Which Organ of the ICC Decides Whether Palestine Is a State? (Updated)

by Kevin Jon Heller

As most readers probably know by now, the Office of the Prosecutor has finally — after three inexcusable years of inaction — officially rejected Palestine’s attempt to accept the ICC’s jurisdiction pursuant to Article 12(3) of the Rome Statute.  Politically, I think the OTP has made the right decision; the ICC has enough problems without interjecting itself into one of the world’s most intractable conflicts.  Legally, though, I’m not so sure: although I initially believed that Palestine could not qualify as a “state” for purposes of Article 12(3), this post by Bill Schabas convinced me that UNESCO’s acceptance of Palestinian membership means that Palestine does, in fact, have the right to accept the Court’s jurisdiction (and to accede to the Rome Statute generally).

I don’t want to debate the legal or political merits of Palestine’s declaration in this post.  Instead, I want to ask a question for which I simply do not have a definitive answer: which organ of the ICC gets to decide whether Palestine can accept the Court’s jurisdiction?  The OTP obviously believes that it makes the decision.  Amnesty International, however, disagrees: the BBC quotes Marek Marczynski, the head of the organization’s International Justice campaign, as claiming that the OTP’s decision “breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.” I think Marczynski is wrong about that: nothing in the Rome Statute says that the judges get to decide whether an entity qualifies as a state for purposes of jurisdiction, at least in the first instance.  The problem is that nothing in the Rome Statute specifically entrusts that decision to the OTP, either.  Article 12(3) is silent on the issue, and although the OTP is responsible for deciding whether to an investigate a particular situation, that does not necessarily mean the OTP has the authority to decide whether an entity referring a situation qualifies as a state.

There is, of course, another important question for which there is no easy answer: if we assume that the OTP gets to decide whether Palestine qualifies as a state for purposes of Article 12(3), can the Appeals Chamber review that decision? Article 82 of the Rome Statute, which governs appeals of decisions other than verdicts and sentences, provides in paragraph 1 that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… [a] decision with respect to jurisdiction or admissibility.”  Whether Palestine can accept the ICC’s jurisdiction pursuant to Article 12(3) would seem to be “a decision with respect to jurisdiction.”  Moreover, Article 18(4), which governs appeals of admissibility decisions by the Pre-Trial Chamber, provides that “[t]he State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82.”  There is obviously no ruling of the Pre-Trial Chamber concerning Palestine’s status, but Article 18(4) implies that the Appeals Chamber has the authority to review conflicts between the OTP and States concerning investigative decisions.  Still, the answer is anything but clear.

Finally, it’s also important to ask what role the Assembly of States Parties (ASP) should play in all of this.  Article 112(2) provides that the ASP shall “[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court” and “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  It is certainly possible to argue that deciding whether an entity qualifies as a state falls within the purview of the ASP under Article 112; the ASP also seems to be the most logical candidate for making that decision, which is more political than legal.  In fact, the OTP seems to suggest that it would accept a decision by the ASP that Palestine qualifies as a state for purposes of Article 12(3), writing in its statement that “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court” (emphasis mine).

I don’t know how to answer any of these questions.  In general, I think two interpretations of the Rome Statute are most plausible: (1) the OTP makes the initial decision concerning whether Palestine can accept the ICC’s jurisdiction, but that decision is reviewable by the Appeals Chamber; or (2) the ASP decides whether Palestine qualifies as a state for purposes of Article 12(3), and that decision is not reviewable by anyone.  I’m genuinely torn, however, between the two interpretations.

Readers?  Your thoughts?

UPDATE: In the comments, Hostage calls attention to an FAQ issued by the Registry concerning the Palestinian declaration.  The Registry takes the position in the FAQ that a “conclusive determination” on the applicability of Article 12(3) “would have to be made by the judges at an appropriate moment.”  The FAQ is not clear, unfortunately, concerning which chamber would make that determination or when the “appropriate moment” would be — although it seems to contemplate appellate review, because it acknowledges without comment the OTP’s belief that it was entitled to determine, at least in the first instance, “whether the declaration by the Palestinian National Authority accepting the exercise of the ICC meets statutory requirements.”

UPDATE 2: Amnesty International has issued a “Questions and Answers” statement that appears to back off from Marczynski’s claim that the OTP has breached the Rome Statute by unilaterally rejecting the Palestinian declaration.  The Q&A suggests that it would be better for the judges to make an impartial decision on the declaration, but points out that Article 19(3) of the Rome Statute, which allows the Pre-Trial Chamber to make a decision “regarding a question of jurisdiction or admissibility” that does not involve a specific case only at the request of the Prosecutor.  I’m not sure Article 19(3) is the only applicable provision, for the reasons discussed above.  But Amnesty is on much firmer ground with its Q&A than with Marczynski’s initial claim.


15 Responses

  1. I only know a fraction of what you know, but the logical answer would seem to be that if the OTP doesn’t think Palestine qualifies, that is the end of it. If they do accept the case, the next hurdle is the Pre-Trial Chamber, with review by the Appeals Chamber. Then again, maybe I’m placing too much weight on my idea of what a sensible organisation would look like…

  2. Martin,

    I’m curious, why is giving the OTP unreviewable authority to make that determination “logical”?  I’m not saying you’re wrong, but I think the claim is far from self-evident.  Do you think the power to open an investigation necessarily implies the power to determine whether a particular entity can ask for for an investigation to be opened?

  3. @KJH: Indeed. Analogising from national prosecutors, the basic rule tends to be that if the prosecutor says there shouldn’t be a prosecution, for whatever reason, there won’t be.

    (Although, under Dutch law, there is the numerically unimportant but notable exception of the direct appeal to the Court of Appeals, as in the Wilders case.)

  4. The Palestine was an Ottoman colony and colonies entered into international treaties all the time. In his work on this subject, Lissitzyn (‘Territorial entities other than independent States in the law of treaties,’ 125 Recueil des cours 1-91 (1968)) concluded that: “there is no norm of international law that limits the class of territorial entities with treaty-making capacity to independent States, or indeed to “States” however defined. There is no objective standard of treaty-making capacity.” Then he gives many examples of colonies entering into international treaties.

    Article 1 of the Covenant of the League of Nations provided that any dominion or colony could become a member of the League. This proves that the international community accepted that colonies could enter into international treaties.

    India became League member in 1918, 29 years before independence. She became UN member two years before independence and entered other treaties.

    After the Philippines became independent, the US State Department declared: “It has been the policy of the United States to consider that a new state is bound by the international agreements to which it became a party in its own name, and by its own action, even though such action was taken before the new state had achieved complete and formal independence.”

    Therefore, I don’t see any reason why Palestine could not become party to the Rome statute.

  5. Response…

    It seems the question here is different from the question national prosecutors address when deciding to bring a case to trial. Here, the question is not ‘is there enough evidence’, but ‘can Palestine avail themselves of the jurisdiction and protection of the Rome Statute?’ In order for Palestine to be under the jurisdiction of the Rome Statute, they must be a state.

    The term “state” is ill-defined in international law. It seems states are recognized as states when they behave like states, by entering into treaties, and being recognized as states.  In essence: ‘you know it [a state] when you see it.’

    Who better to decide whether or not Palestine is a state, than Palestine?

  6. Response…
    MMT: there have been seveal non-state actors with formal roles in the international legal process for the last few hundred years (e.g., nations, peoples, tibes — see, e.g., http://ssrn.com/abstract=1701992 ) but the Rome Statute of the ICC limits the ICC’s jurisdiction as well as what entity can become a Party. 

  7. I’m curious as to why the Prosecutor chose to ignore the annex to the League of Arab States’ submission on Palestine’s Article 12(3) declaration? It enumerated the multilateral international agreements on diplomatic immunity and extradition between Palestine and the other member states.
    Four State Parties to the Rome Statute are members of the Arab League. The Court is bound to respect those agreements on immunity or extradition with third states, like Palestine, under the explicit terms of Article 98.
    It’s hard to see how the Prosecutor can treat Palestine as a non-state for the purposes of Article 12, when at one and the same time, the Court has a binding legal obligation to the signatories to treat it as a third state party in accordance with the explicit terms of Article 98.
    A FAQ published by the Registrar of the Court indicated that any conclusive determination on the applicability of article 12(3) to Palestine’s communications “would have to be made by the judges at an appropriate moment.”

    In any event the Prosecutor’s opinion cited the Secretary General’s practice in those cases where some doubt exists. But Palestine, and every other member of a UN specialized agency, has an open invitation to become a state party to the Vienna Convention on the Law of Treaties (See Articles 81 and 83) and the Vienna Convention on Diplomatic Relations (see Articles 48 and 50). The Secretary would be obligated to notify the 187 other state parties about the accession – and their international obligations toward the State of Palestine would be engaged. The Secretary General has no basis to question Palestine’s accession to the Rome Statute, since it’s open to “all states” – which certainly includes the subset of states defined by the Vienna formula.

    Prof. Schabas is correct, the Prosecutor should have already reacted to the UNESCO vote.

  8. Response…
    Jordan, in 1932 the Council of the League of Nations decided that “the ability to stand alone” did not require a mandated state to acquire the capability to defend itself against external aggression before its existence as an independent state could be recognized and the protections of the Covenant extended to protect the integrity of its territory.  See The General Principles Governing the Termination of a Mandate, Luther Harris Evans, The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758, http://www.jstor.org/stable/2189582
    In 1949 the International Law Commission decided after much discussion not to attempt to write a legal definition for the word “State” or to establish criteria for statehood. It’s appears to be an ordinary dictionary word that the majority of other existing states have chosen to describe Palestine and the nature of its rights and responsibilities under international law. James Crawford discusses the ILC decision as a preliminary matter in Creation of States in International Law, 2nd edition, Oxford University Press, USA, page 31.
    The Secretary General wrote a memorandum in 1950 explaining that the UN does not play any role in determining statehood and that an amendment to the Charter would be required in order for it to assume those responsibilities.  See S/1466, 9 March 1950, Letter Dated 8 March 1950 From the Secretary-General to the President of the Security Council Concerning “Legal Aspects of Problems of Representation in the United Nations”, http://www.un.org/ga/search/view_doc.asp?symbol=S/1466
    There is an undertaking in Article 2(6) of the UN Charter to ensure that non-member states act in accordance with Charter principles without regard to their status as UN observers.

    The Definition of Aggression contained in General Assembly Resolution 3314 was recently incorporated by reference in the Rome Statute. It deliberately employed a broad definition of the term State that applies without regard to recognition or UN membership. In the Draft Statute on the International Criminal Court the ILC said: An individual cannot incur responsibility for this crime in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.” So determinations regarding statehood will undoubtedly have to be made, e.g. See The Prosecutor v. Slobodan Milosevic – Case No. IT-02-54-T (Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State)” http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm

    The ICJ cited portions of the customary definition of aggression containing the term state in its opinion on Military and Paramilitary Activities in and against Nicaragua. The Court said “It is also clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been so attacked.”

    The International Convention on the Suppression and Punishment of the Crime of Apartheid called for the establishment of an international criminal tribunal. It would be an odd result to my way of thinking if a Bantustan could not be considered a “victim state” with the necessary standing to request an investigation of the crime of apartheid, since many authorities have never considered complete political independence a necessary qualification for statehood, e,g,
    “A state in the international sense is generally described as a recognized member of the family of nations, an international person. Authorities differ in respect to the qualifications for such statehood, but there is general agreement on certain basic requirements. Independence is not essential. The requisite personality, in the international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relationships between itself and other contracting parties” Marjorie M. Whiteman, Digest of International Law, vol. 1 (Washington, DC: U. S. Government Printing Office, 1963) page 223

  9. Response…
    Thank you Hostage.  You should write an essay or article on this matter, if you have not already.
    My point was merely that “state” is the focus re: the ICC Statute, but I wanted to alert others to the fact that there have also been many non-state actors with formal participatory roles in the international legal process and, of course, many others with duties and rights under international law. The word “colony” brought this to mind. Before the U.K. had “colonies” in Africa, for example, they had some 500 treaties with a nation and with tribes (no doubt in an attempt to ultimately form their colonies in Africa — see my essay). Despite this historic fact, the Brits adopted a rigid state-oriented theory of internaitonal law that was always unrealistic and opposed (e.g., Oppenhiem). International law has NEVER been merely state-to-state.

  10. Response…
    Thank you Jordan. That’s a very outstanding article.
    I think the key to untangling this mess is to stop looking at the Practice of the Secretary General with regard to the “all states” formula and the unwritten rules regarding observers at the UN as the gold standard.
    The Rome Statute falls within the scope of the Vienna Convention on the Law of Treaties. Article 5 of the latter explains:
    “The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.”
    Article 6 provides that “Every State possesses capacity to conclude treaties.” and articles 81 and 83 stipulate that members of UN specialized agencies are perfect examples of States that have an open invitation to become State Parties to this UN convention.
    Articles 35 through 37 spell-out the customary/conventional rules that apply when a treaty provides a right for a third state or creates obligations that have been accepted in writing by the third state. Article 37 “Revocation or modification of obligations or rights of third States” requires 1) the consent of the parties to the treaty to modify or revoke an obligation; and 2) The third state’s consent to revoke a right afforded by the treaty.

    The Rome Statute gives third states the right to accept the Court’s jurisdiction by making an Article 12(3) declaration. The Registrar’s letter to Palestinian Justice Minister, Ali Khashan, dated 23 January 2009, advised that Palestine’s Article 12(3) declaration had the legal effect of accepting the Court’s jurisdiction and the application of the provisions of Part 9 of the Statute and any obligations thereunder, concerning State Parties, pursuant to Rule 44 of the Rules for Procedure and Evidence. It’s doubtful that the Prosecutor can unilaterally revoke those rights and obligations to the other parties.
    The General Assembly unambiguously recognized all “States Members of the United Nations, States members of the specialized agencies, States Parties to the Statute of the International Court of Justice
    and States that the General Assembly decides specially to invite”, when it adopted UN GA resolution 2166 (XXI). It invited them all to participate in the international conference of plenipotentiaries that codified the recognized customary international treaty law contained in the Vienna Conference and asked them to become signatories.
    The treaty was opened for signature by those classes of states (article 81) and it remains open for accession by any State belonging to any of those categories (article 83). It’s hard to see how Palestine’s declaration can be rejected on the basis of its observer status,, when the customary rules that govern the Rome Statute recognize it as a State.
    The General Assembly always invites the State members of the UN specialized agencies to participate in international conferences of plenipotentiaries, like the Rome Conference of the ICC, because they have been recognized as States according to both customary and conventional international law.

  11. Response…
    “Amnesty International has issued a “Questions and Answers” statement that appears to back off from Marczynski’s claim that the OTP has breached the Rome Statute by unilaterally rejecting the Palestinian declaration.”

    Of course he did. The parties to the treaty have granted third states the right to accept the jurisdiction of the Court by submitting a written declaration in accordance with article 12(3). Once a third state has done that, it is bound by the obligations applicable to a State Party under Part 9 of the Statute.

    The Prosecutor ignored the customary and conventional rules of treaty law that govern modification or revocation of rights and obligations of third states under the Rome Statute. Those are spelled out in Articles 5, and 35-37 of the Vienna Convention on the Laws of Treaties – which also happens to recognize the competence of State members of the UN specialized agencies to conclude treaties or instruments like the declaration. See articles 6, 81, and 83.

    He has to obtain the consent of Palestine and the other state parties before he can reject the declaration.

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