Britain is prepared to join other EU countries in support of Thursday’s vote in the General Assembly to recognize Palestine as a full observer State of the United Nations, but subject to an interesting condition, according to today’s Guardian.
‘Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel’, writes Ian Black, the newspaper’s Middle East editor.
Article 125 of the Rome Statute declares that ‘all States’ may accede to it. Such a formulation is used so as to enable non-member States of the United Nations to join the International Criminal Court. It was adopted at a time when Switzerland was not yet a member of the United Nations.
Recognition of Palestine as a full ‘Observer State’ by the General Assembly would then enable it to accede to the Rome Statute. This would also clarify any doubt about the validity of the declaration formulated by Palestine in January 2009 giving jurisdiction to the Court (but without joining it, something permitted by article 12(3) of the Statute).
What is so intriguing about the British ‘condition’ is the suggestion that membership in the Court might be bargained for recognition. The United Kingdom is a member of the Court, and would be expected to encourage States to join, not discourage them.
Similar thoughts concerning conditions that might be associated with recognition of Palestinian statehood or even a peace agreement between Palestine and Israel were expressed a few weeks ago at the Washington University conference by Ambassador David Scheffer. He suggested that a final peace agreement might include a clause by which the parties agreed not to appeal to the International Criminal Court with respect to past allegations.
Earlier this year, the Prosecutor of the International Criminal Court refused to act upon the January 2009 declaration by Palestine saying that he lacked authority to determine whether Palestine was a State. He said that this was to be decided by the General Assembly or, possibly, by the Assembly of States Parties.
The Prosecutor does not have the power to set the agenda of the Assembly of States Parties. However, one might think that when he or she suggests it might consider an issue that this would at the very least come up for discussion. Professor John Dugard and myself, along with several other academics, wrote to the President of the Assembly of States Parties several weeks ago urging that this question be addressed at the recent Eleventh Session.
It was not. A few days ago, Professor Dugard received a letter from the President of the Assembly of States Parties, explaining that ‘for any items to be included on the agenda of the Assembly they would have to be proposed by a State Party, the Court or by the United Nations’. One can only conclude that the failure of any of these bodies to proceed on the basis of the Prosecutor’s suggestion amounts to rejection.
The Prosecutor was indeed wrong to think this was a matter for the Assembly of States Parties. That no State Party took up the issue confirms this. Whether or not any particular entity is actually a ‘State’ for the purpose of applying article 12(3) of the Statute is a jurisdictional fact to be assessed and debated within the Court, at various stages of the procedure. It may be raised by the Prosecutor, by the judges and even by a defendant. For example, the Holy See is an ‘Observer State’ at the United Nations, but would it not be possible for an accused person to question its status as a State, as Geoffrey Robertson QC did in his recent book the Case Against the Pope?
Be that as it may, even if the vote in the General Assembly is not necessary for the Statute to operate, confirmation that Palestine is indeed a State will dispel any ambiguity and throw the ball back into the Prosecutor’s court. She should then examine the Goldstone report, with its credible and serious allegations of war crimes and crimes against humanity perpetrated in Gaza in early 2009.
I'm wondering the extent to which Thursday's (probably successful) bid will have an effect on the OTP. I can see several issues the OTP might still be confronted with:
1. Was Palestine a State on 21 January 2009 that was capable of issuing a 12(3) declaration? While the OTP would presumably be satisfied of Palestine's status from 29 November 2012, this doesn't resolve the issue of whether Palestine was a State when the declaration was originally made. That is, whether Palestine was a State capable of making a 12(3) declaration isn't resolved, which means Palestine may have to lodge a new declaration in the absence of any judicial decision on this point. This leads into the second question.
2. Whether Palestine was a State on 1 July 2002? If the OTP considers the 12(3) declaration valid (which would necessitate determining Palestine a State as at 21 January 2009 - the same recognition problem the OTP was concerned about originally), this isn't to say that Palestine was State on 1 July 2002 for the purposes of article 12 and the ICC being able to exercise jurisdiction over it. However, the 12(3) declaration would presumably have effect from 21 January 2009 - but again, this would require the OTP resolving their original issue of when Palestine became a State.
So the issue of the ICC's jurisdiction is still hazy.
At a minimum, the ICC has jurisdiction from 29 November 2012, subject to a new 12(3) declaration by Palestine. The OTP still faces the exact same problems it did on 21 January 2009: was Palestine a State capable of issuing a 12(3) declaration that would give the ICC jurisdiction from 1 July 2002 (in which case the question of Palestinian statehood needs to be determined at this date too) or at the least on 21 January 2009.
If the ICC acquires jurisdiction over Palestine, in one way or another, would its jurisdiction not be ipso facto limited to crimes committed after it acquired jurisdiction? In other words, how can the ICC retroactively gain jurisdiction over crimes described in the Goldstone report? Surely this would violate the legality/non-retroactivity principle, which is firmly anchored in the Rome Statute?
The rome statute DOES allow retroactive acceptance of ICC jurisdiction by a state. See Art. 11 (2)
"... the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, UNLESS that State has made a declaration under article 12, paragraph 3”. (Which would include any crime committed after July 2002)
There is another factor opposing jurisdiction over the alleged crimes of 2009 though:
If Palestine was not state by 2009, those crimes were not committed on it's territory and therefore the requirement of Art. 12 (2) a) is not met.
Cale and Patters,
The General Assembly resolution acknowledged the 1988 Declaration of the State of Palestine and the role of the PLO Executive as the Provisional government since that date. About 93 UN member states had already formally recognized Palestine by 1989, when it first applied for membership in UNESCO. The resolution also noted that Palestine has been a full member of several international organizations that only accept States in that capacity.
Customarily recognition is considered retroactive in effect and validates all the actions and conduct of the government in question from the commencement of its existence. There's a good explanation of the rational behind that doctrine and some cases in Ti-chiang Chen, "The international law of recognition, with special reference to practice in Great Britain and the United States".
Several members of the ICC, including Jordan, Comoros, Tunisia, and Djibouti are members of the League of Arab States. That organization provided the former ICC Prosecutor with a list of multilateral treaties between the other member states and the State of Palestine regarding a variety of subjects. Here is a link to the pdf file:
Several of those agreements might be relevant to surrender and extradition of persons suspected of committing the acts of terror described in the Goldstone report, e.g. Arab Anti-Terrorism Agreement, 22/04/1998 signed by the Councils of the Arab Justice and Interior Ministers.
There are other treaties that deal with the subject of diplomatic privileges and immunity. The Court is bound to respect those agreements between its members and third states under the terms of Article 98 of the Rome Statute, unless of course it decides to go ahead and accept Palestine's article 12(3) declaration. The Registrar had advised Palestine that its declaration had triggered its responsibilities under Part 9 of the statute, pending a decision by the Judges.
Those particular Arab League agreements were signed and in full force and effect before the Rome Statute entered into force. So there should be no lingering questions now that Palestine was a state capable of accepting the Court's jurisdiction in July of 2002.
Bill: Sorry to burden your blog with unpublished letters to the Editor of The New York Times, but here's one I sent of last week-
To the Editor:
Re “In Blow to U.S., U.N. Heightens Status of Palestine” (front page, Nov. 30): Ethan Bronner and Christine Hauser report that the U.S. is already considering the possibility of cutting off foreign aid to the Palestinian Authority if it tries to “use the International Criminal Court against Israel.” It’s a bad idea. Threatening to punish those who seek legitimate access to courts only strengthens the argument of those who claim that they are entitled to take the law into their own hands because they have no other recourse. The Court’s mandate is to help deter crimes of the gravest concern to the international community. To obstruct access by those on either side of a conflict impairs not only that mandate, but our own reputation as a nation committed to liberty and justice for all.
Donald M. Ferencz
Delray Beach, Fla., Nov. 30, 2012
The writer is a Visiting Professor at Middlesex University School of Law in London.
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