Which Organ of the ICC Decides Whether Palestine Is a State? (Updated)

As most readers probably know by now, the Office of the Prosecutor has finally — after three inexcusable years of inaction — officially rejected Palestine’s attempt to accept the ICC’s jurisdiction pursuant to Article 12(3) of the Rome Statute.  Politically, I think the OTP has made the right decision; the ICC has enough problems without interjecting itself into one of the world’s most intractable conflicts.  Legally, though, I’m not so sure: although I initially believed that Palestine could not qualify as a “state” for purposes of Article 12(3), this post by Bill Schabas convinced me that UNESCO’s acceptance of Palestinian membership means that Palestine does, in fact, have the right to accept the Court’s jurisdiction (and to accede to the Rome Statute generally).

I don’t want to debate the legal or political merits of Palestine’s declaration in this post.  Instead, I want to ask a question for which I simply do not have a definitive answer: which organ of the ICC gets to decide whether Palestine can accept the Court’s jurisdiction?  The OTP obviously believes that it makes the decision.  Amnesty International, however, disagrees: the BBC quotes Marek Marczynski, the head of the organization’s International Justice campaign, as claiming that the OTP’s decision “breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.” I think Marczynski is wrong about that: nothing in the Rome Statute says that the judges get to decide whether an entity qualifies as a state for purposes of jurisdiction, at least in the first instance.  The problem is that nothing in the Rome Statute specifically entrusts that decision to the OTP, either.  Article 12(3) is silent on the issue, and although the OTP is responsible for deciding whether to an investigate a particular situation, that does not necessarily mean the OTP has the authority to decide whether an entity referring a situation qualifies as a state.

There is, of course, another important question for which there is no easy answer: if we assume that the OTP gets to decide whether Palestine qualifies as a state for purposes of Article 12(3), can the Appeals Chamber review that decision? Article 82 of the Rome Statute, which governs appeals of decisions other than verdicts and sentences, provides in paragraph 1 that “[e]ither party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence… [a] decision with respect to jurisdiction or admissibility.”  Whether Palestine can accept the ICC’s jurisdiction pursuant to Article 12(3) would seem to be “a decision with respect to jurisdiction.”  Moreover, Article 18(4), which governs appeals of admissibility decisions by the Pre-Trial Chamber, provides that “[t]he State concerned or the Prosecutor may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in accordance with article 82.”  There is obviously no ruling of the Pre-Trial Chamber concerning Palestine’s status, but Article 18(4) implies that the Appeals Chamber has the authority to review conflicts between the OTP and States concerning investigative decisions.  Still, the answer is anything but clear.

Finally, it’s also important to ask what role the Assembly of States Parties (ASP) should play in all of this.  Article 112(2) provides that the ASP shall “[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court” and “[p]erform any other function consistent with this Statute or the Rules of Procedure and Evidence.”  It is certainly possible to argue that deciding whether an entity qualifies as a state falls within the purview of the ASP under Article 112; the ASP also seems to be the most logical candidate for making that decision, which is more political than legal.  In fact, the OTP seems to suggest that it would accept a decision by the ASP that Palestine qualifies as a state for purposes of Article 12(3), writing in its statement that “it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court” (emphasis mine).

I don’t know how to answer any of these questions.  In general, I think two interpretations of the Rome Statute are most plausible: (1) the OTP makes the initial decision concerning whether Palestine can accept the ICC’s jurisdiction, but that decision is reviewable by the Appeals Chamber; or (2) the ASP decides whether Palestine qualifies as a state for purposes of Article 12(3), and that decision is not reviewable by anyone.  I’m genuinely torn, however, between the two interpretations.

Readers?  Your thoughts?

UPDATE: In the comments, Hostage calls attention to an FAQ issued by the Registry concerning the Palestinian declaration.  The Registry takes the position in the FAQ that a “conclusive determination” on the applicability of Article 12(3) “would have to be made by the judges at an appropriate moment.”  The FAQ is not clear, unfortunately, concerning which chamber would make that determination or when the “appropriate moment” would be — although it seems to contemplate appellate review, because it acknowledges without comment the OTP’s belief that it was entitled to determine, at least in the first instance, “whether the declaration by the Palestinian National Authority accepting the exercise of the ICC meets statutory requirements.”

UPDATE 2: Amnesty International has issued a “Questions and Answers” statement that appears to back off from Marczynski’s claim that the OTP has breached the Rome Statute by unilaterally rejecting the Palestinian declaration.  The Q&A suggests that it would be better for the judges to make an impartial decision on the declaration, but points out that Article 19(3) of the Rome Statute, which allows the Pre-Trial Chamber to make a decision “regarding a question of jurisdiction or admissibility” that does not involve a specific case only at the request of the Prosecutor.  I’m not sure Article 19(3) is the only applicable provision, for the reasons discussed above.  But Amnesty is on much firmer ground with its Q&A than with Marczynski’s initial claim.