Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

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.

7 Responses

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

  2. Kevin,

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

    I know little of these things, but why not?

  3. Ian,

    I just think it was bad form. I could make the argument I wanted to make without mentioning it, and I think there is an implicit promise of confidentiality in letters circulated for possible signature. My refusal could also be interpreted to mean that I had a problem with the others who did sign, when that was not the case — as I said, I have the greatest respect for the lawyers who signed. I just disagree on the substance.

  4. 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 the archives of the Registry.” That would invariably apply to a general ad hoc declaration made for an “indeterminate duration”, like the one made by Palestine in 2009, even if the Prosecutor had decided “not to proceed” in accordance with article 15. Palestine’s declaration stipulated that material supplementary to and supporting the declaration would be supplied in separate communications. Article 15 and the associated rule, RPE #49, stipulate that the Prosecutor is required to provide a notice advising of the possibility of submitting further information regarding the same situation in the light of new facts and evidence. In the case of a general declaration, nothing prevents the referral of the same or different situations under an existing declaration. RPE #45 allows states to do that without the need for a new Article 12(3) declaration under RPE #44. There’s no mention of any requirement to “ask the Prosecutor to accept jurisdiction”, file an accession to the Rome Statute, or to file yet another Article 12(3) declaration.

    The provision for acceptance of the Court’s jurisdiction through declarations deposited with the Court’s Registrar mirrors the practice of acceptance of the ICJ’s jurisdiction by non-member states under the terms of Security Council resolution 9 (1946):

    “1. The International Court of Justice shall be open to a State which is not a party to the Statute of the International Court of Justice, upon the following condition, namely, that such State shall previously have deposited with the Registrar of the Court a declaration by which it accepts the jurisdiction of the Court, …

    2. Such declaration may be either particular or general. A particular declaration is one accepting the jurisdiction of the Court in respect only of a particular dispute or disputes which have already arisen. A general declaration is one accepting the jurisdiction generally in respect of all disputes or of a particular class or classes of disputes which have already arisen or which may arise in the future.”

  5. “… 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 about right in their claim to statehood. That does not solve the question if the Rome Statute applies as its jurisdiction might apply only to qualified signatories. But the above reasoning or “rejection” questions statehood as such and I believe such “voids” has seized to exist since the conquest of the US’ West and e.g. the decolonialization of Africa.

  6. Hostage,

    You have made your argument, and you have made it well. I just disagree. Art. 53(1) specifically provides that the Prosecutor can decline to open an investigation if she concludes that there is no “reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed.” Not just no crime. No crime within the jurisdiction of the Court. Questions of the Court’s jurisdiction are thus entrusted, at least initially, to the OTP — and whether a referral or declaration has been made by a state is a question of jurisdiction. That reading of Art. 53(1) is contextually supported, moreover, by Art. 19(3), which entitles — but does not require — the Prosecutor to ask the PTC for a “ruling… regarding a question of jurisdiction.”

    I happen to think it’s a bad idea for the Rome Statute to not overtly require the judiciary to determine issues of statehood. And I would not be surprised if the judges found a way to review an OTP determination regarding Palestine’s status. But the text of the Rome Statute does not permit such review.

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