Final Thoughts on the Bar Human Rights Committee’s Letter

Final Thoughts on the Bar Human Rights Committee’s Letter

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

Topics
Courts & Tribunals, Featured, International Criminal Law, International Human Rights Law, Middle East, National Security Law, Organizations
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carl meyer
carl meyer

Yes, it was not nice to mention that you have been approached and I still fail to understand your point and position.

Ian Henderson
Ian Henderson

Kevin,

‘… I should not have mentioned that I had been approached.’

I know little of these things, but why not?

Hostage
Hostage

Response…My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. I don’t follow your logic. The ASP has never adopted any Rule of Procedure and Evidence that would permit the Prosecutor to terminate or reject an Article 12(3) declaration. Article 12 of the Statute requires the declaration to be filed with the Registrar, not the Prosecutor. These declarations are tantamount to a special treaty agreement and work just like the declarations of non-member states filed with the Registrar of the ICJ. There isn’t any question of NOT hanging on to one of those, simply because there isn’t an existing or on-going dispute See the relevant extract from UN Security Council resolution 9 below. The Assembly of State Parties (ASP) adopted the regulations that govern the operation of the ICC Registry, including #19, which stipulates that any “documents, material, orders and decisions not pertaining to a pending situation or case shall be stored and preserved in… Read more »

Darragh McCurragh

“… whether Palestine qualified as a State …” – Now this begs the question, does it not, if there are areas on planet Earth that are not held by a state. Indeed there are of course, like the High Seas or maybe Antarctica (which is “sea” as well or any iceberg would count as “land”. However, is there any area ON LAND anywhere on the Earth that does not belong to a state? I believe the opposite is true: there are areas that “belong” to MORE THAN ONE state, i.e. those islands in dispute between Vietnam and China, between Japan and China, Taiwan/Formosa, many areas near borders anywhere in the world, the Falkands/Malvinas off the coast of Argentine etc. But declaring a “void” is a bit complicated as generally history has shown such “voids” to be immediately annexed by neighboring states which is why neutral states need to arm themselves in order to deter annexation and upsetting the balance of power that holds other, friendlier, states back but who would feel uncomfortable if that neutral state was annexed by another state “twice removed”. So in theory we need to conclude that there are ALWAYS factual states and that Palestine is… Read more »

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