Disentangling the Knots: A Comment on Ambos’ ‘Palestine, ‘Non-Member Observer’ Status and ICC Jurisdiction’

Valentina Azarov (pictured left) is Lecturer in Human Rights and International Law, Al-Quds Bard College, Al-Quds University, Palestine. Chantal Meloni (pictured right) is Adjunct Professor of International Criminal Law, University of Milan, Italy and Alexander von Humboldt fellow, Humboldt University of Berlin.

In a recent post on ‘Palestine, non-Member Observer Status and ICC Jurisdiction’, Kai Ambos raises important points that require, in our view, some basic clarifications. While many of these arguments have been made previously by eminent experts and practitioners, they have become particularly relevant with the recent accessions by Palestine to 20 international treaties (see here and here) including some of the most important international human rights and humanitarian law instruments, as well as a letter dated 8 May 2014 addressed to President Abbas by 17 human rights groups calling for Palestine to seek access to the ICC.

Arguably the most critical issue raised by Ambos concerns the 2009 Declaration lodged by the Palestinian government pursuant to Article 12(3) of the International Criminal Court Statute accepting the jurisdiction of the ICC. Ambos claims that this Declaration is void because, in his view UN General Assembly Resolution 67/19 (2012), which granted “non-member observer state status” to Palestine does not possess retroactive effect. However, as explained below, a GA resolution is not constitutive, nor even declarative of the existence of a ‘State’, since, strictly speaking, formal recognition is a state act (Crawford 2006, 27-28). It merely provides further indication of Palestine’s treatment as a ‘State’ by international actors. In fact, as will be argued, the ICC could have exercised its jurisdiction over Palestine on the basis of the 2009 Declaration, even prior to the UN GA Res 67/19.

Validity and ‘Retroactivity’ of the 2009 Declaration 

At the outset, Ambos claims that the 2009 Declaration was “not validly lodged,” citing a November 2013 Report on Preliminary Examination Activities by the ICC Prosecutor’s Office (OTP). However, there are conspicuous differences in the language used by the ICC Prosecutor in this report and in its decision of 3 April 2012 not to open an investigation. The official 2012 decision does not hold that the declaration was not validly lodged. Rather, in that ‘decision not to decide’ (see Dapo Akande), the Prosecutor stated that the ‘Office 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.’  The 2013 report quoted by Ambos is a communication of the office’s activities that clearly carries less weight than an official decision. It is not meant to have dispositive value but is merely part of the OTP’s regular reporting duties: “In order to promote transparency of the preliminary examination process the Office aims to issue regular reports on its activities and provides reasoned responses for its decisions either to proceed or not proceed with investigations” (par. 13).

As pointed out elsewhere, there are well-grounded reasons to believe that the Prosecutor’s 2012 decision was wrong.  Procedurally, while acknowledging that the Rome Statute provides no authority for the ICC Prosecutor to define or determine ‘State’ status, the Prosecutor failed to refer the question of Palestine’s ‘State’ status to the UN, the ICC Assembly of States Parties (ASP), or the competent ICC body (the Pre-Trial Chamber). Instead, during a preliminary examination that lasted for 39 months, the Prosecutor invited submissions on the matter from a wide variety of ‘experts.’  Among these, eminent scholars such as Alain Pellet, John Quigley and Vera Gowlland-Debbas, inter alia, have argued that Palestine’s 2009 Declaration was indeed validly lodged and could have been accepted by the ICC according to Article 12 of the Statute.

The decision also wrongly linked the Court’s decision whether to open or not the investigation in the Palestine situation to formal recognition of Palestinian statehood by the UN or ASP – and then overlooked relevant UN practice to boot. As William Schabas pointed out, the decision failed to acknowledge the relevant practice of the UN Secretary-General, which, as depositary for the Rome Statute, had accepted the Cook Islands’ accession even though it – like Palestine at the time of its 2009 Declaration – was not listed as a UN ‘Non-member State.’ Moreover, as Schabas notes, the Prosecutor’s decision failed to give adequate weight to UNESCO’s admission of Palestine in 2011, which was of similar importance, if not analogous, to a decision by the General Assembly.

Finally, the decision failed even to consider the possibility that the preconditions for the exercise of jurisdiction were already fulfilled – which in fact they were. The former Prosecutor wrongly decided that he had to sit back and wait for ‘the relevant bodies at the UN or the ASP to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article12(1).’

Contrary to what Ambos argues, therefore, GA Res. 67/19 was not a precondition for the ICC to exercise its jurisdiction, or at least for the Pre-trial Chamber to be seized of the matter (see Kevin J. Heller).  Nor, more importantly, was GA Res. 67/19 a precondition for Palestine to be considered a ‘State’ (see Azarov). In other words, it is a mistake to consider GA Res. 67/19 as the ‘birth certificate’ of the State of Palestine. Therefore, when considering an Article 12(3) Declaration from Palestine, the current Prosecutor should not make the same mistake as her precursor by giving GA Res. 67/19 more value than it legally has. The ‘State’ status issue has been overemphasized as a matter of international law linked to UN procedures, as opposed to an issue that should be resolved by the Court’s own mechanisms. In other words, the GA Resolution is not a valid basis to refuse the (potential) exercise of jurisdiction by the Court with regards to acts committed before 2012.

As for the “delegation theory” mentioned by Ambos, according to which Palestine could not delegate to the ICC an authority that it does not possess (over Israeli citizens on its territory), we can only agree with Ambos’ conclusion that the Oslo Accords cannot limit the ICC’s jurisdiction. More precisely, as elaborated below, the Oslo Accords are irrelevant to this discussion, and it is therefore misleading to consider that the notion of ‘delegation’ poses an obstacle to ICC jurisdiction in this case, as other scholars quoted by Ambos suggest.

As to the possible retroactivity of an Article 12(3) declaration under the Rome Statute, despite authoritative albeit isolated positions on the matter (Zimmerman JICJ 2013), the practice of the ICC is clear.  Ambos’ conclusion that Article 12(3) can indeed have retroactive effect is undoubtedly correct. However, Ambos mistakenly argues that the retroactivity of any Palestinian Declaration, and therefore the ICC’s exercise of jurisdiction, can go back only to 29 November 2012, the date of the GA resolution. This conclusion is a direct consequence of Ambos’ mistaken assumption that GA Res. 67/19 is the “date of birth” of the State of Palestine.

The State of Palestine can now not only ratify the Rome Statute, which it should do at the first possible occasion, as the above mentioned letter is urging President Abbas to do, but also in parallel Palestine should reaffirm its acceptance of the ICC’s jurisdiction under Article 12(3) ICC Statute with retroactive effect from 1 July 2002, as in the 2009 Declaration.

Oslo and Palestine’s Sovereign Rights

Ambos relies on the provisions in the Oslo II Agreement, which limits Palestinian jurisdiction to ‘Palestinians and non-Israelis’. While we agree with Ambos’ conclusion that the Oslo accords cannot limit ICC jurisdiction, it is worth spelling out that Oslo II is a ‘special agreement’ (Fourth Geneva Convention, Articles 14, 15, 17, 108). It was concluded in time of belligerent occupation between Israel as the Occupying Power and the Palestine Liberation Organisation (PLO), as the legitimate representative of the Palestinian population in the occupied territory, for the sole purpose of setting out a series of practical arrangements concerning the administration of occupied territory. It established the Palestinian Authority (PA) as an interim Palestinian local government, and merely granted the PA limited capacities in specific domains of daily life. It is common practice for the foreign military government of an occupied territory to avail itself of a form of local government by the inhabitants of the occupied territory (Dinstein 2009, 57).

Neither the Oslo Agreement nor Israeli or Palestinian subsequent practice can change the status of the territory or the rights of the parties (Articles 7, 8 and 47, GC IV; Roberts1984, 288; Arai-Takahashi 2009, 274). Accordingly, the Occupying Power continues to hold ‘paramount authority’ and retains residual powers and responsibilities in all spheres where no transfer of authority has occurred, and where Israel continues to exercise ultimate control (Dinstein 2009, 58). This is clearly the case in the 62% of the West Bank dubbed ‘Area C’ in the original agreement (Dinstein 274-275), where Israel has also extended the application of its domestic law and administrative jurisdiction – although it refuses the de jure application of the law of occupation. By the same token, the Oslo Agreement does not affect the internationally-recognised rights to self-determination, sovereignty and independence of the Palestinian people (which a continuously-increasing number of states and international organizations treated as a ‘State’ after the 1988 Palestinian Declaration of Independence, the Oslo II Agreement, and certainly the early 2000’s). Vera Gowlland-Debbas noted that the Oslo Agreement cannot be invoked before any State or international body if its provisions conflict with the UN Charter (as per Article 103, UN Charter). The establishment of the PA in 1994, therefore, did not abrogate the sovereign and jurisdictional rights of the government of Palestine, which had been located primarily in exile, while operating in the international arena through the representation of the PLO.

Ambos holds that it is ‘overly formalistic’ to distinguish between the PA, government of the State of Palestine, and the PLO. Yet these three bodies, which represent the Palestinian people within the pre-1967 borders and beyond, have distinct representational capacities, international legal personalities and constituencies (see Goodwin-Gill). The PA is an administrative body set up by a ‘special agreement’ for the administration of parts of the occupied territory. The State of Palestine is a state actor that represents the Palestinian people with a territorial link to the territory within the 1967 borders. The PLO is a transnational organisation that represents all the Palestinian people, including refugees in the Diaspora, as well as those with a territorial link to the current internationally-recognised territory of the State of Israel. In the absence of fully-fledged and functioning state institutions, the PLO continues to conduct the State’s relations on the international plane. Blurring the distinction between the three bodies is erroneous from the perspective of the international law on legal personality (Portmann 2010). The particular de jure capacity and status of the PA, a non-state actor, is different from the full capacities of a State. The PA is not only subject to coercion and ultimate control by Israel’s military government, it is also not capable of enjoying rights and bearing duties in international law and cannot be a participant in international fora.

Palestine has been explicitly recognised by the majority of States (the current figure is almost 140), implicitly recognized by many other state and international actors, and was a Member State of UNESCO and a State Party to eight of its treaties before November 2012 (Quigley 2010; Pellet 2010). GA Res. 67/19 merely added to this extensive body of fact. As such, the challenge for the ICC, as John Cerone aptly remarks, “will be to demonstrate that its decision is not a political choice” but it is the result of “a thorough, well-reasoned legal analysis in support of its course of action.”