Monday, 19 October 2009

Can Palestine Join the International Criminal Court?

There is a report that Palestine is preparing to become a ‘member’ of the International Criminal Court: The report says that information has been requested from the Court with a view to carrying this out. According to article 125 of the Rome Statute, ‘This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.’ Thus, Palestine can join to the extent that it is a ‘State’. Indeed, an attempt to accede to the Rome Statute could be interpreted as a manifestation of statehood. But the Palestinian Authority is knocking on the wrong door. It is not the Court that decides who may join; this is the job of the depository, which is the Secretary-General of the United Nations. I would be very surprised if the depository were to accept an instrument of accession from Palestine. Of course, Palestine might then apply to the Assembly of States Parties which, I think, could probably override a decision by the depository.
But isn’t the real problem that Palestine has not yet manifested its desire to be considered a State, or at least not recently? I am sure that if Palestine were to declare itself a State, it would be recognised by many other States very quickly. But it has to take this step first.
Thanks to Michael Kearney.


Unknown said...

Just in relation to Palestine manifesting its desire to be considered a State: in November 1988 in Algiers the Palestine National Council (a legislative body of the PLO) unilaterally declared the existence of the State of Palestine [see Palestine National Council, Declaration of Independence, 15 November 1988, in UN Doc. A/43/827-S/20278, 18 November 1988].

This State has been granted recognition by approximately 100 UN member states. The reported attempts by the Palestinian Authority to accede to the Rome Statute appear consistent with the PLO strategy adopted after the Algiers Declaration of attempting to accede to various international legal treaties and elicit membership of several UN specialised agencies. This strategy was broadly aimed at advancing the PLO’s political aspiration of Palestinian statehood by reconciling it with the two-state solution framework established by the UN and currently favoured by the majority of the international community.

Previous such attempts (eg to accede to Geneva Conventions, join the WHO, UNESCO etc) were deferred at the time by the relevant authorities on the basis of a lack of clarity over the status of Palestine as a State.

There are clearly obstacles to satisfaction of the criteria for statehood under public international law arising from the continuing Israeli occpation and lack of effective Palestinian control in much of the territory claimed as its State; the fragmentation within the Palestinian political system; etc. That notwithstanding, the question is, given that the Rome Statute does not define a "State" for the purposes of the statute or international criminal law, could the depositary/Assembly of States Parties/ICC take a more expansive approach to statehood in the interests of fulfilling the Rome Statute's aim of punishing those who commit international crimes and preventing impunity? This might go some way towards redressing the ICC's image as an institution tainted by its own double-standards.

Unknown said...

If Palestine is not officially recognised by the UN as a 'State' (having permanent observer mission status), can it sign treaties, such as the chapter 4 of the UN Charter 'ICESCR' and if not, is there some other way to express its commitments to such a charter? (Sorry for the ignorance, not a PhD student...)

Hostage said...

John Dugard points out that the Rome Statute does not contain a definition of the term State, and that more than 100 countries already recognize the State of Palestine.

When Israel applied for membership in the UN, many members objected that it did not satisfy the traditional requirements of a State. During the 383rd meeting of the Security Council, U.S. Ambassador Jessup said: 'we already have, among the members of the United Nations, some political entities which do not possess full sovereign power to form their own international policy, which traditionally has been considered characteristic of a State. We know however, that neither at San Francisco nor subsequently has the United Nations considered that complete freedom to frame and manage one's own foreign policy was an essential requisite of United Nations membership.... ...The reason for which I mention the qualification of this aspect of the traditional definition of a State is to underline the point that the term "State", as used and applied in Article 4 of the Charter of the United Nations, may not be wholly identical with the term "State" as it is used and defined in classic textbooks on international law." see page 12 of S/PV.383, 2 December 1948

When the General Assembly adopted "Definition of Aggression", UN GA Res. 3314 (XXIX) (1974), it provided a very broad definition of the term State. It provides that communities may not be targeted for aggression or threats simply because they are "unrecognized". According to the definition, any entity which is the target of aggression may be legally termed a State - without regard to recognition or UN membership - and benefit from the protections contained in article 2(4) of the UN Charter.