Autore:
Prosperi, Luigi
Titolo:
Ricevibilità ed efficacia giuridica della dichiarazione di accettazione della giurisdizione della Corte penale internazionale da parte della PalestinaPeriodico:
Ordine internazionale e diritti umaniAnno:
2015 - Fascicolo:
2 - Pagina iniziale:
337 - Pagina finale:
357On 5 January 2015, the Registrar of the International Criminal Court (ICC)
announced that the Palestinian authorities had lodged a declaration accepting the
jurisdiction of the Court on the crimes allegedly committed “in the occupied Palestinian
territory, including East Jerusalem, since 13 June 2014”.
By this declaration, the Palestinian authorities have for the second time invested the
Office of the Prosecutor (OTP) of the ICC with the issue of deciding on the Palestinian
statehood. In fact, on 21 January 2009, the Government of Palestine had already accepted
the jurisdiction of the ICC on the crimes allegedly committed “on the territory of Palestine
since 1 July 2002”. In that occasion, at the end of a three-year examination, the OTP had
decided that Palestine had no right to confer jurisdiction to the ICC since the international
community had not (yet) granted it the status of “State”.
On 16 January 2015, the ICC Prosecutor announced the opening of a preliminary
examination. Since on 29 November 2012 the UN General Assembly had granted Palestine
the status of “non-member State”, in fact, President Abbas was authorized to lodge a
declaration under Article 12(3) of the Rome Statute. Having established that Palestine can
now be qualified as a State, the OTP will now have to assess the legal effects of the
declaration, which will be analysed in the first part of this paper.
Firstly, the OTP will be called to establish if the Palestinian authorities had the right
to circumscribe the ICC jurisdiction to the “occupied Palestinian territory” and to the
crimes allegedly committed “since 13 June 2014”.
By accepting the limitations provided in the declaration, the OTP would not only
define the Court’s jurisdiction ratione temporis and ratione loci, but also ratione materiae. In
particular, if it considered the West Bank as an “occupied territory”, the OTP would be
called to ascertain if Israeli settlements represent an international crime under Article
8(2)(b)(viii) of the Rome Statute.
On 6 January 2015, the UN Secretary General confirmed that Palestine had
deposited the instrument of accession to the Rome Statute. This decision followed a failed
attempt to make the UNSC pass a resolution which endorsed the two-State solution and
the Palestinian bid to the UN membership, and called Israeli authorities to stop the
settlements and respect the 1967 borders.
Having considered this background, in the final part of the paper it will be argued
that the involvement of the ICC could be seen as part of a strategy deployed by the
Palestinian authorities with the aim of reaching a peaceful agreement with Israel, based on
the recognition of the Palestinian statehood and full UN membership. In this spirit, an ICC investigation on Palestine could thus represent a tool of lawfare, “wielded” against Israel to
gain political leverage.
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SICI: 2284-3531(2015)2<337:REEGDD>2.0.ZU;2-8
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