Preconditions to the Exercise of Jurisdiction Under Article 12 of the Rome Statute

Article 15 Communication by Joshua Kern

1. The so-called Situation in Palestine (the “Situation”) is at Phase 3 of the OTP’s preliminary examination. We understand that no final determinations with respect to jurisdiction, admissibility or the interests of justice have been made. This communication is made further to our communication of 1 March 2019. In that communication, we suggested that a qualified deference should be paid to decisions of Israel’s High Court of Justice during complementarity and interests of justice analysis in a potential settlements case. In this communication, we return to consider jurisdictional issues.

2. Palestine’s status and capacities are ambiguous. On the one hand, Palestine is struggling for independence and to emerge from “occupation”. On the other, the State of Palestine claims functional capacities including the following rights: to accept ICC jurisdiction, to accede to the Rome Statute, and to refer a situation to the Court. Palestine further claims title to territory upon which criminal conduct has allegedly occurred. The legal implications which flow from the inconsistencies arising from these positions, as well as the contested nature of Palestine’s claims, are material to the preconditions to the exercise of ICC jurisdiction which must be satisfied if the OTP – and the Court – are to proceed lawfully under Article 12 of the Rome Statute.

3. This communication argues that Palestine’s objective legal status as a non-State entity under international law restricts her capacity to make a valid declaration pursuant to Article 12(3) of the Statute. The indeterminacy of her territorial claim means that in potential cases the precondition contained in Article 12(2)(a) cannot be satisfied with any degree of certainty. Both issues serve to preclude the exercise of ICC jurisdiction over potential cases. They accordingly impact upon the progression of the preliminary examination to the investigation phase with respect to those cases.

4. The OTP is required to afford weight to the objective criteria of statehood articulated by the Montevideo Convention when considering States’ capacity to satisfy the preconditions to the exercise of ICC jurisdiction and make an Article 12(3) declaration. If a State, as a matter of objective fact and law, does not exist it cannot delegate sovereign jurisdictional competencies which it does not possess to the ICC. Article 12 therefore provides a safeguard which seeks to prevent the Court from proceeding in a manner which violates States’ sovereignty through ensuring that States Parties to the Rome Statute do not trigger jurisdiction over conduct of nationals of non-States Parties which occurs outside State Party territory. As a result, Article 12 protects the Court and arguably States Parties from responsibility for exercising an exorbitant jurisdiction as well as from acts of retorsion and countermeasures that affected non-States Parties might lawfully take in response.