The ICC and Palestinian Consent

At the time of publication of this Insight, Palestine is neither a signatory nor a state party to the International Criminal Court (ICC) treaty.  Nonetheless, on January 16, 2015, the ICC Prosecutor opened a preliminary examination into the situation in Palestine.

So what happened in the first days of January 2015?  Palestinian leader Mahmoud Abbas attempted to take two treaty actions with respect to the Rome Statute of the ICC.  The first was to deposit with the UN Secretary-General a document purporting, on behalf of the State of Palestine, to be an instrument of accession to the Rome Statute.  The second was to lodge with the ICC Registrar, a document purporting to accept the Court’s jurisdiction retrospectively to June 13, 2014. 

Prior Insights have surveyed the general question of Palestinian statehood, the relevance for ICC jurisdiction, and the impact of UN General Assembly Resolution 67/19.[1]  This Insight examines the question of ICC jurisdiction over Palestinian territory on the basis of these recent treaty actions. 

As the Rome Statute is open only to states, the central and threshold question is whether Palestine is a state—a subject of intense and continuing controversy. 

States and Governments

In order for a new state to come into existence, it must meet the so-called Montevideo criteria.  While recognition of statehood by other states is now generally regarded as merely declaratory, collective recognition or non-recognition by an overwhelming majority of states may influence the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria.    

States and governments are not identical.  The government, the entity administering the internal and external affairs of the state, is a constituent element of a state, and represents the state on the international plane.  Its conduct is attributable to the state, but it is not itself the state from the perspective of international law. 

The question of whether the governing entity headed by Abbas is entitled to speak on behalf of Palestine at the international level is less controversial than the issue of statehood.  There is little disagreement on the authority of the Abbas administration to represent Palestine.  The unsettled question is whether or not Palestine constitutes a state. 

Treaty-Making Capacity and Treaty Terminology

The issue of statehood is related to, but analytically distinct from, the issues of treaty participation and of membership in international organizations.   All states have treaty making capacity.  The question of whether or not a particular state is eligible to participate in a particular treaty, including, e.g., a constituent instrument of an international organization, is governed by the terms of that treaty. A treaty may also provide that it is open for expressions of consent by entities other than states.  Thus, whether an entity is a member of an international organization or is a party to a treaty is not necessarily determinative of the general question of statehood in international law, and vice versa. 

As for terminology, the law of treaties distinguishes signatory states, contracting states, and states parties.  A signatory state is a state that has signed a treaty.  A contracting state is a state that has completed its expression of consent to be bound.  A state party is a state that has completed its expression of consent to be bound and for which the treaty has entered into force.  Some multilateral treaties, including the Rome Statute, are open for signature only for a defined period of time.  If a state does not sign the treaty in that time period, it cannot be a signatory.  In such cases, as with the Rome Statute, the typical mode of expressing consent to be bound for non-signatories will be by accession.

Palestine, even assuming that it is a state, cannot be a signatory to the Rome Statute as the treaty is no longer open for signature.  If Palestine is a state, then at present it could be considered a contracting state.  According to the depositary notification circulated by the UN Secretary-General on January 6, the Rome Statute will enter into force for Palestine on April 1, 2015, at which point it would be deemed a state party.[2]  This raises the question of the authority of the Secretary-General to make this determination, and, assuming he has such authority as necessary to carry out his functions as depositary, whether this determination has legal force beyond the scope of those functions.    

The Relevance of Statehood to ICC Jurisdiction

ICC jurisdiction is primarily based on the principles of nationality and territoriality.  Thus, in the absence of a Security Council referral, Article 12 of the Rome Statute requires as a pre-condition to the exercise of its jurisdiction consent by the state of nationality of an alleged perpetrator or of the territory where the alleged crime occurred.  Such consent may be manifested by being a party to the Rome Statute or by accepting its jurisdiction on an ad hoc basis pursuant to Article 12(3). 

If Palestine becomes a state party on April 1, 2015, the Court will be able to exercise its jurisdiction on this basis prospectively.  Palestine's accession to the treaty would not provide a basis for exercising jurisdiction over conduct occurring before that date. 

However, Abbas also lodged a declaration of consent under 12(3) accepting exercise of the Court's jurisdiction retrospectively to June 13, 2014.  This is the basis upon which the Prosecutor opened her preliminary examination on January 16, 2015.

Chronology

In January 2009, in the wake of Israel’s Operation Cast Lead, the Palestinian authority lodged an Article 12(3) declaration purporting to accept the Court’s jurisdiction retrospectively to 2002.

In September 2011, Abbas, acting on behalf of Palestine, unsuccessfully applied for UN membership.  Nonetheless, Palestine shortly thereafter was admitted to the United Nations Educational, Scientific, and Cultural Organization (UNESCO), a specialized agency, as a member state and subsequently became a party to several UNESCO treaties.[3]

In April 2012, the ICC Office of the Prosecutor (OTP) released a statement indicating that it could not at that time proceed with an investigation on the basis of the January 2009 declaration.  It referred to the practice of the UN Secretary-General as treaty depositary and indicated a need for guidance from political organs, such as the UN General Assembly or the ICC Assembly of States Parties (ASP).[4]

An OTP report of November 22, 2012 stated that the OTP had “closed” its preliminary examination in April of that year, even though this language was not used in the April 2012 OTP statement.[5]

On November 29, 2012, the UN General Assembly adopted resolution 67/19 in which it formally changed Palestine’s designation from observer “entity” to observer “state.”[6]  The vote was 138 (yes) – 9 (no) – 41 (abstain), with 5 “absences.”   

In a 2013 report, the OTP noted the General Assembly resolution and its “direct relevance,” and again described the April 2012 OTP statement as having “closed” its preliminary examination of the situation in Palestine.  The report, however, further cited “the legal invalidity of the 2009 declaration.”[7]

In the spring of 2014, the Palestinian authority acceded to a number of additional multilateral treaties, and its instruments of accession were accepted by the respective treaty depositaries—the UN Secretary-General, and the governments of Switzerland and the Netherlands. Shortly thereafter, Hamas and Fatah formed a unity government. 

With the outbreak of renewed violence between Israel and Gaza in July 2014, Abbas announced plans to accede to the Rome Statute; however, no instrument of accession was deposited at that time.

In early January, Abbas lodged the new 12(3) declaration of consent with the ICC Registrar and deposited the instrument of accession to the Rome Statute with the UN Secretary-General. The Secretary-General on January 6 issued a notification of the accession stating, “The Statute will enter into force for the State of Palestine on 1 April 2015.”

The following day the President of the ICC Assembly of States Parties welcomed the accession, and the ICC Registrar sent a letter to Abbas “accept[ing] the declaration.” 

On January 16, Canada, Israel, and the United States communicated their protests to the UN Secretary-General in his capacity as treaty depositary.  (Israel and the U.S. are signatories to the Rome Statute.  Canada is a state party.) 

According to Canada's communication, it is not for the Secretary-General to determine any legal issues raised by the legal instruments circulated (presumably whether Palestine is a state and thus whether the accession is legally effective).  The communication continues by asserting that Palestine fails to meet the criteria for statehood and noting Canada's position that Palestine cannot accede to the Rome Statute and that the treaty will not enter into force for Palestine.  This could raise complicated issues in relation to the administration of the Assembly of States Parties, state party cooperation, financing, and elections.  Presumably, matters concerning the Court’s jurisdiction will be finally determined by the Court, and Canada would be bound to cooperate in relation to such matters.  But whether a Court finding on the statehood issue would be binding on the States Parties for all purposes is arguably a separate issue. 

The communications issued by the U.S. and Israel similarly indicate their positions that Palestine is not a state and thus unable to accede to the Rome Statute.  Palestine has responded to the protests of all three states with communications asserting its statehood and its intention to “exercise its rights and honor its obligations with respect to all States Parties.”

The Validity of the Purported Accession and Article 12(3) Declaration

Whether General Assembly resolution 67/19 may be viewed as sufficient collective recognition to cure any defect in Palestine's fulfillment of the Montevideo criteria, and hence to establish its statehood and capacity to consent to ICC jurisdiction, is subject to debate.  While the number of “yes” votes comprises more than two-thirds of the total membership, reasonable minds may differ on whether this is sufficient collective recognition to be essentially constitutive of statehood in the instant case.  Bear in mind, however, that subsequent practice has built upon the momentum generated by this initiative.

Even if not constitutive of statehood, the General Assembly resolution is arguably binding on the Secretariat, or at least authoritative, for internal administrative purposes, and the UN Secretary-General appears to have adopted this position in his capacity as treaty depositary.  He has accepted as valid a number of treaty actions on behalf of Palestine since the adoption of the resolution, and there has been protest from only a handful of states.  The Dutch and Swiss governments have followed suit in their capacities as depositaries for The Hague and Geneva Conventions respectively.   

While the ICC is not a UN organ, and not legally bound by the General Assembly resolution as such, ICC officials have shown deference to the UN position.  For example, the President of the ASP, upon receipt of the Secretary-General’s notification of accession, “welcomed the deposit by the State of Palestine of the instruments of accession to the Rome Statute.”[8]  The ICC Registrar's letter addressed to the “President of the State of Palestine” in which he states that he “hereby accept[s] the [Article 12(3)] declaration” is dated January 7, 2015—the day after the Secretary-General’s notification.  Finally, according to a press release issued on January 16, announcing the opening of the preliminary examination into the situation in Palestine, “[f]or the Office [of the Prosecutor], the focus of the inquiry into Palestine's ability to accede to the Rome Statute has consistently been the question of Palestine's status in the UN, given the UNSG's role as treaty depositary of the Statute. The UNGA Resolution 67/19 is therefore determinative of Palestine's ability to accede to the Statute pursuant to article 125, and equally, its ability to lodge an article 12(3) declaration.”[9]

Ultimately, it will be up to the Court itself to determine the scope and validity of its jurisdiction.  In principle, the issue should be decided on the basis of applicable rules of international law, in the application of which the General Assembly resolution, and subsequent practice, will be a major factor. 

Other Legal Questions

Even if it is accepted that Palestine is a state, and therefore that its instrument of accession and Article 12(3) declaration are valid, a number of other legal questions may arise.  Among them are application of the principle nullem crimen sine lege and the issue of immunities of high government officials.

Nullem crimen issues may arise if the Court pursues prosecution for alleged crimes committed before the Rome Statute's entry into force date for Palestine of April 1, 2015.  The Court would have to ensure that any crimes prosecuted would have already been prohibited by law applicable, e.g. customary international law, at the time of the alleged crime.   Here the question might arise as to whether the 8(2)(b)(viii) war crime of “transfer[ring], directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” is established in customary international law.    While the conduct described in this provision is unquestionably prohibited by international law, and thus would give rise to state responsibility upon breach, whether it constitutes a war crime is an analytically distinct question.  The Court would likely consider on the one hand, the dearth of prior prosecutions, and on the other, the criminalization of the conduct in the Rome Statute itself.     

If the Court seeks to prosecute high government officials of states that are not parties to the Rome Statute, e.g., Israel, it will have to deal with the issue of immunity.  While Article 27 of the Rome Statute effectively abrogates individual immunities of high government officials before the Court, this arguably applies only to officials of states parties or of states otherwise legally bound to cooperate with the Court (e.g. via Security Council decision). Thus, Palestinian officials who are prosecuted before the ICC would not benefit from any immunities they might otherwise have under international law.  Israeli officials, however, may still benefit from such immunities, at least while in office. 

About the Author: John Cerone is Distinguished Chair in Human Rights & Humanitarian Law at the Raoul Wallenberg Institute (Lund University Faculty of Law) and Visiting Professor of International Law at The Fletcher School of Law & Diplomacy (Tufts University).  He has served as a legal advisor to international criminal tribunals, including the International Criminal Court, and as Special Advisor to the US delegation to the UN Human Rights Council.