Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

http://opiniojuris.org/2014/08/04/thoughts-eugenes-guest-post-palestine-icc/

23 Responses

  1. Response…All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas.

    You both are obscuring the fact that the Justice Minister who filed the most recent declaration and complaint with the ICC was sworn in on 2 June 2014 as part of the new Unity Government backed by both the PLO and Hamas.

    Many reliable sources, including Haaretz, USA Today and Al Jazeera, reported that Netanyahu and the Israeli Security Cabinet used the kidnapping of the Israeli teens in Area C as an excuse to launch the biggest crackdown in a decade on Hamas in order to discredit or breakup the new Palestinian Unity Government. The IDF deliberately violated the cease fire agreements by killing demonstrators and rearresting prisoners and lawmakers who had been released as part of the previous agreements between Israel, Hamas and the PLO.

    The Associated Press reported on the new Unity Cabinet: “Palestinian President Mahmoud Abbas swears in unity government:

    RAMALLAH, West Bank — Palestinian President Mahmoud Abbas swore in a unity government on Monday, taking a major step toward ending a crippling territorial and political split with the rival Hamas militant group but also setting the stage for new friction with Israel.

    “Today, we declare the end of the split and regaining the unity of the homeland and the institutions,” Abbas said in a recorded speech broadcast after the swearing-in ceremony on Palestine TV.

    “This black page in our history has been closed forever and will never come back,” Abbas added.

    Hamas expressed similar sentiments.

    “We can say the division is behind us now,” said Sami Abu Zuhri, a Hamas spokesman in Gaza, adding that the Palestinians “have major challenges ahead of us to erase the traces of division.”

  2. A “declaration and complaint” is not, to the best of my knowledge, ratification. If the unity government still exists, then I see no obstacle to Palestine’s ratification. Do you know what treaty ratification requires under Palestinian law?

  3. I have also seen reports that Hamas has not yet agreed to ratification, wanting to study the issue in more detail first. I assume that means its consent is still required.

  4. Response…A “declaration and complaint” is not, to the best of my knowledge, ratification.

    The The former Prosecutor explained that situation in his last update report to the United Nations:

    4. The jurisdiction of the Court is not based on the principle of universal jurisdiction: it requires that the United Nations Security Council (article 13(b)) or a “State” (article 12) provide jurisdiction. Article 12 establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) OR BY MAKING AN AD HOC DECLARATION ACCEPTING THE COURT’S JURISDICTION (ARTICLE 12(3)). [Emphasis added]

    The last time I checked, adopting ad hoc amendments to the Rome Statute wasn’t one of the powers delegated to the Prosecutor by the contracting state parties.

  5. I have seen nothing that indicates the Palestinian Authority has officially filed a declaration with the Court accepting its jurisdiction on an ad hoc basis. The most recent communication was filed by a French lawyer ostensibly on behalf of the Justice Minister, but press reports make it clear that the communication asks the OTP to investigate only Israeli crimes — which means it is not an ad hoc declaration, which cannot be so limited. See, for example:

    http://www.presstv.ir/detail/2014/07/26/372795/palestinians-file-complaint-against-israel/.

    The previous declaration in 2009, it should be noted, did not attempt to limit the OTP’s investigation to Israeli crimes — which is further evidence the recent complaint is not an ad hoc declaration. See here:

    http://www.icc-cpi.int/nr/rdonlyres/74eee201-0fed-4481-95d4-c8071087102c/279777/20090122palestiniandeclaration2.pdf.

  6. Treaty ratification under Palestinian Authority law is a nod from Mahmoud Abbas. Police state or be like Gaza is Israel’s offer, and he is choosing both.

  7. Response…I have seen nothing that indicates the Palestinian Authority has officially filed a declaration with the Court accepting its jurisdiction on an ad hoc basis.

    There’s actually no judicial determination that says the existing Article 12(3) declaration wasn’t “validly filed” in 2009. The Prosecutor simply claimed that was the case.

    In 2009 the Justice Minister of Palestine provided proof that Palestine was recognized as a state by 67 countries and had bilateral agreements with states in Latin America, Asia, Africa and Europe. See Today’s Zaman, “ICC prosecutor considers ‘Gaza war crimes’ probe” , 10 March 2009 http://goo.gl/NytsQ1

    The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and obligations determined by international law, like those outlined in the VCLT.

    Article 35 of the VCLT, TREATIES PROVIDING FOR OBLIGATIONS FOR THIRD STATES stipulates that “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.

    The authors of the Rome Statute agreed to allow non-member states to file an ad hoc declaration accepting the Court’s jurisdiction in writing. That automatically triggers a treaty obligation.

    Palestine did exactly that with respect to all crimes committed by any party on its territory since July of 2002. It has not subsequently withdrawn or terminated that declaration. At the time, the Registrar advised in writing that, “without prejudice to a judicial determination on the applicability of Article 12 paragraph 3″, the declaration had triggered Palestine’s “obligation” under Part 9 of the Statute. http://goo.gl/4UBx55

    A similar situation exists with regard to the “rights” of third states. Article 36 of the VCLT, “TREATIES PROVIDING FOR RIGHTS FOR THIRD STATES stipulates that a right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right to the third State.

    Article 37 of the VCLT stipulates that when an obligation has arisen for a third State, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed.

    I haven’t seen evidence of any such agreement between the states or that the Prosecutor obtained the consent of all the state parties and the consent of Palestine to revoke those rights and obligations that were acknowledged in writing.

    A “Letter Dated 8 March 1950 From The Secretary – General To The President Of The Security Council transmitted a “Memorandum On The Legal Aspects Of The Problem Of Representation In The United Nations”. It explained that the representative of the United States was absolutely livid when Syria challenged US recognition of Israel and requested an ICJ advisory opinion. The US ambassador said it was a political matter solely within the jurisdiction of the US:

    “I should regard it as highly improper for me to admit that any country on earth can question the sovereignty of the United States of America in the exercise of that high political act of recognition of the de facto status of a State. Moreover, I would not admit here, by implication or by direct answer, that there exists a tribunal of Justice or of any other kind, anywhere, that can pass judgment upon the legality or the validity of that act of my Country. There were certain powers and certain rights of a sovereign State which were not yielded by any of the members who signed the United Nations Charter and in particular this power to recognize the de facto authority of a provisional Government was not yielded. . . . I am certain that no nation on earth has any right to question that, or to lay down a proposition that a certain length of time of the exercise of de facto authority must elapse before that authority can be recognized.” http://www.un.org/ga/search/view_doc.asp?symbol=S/1466

    The so-called “Vienna Formula” was adopted in part to get around the problem of collective recognition by the international community without the need to amend the UN Charter. The Montevideo Convention, the UN Charter, and the Rome Statute do not contain a compromissory clause that permits the Organization or a Court to question determinations the member states have made regarding recognition or subject them to a dispute resolution process. Accordingly, Article 98 of the Rome Statute does not condition the court’s obligation with respect to treaties between member states and third states on UN observer status; the Practice of the General Assembly; or the opinion of an organ of the Court, like the ASP or the OPT.

    Four member states of the ICC are fully represented in the League of Arab States. The League submitted “Documents on the status of Palestine” as an exhibit to the OTP. It contained a list of multilateral treaties in force between the State of Palestine and its other member states. The treaties, including agreements on extradition of terrorists and diplomatic immunity, were concluded by Palestinian Ministers with “full powers” before the Rome Statute ever entered into force. The Arab League contended that those agreements govern Palestine’s rights, obligations, and legal status. Those agreements would be a factor that the Court would have to deal with in gaining custody of any suspects in the future.

    Its hard to see how Palestine can be a third party state for the purposes of Article 98 with respect to international agreements with member states like Jordan, Djibouti, Comoros, and Tunisia, but not a state for the purposes of Article 12. That’s especially true, since the post-Oslo UN resolutions on Palestine’s observer status have always recalled the 1988 UDI; its recognition by others, including membership in several international organizations as a full member state (e.g. the League of Arab States); and the fact that the PA was established to govern a portion of the territory after democratic elections had been conducted.

  8. Response…The most recent communication was filed by a French lawyer ostensibly on behalf of the Justice Minister, but press reports make it clear that the communication asks the OTP to investigate only Israeli crimes — which means it is not an ad hoc declaration, which cannot be so limited.

    I’m not implying that a state party can use a territorial declaration to limit the Court’s jurisdiction or that an Article 12(3) declaration can be used by a non-member for that purpose. In fact, I don’t believe that the Court is necessarily bound by some of the stipulations contained in initial referrals from the UN Security Council in that regard.

    On the other hand, once a declaration is in force, I don’t believe that a victim state has to conform to something like the Negroponte Doctrine and do a balancing act to file its own criminal complaint(s). It’s a given that the Prosecutor can investigate any additional allegations received in communications from others or derived from public news reports.

  9. You can make those arguments all you want, but the OTP has rejected the 2009 declaration — both Moreno-Ocampo and Bensouda — and there is no procedure in the Rome Statute that allows that decision to be appealed to the Pre-Trial Chamber. So the 2009 declaration is a dead letter.

  10. I would suggest you to give a look to these two:

    1) http://justsecurity.org/5199/timeline-palestine-icc/

    (to better clarify some aspects about ICC & Palestine)

    2) http://www.haaretz.com/opinion/.premium-1.608906

    (to understand the roots of the Gaza issue)

  11. Hamas agreed to the unity government which was sworn in in June. Thus, Hamas’ approval of treaty ratification is no more necessary than any other individual Palestinian political party as such. The PNA under Mahmoud Abbas has already acceded to several treaties, which has been accepted by the Swiss, Dutch and UN as depositaries. The obstacle to ratification is not based on Hamas’ approval, but rather threats from the U.S. government to withhold aid if they do accede.

  12. Rebekah,

    A few questions, because you’re better placed than I:

    1. Did Hamas oppose ratification of any of those treaties?

    2. Why have there been reports that Abbas has sought Hamas’s approval to ratify the Rome Statute, if that approval is not necessary?

    3. Why has the Justice Minister filed a complaint — and a defective one at that — with the OTP if the PA genuinely intends to either ratify the Rome Statute or submit a valid ad hoc declaration?

  13. Just to be clear: I am not opposed to Palestine ratifying the Rome Statute or filing an ad hoc declaration, although I think Hamas would be crazy to agree to either and I think the likelihood of the OTP opening a formal investigation is essentially zero. But if the Court is going to get involved in the most politicized conflict in the world, there needs to be no question about Palestine’s desire or the Court’s jurisdiction. So these end-runs around the proper procedure — trying to revive a dead declaration, filing a defective complaint through a French lawyer — are inappropriate.

  14. Response…You can make those arguments all you want, but the OTP has rejected the 2009 declaration — both Moreno-Ocampo and Bensouda — and there is no procedure in the Rome Statute that allows that decision to be appealed to the Pre-Trial Chamber. So the 2009 declaration is a dead letter.

    You can repeat that argument, but there’s nothing in the Rome Statute or Rule 44 of the Court’s Rules of Procedure that empowers the Prosecutor to “kill” an Article 12(3) declaration. Ocampo and Bensouda have repeatedly misstated the Practice of the UN with respect to Palestine’s legal status in order to delay initiation, prosecution or trial of cases. Nothing prevents the Court from applying the relevant treaty law at any time in accordance with Article 21 of the Statute.

    Where appropriate, Article 21 says the applicable law includes enforcement of the Court’s rules of procedure and “the applicable treaties and the principles and rules of international law” – for example, the VCLT. There’s every reason to believe on the basis of VCLT Articles 35-37 that the Prosecutor cannot unilaterally kill an Article 12(3) declaration.

    A written referral of a situation to the Prosecutor (Rule 45) is a completely separate issue. Likewise, Rule 49 explicitly states that a “decision not to proceed” under the terms of Article 15 requires a notice that further information regarding the same situation can be submitted in the light of any new facts and evidence. There’s no indication there that a new Article 12(3) declaration is required or that submitting new facts and evidence under the auspices of an existing declaration is considered an “end run” around proper procedure.

    Furthermore In addressing “Situations that may affect the functioning of the Court” (Rules of procedure 23 et seq), other States are allowed to file formal complaints about situations like this. The President, acting on a complaint or his own initiative, can remove a Prosecutor from office for repeatedly causing unwarranted delay in the initiation, prosecution or trial of cases.

  15. Response…Hamas agreed to the unity government which was sworn in in June. Thus, Hamas’ approval of treaty ratification is no more necessary than any other individual Palestinian political party as such. … I think Hamas would be crazy to agree …

    The Hamas leaders and legislators that aren’t already in an Israeli jail or targeted for extra-judicial killing tend to express a cavalier attitude on the subject of the ICC.

    FYI, Hamas submitted two follow up reports on the Goldstone mission findings of fact that were panned as an attempted white wash by the UNHRC panel of experts, AI, HRW, and the PNA under Mahmoud Abbas: 1) Status of the implementation of the recommendations of the International Fact-Finding Mission Report on the Israeli aggression on Gaza 12/2008-1/2009, submitted on 2 February
    2010, and 2) Report on the implementation of the recommendations of the UN Fact-Finding Mission on the situation in Gaza, submitted on 28 July 2010.

    At the time, Mohammed Faraj al-Ghul, the Justice Minister in the Hamas administration of the Gaza Strip responded by saying:

    “We ask the United Nations to transfer the matter [the Goldstone report findings] to the ICC so that the Zionist war criminals can be brought to justice”.

    –See Al Arabiya News/GAZA CITY (Agencies): “Hamas want ICC to judge ‘Zionist war criminals”, Saturday, 06 February 2010 http://www.alarabiya.net/articles/2010/02/06/99552.html

  16. Response…The obstacle to ratification is not based on Hamas’ approval, but rather threats from the U.S. government to withhold aid if they do accede.

    It’s not just the USA, the British Foreign Office Minister responsible for the ICC resigned in disgust and cited pressure from the British government on Abbas as one of the reasons:

    The Tory peer told HuffPost UK that one of the reasons she resigned on Tuesday morning, despite the signing of yet another temporary ceasefire agreement between Israel and Hamas, was because she wanted to see those who are alleged to have committed war crimes over the past four weeks, both in Gaza and in Israel, held to account – but did not believe that the British government would support that process. “As the minister for the International Criminal Court, I’ve spent the last two and a half years helping to promote, support and fund the ICC. I felt I could not reconcile this with our continued pressure on the Palestinian leadership not to turn to the ICC to seek justice.” http://goo.gl/lCB12O

  17. Re: the 2009 Declaration:

    ‘E’s not pinin’! ‘E’s passed on! This parrot is no more! He has ceased to be! ‘E’s expired and gone to meet ‘is maker! ‘E’s a stiff! Bereft of life, ‘e rests in peace! If you hadn’t nailed ‘im to the perch ‘e’d be pushing up the daisies! ‘Is metabolic processes are now ‘istory! ‘E’s off the twig! ‘E’s kicked the bucket, ‘e’s shuffled off ‘is mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THIS IS AN EX-PARROT!!

  18. Isn’t there still a major question regarding whether or not the PA is actually the government of a sovereign state under occupation or a government of an entity with a status of something less than sovereign?

    Just because a state was declared in 1988 and recognized by many states, doesn’t automatically mean that the PA is sovereign in the occupied territory.

    In my view, the PA has never met the objective Montevideo criteria of effective control in either the West Bank or Gaza, maybe excluding Area A. This means that it could never be considered a state under these more objective criteria.

    Political recognition does not a state make. And I think this is what Eugene may be referring to.

  19. Response…Re: the 2009 Declaration: ‘E’s not pinin’! ‘E’s passed on! This parrot is no more!

    I can see why you might feel that way, but the Prosecutor’s have already painted themselves into a corner on this question. The first time Ocampo said Palestine needed to make the next move, Abbas and Monsour suspended efforts in the Security Council and went straight to UNESCO and became a full member state. The next time Ocampo changed the rules and argued that the Practice of the General Assembly had to be consulted. So Abbas and Monsour went to the General Assembly and got resolution A/RES/67/19 adopted, which contained a lengthy list of preambular recitals about its previous practice and resolutions on the subject of Palestinian statehood beginning in 1988.

    Nothing prevents those same two men from going back to the proverbial well and getting a simple majority of the members present and voting in the General Assembly to adopt another resolution that recites the references in GA resolutions to the State of Palestine as an existing entity and full state member of many other international organizations prior to January 2009 or July of 2002. So long as the Prosecutors base their excuses for inaction on the Practice of the General Assembly, Abbas and Monsour can probably pull the rug out from under their feet.

    Response … Isn’t there still a major question regarding whether or not the PA is actually the government of a sovereign state under occupation or a government of an entity with a status of something less than sovereign?

    If anyone really cared to actually consult the Practice of the General Assembly, including the recitals on that very subject in its various resolutions, you’d see that question has already been answered on many, many occasions.

    Response … In my view, the PA has never met the objective Montevideo criteria

    The Montevideo Convention is actually a treaty in force between states. In actual practice, the majority of the High Contracting Parties, including several ICC member states, have formally recognized the State of Palestine. In any event, neither that Convention nor the Rome Statute contain a compromissory clause that would allow other parties or the Court to dispute those determinations.

  20. Response… You can make those arguments all you want, but the OTP has rejected the 2009 declaration — both Moreno-Ocampo and Bensouda — and there is no procedure in the Rome Statute that allows that decision to be appealed to the Pre-Trial Chamber.

    With respect, I disagree.

    Assuming that Palestine’s complaint amounted to an acceptance of jurisdiction for the purpose of Article 12(3), any friendly state party could then refer the situation to the prosecutor in accordance with Articles 13(a) and 14. The prosecutor would then presumably decide not to undertake an investigation for want of jurisdiction in accordance with Article 53(1)(a). The pre-trial chamber would then have discretion to review that decision at the request of the referring state under Article 53(3)(a). It would then have further discretion to permit victims such as Palestinian representatives to participate in the proceedings on the basis of Article 68(3).

    For the avoidance of doubt, rule 92(2) of the Rules of Procedure and Evidence makes clear that the court’s discretion to permit victim participation extends in principle to a decision “not to initiate an investigation”.

    Whether a review would succeed is another matter.

  21. Joseph,

    Good point. It’s quite a Rube Goldberg-esque series of events, but it would indeed get the Pre-Trial Chamber involved. Note, though, that because the OTP’s declination in your scenario would be based on Art. 53(1)(a), the Pre-Trial Chamber could not order the OTP to proceed with the investigation. It could only ask it to reconsider its decision not to. Orders to proceed are only permissible when the OTP declination is based on gravity or the interests of justice. So even in your scenario the OTP’s decision would be final.

  22. Indeed, although in the context of the review, it is likely that the Chamber would consider whether there is jurisdiction. If it decided that there was, it would be surprising for the prosecutor to continue to deny jurisdiction in the face of that determination – although I accept that this would be a possibility.

    Also, in my view, the statutory and procedural trail in this scenario is not especially labyrinth (perhaps less so than most benefits appeals – although that is not saying a lot). The issue is simply that you need a state party to initiate judicial review.

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