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ICC Prosecutor says Court does not have authority to determine whether Palestine is a state and cannot continue with preliminary examination at this time
Coalition for the International Criminal Court

C: REUTERSFindings on Palestine Preliminary Examination Announced

ICC Prosecutor says Court does not have authority to determine whether Palestine is a state and cannot continue with preliminary examination at this time

On 3 April 2012, the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), announced that it was unable to proceed with its preliminary examination in the Occupied Palestinian Territories at this time as it did not have the authority to determine whether Palestine was a "state" for the purposes of the Rome Statute, but that it was for the "relevant bodies" at the United Nations or the ICC Assembly of States Parties to make that legal determination. However, the OTP also stated that it "could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of Article 12(3) of the Rome Statute or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction."

Read the announcement
Update on Situation in Palestine, ICC Office of the Prosecutor, April 2012

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C: Amnesty International Background
On 22 January 2009, the Palestinian National Authority had lodged a declaration with the ICC registrar recognising the jurisdiction of the Court with respect to acts committed on the territory of Palestine since 1 July 2002. States who are not party to the Rome Statute can submit a declaration submitted under Article 12(3) of the Rome Statute, the ICC's founding treaty, accepting the jurisdiction of the Court with respect to crimes committed since July 2002. The declaration also obligates the State in question to cooperate with the Court. Since 2009, the OTP has been examining whether the declaration accepting the exercise of jurisdiction by the Court met statutory requirements, namely whether the Palestinian National Authority constituted a "state" for the purposes of Article 12(3).

As part of its preliminary examination the OTP also sought additional information from various sources, including NGOs. A number of submissions were received with some sixteen made public by the OTP. In addition the OTP received some 388 communications in relation to alleged crimes committed in Gaza between December 2008 and January 2009.


United Nations processes
On 23 September 2011, the Palestinian President Mahmoud Abbas presented an application to the UN Secretary General Ban Ki Moon seeking full UN membership, upgrading it from its current observer status.  The application has yet to go before the UN Security Council where the support of nine out of the fifteen members is required in order for the application to progress and for eventual concurrence by two thirds of the UN General Assembly. The United States had already indicated, however, that it would veto any such application were it to come before the UN Security Council, blocking its further progress.  Although the process for UN membership is a distinct one, full membership of the UN would arguably have some bearing on it's status as a "state" for the purposes of the Rome Statute.

On 29 September 2009 the UN Fact Finding Mission on the Gaza Conflict published its report, also known as the “Goldstone report,” which concluded that there is evidence indicating serious violations of international human rights and humanitarian law committed by Israel and Palestinian armed groups during the conflict between 27 December 2008 and 18 January 2009. A principle recommendation of the report was that the matter be referred to the ICC Prosecutor, should the competent national authorities in Gaza and Israel fail to address these crimes.

In addition to its seven ongoing investigations, the OTP  has made public that it is conducting eight preliminary examinations on four continents: Afghanistan, Colombia, Georgia, Guinea, Honduras, Republic of Korea, Nigeria and Palestine.

More info
Coalition webpage on ICC preliminary examinations.
ICC webpage on communications, referrals and preliminary examinations
Draft Policy Paper on Preliminary Examinations, ICC Office of the Prosecutor, 2010



Coalition policy on the referral and prosecution of situations before the ICC
The Coalition for the ICC is not an organ of the court. The CICC is an independent NGO movement dedicatd to the establishment of the International Criminal Court as a fair, effective, and independent international organization. The Coalition will continue to provide the most up-to-date information about the ICC and to help coordinate global action to effectively implement the Rome Statute of the ICC. The Coalition will also endeavor to respond to basic queries and to raise awareness about the ICC's trigger mechanisms and procedures, as they develop. The Coalition as a whole, and its secretariat, do not endorse or promote specific investigations or prosecutions or take a position on situations before the ICC. However, individual CICC members may endorse referrals, provide legal and other support on investigations, or develop partnerships with local and other organizations in the course of their efforts. Communications to the ICC caent to: ICC, P.O. Box 19519, 2500 CM, The Hague, the Netherlands.
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