According to the Rome Statute, the Prosecutor may initiate an investigation on the basis of a referral from a State Party or from the UN Security Council. The Prosecutor can also initiate investigation proprio motu, or on his or her own initiative, on the basis of communications received. The Prosecutor must receive the authorization of the Pre-Trial Chamber in order to initiate an investigation on his or her own initiative.
The Prosecutor, having evaluated the information made available to him or her, may initiate an investigation after considering whether the information provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been committed and whether the case is admissible. A case is inadmissible if it is not of sufficient gravity or if it is being investigated or prosecuted by a State, unless the State is unable or unwilling to genuinely carry out the investigation. The jurisdiction of the Court is limited to the most serious crimes of concern to the international community as a whole: the crime of genocide, crimes against humanity, and war crimes.
To date, 22 cases in 9 situations have been brought before the International Criminal Court since the entry into force of the Rome Statute on July 1, 2002.
The Office of the Prosecutor (OTP) is currently conducting preliminary examinations into the situations in Palestine, Ukraine, Iraq, and Honduras. For these countries/states, the Prosecutor has not yet determined whether the alleged crimes meet the requirements to open a formal investigation. The OTP is also assessing if genuine national proceedings are underway in Afghanistan, Georgia, Guinea, Colombia, and Nigeria.
On January 22, 2009, Dr. Ali Al-Khashan, former Minister of Justice of the Palestinian National Authority, lodged a declaration pursuant to Article 12(3) of the Rome Statute with the Court's Registrar. In accordance with article 15 of the Statute, the Office of the Prosecutor (OTP) initiated a preliminary examination to determine whether or not a formal investigation was warranted. As is standard for any preliminary examination, the OTP must first determine if the situation at hand meets the preconditions for the Court's exercise of jurisdiction defined in article 12 of the Statute. The Court may exercise its jurisdiction over crimes committed by nationals of States that are Parties to the Statute or over crimes committed on the territory of State Parties. A State not Party to the Statute may also accept the jurisdiction of the Court by lodging a declaration with the Registrar. Not being a State Party, Palestine chose this course of action. At this time, Palestine's statehood status was unclear. In instances where it is controversial or unclear whether an applicant constitutes a "State," it is generally the practice of the OTP to defer to the UN General Assembly's (UNGA) directives on the matter. At this time, Palestine's status at the United Nations (UN) was that of "an observer entity." There were no general international law provisions to guide the Court on how it should respond to this situation. It therefore made its own decision that Palestine was not a state eligible to make the declaration.
Under the UNGA, the status of Palestine's statehood had evolved between January 2009 and January 2015, when Palestine once again lodged a declaration pursuant to Article 12(3) of the Rome Statute. Specifically, on November 29, 2012, the UNGA granted Palestine "non-member observer State status." Thereafter, Palestine presented both the second declaration and a document of ratification to UN Secretary General (UNSG), Ban Ki Moon. This invoked his responsibilities under international law as "depository" of the Rome Statute. According to article 77(1)(c) of the Vienna Convention on the law of treaties, the function of the depository includes "receiving any signatures to the treaty," among other things. Under article 77(1)(d), the depository is also responsible for "examining whether the signature or any instruments, notification or communication relating to the treaty is in due and proper form." Acting in this capacity, the UNSG independently determined, in light of the General Assembly's 2012 decision, that Palestine now had statehood status and eligibility to ratify the Rome Statute. He therefore accepted Palestine's accession to the Rome Statute on January 6, 2015, following Palestine's deposit of the instruments of accession. Under international law, once the depository has acted, officials or judges of the ICC are pre-empted from making any determination about Palestine's eligibility to ratify the Rome Statute.
Should the OTP decide that an investigation, and consequent prosecution, is warranted in the situation of Palestine, it is possible that defense counsel will again bring up the contested issue of Palestine's statehood. In this case, the Court's judges would have the power to reverse UNSG's decision that Palestine was eligible to ratify the Rome Statute. Although this possibility exists, it is unlikely that the judges will defy the UNSG's determination as treaty depository.
Both the Katanga and Lubanga cases at the ICC are complete.
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