The ICC and Palestine: A Response

by David Davenport

[David Davenport is a Research Fellow at the Hoover Institution]

In the end, the Prosecutor of the International Criminal Court made the only “legal” decision he could:  the ICC has no jurisdiction to act on the complaint of the Palestinian National Authority since Palestine is not a State and the Court is limited to accepting submissions by States.  The only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.  Typical of such extra-legal arguments is a previous post pointing out that, since the submission in 2009, the political case for Palestinian statehood has grown stronger, when the only legally relevant time was when the acts complained of took place (2002-early 2009).  Or a previous post’s argument that went straight to political motives—that Prosecutor Moreno-Ocampo “contrived to reject the existence of the state of Palestine”—when, again, the proper issue before a criminal court was whether its own jurisdictional requirement was satisfied.

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.

3 Responses

  1. Response…
    The members of the Assembly of State Parties remain bound by the terms of their own acceptance of the protocols of the Statute. Article 125 stipulates that the UN Secretary General will serve as the depositary, and that the Rome Statute is open for signature by all states.
    The protocols of 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) contain a standing invitation for the member states of UN specialized agencies, like Palestine, to become State Parties to those multilateral agreements. 187 signatories have already indicated their acceptance of those terms – and they are binding on the UN Secretary General, acting as their depositary.
    The Secretary General also has an obligation under phase I of the Quartet’s Performance Based Road Map to promote international recognition of the Palestinian State.
    So, the appropriate UN Charter body for determining the ability of a non-member entity to become a state party to one of these multilateral agreements is the UN Secretary General, not the General Assembly.
    The General Assembly resolution that granted Palestine observer status acknowledged that Palestine declared its independence in 1988; had establish a government in part of the territory of Palestine; and had been accepted as a full member state of several international intergovernmental organizations. The General Assembly subsequently adopted a resolution which affirmed that the option of a Palestinian State is not subject to the peace process or to any veto. That presumably applies to attempts by Luis Moreno Ocampo, David Davenport, et al

  2. Response…
    Re: the only legally relevant time was when the acts complained of took place (2002-early 2009).
    Here is an exhibit (pdf) on “The League of Arab States, Documents on the status of Palestine“, October 14, 2009 that was submitted to the Prosecutor. It contained a table of treaties that should dispose of any questions in that connection. Palestinian Authority Ministers had signed the “The Arab Convention for the Suppression of Terrorism , adopted by the Council of Arab Ministers of the Interior and the Council of Arab Ministers of Justice, Cairo, April 1998. Palestine is also a party to the Convention on Privileges and Immunities of the League of Arab States. Those agreements were already in force before the ICC ever came into existence.
    There are four members of the League who are also members of the Assembly of State Parties to the Rome Statute. If the Court is ever required to pursue assistance or surrender in a case that took place in the “(2002-early 2009)” time frame it would now be required to respect those agreements with the third state of Palestine in accordance with Article 98.
    Of course, the Judges could always overturn the Prosecutor’s opinion and rely upon the article 12(3) declaration from the government of Palestine. According to the Registrar, the declaration had the effect of accepting the Court’s jurisdiction and applying the application of the provisions of Part 9 and any rules thereunder, concerning States Parties, pursuant to Rule 44 of the Rules of Procedure and Evidence.
    The Registrar’s statement was made without prejudice to a judicial determination on the applicability of article 12, paragraph 3 to Palestine’s correspondence, but the position of the OTP was not reserved. See Letter of Silvana Arbia to Ali Khashan, Jan. 23, 2009

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