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Tuesday, January 26, 2010

Guest Post: Deal with the substance, not the activists! A Response to ‘Of Legal Reasoning and Wishful Thinking: The ICC and Gaza’

Guest Post by Michael Kearney (in his personal capacity) (with response by Dov Jacobs below)

"I’m not surprised at the conclusion that Al Haq’s position paper on the submission by the Palestinian Authority of a declaration to the ICC is ‘ultimately flawed and unconvincing’ (and I say that not because I doubt the intellectual honesty of the drafter of the posting, but because I doubt he would have published the post had the conclusion been otherwise...)".

The assertion of the author of the post, that the position would not have been published had its conclusions been to the contrary is redundant. Apologies for having appeared facetious, but given the momentous human rights violations perpetrated against Palestinians living under foreign occupation, why would Al Haq waste its scarce time and resources arguing for further exclusion of the Palestinians from the protections offered by participation in the international legal framework?

Furthermore, the tone of the posting does not provide a bulwark for the several criticisms aired therein. It appears that the author is engaged in mirror politics. Take the assertion that Al Haq is ‘taking the moral high ground’ and labelling those who disagree with its reasoning or conclusions as ‘enemies of the cause’. I’m not convinced that a position paper, whose goal is to encourage the extension of the rule of law to a people systematically excluded from recourse to justice, can be summarily dismissed on such grounds. To claim that Al Haq rejects those who may disagree with its reasoning or conclusions as ‘enemies of the cause’ is ludicrous. Al Haq has consistently sought to engage and debate with anyone who will listen, and there are many shades of opinion within the organisation. The author should consider providing examples to back up his accusation, or he should retract the statement.

In the many cases – ranging from decisions of the Israeli High Court to statements from the likes of NGOmonitor – in which staff of Al Haq are demonised as terrorists or subversives on the basis of secret evidence, hearsay, or prejudice, or are accused of engaging in anti-democratic ‘lawfare’, they will defend their principles and actions, and seek to condemn disreputable and hypocritical accusations. Al Haq does not condemn nor slander bona fide opinions or reasoning. As an organisation working in an environment where the brutality and violence of the occupation is all pervasive, Al Haq respect instead the principle of freedom of expression, and remain conscious that it may not always be correct.

As an example of the slander to which Palestinian and Israeli human rights activists are routinely subjected to I’d refer readers to the Rights & Democracy controversy which Prof Schabas has posted about at:

The immediate posting has also challenged and dismissed as incorrect the reference in para 20 of the Al Haq position paper, that the ‘sole premise’ for rejecting the PA declaration would be that Palestine is not a state. Perhaps the language used gives the impression that we are dismissing too lightly what on the face of it is an obvious and fundamental obstacle which automatically demands the rejection of the PA declaration.

Al Haq are attempting to encourage an expansive interpretation of the meaning of ‘state’ under the Rome Statute because we think a solid argument can be made to justify such a move. That is Al Haq’s prerogative, since in spite of the author’s assertion that the law is settled, a situation such as that raised by the Declaration is not explicitly provided for in the Statute, nor is there any consensus as to what constitutes a state for the purposes of international law. It is precisely in such a situation of ambiguity and controversy that all parties are entitled to submit their legal arguments and advocate a point of view. This is characteristic of the human rights movement, and of international legal scholarship as a whole. Al Haq are seeking to participate by making their arguments, encouraging debate, and fundamentally, with the genuine aim of remedying Palestinians exclusion from the rule of law. This is not something to apologise for, nor is there any attempt to disguise it.  

Al Haq’s paper, however, is not politics, even if acceptance of its premise obviously has political ramifications. It is engagement with the process of academic and practical legal debate and something which Palestinians are attempting through international fora such as the Human Rights Council and now through the ICC framework. Thus, as the conclusion of the position paper stresses, it is encouraging the OTP to accept the PA declaration as legitimate for the reasons suggested, arguing that a conservative reading of the text of the statute is contrary to the interests of justice and of pertinent developments in international law. The paper seeks to support this call on the basis that any such decision on jurisdiction as made by the OTP will be reviewed by the pre-trial chamber, and will subsequently be liable to be sent to the appeal chamber. This should answer the question as to ‘Who is to decide what is best for whom?’

Fair arguments have been posted elsewhere rejecting arguments to the effect that for the Rome Statute, ‘state’ should not be interpreted more liberally than usual in international relations. These are welcome and will be engaged with critically. This posting by contrast deals with none of the substance of the argument. It has not dealt with the lack of definition of ‘state’ in international law or in the Statute. In criticising the ‘linking’ of ‘situation’ and ‘state’ the post misses the point, namely not that there is a direct analogy between the two, but that in the case of self-referrals and ‘situations’, the ICC process has demonstrated a willingness and ability to progressively interpret and apply the Statute where it is just and valid to do so.

The position paper explicitly restricts its analysis to article 12(3) since that is the provision under which the declaration has been made. It follows logically that if Palestine is considered a state for the purpose of 12(3), then so would it for 12(2), and since the PA issues the equivalent of passports to its nationals (the Palestinians who are living in the OPT other than East Jerusalem which Israel has claimed to annex), there should be no additional problem with either paras (a) or (c). The reasoning in limiting the discussion to 12(3) in the position paper was to accentuate the distinction between the fact that the PA have attempted to engage with a declaration as opposed to seeking to become a full state party to the Statute.

The posting also ignores the substance of the approach which the OTP has taken in determining the validity of the PA declaration, claiming to not understand how they are relevant. They are relevant since this has been the stated approach of the OTP in seeking to come to a decision as to accepting the declaration. Novel approach? Certainly, but one which is already in motion, and clearly, the fact that the Palestinian authorities have been recognised by the UN General Assembly as having jurisdiction over violations of the laws of war, and a duty to investigate and prosecute for violations, is relevant to the question as to whether the PA can consent to its jurisdiction being transferred to the ICC.

As the position paper highlighted at para 44: “The questions posed to the PA by the OTP should not be considered as the only possible grounds by which the Court can make a decision as to the validity of the PA’s Declaration, but since they are the grounds that have been proposed, and on which proceedings are reliant, the necessity of their being answered in the positive is crucial for the PA application to succeed. That the OTP may decide subsequently not to investigate alleged crimes committed on Palestinian territory on grounds of complementarity or gravity is a matter for another day. That the Prosecutor may decide not to make any decision is also another matter.”

The analysis of these questions as found in the position paper is something which has not been addressed by any journal article or any other report that I am aware of. It would be better if rather than dismissing Al Haq for being delusional about our ‘political agenda’, the substance of the issues were addressed in a rigorous and intellectual fashion.

The question is put: ‘Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? [sic]’. Al Haq’s paper has not suggested, nor implied, that any country can make a 12(3) declaration about Gaza, nor is there any reason to draw such a conclusion from either our reasoning or our conclusions.

Although now I am moving towards engaging in precisely the type of human rights contextualisation the posting critiques, I wish to take the opportunity to make an additional, relevant, point. The Israeli government is working towards changing the rules of international humanitarian law precisely in the way the posting criticises, outside the legal framework, and purely through power politics and diplomatic moves. Following the Human Rights Council’s endorsement of the Goldstone Report, Israeli PM Netanyahu stated that efforts to adapt the laws of armed conflict would be one element of a legal and diplomatic ‘battle’. Netanyahu’s office stated that the PM had ‘instructed the relevant government bodies to examine a worldwide campaign to amend the international laws of war to adapt them to the spread of global terrorism’, a move described by Defence Minister Barak as being necessary ‘in order to facilitate the war on terrorism’. Speaking with Danish Justice Minister Brian Mikkelsen as part of a diplomatic campaign to solicit support amongst the international community to reject the findings of the Goldstone Report, FM Lieberman said that ‘The rules of war need to be changed to allow democracies to combat terrorist threats’.

Following the issuance of an arrest warrant in the UK against Tzipi Livni, British FM David Miliband met with Israel’s ambassador on 15 December and stated that legislation ‘permitting judges to issue arrest warrants against foreign dignitaries without any prior knowledge or advice by a prosecutor must be reviewed and reformed’, later confirming that the government ‘is looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again.’ British PM Gordon Brown also threw his weight behind moves to change the law, telephoning Livni to say he ‘completely opposed’ the issuance of the arrest warrant and that she was welcome in the UK at any time. The UK’s Attorney General, Baroness Scotland, spoke at the Hebrew University of Jerusalem in January 2010 to assure Israeli officials of the steps being taken in the UK to ensure they are welcome, regardless of whether they may have committed war crimes or crimes against humanity. She reiterated that the British government is ‘looking urgently at ways in which the UK system might be changed to avoid this situation arising again’.

I gave these examples since I’d submit that the posting, is misguided in accusing Al Haq of attempting, somehow illegitimately, to change the rules of international law. The irony here is that it is Israel which is actively pursuing a course which Palestinian human rights advocates are being accused of. The threat posed to the principles of distinction and of proportionality by Israeli attempts to reshape international humanitarian law to defend policies such as the Dahiye Doctrine has been identified by Justice Goldstone. Before the Human Rights Council, he considered Israeli application of the Dahiye Doctrine against Palestinians in Gaza. He noted that the UN Fact Finding Mission had closely examined pronouncements made by Israeli political and military leaders which stated in clear terms that they would hit at the entire Hamas infrastructure in Gaza: ‘If “infrastructure” were to be understood in that way and become a justifiable military objective, it would completely subvert the whole purpose of IHL built up over the last 100 years and more. It would make civilians and civilian buildings justifiable targets. These attacks amounted to reprisals and collective punishment and constitute war crimes.’

Alas, the UN Security Council is unlikely to refer the situation in the occupied Palestinian territory to the ICC, but I’d suggest that this is not simply due to US intransigence but is also equally applicable to British, French, Russian, and Chinese opposition.

And to raise a final issue with the posting, the conclusion that human rights activists, ‘of all people,’ should agree with ‘this concept of liberty that you can’t impose something on someone against his will’ is bizarre. Should human rights activists have opposed the referral of the Darfur situation to the ICC because Sudan has not ratified the Rome Statute? Should human rights activists oppose the prosecution of alleged Somali rapists on the basis that they did not consent to the Torture Victim Protection Act? (Communal Groups Back Somali in Bid To Block Israel Lawsuits Should human rights activists have opposed the CERD committee’s expansion of the definition of racial discrimination to include descent-based discrimination in the caste system because India hadn’t consented…?

Thanks for the invitation to post a response!


Response by Dov Jacobs

Thank you Michael for your strong rebuttal of my post and your participation in this interesting debate. And for being my first guest post! Because I am aware that my “aggressive” style can sometimes cloud the real substantial points I make, I would like to propose some clarifications.

  You remind us in the beginning of your answer that you are acting in your personal capacity. So was I. I am not an activist of any cause nor try to defend a particular side and am not attempting an exercise in “mirror politics”. I am an academic, and in this sense I acknowledge that I am indeed remote from  certain realities in the field and in the political discourse. But this is my only fault. I would like to stress that I was not singling out Al Haq specifically. I can understand how you may have misperceived my harsh comments about the relation that HR activists have with the law and the possible blurred relationship between law and morals. But I was making these comments as an academic from a theory of law perspective, and despite the harsh rhetoric, I am making a real substantial point. I do not join the chorus of voices trying to label Al Haq as terrorist or slandering their leaders. That is not my fight. My comments were harsh but I really meant them to be taken in an academic context. Given the delicate political situation, I maybe should have made that point clearer.
         In line with that, I was not trying to “discredit” Al Haq with my comments on politics. Again, I was not singling them out and, despite “my style” (I really must do something about that…), I was making a real political theory point about the “depoliticisation” of Human Rights from a conceptual point of view, and not trying to say that Al Haq’s position was not to be considered. If not, I would definitely have phrased my post differently. I’m sorry I might have be misunderstood, and I know that the debate often falls in ad hominen slander, but please don’t attribute to me the thoughts of others and allow me the same intellectual courtesy as I did when I actually engaged into a legal debate about the actual content of the Policy Paper.
        Which brings me to my next point. Despite the harsh language, I find you a little disingenuine in saying that I don’t confront the legal dimensions in my post and don’t respond to the points raised “in a rigorous and intellectual fashion”. On the contrary, I think that my analysis of the ICC Statute is very rigorous. In fact, that you are calling for a “progressive” interpretation of the Statute actually shows that you agree that the “rigorous” approach does not allow for what you claim… I do believe that 12(3) by referring to a “State which is not a Party to the Statute” clearly implies, a contrario that the State could become a Party. Hence, I believe that in order from an entity to be able to make a declaration under 12(3), one can’t avoid an analysis of its Statehood under general international law. You are right, I don’t engage in that part of the discussion because I couldn’t deal with everything and this is a conclusion that I find more appealing from a legal point of view. However the Position Paper suggests that a different definition of State just for 12(3) is possible and I disagree with that. You cannot isolate an article from the rest of the treaty and before you propose a “novel” interpretation of a clause based on the supposed ambiguity of the article, you have to show efficiently that it is indeed a novel situation, which the language of the Article itself does not suggest.
        On the criteria proposed by the OTP, it’s not because they are proposed by the OTP that I should accept them at face value. The Prosecutor has shown time and again his sometimes inadequate grasp of the Statute. And more generally, as an academic I would be out of a job if I didn’t question what the institutions I observe do. I maintain that there is a confusion in the scope of Article 12(3). It is not concerned with the transfer of criminal jurisdiction, which comes later in the process when dealing with complementarity. It is an acceptance that the ICC can exercise its own jurisdiction, which is entirely different. This is why I am still waiting for a convincing justification of questions 2 and 3 from the OTP in deciding to accept the declaration of the PA. In relation to that, you might have found my comment that any State with criminal jurisdiction over Palestinians and Israelis could make a declaration under 12(3) under these criteria a little facetious, but there is a real point there which you have not answered. I know that is not what you were suggesting in your Policy Paper, but in theory, if those are really relevant criterion to establish the capacity to make a declaration under 12(3), then why shouldn’t they be able to? You might not have wanted to imply that, but anybody defending this position must seriously deal with the natural legal consequences of what they suggest. In this sense I don’t see how I could not “draw such a conclusion” from your reasoning.
        On the comparison with self-referrals and “situations”, you claim that it shows that “the ICC process has demonstrated a willingness and ability to progressively interpret and apply the Statute where it is just and valid to do so”. No, it doesn’t. There’s nothing progressive in applying the Statute as it stands, which is exactly what they did. The Statute doesn’t say that the actual State where the crimes had been committed couldn’t refer the case, so they allowed it. As for “situation”, the word was explicitly chosen to allow some geographical flexibility, as opposed to the word “State”, for example… Different words in the Statute for different purposes. I still don’t believe anything can be drawn from this analogy. And while we’re on the topic, the early case law of the Court actually shows on quite a few aspects that the judges are far more reticent in seeing loopholes everywhere, as the ad hoc judges were, and are much prone to applying the Statute as it stands. Except maybe on victim participation, but that can be explained by the drafter’s lack of foresight in a new area when they expected that a single article 68(3) would solve everything, but that’s a different issue.
         You are right about Israel trying to change the rules to fit their interests. And I will disapprove of that in the same way. As I said earlier, I’m not trying to defend anybody’s position and I’m sure nothing in my post suggests otherwise. But I don’t accept the tu quoque argument. It’s not because they do it, that you should do it too. In addition, it was totally irrelevant to raise the question in response to my post. You told me to deal with the substance, not the activists, and I perfectly accept your point. But you just proved that the two are sometimes hard to distinguish... I’m defending the law, and more importantly the respect for the legal process that the rules not be changed through making a moral argument (interests of justice, interests of peace, interests of victims). We all agree on the same fundamental human rights, and if they have to be protected, they don’t necessarily have to be present in all documents and not all treaties are aimed at the protection of each of them.
         On a conciliatory note, I think in fact that we don’t disagree on the finding that there is a problem here. The ICC Statute is a “traditional” treaty that doesn’t provide for situations such as the one we are faced with in the present case. What we disagree on is the methodology. I really do think, however frustrating it may be for both of us to see the inadequacies of international law, especially when it leads to such injustice, that it does not serve the long term legitimacy of international law (if one is attached to that) to try and “force” an legal interpretation on a text which does not contain it. As I said, there is a clear problem with the UN-system in the prevention and repression of international crimes, which relies too heavily on the Security Council, but that is not the ICC’s fault.
         On your final point, I actually think that the “power” given to the Security Council in the ICC Statute to refer cases is contrary to international law, because the Security Council draws its power from the UN Charter and no other treaty. In addition, by joining the UN, Soudan has actually consented to respecting Security Council resolutions. More generally, I agree that certain things need to change from a moral point of view, but we have to be very careful of the legal ramifications of what we suggest. If one argues that consent shouldn’t always be required, I think that we have to be specially aware of what criteria we propose for that. It can’t only be because we consider that the cause is right. If not, it can justify any interventionism based on each person’s concept of rights. But let’s keep this debate on universality Vs relativity of Human Rights for another time, shall we?

Sunday, January 24, 2010

Of Legal Reasoning and Wishful Thinking: The ICC and Gaza

In December, a well established Palestinian Human Rights organisation issued a Position Paper on whether the ICC should recognise the Palestinian's Authority's submission of a declaration to the OTP under article 12(3) of the Statute. For memory, this article provides that:
"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."
 The position paper argues that one should not adopt the general international law definition of statehood, and that in line with the "spirit" of the Statute, the question should be whether the PA has a jurisdictional authority over the crimes and can therefore transfer this authority to the ICC. The answer is positive (unsuprisingly... and I say that not because I doubt the intellectual honesty of the drafters of the policy paper, but because I doubt they would have published the paper had the conclusion be otherwise...).
I find the argumentation pretty smart, but ultimately flawed and unconvincing. Here are a few issues I have with the policy paper.

The question of a different definition of "State" in 12(3)
Here for me lies the biggest flaw in the argumentation. The policy paper refers, among other things to the fact that the Security Council can refer a "situation" to the ICC, as in the Darfur case, that doesn't cover a State as defined in international law and therefore that it has some flexibility to circumscribe the investigation of the ICC . That is true... but irrelevant. As we say in French, "comparaision n'est pas raison". There is no link between the definition of a "situation" in the Rome Statute and the definition of "State" in article 12(3). Indeed, the Security Council could very well refer, for example, the situation in the western provinces of China and the repression of the ouigours and that would not mean that the Xingjian region would itself be recognise as being able to make a declaration under 12(3). These are two different legal issues altogether.
More importantly, 12(3) refers to a "State which is not a Party to the Statute". The Statute itself therefore considers that a "State" is an entity capable of joining the ICC Statute. In order for the PA to use 12(3), it must be established that it has the capacity to join the Rome Statute and is therefore a State itself, under general international law, which the Policy Paper itself recognized as difficult to establish under current international circumstances. I have difficulty in interpreting 12(3) differently against its wording.

The limits of "the object and purpose" approach to treaty interpretation
One paragraph(paragraph 20) of the Paper is particularly troubling and I quote it in full to be accurate:
"The Court has not been long in existence but it is clear from the cited examples that past precedent suggests a tendency to interpret the mechanisms of the Rome Statute expansively, while respectful of the rule of law, and in a manner which prefers fulfilment of the aims of the Statute over a narrow and unduly legalistic reading of international criminal law. It would be contrary to the purposes set forth in the Statute’s Preamble to exclude from the scope of the Court’s jurisdiction a geographical zone in which war crimes and crimes against humanity are perpetrated, on the sole premise that it is not generally recognized either as constituting a state, or a part of any state. Given the Preamble’s affirmation “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and its determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, it is not unreasonable, indeed, it must be expected, that in interpreting the meaning of ‘state’ for the purposes of Article 12(3) of the Rome Statute, an expansive approach, divorced from the political considerations which otherwise tend to guide state recognition, and rooted firmly in the principles and purposes of the UN Charter, must be followed." (my emphasis)
This shows a tendency in a lot of Human Rights activists of interpreting broadly international instruments. It is at the basis for a lot of the case law of the ad hoc tribunals and at the ECHR. Taking the high moral ground allows people who have a more traditional approach to treaty interpretation to be labelled "ennemies of the cause". If I don't accept a HR-friendly expanding of a legal text to cover more situations than initially envisioned, it shows that I'm against HR. That is a dangerous route and plays with the limits of law and morals. It is one thing to recognize the atrocious nature of certain human conducts, it is another to go beyond the law to apply directly a moral rule. As a lawyer, I cannot agree with this "common sense" approach which basically renders the rule of law meaningless.
The "on the sole premise" comment I put in bold above shows the way things are considered. We appear as petty lawyer technocrats who can't see the bigger moral picture. But it is not "on the sole premise"! It is the application of the Statute, a document negotiated, drafted and entered into force based on that drafting. If we follow the "common sense" approach, we might as well give up any rules of international law and at the least any certainty in its application. Who is to decide what is best for whom? I think it is the advocates of this approach who fail the see the bigger picture: that in most cases (with the adequate checks and balances of course) the rule of law implies the mediation of process in the establishment and change of rules in order to avoid arbitrariness. You can't just change the rules just because you think its right or wrong. I perfectly recognise the inadequacies in the international lawmaking process, which is pervaded by selfish State interests. But I don't think that the solution, on the long run, is to bypass the legal process entirely, even if it offers a short-term solution to a apparent loophole.
As for the "political neutrality" called for by the Paper, it is very nice, but totally unconvincing. Human Rights often cloud themselves in the shroud of universal morals detached from politics. But everything is political, in the strongest sense of the term. Societies make choices in governance. Nothing is imposed from above. Al Haq should recognise that it has a political agenda, and there is no shame in that. Like I said before, I doubt they would have published a policy paper saying that the PA was not able to make a declaration and that is perfectly understandable. But let's not pretend to live in an apolitical utopia of HR and goodwill to all men. This is not the nature of men, and more importantly, clouds issues that are key in understanding the world. But i've gone off on a little of a tangent here... back to the issue...

Other relevant criteria
Having interpreted 12(3) as it did, the Policy Paper moves on to answer three questions as posed by the OTP to decide whether to accept the declaration under 12(3). In this sense, the OTP is contributing to the interpretational confusion of article 12(3) by even accepting to discuss the issue. The 3 questions are as follows:

1. Does the PA have the capacity to enter into international agreements?
2. Does the PA have the capacity to try Palestinians on criminal charges?
3. Does the PA have the capacity to try Israeli citizens on criminal charges?
I won't go into a detailed consideration about these three questions and the argumentation put forward by Al Haq. More generally, I don't see how these considerations are the application of 12(3). 12(3) only refers to the exercise of 12(2) (blatantly absent from the Policy Paper!!!) which gives the two following jurisdictional criteria:
"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."
 12(3) doesn't exist in a void and has to be read in conjunction with 12(2). Therefore, accepting that the PA is a State under 12(3) is also recognizing that it is State under 12(2) which refers to two very traditional attributes of the State: territory and nationality. Presumably, the PA is not giving its "authorisation" for 12(2)(b), given that the alleged perpetrators will be Israeli, so 12(3) must apply in this case to 12(2)(a), thus indirectly accepting that the PA is a State with some territorial sovereignty. Pretty close to Statehood in the traditional sense.
Outside this consideration, the 3 questions posed are broadly irrelevant. The first one is, if one accepts the Policy Paper's interpretation of 12(3). If the PA is not a State, it must still have the capacity to enter into a cooperation agreement with the ICC. But the other two are not. The criminal jurisdiction over the crimes is not helpful to apply 12(3). As the Policy Paper itself argues, most international crimes carry a certain obligation to exercise universal jurisdiction. Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? it doesn't make sense. Again, the two considerations for 12(3) are those contained in 12(2): nationality and territory.

Why the confusion?
Why have these criteria been considered at all, including by the OTP? This is a totally uninformed guess, but I think there might be confusion as to the extent of 12(3). As I said before, it is linked to 12(2) and the jurisdictional links that circumscribe ICC jurisdiction. But 12(3) is not an additional trigger mechanism. There are only three: referral by a State Party, the Security Council and the exercise of proprio motu powers by the Prosecutor (are people actually still holding their breath on that one?). The conditions put forward by the OTP and the Policy Paper are better fit to the triggering of a case or the admissibility of the case, not the existence of the territorial and national jurisdiction over the case, which is what 12(2) and 12(3) are concerned with. Even if the declaration were to be accepted, it would still be required that a State or the Security Council refer the situation, or that the prosecutor seize himself of the situation.

This is once again a case of mass delusion in my opinion, of wanting the Statute to say something it doesn't and therefore pretending that it does. The challenges of combating international crimes must be met, but not at the cost of legal certainty. Now that I think about it, the Policy Paper is wrong in saying that the Statute does not provide for situations like this, thus allowing alleged crimes go unpunished. The Security Council, as the Paper mentions, can refer any situation with a lot of discretion, irrespective of the status of the territory or the nationality of the alleged perpetrators. Of course, the US will never allow a case involving Israel to be referred to the ICC, but this reveals a problem with the Security Council, where the fight should be taken, not the ICC Statute, which, as a treaty is bound by a fundamental rule of international law, that an agreement binds only those who consented to it. Of all people, Human Rights activists should agree with this concept of liberty that you can't impose something on someone against his will...