52512 , 10 ' ",

Beit Hakeren, 10 Hata'as St. Ramat Gan

52512, Israel
www.israellawcenter.org
___________________________________________________________________________________________________________________________________________________

Tel: 97237514175 :
Fax: 97237514174 :
Tel (US): 2125910073

June 22, 2015

Herman von Hebel, Registrar
International Criminal Court
Maanweg 174, Den Haag 2516 AB
The Netherlands
Dear Registrar,
Re: Palestine / ICC

I write to you on behalf of "Shurat HaDin", an Israeli non-governmental

organization, whose vision and activities include, inter alia, achieving justice and
compensation for terror victims from terrorist organizations, their sponsors, and the
financial institutions that aid and abet their criminal activities. ("the Applicant").1
For reasons which will be set out hereinafter, the Applicant requests that you
retroactively revoke your decision to receive the purported declaration made by the socalled State of Palestine pursuant to Article 12(3) of the Rome Statute ("the
Declaration") and refrain from accepting any further referrals from the same entity
whether under article 12(3) or Article 14.
Relevant Chronology
On 5 August 2014, at the height of armed conflict which broke out between Israel
and the Hamas organization, the Prosecutor Ms. Fatou Bensouda - received the official
in the Palestinian Authority dealing with foreign affairs Riad al-Malki and clarified for
him the different mechanisms for a State to accept the jurisdiction of the ICC.
Subsequent to this meeting Ms. Bensouda gave a spontaneous and detailed
comment to the Guardian Newspaper which she titled The Public deserves to know
the truth about the ICCs jurisdiction over Palestine. Among other things, the
Prosecutor opined as follows:

http://israellawcenter.org/

The Palestinian Authority sought to accept the jurisdiction of the ICC in

2009. My office carefully considered all of the legal arguments put forth and
concluded in April 2012, after three years of thorough analysis and public
consultations, that Palestines status at the UN as observer entity was crucial
since entry into the Rome statute system is through the UN secretary general,
who acts as treaty depositary. Palestines status at the UN at that time meant it
could not sign up to the Rome statute. The former ICC prosecutor concluded
that as Palestine could not join the statute, it could also not lodge an article 12-3
declaration bringing itself under the ambit of the treaty, as it had sought to do.
In November 2012, Palestines status was upgraded by the UN general
assembly to non-member observer state through the adoption of resolution
67/19. My office examined the legal implications of this development and
concluded that while this change did not retroactively validate the previously
invalid 2009 declaration, Palestine could now join the Rome statute.[emphasis
added].
That Palestine has signed various other international treaties since
obtaining this observer state status confirms the correctness of this position.2
On 1 January 2015, Mohammed Abbas referring to himself as the President of
the State of Palestine - deposited with your office a declaration purportedly pursuant
to article 12(3) of the Rome Statute (the Declaration).3 Your office accepted this
document without reservation and two weeks later, on 16 January 2015, the Prosecutor
announced that she was opening a preliminary investigation.
On 1 April 2015, having deposited its documents of ratification with the
Secretary General of the United Nations on 2 January 2015, Palestine was welcomed
as the 123rd State Party to the Rome Statute.4
Statutory Framework
Article 12 of the Statute states as follows:
Preconditions to the exercise of jurisdiction

http://www.theguardian.com/commentisfree/2014/aug/29/icc-gaza-hague-courtinvestigate-war-crimes-palestine
3 http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf
4
http://www.icccpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1103.aspx
2

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1.
A State which becomes a Party to this Statute thereby accepts the
jurisdiction of the Court with respect to the crimes referred to in article 5.
2.
In the case of article 13, paragraph (a) or (c), the Court may exercise its
jurisdiction if one or more of the following States are Parties to this Statute or
have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused of the crime is a national.
3.
If the acceptance of a State which is not a Party to this Statute is required
under paragraph 2, that State may, by declaration lodged with the Registrar,
accept the exercise of jurisdiction by the Court with respect to the crime in
question. The accepting State shall cooperate with the Court without any delay
or exception in accordance with Part 9.
Rule 44 of the Rules of Procedure and Evidence states as follows:
Declaration provided for in article 12, paragraph 3:
1.
The Registrar, at the request of the Prosecutor, may inquire of a State that
is not a Party to the Statute or that has become a Party to the Statute after its
entry into force, on a confidential basis, whether it intends to make the
declaration provided for in article 12, paragraph 3.
2.
When a State lodges, or declares to the Registrar its intent to lodge, a
declaration with the Registrar pursuant to article 12, paragraph 3, or when the
Registrar acts pursuant to sub-rule 1, the Registrar shall inform the State
concerned that the declaration under article 12, paragraph 3, has as a
consequence the acceptance of jurisdiction with respect to the crimes referred to
in article 5 of relevance to the situation and the provisions of Part 9, and any rules
thereunder concerning States Parties, shall apply.
The issue central to this application is whether the State of Palestine the
existence of which the Applicant denies - has settled territory over which it may
exercise jurisdiction or effective control for the discrete purpose of article 12(2)(a) of the
Rome Statute. The boundaries of Palestine are still subject to dispute even among
Palestinian leaders who continue to debate the question whether to seek recognition of
a State within boundaries resulting from the 1967 Arab-Israeli conflict or whether to
petition for more. Yet even if there was consensus to declare a State of Palestine
within 1967 borders, this would not entitle the Palestinian Authority in Ramallah to
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refer a situation, as it did, in territory over which its own judicial apparatus has no
effective control nor capacity to effect cooperation pursuant to Part IX of the Rome
Statute such as those parts of Jerusalem subject to the sovereign authority of the State of
Israel. The present article 12(3) declaration and the previous one submitted in 2009
jointly constitute a gross breach of undertakings given by the Palestinian Authority
itself in the context of the Oslo Accords whereby it agreed that Israel would have
exclusive jurisdiction over all criminal offences committed by Israeli citizens in Gaza.
The article 12(3) referrals also unilaterally frustrate the spirit of the Oslo Accords the
purpose of which was to negotiate the establishment of a future Palestinian State.
It was and still is a matter for your discretion and your discretion alone whether
to receive a referral under article 12(3). Support for the argument that the Registrar
enjoys administrative and discretionary primacy over the Office of the Prosecutor in
this matter is to be found in Rule 44(1) of the Rules of Procedure and Evidence. This
latter provision grants the Registrar the discretionary power to act as a conduit for a
confidential inquiry by the Prosecutor as to whether a State Party intends to make a
declaration pursuant to Article 12(3). The language of this rule, which would otherwise
be superfluous, infers that only the Registrar and not the Prosecutor is entitled to
interact with a State Party for the purpose of receiving a declaration pursuant to article
12(3) and may refuse to do so. In the present instance, it was the Prosecutor who
unilaterally decided that Palestine could now join the Rome Statute and you accepted
this erroneous conclusion by receiving the Declaration - without reservation and before
Palestine was formally admitted to the Court on 1 April 2015.
As mentioned above the Declaration is defective because it purports to empower
the Prosecutor to initiate a preliminary investigation into crimes committed in the
nebulous geographical spatial entity known as the occupied Palestinian territory,
including East Jerusalem.5 The Applicant believes that you should have been aware
that Mohammed Abbas has no power whatsoever to facilitate the essential modes of
cooperation envisaged in Part 9 of the Rome Statute most particularly in East
Jerusalem which is under the complete sovereign control of Israel.
The fact that Ms. Bensouda reached the conclusion that the Palestinian Authority
possessed all the requirements for State Party membership prior to its ratification of the
Rome Statute pre-empted a decision on an issue which your predecessor Ms. Silvia
Arbia - believed was subject to judicial determination;6 namely, the applicability of

http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.

6http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-

C8071087102C/279778/20090123404SALASS2.pdf;

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article 12(3) to the Declaration. Ms. Bensoudas erroneous conclusion should not have
influenced the exercise of your discretion and you should have refused to receive the
Declaration on account of its defective nature.
The Applicant states its firm view that the declaratory process under article 12(3)
was intended to provide sovereign non-State Parties with the opportunity to refer
crimes committed by their nationals or on their national territory. Article 12(3) must, it
is submitted, be read in conformity with article 34 of the Vienna Convention on the Law
of Treaties according to which signatory parties to a convention cannot create
obligations or rights for a third party state and its citizens (such as Israel) without the
latters consent.
Conclusion
By performing her "preliminary examination"7 of the "Situation in Palestine", the
Prosecutor is currently acting ultra vires. The Applicant requests that you retroactively
revoke your receipt of the Declaration rendering, by implication, its subsequent
communication to the Office of the Prosecutor null and void. Immediate action on your
part is imperative in order to prevent a further Palestinian referral which, so it is
rumoured, will be submitted on 25 June 2015. Immediate action on your part is also
required in order to prevent the occurrence of any future similar scenario where an
entity with aspirations of statehood might seek to subvert customary international law
governing the attribution of sovereignty by an abuse of the declaratory process under
article 12(3).

Respectfully yours,

Nitsana Darshan-Leitner, Esq

Shurat HaDin-Israel Law Center, President

Silvana Arbia to Ali Khashan, 2009/404/SA/LASS, 23 January 2009: Without prejudice to a

judicial determination on the applicability of article 12, paragraph 3 to your correspondence, I
wish to inform you that a declaration under article 12, paragraph 3 has the effect of the acceptance of
jurisdiction with respect to crimes referred to in article 5 of relevance to the situation and the application
of the provisions of Part 9 and any rules thereunder, concerning State Parties, pursuant to Rule 44 of the
Rules of Procedure and Evidence. [emphasis added].
7 Regulation 25(1)(c) of the Regulations of the Office of the Prosecutor.

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