NGO Monitor Submission to the International Criminal Court Office of the Prosecutor Regarding the 'Situation in Palestine'

Anne Herzberg
NGO Monitor

Abstract:
This paper argues that the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) should immediately reject the attempt of the Palestinian Authority to accede to the jurisdiction of the court. On January 21, 2009, Ali Khashan, Minister of Justice for the “Palestinian National Authority” (PNA) submitted a declaration to the OTP purporting to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute. Article 12(3) referrals, however, can only be effected by States and the PNA has not yet achieved the status of statehood nor claims to be a state. Nevertheless, supporters of the PNA declaration have argued that the court should take an “expansive approach” in “interpreting the meaning of ‘state’” solely for purposes of the Rome Statute. This position, known as the “teleological approach,” must be rejected because it is nothing more than a thinly veiled attempt to transform the ICC into a court of universal jurisdiction – an approach that was expressly rejected by the drafters of the Statute. Supporters of the “teleological” approach also ask the court to ignore the plain language of the Statute in order to prevent Palestinians from being denied “recourse to justice”. Despite this allegation, there is no “lack of recourse” or a “zone of impunity” in this case. The Rome Statute, the UN Charter, and the Israeli justice system all offer adequate remedies. The OTP should also reject the declaration because the PNA is marred by “unclean hands” by openly defying the authority of the Court, violating its representations to be in compliance with Part 9 of the Statute, and by failing to adhere to the Court’s principles and objectives. Finally, the PNA declaration is a part of the “Durban Strategy” – a political campaign that uses the rhetoric of human rights and international law in order to attack the legitimacy of the State of Israel. The ICC should not allow itself to be exploited as part of a cynical political campaign. For all of these reasons, the declaration has no merit and should be immediately rejected.