine was celebrated by Costa Rica Ministry of Foreign Affairs (see press note) this week calling its neigbours to do so: the official statement indicated that: “Nos complace aún más que la última adhesión completada fuese la del Estado de Palestina, lo cual aspiramos sea un referente para los Estados Signatarios y No Parte en su vecindario más inmediato – el Medio Oriente y el Norte de África - en pro de su adhesión al instrumento”. In 2006, top official in Israel recognized publicly that Israel used more than one million of cluster munitions in South Lebanon, a number that corresponds to around 1,800 cluster bombs fired (see note of Haaretz of Sept. 12, 9/2006).

This list of treaties must be completed with 20 treaties to which Palestine acceded in April 2014, that includes the following treaties: The Four Geneva Conventions of 12 August 1949 and the First Additional Protocol - The Vienna Convention on Diplomatic Relations - The Vienna Convention on Consular Relations - The Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in armed conflict - The Convention on the Elimination of All Forms of Discrimination against Women - The Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land - The Convention on the Rights of Persons with Disabilities - The Vienna Convention on the Law of Treaties - The International Convention on the Elimination of All Forms of Racial Discrimination - The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment - The United Nations Convention against Corruption - The Convention on the Prevention and Punishment of the Crime of Genocide - The International Convention on the Suppression and Punishment of the Crime of Apartheid - The International Covenant on Civil and Political Rights - The International Covenant on Economic, Social and Cultural Rights.

Concerning this last set of treaties signed by Palestine in April 2014, as well others treaties signed last December 31, it must be noted that no one questioned the capacity of Palestine as a State to accede to them or explained in a press conference that “we’re deeply troubled by the Palestinian action “(as heard by United States top officials – see press note - with reference to Rome Statute in recent days). This peculiar treatment concerning the Rome Statute recalls what can be read in a secret diplomatic cable of 2010 from the Israel Army ´s Head of International Law Department, Liron Libman, and made public by Wikilealks (see cable of February 23, 2010): “Libman noted that the ICC was the most dangerous issue for Israel and wondered whether the U.S. could simply state publicly its position that the ICC has no jurisdiction over Israel regarding the Gaza operation”. It also recalls an extremely strange proposition made by United Kingdom diplomats to Palestine delegates a few hours before the voting of a resolution at United Nations General Assembly on November 29, 2012 on Palestine statehood, made public this time by the Washington Post (see note) : ““The U.K. suggested that it might vote “yes” if the Palestinian Authority offered assurances that it wouldn’t pursue charges in the International Criminal Court, but apparently came away unsatisfied”.

Finally, this special treatment concerning the Rome Statute confirms public declarations made directly this time by United States Ambassador to the United Nations, Samantha Power. In an article entitled: "US is ‘absolutely adamant’ that Palestine not go to ICC and wreck the peace process — Power”, the current representative of United States before United Nations in New York declared: "The ICC is of course something that we have been absolutely adamant about. Secretary Kerry has made it very, very clear to the Palestinians, as has the President. I mean, this is something that really poses a profound threat to Israel” (sic). To affirm publicly that an international jurisdiction like the ICC “really poses a profound threat” to a country considered as an ally could be considered as a “première” in the history of international law, or at least in international criminal law. Some observers could even understand this kind of declaration as a strange form of confession.

(*) Professor of International Law, Law Faculty, University of Costa Rica (UCR)

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