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