In the Florida Journal of International Law’s April 2014 paper, “An Unlawful Overreach: Trying Nationals of Non-Consenting, Non-Party States Before the International Criminal Court,” the Palestinian Authority submitted a declaration to the ICC Registrar in which it purported to accede to the Rome Statute under Article 12 (3).
The legal review said Palestine did this to draw Israeli soldiers and government officials within ICC jurisdiction for alleged crimes committed in the Gaza Strip during the 2008-2009 Israeli military incursion known as “Operation Cast Lead.”
The paper, written by international law experts Jay Alan Sekulow and Robert Weston Ash, pointed to the ICC as not being the correct forum when nationals of a non-party State to the Rome Statute, like Israel, are involved, “absent such State’s express grant of its consent thereto, consent which Israel has not granted — and is unlikely to grant.”
That particular sentence is relevant considering the debate on the Philippines’ concurrence to the ICC which appears to be imposing its authority.
According to the review, the historical development of post-conflict tribunals to bring to justice perpetrators of war crimes has not been a smooth process.
Following the First World War, the Treaty of Versailles provided for the establishment of ad hoc tribunals to try war criminals, although no such tribunals were formed.
Article 227 of the Versailles Treaty specifically called for the establishment of a tribunal composed of five judges (one each from the United States, Great Britain, France, Italy, and Japan) to try the former German Kaiser (Emperor).
Article 227 also sought a request for the government of the Netherlands to surrender the Kaiser for trial.
Dutch officials declined to surrender the Kaiser to the requesting powers, and no trial was ever held.
The Nuremberg trials following World War II served as a precedent and started a process that continues to this day.
Shortly after the Nuremberg and Tokyo trials, the newly formed UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which recognized the potential of a future “international penal tribunal” to assist states in the punishment of genocide.
In 1951, the International Law Commission, or ILC, transmitted a draft statute to the United Nations, detailing the structure and jurisdiction of the proposed international criminal court.
In 1952, the General Assembly created a new committee charged with the responsibility of polishing a draft statute, and the committee produced an updated draft for consideration in 1953.
After the breakup of the Soviet Union in the late 1980s and early ‘90s, the UN Security Council, no longer hobbled by Cold War intrigue and competition, resolved to create an ad hoc tribunal called the International Criminal Tribunal for the Former Yugoslavia or ICTY to try and punish those responsible for crimes against humanity and war crimes committed in the former Yugoslavia.
Increasingly, the ad hoc tribunals were looking into internal instead of international issues.
Then, from 15 June to 17 July 1998, 160 states gathered in Rome to negotiate a final version of a treaty to create a permanent tribunal.
The conference voted to adopt the Rome Statute, whose terms established the International Criminal Court and its jurisdiction. Ratification by 60 States was required for the treaty to take effect.
The required 60th ratification came on 11 April 2002. The Rome Statute entered into force on 1 July 2002.
(To be continued)