Ahmed Abofoul, Research Assistant at Kalshoven-Gieskes Forum on International Humanitarian Law. Former research assistant to Dr. Robert Heinsch and Dr. Giulia Pinzauti in submitting their amici curiae observations in the Situation in the State of Palestine to the International Criminal Court.
On 20 December 2019, the International Criminal Court’s (ICC or the Court) Prosecutor Fatou Bensouda concluded a five-year preliminary examination on the situation in the State of Palestine. She concluded there were reasonable grounds to believe that “war crimes have been or are being committed” in the Occupied Palestinian Territory (OPT). However, she sought the confirmation of the ICC Pre-Trial Chamber that the ‘territory’ over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the OPT, that is the West Bank, including East Jerusalem, and the Gaza Strip. (Prosecutor Request, paras. 5 & 202) Accordingly, the Pre-Trial Chamber, invited Palestine, Israel and the victims to submit written observations on the Prosecutor’s Request. (Court’s Order, paras. 13-16) Furthermore, “considering the complexity and novelty of the Prosecutor’s Request” the court invited other States, organizations and/or persons to submit amicus curiae (friends of the court) observations. (Ibid., para. 17)
In addition to the argument that the Oslo Accords could bar the ICC’s jurisdiction which the author refuted earlier (see here); it has been also extensively argued that to rule on the territorial jurisdiction of the court, the anterior question “whether Palestine constitutes a State” must be answered. It was further argued that Palestine does not constitute a State under the relevant rules of public international law and therefore does not constitute a State fort he purposes of the Rome State. In this post, the author argues that Palestine must be considered a State for the purposes of the International Criminal Court?
Statehood for the purposes of Article 12(2)(a) the Rome Statute
It is important to realise that the Rome Statute did not only create the Court, but it has also established a system of justice. (Stahn, p. 195) In this system, the Court’s territorial jurisdiction ‘ratione loci’ is reflected in the text of Article 12(2)(a), which stipulates that the Court shall have jurisdiction in cases of State Party referral or the prosecutor initiative ‘proprio motu’, if “[t]he State on the territory of which the conduct in question occurred” is a State Party to the Statute or has accepted the Court’s jurisdiction under Article 12(3). Article 12(1) further affirms that “[a] State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.” This approach has been characterised as ‘the system of automatic attribution of dormant jurisdiction.’ (Olásolo, p. 131)
The Court’s statutory scheme shows that after a State has acceded to the Statute pursuant to Article 125(3), the Court may automatically be entitled to exercise its jurisdiction over its territory. However, this ‘automatic jurisdiction’with no opt-out possibility is subject to the preconditions specified in Article 12. (Schabas & Pecorella, p. 680) No further consent or separate assessment is needed in order to trigger the jurisdiction of the Court. (Prosecutor Request, para. 103) Consequently, this post discusses firstly, the accession by States to the Rome Statute pursuant to Article 125 and secondly, it illustrates that Article 12(2) should be interpreted consistently with Article 12(1) and Article 125(3). Finally, this post argues that Palestine as a State Party must be considered as a ‘State’ for the purposes of the Rome Statute.
Article 125 Regulates Accession by States to the Rome Statute
Distinguished from other treaties and organisations, the Rome Statute does not specify the requirements that an entity must satisfy to become a State Party. Article 125(3) affords membership to ‘all states’ depositing instruments of accession with the UN Secretary-General. For the purposes of the Statute, the ‘all states’ participation clause requires the Secretary-General to follow the resolutions and practice of the General Assembly, and where necessary, to ask the General Assembly for guidance if there is doubt as to whether an entity is a State.(Aust, p. 287) Such procedure prevents situations in which the Secretary-General alone decides on treaty membership when there is doubt or controversy on the status of the entity.(Depositary Practice, para. 81) The Secretary-General accepts the instrument if there are “unequivocal indications from the Assembly that it considers a particular entity to be a State.” (Ibid, para. 83)
In that sense, the Statute does not provide any standards for the Court or any of its organs to decide on highly political and controversial questions of statehood under general international law. (Ibid, para. 81) Rather, it only links this question to determinations made by the Secretary-General, given his depository functions. (Ibid, para. 1) In a way, this issue is left to consideration by the international community, as expressed by the UN General Assembly, the world’s principal deliberative body, comprising all 193 members of the UN with an equal vote. (See UNGA functions and powers)
To sum up, the Court does not have to decide on the statehood of its members under the rules of international law. The UN Secretary-General –as the depository– decides that on behalf of the Court, when he accepts the depositing instruments of accession in accordance with the ‘all states’ formula. Consequently, a State becomes a State Party for the purposes of the Rome Statute, with immediate effect and with no need for any additional consent or separate assessment. (Prosecutor Request, para. 103)
Article 12(2) should be interpreted consistently with Article 12(1) and Article 125(3)
Once a State successfully becomes a Party to the Statute in accordance with Article 125, the Court may exercise its jurisdiction on the territory of that State pursuant to Article 12(2). This needs to be the case because a ‘State’ for the purposes of Articles 12(1) and 125(3) is also a ‘State’ for the purposes of Article 12(2). Against this backdrop, it has been suggested that the term ‘State’ should be defined in the Statute in accordance with the general rules of international law governing statehood. (See e.g. here, paras. 4, 26-29 & here) This has been posited as being the drafter’s intention. However, in the Statute, no additional criteria, nor any separate assessment is required in order for the Court to be able to exercise jurisdiction over the new State Party’s territory. Logically, if the exercise of the Court’s jurisdiction was intended to be restricted for certain States, such limitation would have been introduced upon the ‘admission’ of such States. (Prosecutor Request, para. 114) This has been the practice in international conventions and organisations, where membership is limited to certain States. (See e.g. Interpol)
Allowing an entity to join the ICC in accordance with Article 125 and then later denying the rights and obligations of its accession, would be contrary to the principle of effectiveness and good faith. (Gardiner, p. 179) The most sensible interpretation of the interplay between Article 12 and Article 125 is that the Court may exercise its jurisdiction on the territory of a State Party for the purposes of the Statute without any additional precondition. (Prosecutor Request, para. 115) Such interpretation is consistent with the drafting history of these articles, where “the overwhelming majority of states during the negotiations accepted the idea of ‘automatic jurisdiction’.” (Stahn, p. 450) Moreover, since the role of the Secretary-General as the depositary of treaties is common practice and the ‘all States’ formula has been long accepted, (Aust, p. 195) there is no room for doubt left to what the drafters intended. Especially, given the political and historical context of the 1990s, where statehood was at the vanguard of the international arena, the drafters must have known the implications of the ‘all States’ formula, namely that States considered as such by the UN General Assembly could join the Court. (Prosecutor Request, para. 116)
Palestine as a State Party must be considered a ‘State’ for the purposes of the Rome Statute
Subsequent to Palestine’s accession to the Statute, the UN Secretary-General notified other States Parties. The Secretary-General’s approach of accepting and circulating Palestine’s instrument of accession is in accordance with consolidated UN practice. Notably, prior to the General Assembly Resolution 67/19, the Prosecutor had made it abundantly explicit that for Palestine to qualify as a ‘State’ for the purposes of the Statute, it has to be first recognised as a “non-member State” by the UN General Assembly. Against this backdrop, UN member States voted in favour of the resolution with full awareness of its implications, in particular in relation to the ICC, the resolution was adopted by 138 votes to 9, with 41 abstentions. Therefore, General Assembly Resolution 67/19 recognising Palestine as a State within the United Nations, left no room for doubts in relation to Palestine’s ability to sign the Rome Statute and becoming a State Party to it.
Distinct from other founding treaties of international organisations, the Statute does not grant its State Parties any form of discretion as to whether an entity is a State or not. (OPCV, para. 16) On the contrary, Article 126(2) provides for automatic entry into force for an acceding State “on the first day of the month after the 60th day following the deposit […] of its instrument of […] accession.” Therefore, the Secretary-General’s notification has appropriately indicated without reservations that “the Statute will enter into force for the State of Palestine on 1 April 2015.” Notably, after Palestine’s accession to the Statute, Canada was the only ICC State Party to lodge an objection with the Secretary-General claiming that Palestine does not meet the criteria of a State under international law. Canada noted that Palestine “is not recognised by Canada as a state” and therefore, is not able to accede to the Rome Statute. Although Canada’s unilateral statement may arguably validly exclude treaty relationship between Canada and Palestine, (OPCV, fn. 43) it would not –under the rules of international treaty law–preclude Palestine from becoming a State Party to the Statute as a multilateral treaty. (Sakran & Hayashi, p. 88 et seq; Kolb, p. 34) Therefore, despite Canada’s lone objection, the fact that Palestine is now a party to the Rome Statute remains. (Sakran & Hayashi, p. 87)
One must bear in mind that since its accession, Palestine has been treated as a State Party without any restrictions or limitations. (OPCV, para. 20) Furthermore, Palestine has been fully exercising its rights as a State Party. For instance, Palestine’s representatives attended meetings of the Assembly of States Parties (ASP), voted on all issues, including, inter alia, the election of the Court’s Judges, (OPCV, fn. 56) and were even elected to the ASP’s Bureau. Moreover, Palestine has been adhering to the Statute obligations. For instance, Palestine consistently contributed to the ICC budget and duly ratified the Statute’s Kampala amendment. Against this backdrop, one cannot perceive any reasonable justification as to why Palestine would not be treated equally for the purposes of Article 12(2)(a).
Important issue. The respectable author of the post, doesn’t explain yet, the connection between the resolution of the general assembly on one hand, and being party member to the Rome statute.
For, the resolution, wasn’t made for the Rome statute, but for simply being “non-member State” in the UN. On the other hand, the general secretary, had no power to define such parameters for being a state, for the purpose of being party to the Rome statue. Lack of objections ( besides Canada) can’t be either the legal basis for being a state party.
So, we are left, with no legal basis finally in this regard. There are other arguments here, but this one, not satisfactory with all due respect.
Dear El roam,
Thank you so much for your comment. Kindly see para. 5 of the following: (https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf). You are also encouraged to read this 2 pages document in its entirety.
This is already mentioned in the post, see above: “Notably, prior to the General Assembly Resolution 67/19, the Prosecutor had made it abundantly explicit that for Palestine to qualify as a ‘State’ for the purposes of the Statute, it has to be first recognised as a “non-member State” by the UN General Assembly. ”
I hope this clarifies that the General Assembly Resolution 67/19 was indeed determinative in relation to Palestine’s statehood for the purposes of the Rome Statute.
LikeLiked by 1 person
Thanks for that clarification. Yet, doesn’t really help with all due respect. For, being non member state, is, or was precondition, doesn’t mean that it does meet all conditions. And yet, it doesn’t obligate the states members to the Rome statute, to accept such entity, as party member to the Rome statute. Otherwise, no problem here at all. And that paragraph 5 you were referring to, states clearly, I quote it:
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. This is reflected in General Assembly resolutions which provide indications of whether an applicant is a “state”. Thus, 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 state 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.
End of quotation:
So, that quote, recognizes, that the General Secretary, has no power as stated by me. Because, in cases of doubt, he needs to refer it to the General assembly, not decide proprio motu on that issue. Moreover, states parties, could decide on that matter, but, haven’t done it so far. We are left with the same issue then.
I strongly recommend, reading the following article in ” Just Security” and understand better the issue with all due respect.
This is a response to El roam’s comment of August 11, 2020 at 10:00 pm. For some reason, it was not possible to reply to your comment. Anyways, Thanks again for your comment, whoever you are. I am not sure if this is your real name!
First of all, you mentioned that “Yet, doesn’t really help with all due respect. For, being non member state, is, or was precondition, doesn’t mean that it does meet all conditions.”
I assume that the conditions you are referring to are the Montevideo conditions/criteria. If that is so, maybe it is important to remember two things:
1. In terms of determining statehood of emerging States –especially under occupation–, one must reckon that “the principle of effectiveness is not usually employed as the definitive explanation.” (M.D. Evans) Many are corroborative of the idea that the complete fulfilment of the traditional Montevideo criteria “is no longer the exclusive yardstick.” (Z. Nevo and T. Megiddo ) Similarly, Shaw concluded that the Montevideo criteria “are neither exhaustive nor immutable.” Furthermore, Crawford noted that “not all the conditions are necessary, and in any case further criteria must be employed to produce a working definition.”
2. And most importantly, this is not the issue here. The question is whether Palestine constitutes a state for the purposes of the Rome Statute of the ICC, in particular, for the purpose of a criminal investigation. Not whether Palestine constitutes a state under the general rule of public international law. Simply, because the former is within the mandate of the ICC. But, the latter question is beyond the mandate of the ICC. Such a question may be answered by the ICJ and with careful, necessary consideration to the relevance of the law of occupation. Perhaps soon in the case of the relocation of the United States embassy to Jerusalem (Palestine v. United States of America).
Secondly, you have also mentioned “And yet, it doesn’t obligate the Member-States to the Rome statute, to accept such entity, as a party member to the Rome Statute. Otherwise, no problem here at all.”
Well, States Parties to the Rome State have no saying as to whether a newly joining entity is a state or not. If you think otherwise, please enlighten me with an Article of the Rome Statute that says so? Besides, The UNSG, as the depositary, could have consulted the ASP had he considered that Palestine’s statehood for the purposes of the Rome Statute was doubtful. (see e.g. the US Government acting as depositary for the IAEA and Namibia’s accession in 1982), But Palestine’s statehood for the purposes of the Rome Statute was, as a matter of law, beyond doubt, especially after the UN General Assembly Resolution 67/19. Most importantly, Article 119(2) provides a mechanism of dispute settlement between the States Parties. Yet, any of the parties have not used it to challenge Palestine’s capacity to accede to the Statute!
Thirdly, allow me to quote you again, you mentioned that “the General Secretary, has no power as stated by me. Because, in cases of doubt, he needs to refer it to the General assembly, not decide proprio motu on that issue.”
To be honest, I cannot agree more. It –strangely– appears to me as if you have missed some parts of my post. The Secretary-General did not decide on the issue proprio motu, he decided after the General Assembly Resolution 67/19 was adopted by 138 votes to 9, with 41 abstentions. Therefore, he did not need to refer the matter to the General Assembly. Simply because Resolution 67/19 recognising Palestine as a State within the United Nations, left no room for doubts in relation to Palestine’s ability to sign the Rome Statute and becoming a State Party to it.
On a final note, thank you very much for recommending Ambassador Todd Buchwald’s post on “Just Security”, which I am fully aware of. Ambassador Buchwald worked for the U.S. Department of State for over 26 years. Therefore, for me, it is predictable for him to have such views. I very much respect his thoughts on the topic but do not agree with it. Additionally, It would be much appreciated to see some of your own writings on the topic, in order for me to “understand better the issue”. Or on any other topics, it could be very illuminating for me. I am still, and will always be learning, and hoping to “understand better”.
Thanks again for the comment. I didn’t refer in no way, to any substantive argument ( like Montevideo and so forth….). I didn’t claim even, that Palestine is not a state, generally speaking, or for the purpose of the Rome statute:
But one thing:
That the legal basis, has to do with ratification of the Rome statute by the Palestinians, and the connection with the UN, is weak in legal terms. Not really persuading. As such, it is up to the court, to the ICC, and so far so, not on other body, to conclude it. (mentioning it now, not previously of course).
And if you were fully aware to the article I have referred you to, then, you could attack it directly, or at least, the arguments raised therein with all due respect.
Thank you very much for this thought-provoking piece.
I do wish to raise one point with respect to the term ‘State for the purpose of the Rome Statute’.
As you may be aware of, the Rome Statue does not entail a definition for the term ‘State’.
In order to resolve the legal lacuna, one may turn to article 31(1) to the Vienna Convention on the Law of Treaties, which stipulates that:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose”
In you opinion, applying article 31(1) to the term ‘State’ in the Rome Statute, does not lead to a conclusion, that for an entity to become a ‘State Party’, it needs to be a ‘State’ under general public international law, in accordance with the Montevideo criteria? another follow-up question would be, if, in your opinion, the Court is well-equipped for providing an answer to the issues whether Palestine is s State under the condition of general public international law?
Many thanks in advance,
Thank you very much for this thought-provoking piece.
In response, I wish to raise just one point with respect to the term ‘State for the purpose of the Rome Statute’.
As you mat be aware of, the Rome Statute does not entail a definition for the term ‘State’ in the Statute. As a consequence of this legal lacuna, one may argue that the term ‘State’ for the purposes of the Rome Statute should be interpreted in accordance with its ordinary meaning, as article 31(1) to the Vienna Convention on the Law of Treaties stipulates. Hence, one may argue that in order for the Court to exercise its jurisdiction and to act on the soundest legal basis, the Court must therefore conclude whether Palestine is a State under general public international law, i.e; under the criteria laid down in the Montevideo Convention,
Many thanks in advance.