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Article 33, para. 2
(2011)
Article 1 F
(2011)
State sucession in treaties
(2012)
Continuity of states
(2012)
In 2009, 'Palestine' lodged a declaration recognizing the jurisdiction of the ICC under Article 12(3). However, in April 2012, the OTP determined that this declaration had not brought about the result, of providing for the ICC's jurisdiction, pending clarification from the political organs of the UN concerning the legal status of Palestine within the organization. On 29 November 2012, the General Assembly granted Palestine the status of a non-member observer state within the UN framework, thereby fulfilling the condition mentioned by the OTP in April 2012. It is against this background that the article considers the current legal effects of the 2009 Palestinian declaration. In particular, it addresses the issue of whether the declaration, when read in conjunction with the 29 November 2012 decision, possesses retroactive effect, i.e. whether it provides, as claimed, for the Court's temporal jurisdiction from 1 July 2002 onwards or rather starting only from 29 November 2012.
... the current status granted to Palestine by the United Nations General Assembly is that of 'observer', not as a 'Non-member State'. ... [T]his... informs the current legal status of Palestine for the interpretation and application of article 12 [Rome Statute]. ... The Office could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations... resolve the legal issue relevant to an assessment of article 12. ... International Criminal Court, Office of the Prosecutor, 'Situation in Palestine', 3 April 2012
Draft Article 15 of the International Law Commission’s project on crimes against humanity — dealing with the settlement of disputes arising from a proposed convention — attempts to strike a balance between state autonomy and robust judicial supervision. It largely follows Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, which renders the jurisdiction of the International Court of Justice (ICJ) conditional upon prior negotiations. Hence, the substance of the clause can be interpreted in light of the recent case law of the ICJ, especially in the case Georgia v. Russia. In addition, this contribution discusses several issues regarding the scope ratione temporis of the compromissory clause. It advances several proposals to improve the current draft, addressing its relationship with state responsibility — an explicit reference to which is currently missing — as well as the relationship between the ICJ and a possible treaty body. It also proposes to recalibrate the interplay of the requirement of prior negotiations with, respectively, the possibility of seizing a future treaty body and the indication of provisional measures by the ICJ.