Three Questions for David Davenport

by Kevin Jon Heller

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.

9 Responses

  1. Response…
    Prof. Schabas is correct. The General Assembly’s customary practice, like that of the Secretary General’s, was essentially codified by the Vienna Convention on the Law of Treaties before work began on the Rome Statute.

    For example, the Ad Hoc and Preparatory Committees for the Statute of the International Criminal Court were open to participation by all States, including Members of the United Nations or members of specialized agencies. See UN GA resolution 49/53 of 9 December 1994 and UN GA resolution 50/46 of 11 December 1995.

    The Secretary General has already accepted the deposit of several UN-ESCWA treaty instruments from representatives of Palestine who presented evidence of their “full powers”. So Palestine’s membership in UNESCO is not without relevance to the question of whether or not the signatories are obligated by the terms of their own acceptance to treat it as a state within the meaning of both the Vienna Conventions and the Rome Statute.

    In a March 1950 letter from the Secretary-General to the President of the Security Council Concerning “Legal Aspects of Problems of Representation in the United Nations” , the Secretary General related the views of the US representative concerning a request for an advisory opinion from the ICJ on the status of Israel. Mr Austin said he would not admit that there exists a tribunal of Justice or of any other kind, anywhere, that can pass judgment upon the legality or the validity of a sovereign act of recognition made by his country. He added that certain rights of a sovereign State were not yielded by any of the members who signed the Charter, including the right to recognize other states.

    While conflicts between the obligations of members under the UN Charter and other treaties must be resolved in favor of the Charter, the Rome Statute contains no such provision. On the contrary, the signatories intentionally created an entity which is obliged to respect their individual rights to recognize third party states and enter into agreements with them.

    In the absence of an explicit provision to the contrary, it’s doubtful that any of the signatories intended to surrender the right to make those determinations to any organ of the Court, including the Assembly of State Parties. If a entity must be considered as a state for the purposes of Article 98, it should be considered one for the purposes of Article 12(3) as well.

  2. Call me naive, but to me it seems very unlikely that mr. Davenport’s consideration that “the only legally relevant time was when the acts complained of took place (2002-early 2009)” must be  understood as him overlooking the possibility of making an article 12(3) declaration with retroactive effect (which is what mr. Heller’s response seems to suggest).

    The main issue is rather whether an entity that comes within the scope of the “all states” formula (for reason of being admitted to UNESCO) can validly make a purportedly retroactive article 12(3) declaration to cover a period that this entity could not be considered a state yet. If Palestine is considered a state for the purposes of the Statute, it would be unreasonable in light of the purpose of the Statute (which centers around the concept of “state”) to allow it to make a declaration that retroactively covers a period that it was not yet a state. Such a declaration can only be retroactive to the point in time where it indeed became a state. For this reason the analogy with Cote D’Ivoire does not make much sense, since its status as a state before October 2003 was never questioned. 

  3. Response…
    Remy, I agree with Heller that the ICC or any other international intergovernmental organization can determine whether or not to admit an entity as a member state. I think they did that in Article 125

    Palestine was already recognized by more than 90 states when it applied for UNESCO membership in 1989. At the time that it was granted observer status in 1998, it had established a government in part of the territory of Palestine and was a member state of the League of Arab States, the Group of Asian States, the Group of 77, and the Organization of the Islamic Conference. It had signed multilateral treaty agreements with the Arab League and the OIC on diplomatic immunity and extradition for acts of terror.

    In “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)”, the Amici Curiae motion argued that all “grave breaches” counts in the Croatia Indictment before January 15, 1992, had to be dismissed because the Prosecution failed to establish that Croatia was a state before that time, making the conflict one of a non-international nature. So, there was a genuine disagreement regarding the existence of statehood that could have effected the result of the case under governing law. The Trial Chamber noted that the best known definition of a state is provided by the Montevideo Convention, Art.1 which reads: “The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States.” The most decisive of these is the last. Based upon negotiations with other international actors the Trial Chamber concluded there was sufficient evidence that Croatia was a State.
    If there’s a dispute over a material fact, such as the date that Palestine first entered into relations with other states and international organizations, then the evidence should be presented to the trier of fact for a determination. In this case, all of that happened years before the Rome Statute entered into effect.

  4. “Such a declaration can only be retroactive to the point in time where it indeed became a state.”

    And that is based on what?  The object and purpose of the Rome Statute is to combat impunity, so there is nothing at all unreasonable about permitting a new state to accept jurisdiction retroactively (to 1 July 2002).  And, of course, Eichmann has already established that a state may prosecute crimes committed against its people prior to statehood.

  5. Response…
    And that is based on what?

    In the customary international practice of the US, UK, and many other countries it’s the principle of retroactivity of recognition, e.g. the Tinoco Arbitration (1923), Luther v. Sagor (1921),  Williams v. Bruffy (1877),  Underhill v. Hernandez (1897),  Oetjen v. Central Leather Co. (1918), and United States v. Pink (1942) See Chapter 13, § 1. The Nature of the Doctrine of the Retroactivity of Recognition, in Ti-chiang Chen, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States, Praeger, 1951

    “When a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect, and validates all the actions and conduct of the government so recognized from the commencement of its existence.” — Oetjen v. Central Leather Co. (1918)
    About 130 states have recognized Palestine’s 1988 Unilateral Declaration of Independence. Palestine cited it in its applications for membership in the UN and UNESCO, e.g. “This application for membership is being submitted based on the Palestinian people’s natural, legal and historic rights and based on United Nations General Assembly resolution 181 (II) of 29 November 1947 as well as the Declaration of Independence of the State of Palestine of 15 November 1988 and the acknowledgement by the General Assembly of this Declaration in resolution 43/177 of 15 December 1988.” See A/66/371–S/2011/592

  6. Response…
    Regarding the comment 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.”

    Many scholars treat the Montevideo Convention as if it were a textbook, instead of an agreement between states that still has full legal effect and force. Even if recognition of statehood is a purely political act, it still has legal consequences.
    I’m always fascinated by the claims that Palestine doesn’t satisfy the criteria contained in the Montevideo Convention, when in fact it has been recognized by the overwhelming majority of the High Contracting Parties. Neither the Montevideo Convention nor the Rome Statute contain a compromissory clause that would allow other states or the Prosecutor to challenge those legally binding determinations.
    The State Parties to the Rome Statute have agreed to give third states the right to accept the jurisdiction of the Court by submitting a written declaration and agreeing to accept the concomitant obligations applicable to State Parties in Part 9 of the Statute, pursuant to Rule.44 of the Rules of Procedure and Evidence. The Prosecutor has no right to interfere in that agreement between the states without first obtaining their consent. That customary rule is reflected in Article 37 of the Vienna Convention on the Law of Treaties (VCLT). The Rome Statute falls within the scope of the VCLT because it is a constituent instrument of an international organization (see Article 5).
    Articles 6, 81, and 83 of the VCLT reflect the customary and conventional recognition of State members of UN specialized agencies, like UNESCO among the categories of States that are competent to conclude treaty agreements. That status is also reflected in the “Vienna formula” that the Secretary General employs when he acts as depositary for multilateral agreements; and in the categories of States that the General Assembly invites when requesting plenipotentiaries to attend international diplomatic conferences.

  7. If Palestine were given state status, wouldn’t that mean the conflict between Israel and Palestine would qualify as an international armed conflict and not a NIAC? Couldn’t that offer Israel an advantage, ultimately?

  8. Liz,

    The Israeli Supreme Court has already held — somewhat bizarrely — that the conflict is an IAC.  But that does not actually favor Israel, because it means that, should Hamas’ military wing structure itself as a professional military, its soldiers would be entitled to both the combatants’ privilege and POW status upon capture.

  9. Let me respond briefly to the questions posed:

    1) Cook Islands/UNESCO
    The case of the Cook Islands strikes me—as it evidently did the Prosecutor—as inapposite. The Cook Islands and New Zealand traveled a lengthy path toward “all states” recognition—including membership in several U.N. agencies and express relinquishment by New Zealand, with the consent of all parties, of its representation of the Cook Islands in international agreements.
     By contrast, Palestine has not completed its path to statehood. The PLO (not the PA), operating under the name Palestine, was recently elected (having been rejected in October, 2009) to one U.N. agency, this some years after the acts complained of in the submission. On the ground, the PA exercises limited powers and remains bound by agreements with Israel, and it continues to be listed as an “observer” in the U.N.
     2) Retroactive Jurisdiction
    As noted in the question, it is correct that Article 11 (2) read with Article 12 (3) allows an ad hoc submission by a non-party State “becoming a Party to this Statute.” But the suggestion that a newly established State might reach back and transfer to the ICC jurisdiction for periods of time when it was not a State—and in this case explicitly found by the Prosecutor not to be one—would be highly controversial and in my view unwise and inappropriate.
     3) Role of the ASP
    Both Article 125 and the Prosecutor’s statement remind us that the “all states” decisions are left to the Secretary-General who may look to the General Assembly for guidance. Nothing suggests the ASP has a role in this. In the Prosecutor’s statement, each time he mentioned the ASP, he referred to an “eventual” role or a role “in due course,” each time following his mention of the U.N.’s need to address statehood. Read together, I reached my conclusion that the ASP’s role here is more instrumental than original.

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