ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

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On Tuesday, the Office of the Prosecutor at the International Criminal Court issued a statement denying the Prosecutor’s competence to decide on Palestine’s acceptance of ICC jurisdiction. The ICC Prosecutor indicated in his statement that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. The declaration by the Palestinian Authority was made under Article 12(3) of the ICC Statute. That provision allows States that are not party to the ICC Statute to accept the jurisdiction of the Court over crimes committed on the territory of that State or by its nationals. If the Palestinian declaration were accepted as a basis for ICC jurisdiction, it would grant the ICC jurisdiction over all ICC crimes (genocide, war crimes and crimes against humanity) committed on Palestinian territory since July 2002. Crucially, the declaration would give the Court jurisdiction not only over acts of Palestinians but also over acts by Israeli officials and nationals in Gaza and the West Bank. The key question with regard to the Palestinian declaration is whether Palestine is a State, since only States may make declarations under Article 12(3) of the ICC Statute. In his one and a half page statement, the Prosecutor has decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In short, it has taken the Prosecutor over three years to decide that it is not up to him to decide the question of the statehood of Palestine. The Prosecutor’s decision that it is up to the organs of the UN or to the Assembly of State Parties to the ICC Statute to decide on the statehood of Palestine, even in the context of decisions relating to the ICC is reasonable, both from the political and legal points of view. To the extent that the Prosecutor is asking throwing this explosive decision back to States, the Prosecutor is seeking to safeguard himself and his office from allegations that he is taking political decisions. However, there are questions as to whether this reasonable decision is legally correct. Oddly, an important factor, ignored by the Prosecutor is Palestine’s admission to UNESCO (see previous EJIL:Talk! post on that issue here). At first glance, the admission of Palestine to UNESCO seems most unrelated to questions to do with the jurisdiction of the ICC. However, as explained below, and by Bill Schabas on his blog last year, UNESCO’s decision may be highly relevant.

The Prosecutor’s view that the UN Secretary General and General Assembly have responsibility for taking the decision on the Statehood of Palestine is based on the view that the question whether an entity is State for the purposes of the ICC Statute has to receive a uniform answer. In the Prosecutor’s view, whether an entity is a State that can make a declaration under Article 12(3) is the same question as to whether that entity is a State such that it can accede to the ICC Statute (under Article 125, ICC Statute) and refer matters to the Court (under Article 12(1)). For him, the same procedure must be followed in answering those questions. It is the UN Secretary General that acts as the depositary of the ICC Statute and that has responsibility for accepting ratifications of, and accessions to, that treaty by States. Under Article 125 of the Statute, accession to the Statute is open to “all States”.  Whenever an entity claiming to be a State seeks to accede to the treaty, it is the UN Secretary General that will decide, in the first place, whether to accept that instrument of accession or not. It does not seem to follow that because the Secretary General has responsibility for deciding on questions of accession to the Statute, he must also be the one that decides on declarations made by States under Article 12(3). The SG has to decide on question of statehood in order to perform his administrative function as a depositary but that does not give him overall competence on this question. For example, no one would assert that if the question of statehood came up with regard to immunity of third States under Art. 98, it is the UN SG that should decide that question. Presumably, in that context it would be the judicial organs of the court that would make the claim. One may even suggest that since it is the ICC Registrar that performs the statutorye function of receiving Art. 12(3) declarations, he or she is in the same position as the SG with regard to accessions and it is he or she that must, in the first place, decide on whether to accept the declaration, subject perhaps to being overruled by other organs of the ICC.

Even if the Prosecutor is right that the same procedure must be used with regard to determining statehood, whether one is dealing with Art. 12(3) declarations or accessions, it is arguable that UN practice already provides an answer on whether Palestine should be regarded as a State for these purposes. I do not mean to suggest that there is a definitive answer but only to suggest that the Prosecutor’s analysis does not seem complete and that there is more to be said here.

The phrase used in the ICC Statute that “all States” can accede to the Statute is quite common in treaty practice. However, this “all States” formula has given rise to problems in the past in determining which entities in particular qualify as States and therefore have a right to accede to the treaty question. The UN Secretary General has stated that:

“If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the [General] Assembly gave him explicit directives on the areas coming within the “any State” or “all States” formula. He  would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the “any State” or “all States” formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the “Vienna formula”, i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice” [see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 81,  cited by ICC Prosecutor]

Thus, the UN SG has indicated that he would look to the General Assembly in cases of particular difficulty. The General Assembly has endorsed this practice of the SG when it adopted an understanding in 1973 in which the GA stated that:

“the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.” [ see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 82]

So far, all of this appears to support the Prosecutor’s view that it is for the SG to decide on statehood issues which arise in the context of treaties in which he is depositary, but that in contentious cases the SG will defer to the General Assembly. However, the key question is when is General Assembly guidance required? The ICC Prosecutor states in relation to Palestine that:

“In instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter.”

He derives this from the practice referred to above. However, the question is what does controversial mean? Clearly, the question of Palestinian statehood is controversial. This cannot be disputed. However, further analysis of UN practice suggests, that the SG only looks to the GA for guidance in cases of States which fall outside what is known as the “Vienna formula”. The Vienna formula which is referred to in the Summary of Practice referred to above, is the formulation found in Art. 81 of the Vienna Convention on the Law of Treaties. This formula refers to States that are members of the UN,  or any UN specialised agency, or of the International Atomic Energy Agency or a party to the Statute of the International Court of Justice. Where an entity falls within the Vienna formula, the SG deems that it is a State and he will accept accession by that State. This much should be clear from the quotes above. The point also emerges from an Opinion of the UN Legal Counsel of Feb. 1974 where it was stated that:

“the reference in [a particular resolution] to “all States” is to be understood as referring to States Members of the United Nations or members of the specialized agencies or the International Atomic Energy Agency and States parties to the Statute of the International Court of Justice and also to the Democratic Republic of Viet-Nam [which the GA had specifically designated as State in the previous year].” [p. 158, para. 4]

All of this is relevant because, though Palestine is not a member of the UN, it has now become a member of one UN agency – UNESCO (see previous post here). This means that Palestine is now within the Vienna formula and, under previous practice, can accede to treaties open to all States (see Bill Schabas’ post on this here), even without reference to the UN GA. It also appears that, under previous practice, the UN SG would not have to refer to the UNGA. If the Prosecutor had not taken so long to decide on this issue (over three years!), he could have safely come to the conclusion that the matter is so controversial that it is for the political organs of the UN (or the ICC) to decide on the question. However, the admission of Palestine to a UN specialised agency last year might have changed this. It may seen strange that admission to UNESCO could be so influential. However, the reason why the “Vienna formula” includes States that are members of a UN agency is that the composition of these agencies is very similar to that of the UN General Assembly. This means that if faced with a decision on the question of statehood, the UN GA is likely to give the same answer as that given by UN specialised agencies. The difference betrween membership of the UN itself and membership of a UN Specialised Agency is that the former requires Security Council approval which means that it is subject to a veto by a permanent member.

One last point is the Prosecutor’s point that the Assembly of States Parties to the ICC Statute can decide on the Palestinian declaration. This is not specifically provided for in the ICC Statute but the Prosecutor refers to a catch all clause on the functions of the Assembly – Art. 112(2)(g) which provides that the Assembly shall:

“perform any other function consistent with the Statute or the Rules of Procedure and Evidence.”

If the UN GA can give direction to the SG in the performance of his depositary functions it would seem reasonable that the Assembly can also do this. Whether this would be binding would be another matter.

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    Hossein Sadat says

    April 8, 2012

    Thanks Dapo Akande for your note.

    It is evident, that the question which was considered by the ICC’s Prosecutor does have some political consequences, but was not a political one at all. In fact, all issues before international justices do have some political aspects. The organs of the ICC, as it is the case in other international courts (e.g. ICJ and advisory opinions), shall only apply the applicable rules; and political aspects of a case or situation could not preclude exercising jurisdiction. This approach shall be followed with respect to the Palestine’s request in ICC and as it was admitted by the ICJ in the Wall Case ( See: http://www.icj-cij.org/docket/files/131/1671.pdf )

    The interpretation and application of the ICC Statute, as it is true with regard to all legal mechanisms, at the end of the day is depending on the chain of arguments and the methods of reasoning. However, the discretion and freedom in the hand of the competent judicial bodies does not mean arbitrary interpretation and application of the rules, as it seems that was the case in the statement of the prosecutor.

    A general point is that the prosecutor was obliged to announce its decision judicially and not only via a short statement. Its view shall be elaborated in law and practice in full. For an international court in which speed is an essential element of functioning, it is very odd that it took three years and three months to declare its views on the issue. If really that was a procedural matter that shall be decided by the SG of the UN, the Prosecutor’s office must immediately react. In particular that the issue was a matter of law and was not depending on the parties views. Whether international courts has the authority to announce on issues like the one which was raised in this case, is not an unprecedented. For instance, ICJ has before in Legality of Use of Force considered to some extent a similar issue and declared its judicial appreciation and were not refereeing the issue to the formal authorities. (see: http://www.icj-cij.org/docket/index.php?p1=3&k=d6&case=105&code=ybe&p3=4)

    The major error of law by the Prosecutor of the ICC is that he has equalized declarations under Article 12(3) with becoming party to the ICC under Article 125 of the Statute. These are two distinct issues. According to Article 12 (3): “if the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9”. It is clear that the depository of the declarations is the Court’s Registry, therefore, considering and deciding the eligibility to issue and lodge such declarations falls within the ambit of the Registrar of the Court and not the SG of the UN. Furthermore, if the Prosecutor was not the competent authority to deal with the issue, why it is referred to the merits (para. 7) of the question in a way to challenge the statehood of Palestine generally; particularly when it is rightly declared that there is no “direct link” between the said developments and the declaration of the Palestine under Article 12 (3).

    Other technical legal aspects of the Palestine’s declaration were considered in details by the imminent international lawyers in the past. They have concluded that “the Palestinian Declaration of 21 January 2009, accepting the ICC’s jurisdiction for the purpose of identifying, prosecuting and judging the authors of crimes listed in Article 5 of the Rome Statute committed in the territory of Palestine since 1st July 2002 and their accomplices, can be effective in accordance with the provisions of Article 12 of the Statute, and specifically that all conditions for the Court to exercise its jurisdiction in pursuance of Article 13 are met” (See:http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281927/PelletENGCLEAN.pdf)

    The statement by the Prosecutor indicates that the Court is not still ripen to become an “international criminal court” and still it is an “african criminal court” that is only able to prosecute the weeks and by doing so it has strengthen the impunity for international crimes.

    Hostage says

    April 9, 2012

    Thanks Dapo Akande and Hossein Sadat

    I think that the most basic error the Prosecutor made was when he ignored the customary and conventional rules of treaty law contained in the Vienna Convention on the Law of Treaties that govern the Rome Statute.

    Article 5 of the Vienna Convention states that "The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.”

    The parties to the Rome Statute have given third states the right to accept the jurisdiction of the Court by making an Article 12(3) Declaration, in exchange for an undertaking to accept the obligations under section 9 and any rules thereunder that apply to a State Party.

    Articles 35-37 of the Vienna Convention explain the rules that apply to treaties that offer rights to third states or treaties that impose obligations on third states, after they have accepted the obligation in writing.

    The Prosecutor cannot modify or revoke the obligations of a third state under the Statute without the consent of all the parties to the treaty and he cannot modify or revoke the rights of a third state without obtaining its consent.

    Articles 81 and 83 of the Vienna Convention include members of UN specialized agencies among the categories of States that have an open invitation to become signatories or make accessions. In fact, the General Assembly unambiguously recognized State members of specialized agencies - as States - when it invited their plenipotentiaries to participate the international diplomatic conferences that codified the Vienna Conference on the Law of Treaties and the Rome Statute of the ICC, e.g. UN GA resolution 2166 (XXI).

    The State Members of the UN specialized agencies were included in the so-called "Vienna formula" that was used to conclude the convention on treaty law that governs the Rome Statute.

    Article 6 of the Vienna Convention provides that “Every State possesses capacity to conclude treaties.” It is difficult to see how the Prosecutor can challenge the capacity of a State to exercise a right or accept an obligation in connection with the Rome Statute on the unrelated basis of its observer status in the UN, when the Secretary-General and all the members of the international community of states have a customary and conventional obligation to deal with that same entity as a State in accordance with the rules of international treaty law that were codified in the Vienna Convention.

    Hossein Sadat says

    April 9, 2012

    I would like just to add further to my pervious comment. As I said, a general point is that the prosecutor – if competent- was obliged to announce its decision judicially and not only via a short statement. This duty was confirmed by the ICC’s Registrar when acknowledging the receipt of the declaration. The Registrar stated that “due to the uncertainties within the international community as to the existence or non-existence of a State of Palestine, the Registrar, Ms. Silvana Arbia, acknowledged receipt of the declaration on 23 January 2009 "without prejudice to a judicial determination on the applicability of Article 12 paragraph 3" to the declaration.” (See: http://www.icc-cpi.int/menus/icc/structure%20of%20the%20court/registry/declarations?lan=en-GB) Of course “judicial determination” means something more that a two-page statement.

    The second point is that whether issues like the one rose in this case (declarations that accept a limited jurisdiction for international courts) shall be seen only through the lens of treaty-making process or judicial functioning of the court must be taken into account? Article 12 (3) is not the first provision in the constituent instruments of international tribunals. For instance, one may refer to its neighboring court in The Hague, the International Court of Justice (ICJ). There is a counterpart provision in the ICJ Statute (Article 35 (2)) with to some extent identical effects. There, it is possible that States which are not party to the UN Charter or to the Court’s Statute, to have access to the Court upon certain conditions, and such States shall previously have deposited with the Registrar of the Court a declaration by which they accept the jurisdiction of the Court. The Security Council by its resolution No 9 (1946) defined the conditions. It is said that “all questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.” (See: http://www.icj-cij.org/documents/index.php?p1=4&p2=5&p3=4) These declarations do not need to be decided by the depositary of the UN Charter or the Court Statute, rather by the Court itself. It seems that it is the same when dealing with the Palestine’s Declaration. The so-called “Vienna Formula” is related to Treaty-making process, while the question of Palestine’s locus standi to lodge a declaration under Article 12 (3) is a judicial issue in nature that shall be considered within the ICC legal mechanism taking into account the law of treaties. (competence de la competence) That is the same for any other treaty issues. For instance suppose that a State Party will decide to withdraw from the Rome Statute, does it mean that the issue shall be considered by the UN SG and not the Court itself? Or, imagine that one State Party files an interpretive declaration with the effect of a reservation; does the Court shall refer the case to the depository without considering the effects of the said declaration for the Court?

    The final point is the distribution of power within the ICC. In accordance with the functioning rules of the Court, when dealing with jurisdictional matters lato sensus, the Prosecutor of the Court only needs to be satisfied overally or prima facia that jurisdictional conditions were met, but if the jurisdiction of the Court is challenged, then this is for the Trial Chamber to decide with respect to any jurisdictional uncertainty. It seems the most pertinent organs of the ICC to consider and decide upon the validity and effects of the Palestine’s declaration are at the first step the Registrar of the Court and finally the Trial Chamber, but not the OTP (See: Article 19 of the Rome Statue and rule 60 of the Rules of Procedures and Evidence), therefore, it seems that the recent statement by the OTP could be also considered as ultra vires.

    Hostage says

    April 9, 2012

    Thanks Hossein,

    I agree that Article 12(3) Declarations are tantamount to a treaty agreement between the international court and a third state - just like the declarations employed by the ICJ. They should be considered a judicial issue in nature and handled within the ICC legal mechanism taking into account the law of treaties.

    I view recognition and acceptance of statehood as a political act that has legal consequences. So, while some view the Montevideo Convention as a legal test, I view it as a treaty between states that is still in full force and effect.

    The overwhelming majority of High Contracting Parties to the Montevideo Convention have recognized the State of Palestine and many of them are State Parties to the Rome Statute. Neither the Montevideo Convention nor the Rome Statute contain a compromissory clause that would permit the Prosecutor to dispute those determinations. The same can be said for the categories of States listed in article 81 and 83 of the Vienna Convention. The Secretary General, the General Assembly, and the international community of States have a customary and conventional obligation to treat members of those categories as States.

    The Trial Chambers certainly have the authority to review the evidence for the existence of statehood, just as they would in the case of any other dispute regarding a material fact that might effect the outcome of a case under international law, e.g. The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)
    http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm

    However, none of the State Parties have granted the Court the authority to proceed with a request for surrender or assistance that would require one of them to act inconsistently with an international agreement with a third state. For example, the Prosecutor has an exhibit submitted by the League of Arab States which lists a number of multilateral agreements between its members and Palestine regarding diplomatic immunity, extradition for acts of terrorism, & etc. If the Court is required to treat Palestine as a third state for the purposes of Article 98, that's powerful evidence that it should also treat it as a State for the purposes of Article 12(3). These questions of fact should be decided by the triers of fact, not the Prosecutor acting unilaterally.

    M.S. Zanjirai says

    April 11, 2012

    Thanks everybody for discussing the ICC Prosecutor's statement. I would like to make mention of two items:
    • According to Article 15.1 of the Rome Statute, the Prosecutor's investigations shall be based on the information on crimes. Article 15.2 supports this view by stating that "the Prosecutor shall analyze the seriousness of the information received". It is followed by Article 15.3 indicating that if the Prosecutor concludes that there is a reasonable basis to proceed with an investigation (considering the seriousness of the information); he/she shall submit to the Pre-Trial Chamber a request for authorization of an investigation. Finally Article 15.4 provides that if the Pre-Trial Chamber considers that the case appears to fall within the jurisdiction of the court, it shall authorize the commencement of an investigation. So, we can conclude that it is up to the Pre-Trial Chamber (and subsequently the Court itself) to decide if the declaration made by the Palestine National Authority in January 2009 falls within the jurisdiction of the ICC. In other words, the Prosecutor was not competent to examine the question of jurisdiction.
    • Notwithstanding the above, the Prosecutor, in paragraph 5 of the statement, construes that the statehood of Palestine is controversial or unclear. Logically, to make such an interpretation, one should go into the merits and analyze the definition and criteria of "State" and then examines if Palestine meets such criteria (what is somehow done in paragraph 7 of the statement). This is in contradiction with paragraph 6 of the statement prescribing: "The Rome Statute provides no authority for the Office of Prosecutor to adopt a method to define the term "State" under article 12(3) …". So it seems that the statement is self-contradictory. Considering the very long time (almost 40 months) took until it is finally issued, such legal ambiguities should have been avoided.

    William Worster says

    April 16, 2012

    I also question the idea that whether an entity is State for the purposes of the ICC Statute must have a "uniform answer". Many international organizations - including the UN itself - have members who qualify as states (in the functional view of the organization) but are not recognized as states by other members. Israel's membership in the UN is an obvious example.

    Furthermore, what seems to go unnoticed is that the Cook Islands adhered to the Rome Statute and became members of the ICC without any worry on the part of any ICC organ, the ASP, or any scholars. In my view, the Cook Islands is a textbook example of a quasi-state akin to Palestine. In fact Crawford and others note it specifically as such an example.

    The Prosecutor's approach also seems to ignore the usual practice of the UNSG in acting as depositary. The office of the SG does not appear to engage in a searching approach (maybe some former officer in the SG's office can shed more light on that?). After all, simply attempting to accede to the Rome Statute does not make it so. It is the ASP that must decide on membership issues. The UNSG has no say over other organization's membership other than to administer the depositary function. This issue is even more problematic when we talk about a mere declaration rather than membership.

    It is amazing that it took so long to produce a one and one-half page analysis. Clearly the Prosecutor waited so long in the hopes that the UN membership bid would settle the problem, but then the subsequent UNESCO membership admission muddied the waters. The decision by the Prosecutor is, quite obviously, intensely political and I am sorry to say, cowardly.

    However, the Prosecutor has actually improved the situation in a sense. As long as the declaration remained under consideration, it was easy for the Prosecutor to avoid commencing an investigation while his office spent time reading the many "mini-law review articles" submitted by scholars. Now he has declared himself incompetent and punted it to the UN. But in doing so, he also mentioned that the ASP could take action. By my quick and rough count, I would estimate that 74 states parties of the ICC already recognize Palestine as a state. Assuming that they vote in a politically consistent manner - and I don't necessarily see an obligation to do so - it could be an easy case.

    Hostage says

    May 7, 2012

    Re: William Worster's observations that "It is amazing that it took so long to produce a one and one-half page analysis." and "it was easy for the Prosecutor to avoid commencing an investigation while his office spent time reading the many “mini-law review articles” submitted by scholars. "

    Does anyone else find it remarkable that the Prosecutor solicited so many other opinions, but not a written opinion from the Secretary General? His published analysis claimed that "competence for determining the term “State” within the meaning of article 12 rests, in the first instance, with the United Nations Secretary General, who, in case of doubt, will defer to the guidance of General Assembly."

    The latest General Assembly resolution that granted Palestine its observer privileges, http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/52/250 (.pdf), unambiguously recalled that the General Assembly had acknowledged the proclamation of the State of Palestine and further recalled that Palestine was already a full member of the Group of Asian States, the Economic and Social Commission for Western Asia (UN ESCWA), the League of Arab States, and several other international organizations comprised of states.

    The Secretary General, acting as depositary, started accepting instruments of accession from Palestine for UN ESCWA multilateral agreements in 2001. At the time those multilateral agreements were concluded, the rules of the UN ESCWA, http://www.escwa.un.org/about/rules-e.pdf (.pdf file), said that Palestine was one of the 13 member states. It would be remarkable under these circumstances, if the Secretary General hasn't already performed a legal analysis and concluded that Palestine is a state capable of becoming a party to multilateral treaties.

    If the Prosecutor is going to defer to the competence of the Secretary General in order to determine if a reasonable basis exists to proceed with an investigation, why hasn't he already requested the Secretary General's opinion on the matter?