Palestine and the Assembly of States Parties
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.