No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration
The wording of the ICC basic documents, the diplomatic practice of the ICC Rome Conference, Preparatory Commission, and Assembly of States Parties, and scholarly commentary make it clear that the Palestinian Authority is not a “State.”
The Palestinian Authority is not a state within the meaning of Article 12(3) of the Rome Statute and therefore its submission does not establish the necessary preconditions for the exercise of legal jurisdiction by the Court.
Not only is the Palestinian Authority not recognized as a state by the United Nations, but the ICC’s own documents and practices have not recognized it as a state. When it has been invited to participate, it has been as an “entity” or “other organization” invited to observe. Indeed the underlying question of a two-state solution to the Israeli-Palestinian conflict remains a central issue in the larger diplomatic negotiations and it is not the role of international courts, including the ICC, to undertake a unilateral decision about such a matter.
The “Declaration recognizing the Jurisdiction of the International Criminal Court”1 submitted by the Palestinian Authority on January 22, 2009, seeks to satisfy the statutory preconditions to the Court’s exercise of jurisdiction in order to investigate and prosecute acts “committed on the territory of Palestine since 1 July 2002”. The declaration refers to Article 12(3) of the ICC Statute as the claimed basis for establishing jurisdiction.2
However, the declaration does not satisfy the requirements of Article 12(3) of the ICC Statute as written, interpreted or applied. Nor does it comport with relevant principles of public international law. It is, therefore, without jurisdictional effect under the Statute.
It is evident, of course, that the declaration cannot change the limitations on jurisdiction that are prescribed by the ICC Statute itself, as adopted on 17 July 1998 by the States assembled at the Diplomatic Conference of Plenipotentiaries in Rome.
The language of Article 12 of the ICC Statute sets forth plain and irreducible “[p]reconditions to the exercise of jurisdiction” by the Court. It states unequivocally that the acceptance of the Court’s jurisdiction is limited to “States” both under Article 12(2) and Article 12(3). However, the Palestinian Authority does not qualify as a “State” or “State Party” under the ICC Statute. It is therefore ineligible, inter alia, to make a declaration under Article 12(3). The language of Article 12(3) was finalized at the Rome conference in July 1998, and has not been the subject of any corrigenda.3
The Palestinian Authority was not a participating “State” at the Rome Conference in 1998. The conference’s official roster of “Participating States” includes 163 States from around the world, but it does not include the Palestinian Authority or “Palestine” as a State. Rather, the Palestinian Authority, listed as “Palestine,” was placed under the category of “Other Organizations” in the official diplomatic roster of the Rome Conference.4
The Palestinian Authority’s General Delegate to Italy, Mr. Nimer Hammad, and the Counselor of the Permanent Observer Mission of Palestine at the United Nations in New York, Mr. Marwan Jilani, did not attend the Rome Conference as representatives of a State, according to the official records of the Conference, but rather under the aegis of “Other Organizations”.5
In accordance with international law and settled diplomatic usage, the Palestinian Authority also did not attempt to vote on the adoption of the final treaty text that established the International Criminal Court at the Rome Conference, as Palestine was not considered a State. So, too, throughout the ICC Preparatory Commission that convened after the adoption of the Rome Statute, the Palestinian Authority again neither attended nor participated as a “country” or “state”, but rather was accepted only under the category of “Entities, intergovernmental organizations and other bodies having received a standing invitation to participate as observers in the sessions and the work of the General Assembly.”6
The same practice was observed, for evident reasons, during the meetings of the ICC Assembly of States Parties over the last seven years, ever since the ICC Statute entered into force on 1 July 2002. At these meetings, the same diplomatic and legal distinctions have been preserved. For example, at the most recent meeting, held at the United Nations Headquarters in New York City from 9th to 13th of February 2009, neither the Palestinian Authority nor “Palestine” was seated in any of the categories applicable to States. They were neither listed as a “State Party to the Rome Statute”, nor as an “Observer State”, nor even as a “State invited to be present”. Rather, the Palestinian Authority or Palestine attended under a fourth category entitled “Entities, intergovernmental organizations, and other entities”.7
Quite apart from the plain meaning of the ICC Statute and the standing diplomatic practice and credential decisions of the Rome conference and the succeeding implementing conferences, there is also the scholarly literature on the ICC Statute that compels this good faith and ordinary reading of the word “State” in Article 12(3).8 As made evident by Rule 44(1) of the ICC Rules of Procedure and Evidence,9 a declaration under Article 12(3) of the ICC Statute can be submitted only by “States” that are otherwise eligible to become Parties to the ICC Statute.
In Article 125 to the ICC Statute, it is noted that only a “State” is eligible for “Signature, ratification, acceptance, approval or accession” to the ICC treaty. Declarations under Article 12 also speak of “acceptance” of the jurisdiction of the Court, and in particular, Article 12(3) invites the retrospective “acceptance” of jurisdiction by a non-party State.10 But the precondition is that it has to be a “State” within the meaning of the treaty and general international law.
As noted in the respected Commentary on the Rome Statute edited by Professor Otto Triffterer, following the Rome conference, “[i]n accordance with normal modern practice for multilateral treaties, the [ICC] Statute [was] open for signature by all States”.11 The commentary notes that not every “entity” qualifies as a “State”, and thus that the range of possible signatories was limited.12
When the period for State signature expired on December 31, 2000, the ICC Statute still remained open to “accession”, but again, only by States. As the Triffterer Commentary notes, in a second edition of this notable treatise, published in 2008,
“States that did not find it possible to sign within the relevant time period may always ‘accede’ to the Statute. Timor-Leste, for example, which had not achieved its independence at the relevant time, was among those acceding to the Statute.”13
But as Professor Triffterer’s treatise indicates, the class of possible members is still strictly limited to States, and does not include Palestine:
A number of small States and Switzerland have joined the United Nations since 1998. In addition to the 191 Members of the United Nations and the Holy See, the lone State that now has Observer Status with the organization, the other entities generally regarded by the international community as States are both small island countries in the Pacific: Cook Island and Niue. … The total potential parties to the Rome Statute thus stands at 193, given the present political status of the World.”14
Professor Triffterer’s treatise excludes the Palestinian Authority and “Palestine”. So, too, the ICC Commentary by Professor Antonio Cassese notes that accession to the treaty, including under Article 12(3), is limited to States.15
Thus, both the wording of the ICC basic documents, the diplomatic practice of the ICC Rome Conference, Preparatory Commission, and Assembly of States Parties, and scholarly commentary make it clear that the Palestinian Authority is not a “State” for the purposes of Article 12(3) of the ICC Statute. This answers conclusively the question raised by submission of the declaration of the Palestinian Authority under Article 12(3).
While no additional general question of international public law arises in this regard, it may nevertheless be worth noting that Article 12(3) is entirely consistent with the practice under other global multilateral treaties and public international law. For example, at the United Nations General Assembly, the representatives of the Palestinian Authority are not permitted to vote. Indeed, unlike the Holy See, Palestine is not included or seated in the category of “Non-member State having received a standing invitation to participate as observer in the sessions and the work of the General Assembly and maintaining permanent observer mission at Headquarters.”16
Rather, in the Official Protocol List of the United Nations, Palestine is listed as belonging to the category of “Entities having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and maintaining permanent observer missions at Headquarters.”17
In addition, general principles of international law concerning the recognition of statehood argue strongly against any different conclusion. For example, the terms of Article 1 of the Montevideo Convention18 establish prerequisites to statehood that include “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” These criteria are principal indicia of statehood. Yet under the terms of the 1995 interim agreement, one or more of these elements is problematic, since the Palestinian Authority has, for example, foresworn a general capacity to enter into foreign relations with other states.19 So, too, the Palestinian Authority does not effectively control the territory of Gaza.
Furthermore, since the end of the Cold War, there has been a suggestion by some scholars and diplomats that an added normative element should be prerequisite to the recognition of new states. In the early 1990’s, the European Community built upon the Charter of Paris and the Helsinki Final Act, and announced guidelines to regulate the recognition of new states during the break-up of the former Soviet Union and the Federal Republic of Yugoslavia.20
These guidelines suggested that before a new state should be recognized, its record of performance must demonstrate respect for the rule of law, democracy, human rights, and the rights of ethnic minorities, as well as “respect for the inviolability of all frontiers which can only be changed by peaceful means and common agreements.”
Under these standards as well, it would put the cart before the horse to effectively grant statehood before the elements of this test are satisfied. Indeed, it has been noted that premature recognition of a contested territory as an independent state can diminish the incentives for establishing the legal bulwark of these norms.
As a matter of law, the Palestinian Authority was established as a provisional body with clearly defined and circumscribed powers, under a series of agreements between Israel and the Palestinian Liberation Organization, pending the conclusion of permanent status negotiations. Under these agreements, as noted above, the PA lacks capacity in such essential spheres as the conduct of foreign relations.
For example, by the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed by Israel and the Palestinian Liberation Organization,21 the newly created Palestinian Council is specifically limited in its powers by Article 9(5). In particular, under Article 9(5)(a), the Palestinian Council does “not have powers and responsibilities in the sphere of foreign relations … and the exercise of diplomatic functions.”22
In addition, Article 9(5)(c) of the 1995 Interim Agreement specifically states that “Dealings between the Council [of the Palestinian Interim Self-Government Authority] and representatives of foreign states and international organizations … shall not be considered foreign relations.”
The difference between an agreement to allow substantial internal autonomy and achieving international status as a State has been emphasized by Professor James Crawford, who drafted the original proposal of the ICC Statute while serving as a member of the International Law Commission in 1994. In regard to the status of the Palestinian Interim Self-Government Authority, Professor Crawford notes:
“the limited character of [the Israeli] withdrawal can be seen, for example, from the jurisdiction of the Palestinian Interim Self-Government Authority, which covers: ‘West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, military locations, and Israelis.’ Thus a jurisdiction defined apparently in normal territorial terms is for practical purposes redefined as a jurisdiction over Palestinians (and visitors).”23
Professor Crawford also notes that the commitment of the Palestinian Interim Self-Government Authority to forego any general claim of competence in foreign relations further serves to thwart any plausible claim of statehood.24
While, as Professor Crawford notes, the Palestinian Liberation Organization has served as a representative of the Palestinian people in various international negotiations, the PLO is also not a state.
“The PLO of course is a national liberation organization, widely recognized as such, and is the external representative of the Palestinian people. …There is thus a non-State legal entity recognized as represented by a national liberation movement.”25
Thus, there is no State entity capable of joining the International Criminal Court. As Dr. Crawford notes bluntly, there is an ongoing diplomatic process, but the recognition of a new state of Palestine:
“has never commanded anything like the level of quasi-unanimous support that would be required to establish a particular rule of international law to the effect that Palestine is a State.”26
The international legal formula for creating a future Palestinian State is defined in historic bilateral agreements between Israel and the PLO, which received the active support of the international community. The international community itself (including the United States, the European Union, Russia and the United Nations) has supported the “Roadmap” announced in June 2002 — formally known as the “Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”.27
As steps towards reaching that goal, the Roadmap requires steps to be taken by the two sides, including dismantlement of the infrastructure of terrorism on the Palestinian side, institution and capacity-building of Palestinian institutions, and a legitimate government capable of governing the whole Palestinian territory. The Roadmap of course, makes performance demands on Israel as well. This staged process was further reinforced by the international community in the Annapolis conference, as well as by many recent statements of world leaders.
Quite apart from the limiting language of the ICC Statute, the diplomatic practice of the ICC negotiations, and the opinions of scholarly commentators — which do not permit acceptance of the declaration of the Palestinian Authority because it is not a State — it is not the role of the ICC to involve itself in political issues or to truncate that international and bilateral process through a unilateral ascription of statehood, whether direct or implied, countering delicate agreements and on-going international efforts in this matter.
In addition to all of these controlling authorities, there is a central principle of interpretation that argues against any “expansionist” or “teleological” reading of Article 12(3) in this matter. This is the rule of “lenity” in criminal cases, in which the law is not to be read beyond its established meaning.
It may be worth noting the high-level task force report that was issued in March 2009 by the American Society of International Law, following meetings with officials of the International Criminal Court and other figures who were central in the conclusion of the ICC Statute. The task force report properly salutes the Court for its important role in strengthening respect for the principles of humanitarian law, and urges that the United States strengthen its practical support for the work of the Court.28
At the same time, the ASIL task force report also sounds a tocsin warning that the ICC should not stray beyond the established limits of international law, in particular, in regard to jurisdictional decisions.
Notably, the task force remarks that there is a “test for the ICC” in how it handles the declaration submitted by the Palestinian Authority and the claim of accession as a “State” under Article 12(3) of the ICC Statute.29 In the considered view of this group of eminent jurists and former prosecutors, the declaration submitted by the Palestinian Authority
“raises issues about the authority of the Prosecutor, and of the ICC, to treat as a State an entity which is not generally recognized as a State and which is not a U.N. member.”30
This decision, suggests the ASIL task force, will necessarily be an important benchmark in evaluating the performance of the Court.
It would be most unfortunate if a general perception of politicization of the Court’s handling of the Article 12(3) declaration by the Palestinian Authority were to take hold. The Court should abide by the established rules of international law, in which the recognition of new states is not a matter delegated to courts. Otherwise, even a preliminary examination by the Office of the Prosecutor may end up raising more serious questions and obstacles in the diplomatic world of real negotiations outside the Court, and raise serious questions for other states on the role and practice of the International Criminal Court. Based on the negotiating history, it is clear that the State Parties that created the Statute did not intend this effect.
Both the Palestinian Authority and Israel have the obligation to investigate any serious violations of humanitarian law and human rights law that have occurred, and in appropriate cases bring to trial those who committed such violations. In the wake of the Gaza military campaign, Israel has stated that it will conduct a national investigation of any disputed actions, to include reviews both by military and civilian authorities, with further review available in the High Court of Justice in Israel. Likewise, the Palestinian Authority has the responsibility, and will wish to investigate and bring charges against any persons or organizations in Gaza that have launched thousands of rockets against the territory of Israel over the course of a multi-year terror campaign, and allegedly used Gaza citizens as human shields.
The solution of the Israeli-Palestinian conflict is something that all people of good faith should devoutly seek. But the jurisdictional basis of a criminal tribunal must also be founded on the steadiness of the law. Neither the Palestinian Authority nor the “entity” of Palestine currently qualifies as a State within the meaning of the Rome Statute. Hence, the declaration submitted on January 22, 2009 cannot be accepted by the Court.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See “Declaration recognizing the Jurisdiction of the International Criminal Court” (21 January 2009) from Mr. Ali Khashan, Minister of Justice, Palestinian National Authority, to the ICC Registrar, available online. The Registrar of the Court received this declaration on 22 January 2009. ↩
In its first full paragraph, the Declaration reads as follows: “In conformity with Article 12, paragraph 3, of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.” It further states that “This declaration, made for an indeterminate duration, will enter into force upon its signature.” ↩
The ICC Statute, the records of the Rome Conference, the ICC Rules of Procedure and Evidence and the Regulations of the Prosecutor’s office are equally clear. See the ICC Rules of Procedure and Evidence, Official Records ICC-ASP/1/3, Rule 44; and the Regulations of the Office of the Prosecutor, ICC-BD/05-01-09, 23 April 2009, Regulation 25(1)(c). ↩
See the Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/CONF.183/13, volume II, pp. 5 and 44. ↩
See, e.g., Preparatory Commission for the International Criminal Court, 9th session, New York, 8-19 April 2002, PCNICC/2002/INF/6, 30 April 2002 (emphasis added). ↩
See International Criminal Court, Assembly of States Parties, 7th session (second resumption), New York, 9-13 February 2009, ICC-ASP/7/INF.1/Add.2. Compare Vienna Convention on the Law of Treaties, Mary 23, 1969, 1155 U.N.T.S. 331, Article 31(3)(b). ↩
See Article 44(1) of the ICC Rules of Procedure and Evidence: “The Registrar, as the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3” (emphasis added). ↩
The declaration filed by the Palestinian Authority fails to track the exact language of Article 12(3), rather speaking of its “recognition” of the Court’s jurisdiction for an “indeterminate duration” rather than its “acceptance”— but it does reference Article 12(3). ↩
Otto Triffterer, editor, “Commentary on the Rome Statute of the International Criminal Court, First Edition,” at p. 1287 (Nomos Verlagsgesellschaft, Baden-Baden, Germany, 1999 edition) (emphasis added). ↩
Otto Triffterer, “Commentary on the Rome Statute of the International Criminal Court, Second Edition,” at p. 1773, (Hart Publishing Company, Oxford, 2008 edition) On April 8, 2009, Professor Triffterer won the Certificate of Merit of the American Society of International Law “for high technical craftsmanship and utility to practicing lawyers and scholars” for this volume. ↩
Antonio Cassese, Paola Gaeta, John R.W. D. Jones, “The Rome Statute of the International Criminal Court: A Commentary” (Oxford University Press 2002), vol. 1, p. 1203. ↩
See, e.g., Executive Office of the Secretary-General, Protocol and Liaison Service, Publication of Permanent Missions to the United Nations, No. 297, July 2007, at p. 293. ↩
See, e.g., Executive Office of the Secretary-General, Protocol and Liaison Service, Publication of Permanent Missions to the United Nations, No. 297, July 2007, at p. 294. ↩
See Convention on the Rights and Duties of States (Montevideo Convention), December 26, 1933, 165 League of Nations Treaty Series (LNTS) 19; 28 American Journal of International Law (Supplement) 53 (1934). ↩
See “Israeli-Palestine Liberation Organization: Interim Agreement on the West Bank and the Gaza Strip,” Sept. 28, 1995, article 9(5), 36 International Legal Materials 551, 561 (1997) [hereinafter cited as Interim Agreement]. ↩
See “Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union”, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991, EC Bulletin, 12-1992, p. 199; UN Doc. S/2393 of 17 December 1991, Annex II; International Legal Materials 31 (1992), p. 1486. ↩
Id., art. 9(5)(a). The only exception is for “economic agreements,” “agreements with donor countries”, “agreements for the purpose of implementing … regional development plans”, and “cultural, scientific and educational agreements”. See Article 9(5)(b). This is comparable to the ability of entities and international organizations, which are not States, to enter into such agreements. ↩
James Crawford, “The Creation of States in International Law” (Oxford University Press, second edition, 2006, paperback edition 2007), at pp. 443-4 (citing the Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements, B, Art. IV: (1993), 32 International Legal Materials 1542, “repeated with further elaboration in Art XVII … of the Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, which states that “[i]n accordance with the Declaration of Principles, the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: (a) issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis.”). ↩
The ASIL Task Force issued its report, entitled “U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement,” on 21 March 2009. The co-chairs of the task force were Patricia Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and former judge of the International Criminal Tribunal for the former Yugoslavia, and William H. Taft IV, former legal adviser of the U.S. Department of State. Task force members included, inter alia, retired U.S. Supreme Court Justice Sandra Day O’Connor, former president of the International Court of Justice Stephen Schwebel, and David Tolbert, former deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia. ↩