The Prosecutor and Palestine: Deference to the Security Council

The Office of the Prosecutor has finally issued a statement responding to the declaration formulated by the Palestinian authority in January 2009 giving jurisdiction to the International Criminal Court over the ‘situation in Palestine since 1 July 2002’. The Declaration was provoked by Operation Cast Lead, when Israeli troops caused great destruction and loss of life in Gaza. Some of these actions were subsequently characterized by the international commission of inquiry presided over by Richard Goldstone as war crimes and crimes against humanity.

For more than three years, the Office of the Prosecutor has dawdled over its response to the one-page declaration. That’s longer than it took most lawyers to earn their law degrees!

The Office considered the question that lies at the heart of this issue, which is whether or not Palestine can be considered a State for the purposes of the application of article 12(3) of the Rome Statute. Many submissions were made, in writing and in person, on this issue. The recent decision seems to avoid the core issue entirely. The Office of the Prosecutor says that it is not the competent body to make such a determination. This is a matter, according to the Office, for the Secretary-General of the United Nations or the Court’s own Assembly of States Parties.

Article 12(3) of the Statute authorizes ‘a State which is not a Party to this Statute’ to make a declaration accepting the jurisdiction of the Court. Thereby, the State authorizes the Court to exercise jurisdiction over crimes committed on its territory or by its nationals. Without any dispute, Uganda and Côte d’Ivoire have made such declarations (Uganda became a State party, but several months after 1 July 2002), and the Prosecutor has proceeded with investigations concerning both of these States. Judges of the Pre-Trial Chambers have not questioned the validity of the declarations. Of course, Uganda and Côte d’Ivoire are Member States of the United Nations. In the case of Palestine, however, its status as ‘a State which is not a Party to this Statute’ is in dispute.

The Rome Statute does not expressly provide a mechanism for determining whether or not an entity like Palestine constitutes ‘a State which is not a Party to this Statute’. However, the Statute provides a mechanism for determining whether or not an entity like Palestine constitutes ‘a State Party’. That is because ‘a State which is not a Party to this Statute’ can become ‘a State Party’ by depositing an instrument of ratification or accession with the United Nations Secretary-General, who is the depositary of the Rome Statute. It is then for the Secretary-General to determine whether or not an entity like Palestine can become ‘a State Party’. Of course, Palestine has not yet asked to become ‘a State Party’. It would be very desirable that it does.

The Prosecutor has decided that the two issues – whether or not an entity can become ‘a State Party’ and whether or not it is ‘a State which is not a Party to this Statute’ - are in fact much the same issue and are to be decided in the same way.

Here is the core of the Prosecutor’s statement:

5. The issue that arises, therefore, is who defines what is a ‘State’ for the purpose of article 12 of the Statute? In accordance with article 125, the Rome Statute is open to accession by ‘all States’, and any State seeking to become a Party to the Statute must deposit an instrument of accession with the Secretary‐General of the United Nations. 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 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.”

A footnote refers to the manual of practice of the Secretary-General, which states:

82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby '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”.

The flaw in the Prosecutor’s analysis

The Prosecutor ducks the issue and misinterprets the Rome Statute. The absence of a mechanism in the Statute to identify ‘a State which is not a Party to this Statute’ does not mean that the matter is to be resolved elsewhere. The question is different from that of whether an entity can join the Court, which is clearly delegated to the Secretary-General by article 125 of the Statute. Rather, the question posed by article 12(3) is simply a question of fact, like so many other questions of fact that must be determined, in the first place, by the Prosecutor and, in the second place, by the judges.

Article 12 gives the Court jurisdiction over the territory and over the nationals of a State party (or a State making a declaration under article 12(3)). Who is to decide what constitutes such territory? Who is to determine whether or not an individual really is a national of a given State? This is not something to be delegated elsewhere. Rather, these are factual issues to be assessed by the Prosecutor in determining whether to initiate an investigation, and subsequently by the judges at various stages of the proceedings. For example, the Prosecutor might choose to proceed in a specific case, obtain an arrest warrant, bring the accused into custody, and begin a trial, only to have the accused person argue that he or she is not in fact a national of a State Party, or that the act was not perpetrated on the territory of a State Party. Would the trial stop, while inquiries were made with other bodies outside the Court to determine issues of nationality and territory? Of course not. It would be an issue of fact to be decided by the Court. And the same is true as to whether an entity constitutes ‘a State which is not a Party to this Statute’.

Neither the Secretary-General nor the General Assembly (nor for that matter the Assembly of States Parties), has ever prepared a list of ‘States which are not a Party to the Statute’. Under their legislative frameworks, they have no authority to do this. Why would they? They have never been asked. If the question were posed directly of the Secretary-General, the response would be that this is not within his remit, and that it certainly does not fall within the functions of a treaty depository.

So, the Prosecutor must reach a decision as to whether Palestine belongs to the class of ‘States which are not a Party to the Statute’, and then, should he so elect, elect to request permission of the Pre-Trial Chamber to begin an investigation. Although he claimed, the ‘competence’ for determining this lies elsewhere, in reality he has actually made the determination himself. In fact, all that the Prosecutor does, in his statement of a few days ago, is interpret various acts of the Secretary-General and the General Assembly in reaching his own factual conclusion that Palestine is not ‘a State which is not a Party to this Statute’.

In reaching his conclusion that Palestine is not a not ‘a State which is not a Party to this Statute’ (although the Prosecutor says he has in fact declined to make such a determination), he cites three factors (see para. 7):

1.     Palestine has been recognized by more than 130 governments and ‘certain international organizations, including United Nation [sic] bodies’

2.     ‘the current status granted to Palestine by the United Nations General Assembly is that of “observer”, not as a “Non‐member State”’

3.     Palestine submitted an application for admission to the United Nations, but the Security Council has not yet made a recommendation in this regard.

With respect to the application for membership in the United Nations (point 3), the Prosecutor states that ‘[w]hile this process has no direct link with the declaration lodged by Palestine, it informs the current legal status of Palestine for the interpretation and application of article 12’. I think this final statement confirms my analysis, namely that the Prosecutor is indeed interpreting various acts and statements in reaching how own conclusion about the application of article 12 rather than declining to do so and deferring the matter to the Secretary-General.

Did the Prosecutor analyse the facts correctly?

            The first fact considered by the Prosecutor, which is the widespread recognition of Palestine and its membership in international organizations, including United Nations bodies, is obviously favourable to the claim that Palestine is a State. The third fact – the refusal of the Security Council to authorize Palestine’s membership in the United Nations – should be of very limited relevance, because it tends to conflate United Nations membership with the existence of a State. The entire debate would be simple enough if the way to assess whether an entity was a “State” was to check whether it was a member of the United Nations.

But very clearly, the Rome Statute was drafted quite specifically in order to accommodate States that are not members of the United Nations. There was one very important State on everybody’s mind in 1998: Switzerland, which only joined the United Nations some years later. The Rome Statute might have been drafted to apply to United Nations Member States as well as to Switzerland, on an exceptional basis, but that is not in fact what it does. It applies to all States, whether or not they are members of the United Nations. So determining whether something is “a State which is not a Party to this Statute” by asking whether it is a member of the United Nations is purely tautological. It is the dog chasing its tail.

It is the second point that is central to the Prosecutor’s analysis, namely, that the General Assembly has admitted Palestine as an “observer”, and not as a “Non‐member State”. It is an interesting distinction, although perhaps a bit too technical. The website of the General Assembly lists two “Permanent Observers”, and then describes them as either ‘Non-member States’ or ‘Entities”. The Holy See is the sole ‘Non-member State’ whereas Palestine is listed as an ‘Other entity’.

The website of the General Assembly describes Permanent Observers: ‘Non-Member States of the United Nations, which are members of one or more specialized agencies, can apply for the status of Permanent Observer.’ This seems to suggest that a ‘Permanent Observer” is a ‘Non-Member State’. So perhaps by admitting Palestine as a Permanent Observer, the General Assembly was in fact confirming that Palestine is a State.

            It is difficult to distill legal principles from the practice of the General Assembly in this regard, which seems inconsistent in any case. For example, the Cook Islands is not a Permanent Observer, and that means it is neither a Non-member State nor an Entity. As for the Holy See, which is the only ‘Non-member State’, its claim to statehood seems quite shaky when compared to Palestine. It is more of a pseudo-state, without genuine citizens or a national identity, something created as part of a compromise with Mussolini, as Geoffrey Robertson points out so well in his book The Case Against the Pope. The Holy See isn’t even recognized by one of the Permanent Members of the Security Council, China. The United Kingdom describes it as an ‘entity’ rather than as a ‘State’.

            Exclusion of the Cook Islands from the list of ‘Non-member States’ did not prevent the Secretary-General from accepting its accession to the Rome Statute, on 18 July 2008. So it would seem that even the Secretary-General, in determining whether an entity is a State for the purposes of applying article 125, is not bound by whether a State appears on the list of ‘Non-member States’ set by the General Assembly.

            Actually, the Secretary-General has already indicated the rationale for admitting the Cook Islands as a State Party to the Rome Statute. This appears in a paragraph of the Manual of Practice cited by the Prosecutor in last week’s declaration, but not a paragraph to which the Prosecutor makes reference. The Prosecutor’s statement of 3 April 2012 refers to paragraph 82 of the Manual of Practice. It does not, however, consider the discussion in the Manual that follows concerning the determination of this matter when the General Assembly has not pronounced on the question. The Secretary-General refers to the case of the Cook Islands:

86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with 
article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary-General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.

The Secretary-General indicates that admission for membership in a specialized agency of the United Nations may be taken as appropriate guidance to be followed, because it is in a sense analogous to the guidance that would be received from the General Assembly. Late in 2011, Palestine was admitted as a Member State of UNESCO. The Prosecutor might have considered this in his interpretation of relevant facts for the purpose of making his determination under article 12(3) of the Statute.

Two facts are of interest here: the Cook Islands has become a State Party to the Rome Statute. Palestine has been admitted as a Member State in UNESCO.

Thus, even assuming that the Prosecutor is correct in stating that it is for the Secretary-General or the General Assembly to make the determination as to whether an entity should be a ‘State’ for the purposes of article 12(3) of the Rome Statute, a more generous and inspired interpretation would have much to rely upon in concluding that Palestine already has a sufficient degree of recognition.

The Prosecutor has spoken very eloquently about dealing with impunity in Africa. But when it comes to the Middle East, given the chance to address one of the world’s major conflicts, and following direction given by the Commission of Inquiry chaired by Richard Goldstone, he has chosen a dramatically more conservative approach. Clearly, he has no taste for wading into a conflict that would anger the United States and some of its close allies.

This should not come as a great surprise. The Prosecutor has always been cautious when his selection of priorities might risk encroaching upon matters of sensitivity to permanent members of the Security Council and one of them in particular.

Finally, point 2 above is not really a good argument favouring the rejection of the Palestinian declaration. At best, it is an uncertain and neutral point. As already explained, point 1 is favourable to Palestine. That leaves point 3: the Security Council. It seems that this rather irrelevant matter weighed heavily in the Prosecutor’s determination.

In my recent book Unimaginable Atrocities, the political nature of the selection of situations by the Prosecutor is discussed. The contention that the Prosecutor exercises a judicial function, independent of political concerns, is dismissed as a myth, despite his repeated claims to the contrary. When it comes to the Security Council and especially the interests of its Permanent Members, the Prosecutor is on his best behavior. He is extremely deferential, in contrast with the attitude taken to other international organizations like the African Union. Last week’s declaration about Palestine is further confirmation of this.