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?
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)
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).