7 Nationalizing International Criminal Law
in Palestine:
The Challenge of Complementarity
Mutaz M. Qafisheh*
Abstract
After becoming a state party to the Rome Statute of the International
Criminal Court, Palestine needs to adopt comprehensive legislation
and to adapt its institutions to implement the Statute nationally. The
legislation should answer pending questions on the relationship be-
tween Palestine and the Court, including specifying the official body
in charge of coordination with the Court, and the roles of the judiciary,
prosecution, police, prison officials, and of civil society. It needs to in-
clude substantive provisions relating to international crimes, penalties
and procedures to prosecute such crimes. If a state fails to enact such
legislation and set up corresponding institutional structures, the Court
may automatically admit international crimes that might be committed
in the state’s territory or by its citizens.
1 Introduction
On 1 April 2015, Palestine became the 123rd state party to the Rome Stat-
ute of the International Criminal Court (‘ICC’ or ‘Court’)1 of 17 July
1998.2 Palestine, like any ICC state party, has the right to “exercise its
crimi-
* Dean and Associate Professor of International Law, Hebron University College
of Law & Political Science, Palestine (PhD, Graduate Institute, Geneva); PhD
Supervisor, University of Exeter, UK. Member, International Law Association’s
Complementarity Committee, London. I would like to thank Nereida Heller
(Berkeley), Alice Panepinto (Warwick), and Mia Swart (Johannesburg) for their
useful comments on early drafts of this article. Email:
or .
1 ICC Press Release, ‘ICC welcomes Palestine as a new State Party’, ICC-CPI-
20150401-PR1103 (The Hague, 1 April 2015).
2 2187 United Nations Treaty Series (UNTS) p. 90. Hereinafter ‘the Rome Statute’ or
‘the Statute’.
Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2014.
© 2016 Koninklijke Brill nv. isbn 978-90-04-32485-5. pp. 165-197.
,16 7 – Qa FISHEH
6
nal jurisdiction over those responsible for international crimes”,3 as
the ICC’s function is considered to be “complementary to national
crimi- nal jurisdictions”.4 Based on Article 17 of the Statute, the Court
refrains from acting in the face of national investigation, prosecution,
trial, or punishment of perpetrators.5 In other words, by satisfying the
comple- mentarity requirements at the domestic level, states may
avoid sending their citizens and others to The Hague.6 Hence, if
Palestine wishes to prevent the ICC from prosecuting Palestinians
who might be accused of committing crimes of international concern,
it should fulfill the Stat- ute’s stipulations regarding complementarity.
This article seeks to assess the extent to which the Palestinian legal
system and institutions are already consistent with the Rome Statute’s
stipulations, and what Palestine can do to comply with those require-
ments. It will first look at the applicable legislation and the legislative
re- form needed to satisfy the ICC complementarity standards. It will
then evaluate the recent governmental efforts to form a mechanism for
coor- dination with the Court. Third, it explores whether the current
criminal justice structure, including courts, prosecution, police and
prisons, as well as civil society, are prepared to comply with the ICC-
related obli- gations. As legislative, executive and judicial institutions
would not in themselves guarantee the genuine implementation of the
Statute at the national level, this article will conclude by appraising
the willingness7
3 The Statute, preamble, para. 10.
4 Article 1 of the Statute.
5 K. Vaid, ‘What Counts as State Action under Article 17 of the Rome Statute – Ap-
plying the ICC’s Complementarity Test to Non-Criminal Investigations by the
United States into War Crimes in Afghanistan’, 44 New York University Journal of
International Law and Politics (2012) pp. 573-628, at p. 574.
6 J. Kleffner, ‘The Impact of Complementarity on National Implementation of Sub-
stantive International Criminal Law’, 1 Journal of International Criminal Justice
(2003) pp. 86-113; L. Yang, ‘On the Principle of Complementarity in the Rome
Statute of the International Criminal Court’, 4 Chinese Journal of International
Law (2005) pp. 121-132; D. Radosavlievic, ‘An Overview of the ICC Complementary
Regime’, 3 Review of International Law and Politics (2007) pp. 96-114; and J. Kleff-
ner, Complementarity in the Rome Statute and National Criminal Jurisdictions
(Oxford University Press, Oxford, 2008).
7 Article 17(2) of the Statute.
, Na TIO nal I z I ng I n TE rna TIO nal Cr I m I nal Law I n 1
and ability8 of the State of Palestine to bring justice to victims.9 Yet the
article does not discuss the legal status of Palestine under international
law.10
2 National Legislation
2.1 A Constitutional Remark
The current legislative instrument that forms the constitution of Pal-
estine (or of the Palestinian Authority) is the Amended Basic Law of
18 March 2003.11 The Basic Law was envisioned as an interim consti-
tutional instrument meant to govern the Authority before creating an
independent state.12 The instrument makes no mention of the process
of signing, accepting, ratifying, or acceding to international treaties.13
The question, therefore, is how Palestine has become party to the Rome
Statute (and other treaties).14
Any student of international law will be familiar with the fact that
states sign treaties on the international plane as an initial step towards
national endorsement.15 The treaty normally enters into force after
ratification or accession, as the case might be, according to domestic
constitutional requirements in a given state. These requirements differ
8 Article 17(3) of the Statute.
9 Judge Kuniko Ozaki, Remarks at Welcoming Ceremony for the State of Palestine,
given in the capacity of Acting President of the International Criminal Court (The
Hague, 1 April 2015), p. 2.
10 M. Qafisheh (ed.), Palestine Membership in the United Nations: Legal and Practi-
cal Implications (Cambridge Scholars Publishing, Newcastle, 2013).
11 Palestine Gazette, Special Edition, 19 March 2004, p. 5.
12 The Palestinian Basic Law was first adopted on 29 May 2002 and significantly
amended in 2003. M. Qafisheh, ‘Legislative Drafting in Transitional States: The
Case of Palestine’, 2 International Journal for Legislative Drafting and Law Reform
(2014) pp. 7-34, at p. 26.
13 H. Duffy, ‘National Constitutional Compatibility and the International Criminal
Court’, 11 Duke Journal of Comparative & International Law (2001) pp. 5-38.
14 Between 8 December 2011, with the accession of the Convention concerning
the Protection of the World Cultural and Natural Heritage of 16 November 1972
(1037 UNTS p. 153), and 1 April 2015, Palestine has become party to 45 treaties. M.
Qafisheh, ‘International Educational and Cultural Obligations of Palestine’, 10
Essex Human Rights Review (2015) pp. 1-19, at p. 15.
15 J. Crawford, Brownlie’s Principles of International Law (Oxford University Press,
Oxford, 2012) pp. 371-373.
, 16 7 – Qa FISHEH
8
from one state to the next: some use a referendum,16 others use an
act of parliament,17 and still others use their national law-making
process- es, including publication in the official gazette.18 Palestinian
President Mahmoud Abbas ‘signed’ the Statute on 31 December 2014.19
Does that ‘signature’ constitute ‘accession’?
Article 125(3) of the Statute allows states, after 31 December 2000,
to become an ICC member through accession. Article 12, para. 1(c), of
the Vienna Convention of the Law of Treaties of 22 May 1969 regards
a signature as consent by the state to be bound by the treaty when the
“intention of the State to give that effect to the signature appears from
the full powers of its representative”.20 When performed by the head of
state, the signature functions as ratification or accession, as he or she
has presumed full powers of representation.21 For these reasons, the let-
ters signed by President Abbas on 31 December 2014 which listed trea-
ties that Palestine requested to become party to were accepted by the
United Nations (UN) Secretary-General, as the depository, who declared
that Palestine has become party to these treaties.22 The Rome Statute
16 E.g. Switzerland Federal Law on Cooperation with the International Criminal
Court of 22 June 2001, Article 60(1).
17 R. Eerola and A. Välimaa, ‘Finland’, in C. Kreß et al. (eds.), The Rome Statute and
Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (No-
mos, Baden-Baden, 2005), vol. II, pp. 71-79.
18 E.g. New Zealand International Crimes and International Criminal Law Act No.
26 of 6 September 2000 (reprinted on 1 October 2012). See J. Hay, ‘Implementing
the ICC Statute in New Zealand’, 2 Journal of International Criminal Justice (2004)
pp. 191-210.
19 ‘Palestinian president signs up to join international criminal court’, The Guard-
ian (London, 31 December 2014).
20 1155 UNTS p. 331. Palestine acceded to this convention on 2 April 2014. See Office
of the United Nations Special Coordinator for the Middle East Peace Process,
Report of the Ad Hoc Liaison Committee (New York, 22 September 2014) p. 8.
21 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nige-
ria: Equatorial Guinea intervening), ICJ, 10 October 2002, Judgment, I.C.J. Reports
2002, p. 430.
22 UN Press Release, ‘Palestine moves to join International Criminal Court, numer-
ous global treaties’ (New York, 2 January 2015).
in Palestine:
The Challenge of Complementarity
Mutaz M. Qafisheh*
Abstract
After becoming a state party to the Rome Statute of the International
Criminal Court, Palestine needs to adopt comprehensive legislation
and to adapt its institutions to implement the Statute nationally. The
legislation should answer pending questions on the relationship be-
tween Palestine and the Court, including specifying the official body
in charge of coordination with the Court, and the roles of the judiciary,
prosecution, police, prison officials, and of civil society. It needs to in-
clude substantive provisions relating to international crimes, penalties
and procedures to prosecute such crimes. If a state fails to enact such
legislation and set up corresponding institutional structures, the Court
may automatically admit international crimes that might be committed
in the state’s territory or by its citizens.
1 Introduction
On 1 April 2015, Palestine became the 123rd state party to the Rome Stat-
ute of the International Criminal Court (‘ICC’ or ‘Court’)1 of 17 July
1998.2 Palestine, like any ICC state party, has the right to “exercise its
crimi-
* Dean and Associate Professor of International Law, Hebron University College
of Law & Political Science, Palestine (PhD, Graduate Institute, Geneva); PhD
Supervisor, University of Exeter, UK. Member, International Law Association’s
Complementarity Committee, London. I would like to thank Nereida Heller
(Berkeley), Alice Panepinto (Warwick), and Mia Swart (Johannesburg) for their
useful comments on early drafts of this article. Email:
or .
1 ICC Press Release, ‘ICC welcomes Palestine as a new State Party’, ICC-CPI-
20150401-PR1103 (The Hague, 1 April 2015).
2 2187 United Nations Treaty Series (UNTS) p. 90. Hereinafter ‘the Rome Statute’ or
‘the Statute’.
Jure Vidmar, Ruth Kok, et al. (eds.), Hague Yearbook of International Law 2014.
© 2016 Koninklijke Brill nv. isbn 978-90-04-32485-5. pp. 165-197.
,16 7 – Qa FISHEH
6
nal jurisdiction over those responsible for international crimes”,3 as
the ICC’s function is considered to be “complementary to national
crimi- nal jurisdictions”.4 Based on Article 17 of the Statute, the Court
refrains from acting in the face of national investigation, prosecution,
trial, or punishment of perpetrators.5 In other words, by satisfying the
comple- mentarity requirements at the domestic level, states may
avoid sending their citizens and others to The Hague.6 Hence, if
Palestine wishes to prevent the ICC from prosecuting Palestinians
who might be accused of committing crimes of international concern,
it should fulfill the Stat- ute’s stipulations regarding complementarity.
This article seeks to assess the extent to which the Palestinian legal
system and institutions are already consistent with the Rome Statute’s
stipulations, and what Palestine can do to comply with those require-
ments. It will first look at the applicable legislation and the legislative
re- form needed to satisfy the ICC complementarity standards. It will
then evaluate the recent governmental efforts to form a mechanism for
coor- dination with the Court. Third, it explores whether the current
criminal justice structure, including courts, prosecution, police and
prisons, as well as civil society, are prepared to comply with the ICC-
related obli- gations. As legislative, executive and judicial institutions
would not in themselves guarantee the genuine implementation of the
Statute at the national level, this article will conclude by appraising
the willingness7
3 The Statute, preamble, para. 10.
4 Article 1 of the Statute.
5 K. Vaid, ‘What Counts as State Action under Article 17 of the Rome Statute – Ap-
plying the ICC’s Complementarity Test to Non-Criminal Investigations by the
United States into War Crimes in Afghanistan’, 44 New York University Journal of
International Law and Politics (2012) pp. 573-628, at p. 574.
6 J. Kleffner, ‘The Impact of Complementarity on National Implementation of Sub-
stantive International Criminal Law’, 1 Journal of International Criminal Justice
(2003) pp. 86-113; L. Yang, ‘On the Principle of Complementarity in the Rome
Statute of the International Criminal Court’, 4 Chinese Journal of International
Law (2005) pp. 121-132; D. Radosavlievic, ‘An Overview of the ICC Complementary
Regime’, 3 Review of International Law and Politics (2007) pp. 96-114; and J. Kleff-
ner, Complementarity in the Rome Statute and National Criminal Jurisdictions
(Oxford University Press, Oxford, 2008).
7 Article 17(2) of the Statute.
, Na TIO nal I z I ng I n TE rna TIO nal Cr I m I nal Law I n 1
and ability8 of the State of Palestine to bring justice to victims.9 Yet the
article does not discuss the legal status of Palestine under international
law.10
2 National Legislation
2.1 A Constitutional Remark
The current legislative instrument that forms the constitution of Pal-
estine (or of the Palestinian Authority) is the Amended Basic Law of
18 March 2003.11 The Basic Law was envisioned as an interim consti-
tutional instrument meant to govern the Authority before creating an
independent state.12 The instrument makes no mention of the process
of signing, accepting, ratifying, or acceding to international treaties.13
The question, therefore, is how Palestine has become party to the Rome
Statute (and other treaties).14
Any student of international law will be familiar with the fact that
states sign treaties on the international plane as an initial step towards
national endorsement.15 The treaty normally enters into force after
ratification or accession, as the case might be, according to domestic
constitutional requirements in a given state. These requirements differ
8 Article 17(3) of the Statute.
9 Judge Kuniko Ozaki, Remarks at Welcoming Ceremony for the State of Palestine,
given in the capacity of Acting President of the International Criminal Court (The
Hague, 1 April 2015), p. 2.
10 M. Qafisheh (ed.), Palestine Membership in the United Nations: Legal and Practi-
cal Implications (Cambridge Scholars Publishing, Newcastle, 2013).
11 Palestine Gazette, Special Edition, 19 March 2004, p. 5.
12 The Palestinian Basic Law was first adopted on 29 May 2002 and significantly
amended in 2003. M. Qafisheh, ‘Legislative Drafting in Transitional States: The
Case of Palestine’, 2 International Journal for Legislative Drafting and Law Reform
(2014) pp. 7-34, at p. 26.
13 H. Duffy, ‘National Constitutional Compatibility and the International Criminal
Court’, 11 Duke Journal of Comparative & International Law (2001) pp. 5-38.
14 Between 8 December 2011, with the accession of the Convention concerning
the Protection of the World Cultural and Natural Heritage of 16 November 1972
(1037 UNTS p. 153), and 1 April 2015, Palestine has become party to 45 treaties. M.
Qafisheh, ‘International Educational and Cultural Obligations of Palestine’, 10
Essex Human Rights Review (2015) pp. 1-19, at p. 15.
15 J. Crawford, Brownlie’s Principles of International Law (Oxford University Press,
Oxford, 2012) pp. 371-373.
, 16 7 – Qa FISHEH
8
from one state to the next: some use a referendum,16 others use an
act of parliament,17 and still others use their national law-making
process- es, including publication in the official gazette.18 Palestinian
President Mahmoud Abbas ‘signed’ the Statute on 31 December 2014.19
Does that ‘signature’ constitute ‘accession’?
Article 125(3) of the Statute allows states, after 31 December 2000,
to become an ICC member through accession. Article 12, para. 1(c), of
the Vienna Convention of the Law of Treaties of 22 May 1969 regards
a signature as consent by the state to be bound by the treaty when the
“intention of the State to give that effect to the signature appears from
the full powers of its representative”.20 When performed by the head of
state, the signature functions as ratification or accession, as he or she
has presumed full powers of representation.21 For these reasons, the let-
ters signed by President Abbas on 31 December 2014 which listed trea-
ties that Palestine requested to become party to were accepted by the
United Nations (UN) Secretary-General, as the depository, who declared
that Palestine has become party to these treaties.22 The Rome Statute
16 E.g. Switzerland Federal Law on Cooperation with the International Criminal
Court of 22 June 2001, Article 60(1).
17 R. Eerola and A. Välimaa, ‘Finland’, in C. Kreß et al. (eds.), The Rome Statute and
Domestic Legal Orders: Constitutional Issues, Cooperation and Enforcement (No-
mos, Baden-Baden, 2005), vol. II, pp. 71-79.
18 E.g. New Zealand International Crimes and International Criminal Law Act No.
26 of 6 September 2000 (reprinted on 1 October 2012). See J. Hay, ‘Implementing
the ICC Statute in New Zealand’, 2 Journal of International Criminal Justice (2004)
pp. 191-210.
19 ‘Palestinian president signs up to join international criminal court’, The Guard-
ian (London, 31 December 2014).
20 1155 UNTS p. 331. Palestine acceded to this convention on 2 April 2014. See Office
of the United Nations Special Coordinator for the Middle East Peace Process,
Report of the Ad Hoc Liaison Committee (New York, 22 September 2014) p. 8.
21 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nige-
ria: Equatorial Guinea intervening), ICJ, 10 October 2002, Judgment, I.C.J. Reports
2002, p. 430.
22 UN Press Release, ‘Palestine moves to join International Criminal Court, numer-
ous global treaties’ (New York, 2 January 2015).
