An interesting recent development at the International Criminal Court (ICC) demonstrates again the deficiencies of an international court established by a treaty so that the court’s jurisdiction extends only as far as its member states allow.
Despite the aims of universal objectivity, the ICC is hampered by restrictions that mean that unless the United Nations Security Council (UNSC) invites the Court to investigate, it is virtually powerless to intercede and investigate atrocities that are committed within the boundaries of states whose governments are not willing to limit their own sovereignty and accept the jurisdiction of the Court. In the recent development that prompted this post, it was a question of statehood that stalled any investigation. In 2009, Ali Khashan, acting as “Minister of Justice of the Government of Palestine”, “lodged a declaration accepting the exercise of jurisdiction by the International Criminal Court” and asked the Prosecutor of the ICC to consider allegations of crimes committed during the 2008-2009 Gaza conflict. After initiating a preliminary examination in order to determine whether there was a reasonable basis to proceed with an investigation, it took the Court more than 3 years to determine that it could not, in fact, proceed because it was not within its authority to decide whether Palestine was a state that could independently accept the jurisdiction of the Court.
This is an unusual case, and yet is a great example to demonstrate the state-centric behaviour of the international sphere and lack of avenues for remedy of ethnic, national, religious or minority groups within states that do not recognize the jurisdiction of the ICC.
The jurisdiction of the ICC is not based on the principle of universal jurisdiction. It cannot investigate and prosecute any suspected criminal acts that would be covered as crimes under the jurisdiction of the Court (war crimes, crimes against humanity, genocide – and also the crime of aggression). For jurisdiction to be established, either the UNSC must request that the Court investigate (as was done in the case of Sudan) or a state must confer jurisdiction over its territory and its citizens by becoming a State Party to the Rome Statute or “by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question” (Article 12(3)).
In the case of Palestine, it was decided by the Office of the Prosecutor (OTP) that it was unable to proceed with its preliminary examination in the Occupied Palestinian Territories since the OTP did not have the authority to determine whether Palestine was a “state for the purposes of the Rome Statute”. Rather, the OTP argued, it was the “relevant bodies” at the United Nations (or even the ICC Assembly of State Parties) that must make such legal determinations.
Naturally, there are considerable consequences of this outcome to the population of the Occupied Palestinian Territories. In limbo, these territories find their agency to act on the international stage cut off at most turns. However, another question should be whether or how this decision, not at all unreasonable given the constitution of the Court, can be seen as another example of how political state-centricity affects or undermines the legitimacy of the ICC as a rightful international arbiter of just behaviour.
Footnote: UNESCO (The United Nations Educational, Scientific and Cultural Organization) was the first UN agency to accept Palestine as a full member in December 2011. There is no indication that this admittance reflects any paradigm shift regarding the statehood of the Palestinian people. Palestine is an observer before the UN General Assembly.