Michael Kearney on the Palestinian Declaration

by Kevin Jon Heller

Michael Kearney at the University of York has written a long and interesting response to Julian’s post, which I have posted below to make sure people see it.  I’m far from expert about the law of statehood, so I’m reluctant to comment on the international-law debate.  I continue to believe, though, that accepting the Palestinian declaration would be disastrous for the ICC’s legitimacy.  I’m all for the ICC prosecuting American crimes in Afghanistan and British crimes in Iraq, but it is impossible to ignore the fact that such prosecutions would be extremely controversial even though they raise no significant jurisdictional problems.  It thus strikes me as extremely unwise to prosecute Israeli officials and soldiers — which would be equally if not more controversial — pursuant to a jurisdictional argument that is, at best, extremely close.  I would take issue, then, with Michael’s conclusion that “[t]o decide otherwise would not only permit continued impunity to reign but would be a manifestly unreasonable interpretation of the Rome Statute.”  There is nothing unreasonable about the critics’ position, even if we believe (and I’m not sure I do) that it’s ultimately incorrect.

Moreover, I think it’s critically important to question the kind of teleological reasoning that Michael seems to embrace concerning the interpretation of the Rome Statute.  The object and purpose of the Statute is not to combat impunity always and everywhere; its object and purpose is to combat impunity in situations over which the ICC has jurisdiction.  It thus seems illegitimate to me to argue that we can ignore seemingly clear provisions of the Rome Statute simply because the ICC’s ability to combat impunity would be thereby enhanced. Perhaps Article 12 is less clear than it appears; I certainly acknowledge that possibility.  Even if it is, though, we should not take into account ends-driven considerations such as “what will combat impunity better” when trying to decide what Article 12 means.

With that, on to Michael’s excellent comment:

As one of the authors of Al-Haq’s position paper on this question I would like to thank you for highlighting the OTP’s summary of submissions and promoting the debate. Since you are one of the signatories to David Davenport’s paper, I would like to take issue with some of the key points made therein. I won’t at this stage go into the other papers since this will already be a fairly long response.

As Davenport’s paper accepts, there is no universally accepted definition of statehood under international law (p8). Statehood therefore, is a question of political recognition and of power. Neither of these considerations can be accepted as the sole arbiters as to whether a people are to be protected by or excluded from the rule of international law.

Rather than follow the political question – that of whether Palestine is an actual state on a par with states such as Switzerland or Syria – Al-Haq has rooted its consideration of the matter strictly in international law. Al-Haq’s paper considers whether the PA exercises jurisdiction over the crimes set forth in the Rome Statute of the ICC, and whether the meaning of ‘state’ for the purposes of the Rome Statute can properly be interpreted to include an entity such as Palestine.

Davenport’s paper stresses that the PA does not have the requisite domestic jurisdiction over the crimes in question on the basis that in line with the Oslo Accords, the PA does not have any criminal jurisdiction over citizens of Israel (pp 1, 3-4, 13). This is correct with regards common crimes, but not with regards most of the international crimes which fall under the jurisdiction of the ICC. As detailed in Al-Haq’s position paper: ‘crimes over which the ICC has jurisdiction, including grave breaches of the Geneva Conventions, crimes against humanity, and genocide are crimes under customary international law, and many are widely recognised as being subject to universal jurisdiction. There is an obligation upon all states to enact effective penal sanctions in domestic law and an obligation to search for and to try or extradite persons suspected of grave breaches on the basis of universal jurisdiction, regardless of the nationality of the perpetrator.’ (Al-Haq, para 33)

The grave breaches of the Geneva Conventions documented in the Goldstone Report are alleged to constitute war crimes and possibly crimes against humanity. The UN General Assembly resolution that endorsed the Report, urged: ‘in line with the recommendation of the Fact-Finding Mission, the undertaking by the Palestinian side, within a period of three months, of investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, towards ensuring accountability and justice.’

Al-Haq has concluded that: “This represents an acknowledgement by the international community that, whether there exists a Palestinian state or not, ‘the Palestinian side’ not only has the ability to investigate and prosecute international crimes but also that it has the duty to do so. Such investigations, to be in conformity with international standards must be directed against all those responsible for the alleged crimes and not discriminate on grounds of nationality. Article 146(2) of the Fourth Geneva Convention is explicit in stating that each High Contracting Party “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.” (Al-Haq, para 34).

The exclusion of Israelis from PA jurisdiction as provided for in the Oslo Interim Agreement cannot legitimately be considered as extending to the international crimes of war crimes and crimes against humanity as to do so would be incompatible with international law. As an entity acknowledged by the international community as having both the capacity and responsibility for investigating and prosecuting serious violations of international human rights and humanitarian law the PA must therefore be acknowledged as having the capacity and responsibility for investigating Israelis suspected of being responsible for such actions.

At page 2 Davenport cites Denmark’s exclusion of the Faroe Islands and Greenland from the reach of the ICC as an example of non-state entities which are not sovereign states, and who therefore cannot ratify the Rome Statute or make an article 12 declaration. While this is correct, to make a comparison with the PA is faulty since whereas Denmark reserves full sovereignty over those territories, Israel holds no title to or sovereignty over any part of the occupied Palestinian territory. Sovereignty over that territory rests in no-one other than the Palestinians themselves and thus there is no competing claims to sovereignty as there would be should Greenland attempt to ratify the Statute.

At pages 2-3 Davenport suggests that past ICC practice indicates no intention to include Palestine or the PA as a ‘state’, citing in support Palestine’s inclusion with ‘other organisations’ at the Rome conference, and subsequent prepcom meetings. It must be borne in mind that during the Rome conference in 1998 the Oslo process was very much still in effect and that the international community, as well as Israel and the Palestinians gave the appearance of being committed to moving towards the establishment of an independent Palestinian state. A commitment to multilateral political negotiations, decreed that to have listed Palestine as a state at that point, or even during the subsequent prepcom meetings, would have served only to sabotage the peace process. Such a status at such meetings therefore would not have been a Palestinian priority.

The suggestion that even were Palestine a state, it could not submit a declaration since it has failed to establish territorial control over Gaza is mistaken. Davenport here relies on Article 42 of The Hague Regulations namely the test of effective control (p 9). This is an obviously incorrect approach since this is a test whose purpose is to determine whether territory can be considered occupied by a belligerent power. Both the PA and de facto Hamas government are operating under Israel’s belligerent occupation of Palestinian territory, and such a test is thus only relevant in considering whether Israel is the occupying power. It is of no relevance in any other regard and certainly cannot be applied against Palestinians in their own territory.

In any event, a state need not have full control over all its territory in order to ratify the Rome Statute or submit an article 12 declaration. To accept such a rule would mean that Syria could not ratify the Rome Statute so long as Israel continued to occupy the Golan Heights. Proof of this can be seen in relation to Cyprus. Cyprus is a state party to the Rome Statute despite half its sovereign territory (the TRNC) being under full (effective) control of a foreign occupation.

In conclusion, while Davenport cites the necessity of the ICC having to balance between values of sovereignty and internationalism, his arguments suggests no attempt at considering the facts of the matter at hand. The OTP and the Court must balance between such values it is true, but to do so they must root their approach in international law, and not simply exclude Palestinians from the rule of law on a political basis, nor on a mistaken reading of the relevant law.

Given that there is no universally accepted definition of a state in the Rome Statute or in international law we must turn to the facts of the matter. On balance, it must be accepted that (1) the Palestinians are the only sovereign in the West Bank and Gaza, on all the territory occupied by Israeli in 1967, which is a single self-determination unit, (2) that the PA and de facto Hamas government are under a duty (as proclaimed by the UN General Assembly) to investigate and prosecute all those responsible for grave breaches of the Geneva Conventions, war crimes, and crimes against humanity, whether Israelis, Palestinians or of any other nationality, and (3) that by accepting the PA’s article 12 declaration, the OTP will not be exceeding its authority, but merely giving effect to the Rome Statute’s purpose of combating impunity and of promoting the principles and purposes of the UN by ensuring that no-one is excluded from the writ of international justice nor from the protection of international law.

Davenport writes that it is beyond the authority of a criminal court or its prosecutor to break new ground by establishing a status not recognised by other international courts or organizations, and that Palestine is either a state or not a state, that neither international law nor the Rome Statue can recognize any middle ground. (p 9) This is correct, but by considering the following facts, for the purposes of the Rome Statute, Palestine can legitimately considered to be a state with the capacity to submit a valid Art 12(3) declaration:

a. The existence of a state of Palestine, although controversial, is nonetheless a reality in the opinions of many states.
b. The PA satisfies many of the basic criteria of statehood and effects many of the duties and responsibilities of states.
c. The Palestinians have an internationally recognised right to self-determination and to an independent state.
d. The Palestinians in the OPT are living under a foreign military occupation which is frustrating their ability to effectively exercise their right to self-determination through an independent state.
e. The PA has the ability to enter into international agreements.
f. The PA has the capacity to exercise criminal jurisdiction over Palestinians and other non-nationals.
g. The PA as a party bound by customary international law to investigate and prosecute grave breaches of international humanitarian law has the duty to prosecute anyone alleged to have committed such crimes, a duty which cannot discriminate on grounds of nationality, and which therefore brings Israeli nationals within the scope of PA jurisdiction.
h. The ICC may decide what constitutes a state for the purposes of the Rome Statute by criteria different from what is used for other purposes in international relations and international law.

To decide otherwise would not only permit continued impunity to reign but would be a manifestly unreasonable interpretation of the Rome Statute.

http://opiniojuris.org/2010/05/06/michael-kearney-on-the-palestinian-declaration/

3 Responses

  1. I am very curious what authority the author believes supports item g.  I believe it highly questionable that a non-state actor has the obligation and authority to impose a penal sanction for war crimes regardless of the nationality of the perpetrator or victim.  That is surely an obligation of states with regard to conduct constituting a grave breach of the Geneva Conventions (I would argue as a matter of both treaty and customary law).  While non-state actors must surely suppress law of war violations internally, its external obligation and authority to do so is questionable to say the least.  (The implications of such a development would be truly staggering in the current international system.)  It seems this argument necessarily depends upon the author’s arguments that the PA/OPT is a state.   (On this issue, I express no opinion.)

    I also have serious questions about item “h” given that Article 21 of the Rome Statute only permits the court to apply existing international law, not to create its own version of it.  If the author is correct that “there is no universally accepted definition of a state in the Rome Statute or in international law,” then Article 21 would seem to prevent the ICC from deciding the issue, or from deciding “what constitutes a state for the purposes of the Rome Statute.” 

    Admittedly, article 21(1)(c) might provide some wiggle room.  In applying “general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards“ there might be room to fill normative gaps in underdevloped (or some might say unresolved) areas of international law.  Even under this approach, however, the court must apply principles of law not merely the political opinions of governments in deciding what constitutes a state.  In the U.S., for example, the Supreme Court has fairly consistenly observed the constitutive theory of statehood, requiring “recognition” of the existence of a state by the political branches.  If recognition is fairly considered a political question, it is hard to see how the ICC could independently resolve the status of the PA/OPT.  (Interestingly though, in the obiter dicta of the Curtiss-Wright opinion, the Supreme Court observed the declaratory theory of statehood with regard to the U.S. on its way to deciding that the powers of external sovereignty did not come from delegations by the several states.)

  2. Well said, John,  I particularly agree with you about (g).   The author’s grave breach argument assumes what it needs to prove — that Palestine is a state.

  3. Sorry, but many non-state actors have held trials for war crimes committed in the territory over which they have jurisdiction regardless of the allegiance (nationality?) of the author. Italian resistance courts tried Germans and fascist Italians in the 1940s, Spanish nationalists and republicans did the same to each other (one of them ought not to have been a state, choose which one you prefer), I think Tamil courts tried Sri Lankan soldiers for war crimes committed on ‘their’ territory…
    It seems possible to argue that if you can exercise this jurisdiction, you can also request the ICC to exercise it.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.