Palestine and the Assembly of States Parties

by Kevin Jon Heller

As I noted in my previous post, the OTP has implied that it would accept a determination by the Assembly of States Parties (ASP) that Palestine qualifies as a state for purposes of the ICC’s jurisdiction.  That raises an interesting question: why have the Palestinians never (to the best of my knowledge) asked the ASP to make such a determination?  The ASP meets every year and can meet at any time when “circumstances so require” (Article 112(6)) at the Bureau’s initiative or at the request of 1/3 of the States Parties (ASP Rule #8) — 41 States Parties, at present.  I haven’t done the math, but I would be shocked if the ASP didn’t accept the Palestinian declaration, which would require — because the statehood issue is clearly a “matter of substance” — approval “by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting” (Article 112(7)(a)).  In other words, at least 61 States Parties would have to show up at a meeting and 2/3 of those States Parties would have to vote to accept the declaration.

Such a determination by the ASP would, however, raise the question I alluded to in my previous post: would a determination be reviewable by the Court?  Dapo Akande asks that question in a recent post on the substance of the Palestinian declaration (which interested readers should definitely check out), but he doesn’t venture an answer.  Personally, I don’t see how the judges could review a determination that Palestine qualifies as a state for purposes of Article 12(3); nothing in the Rome Statute permits them to review any other decision by the ASP.

8 Responses

  1. I don’t consider this an answer to your question, but your post reminded me of the ICTY’s Interlocutory Appeal on Jurisdiction in the Tadic case, in which the Chamber concluded that it had the authority to review the Security Council’s decision to create the ICTY for compatibility with the UN Charter.  Nowhere in the ICTY Statute or the Charter of the UN does it say a court may review the SC’s decisions for legality (in fact, most of the time we think of the SC’s decisions as being immune from any sort of review for constitutionality).  That didn’t stop the court from doing it.

  2. Stuart,

    True — but don’t you think the ICTY’s review was completely disingenuous?  I seriously doubt it would have taken the appeal if it thought it might hold that the Security Council couldn‘t authorize the tribunal…

  3. Perhaps that suggests that an ICC Chamber would review the ASP’s decision, but only if it intended to approve it?

    And yes, I agree that the ICTY Appeals Chamber would probably have refused to rule on the issue rather than issue an opinion finding itself unconstitutional.

  4. Kevin why didn’t the Palestinians go to the General Assembly and asked to be recognized as a non-member state at the UNGA? Even that would have been sufficient for purposes of ICC jurisdiction. Instead the Palestinians went to the Security Council knowing that there is a chance they wouldn’t get the required 9 votes and knowing that the threat of a U.S veto is hovering over them.

    The reason for deciding not to go to the ASP nor to go to the GA is simple. Its not because the Palestinians have bad lawyers. Rather its because the Palestinians themselves are afraid of chainging status. They are afraid of the legal implications of becoming a state and the legal responsibility such a new status would impose on them. They use “statehood” merely as political leverage to get Israeli concessions and pressure on Israel from the international community. I mean even they know that a peaceful state with secure and clear borders can only be established through negotiations. They are simply being smart negotiators by taking these steps, thats all. This brings the question of lawfare and its legitimacy but I wouldn’t dwell into that.

  5. Asaf,

    Your point is well taken, but it doesn’t completely answer the ASP question.  A determination by the ASP that the Palestinians could accept the jurisdiction of the ICC would allow the ICC to investigate the situation in Gaza but would not commit the Palestinians to the obligations of “full” statehood, as a UNGA determination would.  So would not going to the ASP be the idea middle ground?

  6. I think this question may be easier than your preceding, and very difficult, one. I understand the controversy in the last question to be: “can the Prosecutor act on a 12(3) declaration when there are doubts as to its validity? And who, ultimately, is entitled to determine the validity of that declaration?” I don’t think there is as much controversy about whether submission of a 12(3) declaration to the Registrar constitutes an inappropriate first step.

    I think there may be political and legal reasons for not proceeding directly to the ASP. On the legal side, I would think approaching the ASP might have been perceived to be a mechanism for establishing State *Party* status. Legally, there would be one very clear downside to that: Article 11(2) retroactive jurisdiction could not be asserted. Politically and practically, if there was a disagreement amongst State Parties about the appropriate outcome, it could get punted to the ICJ (119(2)), and devolve into a very protracted and difficult process (as we have seen with the UN membership bid) with possible political retaliation. Worse, by proceeding in that fashion, Palestine could be taken to have accepted that it was the appropriate route and bound to that resolution mechanism. Proceeding in this fashion, Palestine could maintain, at least at first, that it has taken a preliminary step and leave the political fall-out to be based on the actions of the Prosecutor or ICC.

  7. The General Assembly has long-since stated that the option of a Palestinian state is not subject to the peace process or any veto. See operative paragraphs 1 & 2 of A/RES/55/87(2001)
    The resolution that granted Palestine observer status already acknowledged the 1988 declaration of statehood and noted that Palestine enjoys full membership in the League of Arab States, the Asian Group of States. the Economic and Social Commission for Western Asia, & etc. See A/RES/52/250 In 2004, the Holy See requested that its rights as a non-member state be upgraded to those already held by Palestine. See “The Holy See backs off from its claim for full membership of the UN, settling for the rights already held by Palestine.”

    I don’t think it’s practical for the General Assembly to treat Palestine as a non-state actor when the international community of states have already voted to admit it as a full member state of a UN specialized agency and Israel keeps running to the Security Council to enforce the principles contained in Article 2(6) regarding non-member states after each rocket or mortar attack.

    The Prosecutor has an official submission in hand which establishes the fact that there are at least four State Parties to the Rome Statute that have multilateral treaty agreements with the third state of Palestine on matters of diplomatic immunity; extradition for acts of terror; & etc.
    Why not flip the question and ask if the Prosecutor or Assembly of State Parties are empowered by the Statute to take a vote and proceed with a request for surrender or assistance that is inconsistent with the obligations of the member States under international law or a multilateral agreement with respect to the third state of Palestine? If Palestine is a state for the purposes of Article 98, then it’s also a state for the purposes of Article 12(3).

  8. Response…
    The “Summary of practice of the Secretary-General as depositary of multilateral agreements” (ST/LEG/7) explains that the “Vienna formula” which permits full member states of UN specialized agencies to deposit accessions to multilateral agreements was developed to get around the abuse of the veto power by permanent members of the Security Council. The Palestinians have smart lawyers who went to UNESCO. The Rome Statute is open to “all states” and the Secretary General acts as the depositary. The Vienna formula states are obviously a subset of “all states”.
    Rep Ileana Ros-Lehtinen threatened to put a hold on funding for any UN organ or agency that granted Palestine rights reserved for a state or that upgraded Palestine’s observer status.  Israel refused to transfer funds owed to Palestine too.
    I don’t see any reason why Palestine should take on the additional burden of paying assessments as a full member of the ICC when an article 12(3) declaration should be sufficient for an acknowledged  UNESCO member state to get the ball rolling.

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