Comment by fusslo
10 hours ago
I'm not saying I agree with the following.
From what I've read from the ICC:
1. Palestine acceded to the Rome Statute.
2. The ICC recognizes the Gaza Strip and the West Bank to be Palestinian territories
3. The ICC Article 12(2)(a): “The Court may exercise its jurisdiction if the crime in question is committed on the territory of a State Party to this Statute.”
4. Therefore, ICC argues it does have jurisdiction
So, according to the ICC, you don't need to be apart of the Rome Statute for the ICC to have jurisdiction
at least thats the argument for ICC's jurisdiction over Israeli nationals. IDK if the ICC ever tried that with the USA
I think the argument is subtley different (sorry if this is nitpicky)
1. Palestine is a state, whose territorial extent includes the gaza strip (the most controversial proposition)
2. Under international law, a soveriegn state has the right to prosecute any crime that takes place on their territory. In many ways this is kind of the definition of soveriegnty - the ability to control and make decisions in your territory (in the caee of war, subject to the restrictions imposed by the geneva convention)
3. Soverign states can delegate this power to anyone they chose
4. Palestine delegated this power to the ICC, subject to the provisions of the Rome statue.
> So, according to the ICC, you don't need to be apart of the Rome Statute for the ICC to have jurisdiction
The idea that courts have juridsiction over foreign nationals who commit crimes in their territory is very standard and is generally true for all courts.
E.g. if you are a tourist visiting another country and murder someone, you still get arrested by local authorities. There is no get out of jail free card because you are a foreigner. What is relavent is where the crime took place not who comitted it.
In the case of the ICC, the ICC is acting on behalf of Palestine. So its juridsiction would be the same as whatever Palestine's would be minus any additional restrictions imposed by the rome statue.
The fact that the Palestinian Authority has made no attempt at arresting the Hamas members also charged by the ICC, shows they do not have sovereignty in Gaza - they don’t have the ability to control and make decisions there.
I actually generally agree with this. How can the PA have sovereignty over an area they basically have never controlled? It seems pretty unprecedented to have a "state" that does not have control of its territory at time of recognition.
That said, it should be noted that the Hamas members publicly charged are all dead now and you can't arrest a dead person (the icc can also make warrants in secret so its possible there are secret warrants). But even if they weren't, it is clear they don't have the ability to enforce justice (or anything else) in Gaza, nor did they have that ability in the past.
IIRC, the prosecutor on the ICC responded to the sanctions by suggesting that they could charge individuals interfering with the court with obstruction. Which, as far as US sanctions are concerned, they definitely don't have the jurisdiction to do. I don't think anything legal came of it, but that is exactly the sort of threat that, from a prosecutor, sounds like abuse.
Why do you say they don't have jurisdiction in that case?
Article 70:
“It shall be a crime for any person to commit any of the following acts:
(a) giving false testimony;
(b) presenting false or forged evidence;
(c) corruptly influencing a witness, expert, or court official;
(d) interfering with or intimidating a witness, expert, or court official;
(e) committing any other act which perverts the course of justice in relation to proceedings before the Court.”
Article 70's jurisdiction is not tied to member states. It applies to anyone, anywhere that may affect the court's functioning.
edit: maybe you're saying the ICC cannot have jurisdiction over people/nations that never agreed to be apart of their jurisdiction, regardless of what the Rome Statue says?
Yes, just because the Rome statute claims jurisdiction doesn't make it true, if the jurisdiction in question didn't agree.
In the US, this has all the legal power of Joe Sixpack declaring legal power, or a Russian court. If the ICC tried, the US would tell them to pound sand (or more likely, increase sanctions).
Since the US is not a signatory, as far as they are concerned, the ICC is just a random organization claiming to hold powers it doesn't have.
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In the giants legal overreach death match of USA vs ICC, I am betting on the USA as a force that can actually enforce out-of-jurisdiction law against the other