Was the Expert Letter on Palestine Buried by the President of the ASP?

by Kevin Jon Heller

On 7 August 2012, in response to Moreno-Ocampo’s decision not to accept Palestine’s ad hoc acceptance of the ICC’s jurisdiction, Bill Schabas and John Dugard submitted a letter — signed by 30 leading ICL experts — to the Assembly of States Parties asking it to place the issue of Palestine’s statehood on the agenda of its November 2012 session. The ASP never did, for reasons that were not clear at the time.

The situation may now be clearer. According to a new article by John Dugard in the Journal of International Criminal Justice, the President of the ASP — Estonia’s Tina Intelmann — never presented the letter to the ASP:

Not only was the matter not placed on the agenda of the ASP, but it was not brought to the attention of the Bureau of the ASP. Instead it seems that the decision to take no action was taken by an inner circle of the Bureau. In short the President of the ASP seems to have suppressed the letter and kept its existence unknown to both Bureau and the ASP itself. There seems little doubt that had the President and her inner circle of advisers brought the request to the Bureau it would have been placed on the agenda of the ASP and in all probability the ASP would have made a determination that Palestine qualified as a state as the UN General Assembly decided a few weeks later. The difference is that if the ASP had so decided this would have sent out a clear message to the Prosecutor that she should investigate the situation in Palestine.

Dugard is no doubt correct that the ASP would have decided, if asked, that Palestine qualified as a state. If anything, the membership of the ASP is even more pro-Palestine than the membership of the General Assembly. But I disagree that an ASP decision in favor of Palestine “would have sent out a clear message to the Prosecutor that she should investigate the situation in Palestine.” The issues are separate, so it is entirely possible to believe both that Palestine qualified as a state prior to the General Assembly resolution and that the ICC should be wary of investigating the situation in Palestine. Indeed, that is my position.

I have no insider information concerning the accuracy of Dugard’s claim. I confess to being a tad skeptical — the letter was widely publicized at the time, including at EJIL: Talk!, which I imagine is read by many individuals who are part of, or associated with, the ASP. So I find it difficult to believe that no one outside of the ASP President and her inner circle knew that the letter existed.

That said, Dugard’s allegation is a serious one. It deserves a formal response from the ASP.


2 Responses

    I find you a little kind when you say you’re “skeptical”. The allegation might be interesting in itself, but the consequences drawn by Dugard seem a little far fetched. Indeed, the ASP participants might be political, but they’re not stupid. If they wanted to put Palestine in the agenda, they would have, irrespective of John Dugard’s article. 
    Moreover, Dugard’s point seems to suggest that the agenda is exclusively set by the bureau. From what I understand from a cursory reading of the rules of procedure of the ASP, the bureau only puts forward proposals that come from other entities, such as States, the Court, or that arose in previous ASP meetings. This calls at least for some qualification of Dugard’s assertion on the effects of the alleged “burial” of the letter. 

  2. I still haven’t seen any evidence that the term State in Article 98 has a different meaning than it does in Article 12(3), much less that the ASP can veto a determination by any member state that Palestine is a third party State in line with Article 98.
    Several ICC member states are fully represented in the Secretariat of the League of Arab States. They submitted an exhibit to the Prosecutor containing a list of multilateral treaties with the State of Palestine, with the object of establishing its status as a State.
    Those treaties pre-date the entry into force of the Rome Statute and deal with subjects including diplomatic immunity of officials and extradition of terrorists. The Court, including its ASP, are treaty-bound to respect those agreements.
    All of the member States have extended the right to third party states to accept the jurisdiction of the court in writing. That also triggers an obligation of the non-member State under part 9 of the Statute.  Articles 35, 36, and 37 of the Vienna Convention on the Law of Treaties (VCLT) suggest that the Prosecutor can’t ignore those binding undertakings without consulting all of the signatories.
    *Article 5 of the VCLT stipulates that it applies to instruments, like the Rome Statute, which are used to constitute international organizations, unless there is some conflict with the rules of the organization.
    *Articles 81 and 83 of the VCLT also stipulate that members of UN specialized agencies, like Palestine, are members of a special category of States that have an open invitation to file instruments of accession without regard to their UN observer status or the opinion of the Secretary General. That’s because all States, including those categories listed in Article 81, have the capacity to conclude treaties according to Article 6 of the VCLT.

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