Three Questions for David Davenport

Mr. Davenport makes some very strong claims in his post concerning the OTP’s refusal to accept the Palestinian declaration.  Although I am on record with my belief that accepting the declaration would be a terrible political move for the ICC, I have a number of questions about Mr. Davenport’s claims.  I hope he will take the time to answer them in a subsequent guest-post.

First, Mr. Davenport says that “[t]he only case in favor of jurisdiction was always a set of political arguments in search of a valid legal vehicle that was never found.”  Bill Schabas has offered a quite compelling “legal vehicle” for the ICC to accept the Palestinian declaration, which focuses on (1) the fact that the Rome Statute is open to “all states,” and (2) that the UN Secretary-General previously concluded that the Cook Islands could ratify any treaty open to “all states” even though it was not an independent state, because it had been granted membership by a number of specialized UN agencies, including UNESCO.  Indeed, the Cook Islands has ratified the Rome Statute.  I would thus appreciate Mr. Davenport’s explanation of why, in light of the Cook Islands precedent and Palestine’s membership in UNESCO, Palestine is not entitled to ratify any treaty open to “all states,” including the Rome Statute.

Second, Mr. Davenport argues that “[t]ypical 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).”  I would appreciate Mr. Davenport pointing out what provisions in the Rome Statute support his argument.  Article 11(2) of the Rome State specifically provides that “if a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3” (emphasis mine). Article 12(3), in turn, permits a state to accept the ICC’s jurisdiction over any crime committed after 1 July 2002, the date the Rome Statute entered into force, even if that acceptance is retroactive.  Indeed, the Court has never questioned Cote D’Ivoire’s declaration under Article 12(3), filed with the Court on 1 October 2003, even though the declaration accepted jurisdiction retroactive to 19 September 2002.  The OTP is currently investigating the situation in Cote D’Ivoire.

Third, Mr. Davenport says, with regard to the OTP’s belief that the Assembly of States Parties could vote to accept the Palestinian declaration, “[s]urely 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.”  What is the basis for this claim?  If UNESCO’s membership is entitled to admit Palestine without approval by the UNSC or UNGA, why is an independent international organization not entitled to do the same?  The UN has no formal authority over the ICC (except concerning referrals to the Court, of course, which is given to the Security Council by the Rome Statute).  And why is it not implicit in the Rome Statute that the ASP — the ICC’s “legislature” — may determine who is eligible to ratify the Rome Statute or accept its jurisdiction?  After all, Article 112(2), as the OTP pointed out, specifically says that the ASP may “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  How would a determination that the Court may accept the Palestinian declaration be inconsistent with the Statute or RPE?

Mr. Davenport concludes his post by claiming that “this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.”  In light of the considerations I have discussed above, that seems to be a questionable conclusion.  I look forward to Mr. Davenport’s response.