*Article 31 of the Rome Statute does not include: tu quoque arguments; the related equitable doctrine of “unclean hands”; or political negotiations as grounds for excluding individual criminal responsibility. Other tribunals and Prosecutors have rejected those defenses. See the remarks of Judge Goldstone (below) and:

*Sienho Yee, "The Tu Quoque Argument as a Defence to International Crimes, Prosecution or Punishment", Chinese Journal of International Law (2004) 3(1): 87-134;
**Judgment of the Trial Chamber in Case Kupreškić et al., (January 2000), para. 765;
**Judgment of the Trial Chamber in Case Kunarac et al., (February 2001), para. 580;
**Judgment of the Appeals Chamber in Case Kunarac et al., (January 2002), para. 87;
**Judgment of the Trial Chamber in Case Limaj et al., (November 2005), para. 193.

*There have been conflicting reports about support for the Arab League position on the Bashir warrant. See for example Jordan dissents from Arab position on ICC warrant for Sudan’s Bashir", Sudan Tribune, March 23, 2009.

*The African Union has formally requested that the Security Council defer prosecution of Bashir until a later date in order to facilitate the implementation of the partition of Sudan. Wikileaks revealed that the UK government had taken the position that deferral is a "card not to sell cheaply" while the Comprehensive Peace Agreement is being implemented. See Sudan/ICC: UK Strategy With Potential Bashir ICC Indictment

*Judge Richard Goldstone said prosecutors should not tailor what they are doing to reports of what's happening on the ground in negotiations. They should indict the responsible individuals if that is where the evidence leads. He related that the political assessment of UN Secretary-General Boutros-Ghali over the timing of the indictment of Radovan Karadzic had been incorrect. Had he not been indicted, the Dayton Accords would not have been brokered. Simon Wiesenthal stressed that if Karadzic were ever indicted he should know that if he didn't immediately face trial, he would be hunted for the rest of his days. Wiesenthal felt that was the only way to deter other would-be-criminals. Like Bashir, Karadzic managed to avoid arrest and trial for a time. See You Tube, "Conversations with History - Richard J. Goldstone", and Richard Goldstone "For Humanity: Reflections of a War Crimes Investigator", Yale University Press (August 11, 2000), ISBN 9780300082050, pp 93-103

*The letter from the Registrar that Ms. Herzberg quoted says that, pending a judicial determination, Palestine has the obligations of a State Party for the purposes of Article 86 of the Rome Statute. She proceeds to argue that, under the terms of that provision of conventional international law, Palestine is an entity with the obligations of a State, but none of the corresponding rights. This, despite the fact that Palestine has been recognized by members of the Assembly of State Parties, such as Jordan, Comoros Islands, Djibouti, Argentina, & etc.

"The Darfur Debate" is the current topic on the forum. None of the invited experts, except for Dr. Gaeta, have cited an obligation that would apply to Palestine, i.e. Sudan is a UN member state. It has agreed to accept the decisions of the Security Council acting on its behalf and to carry them out in accordance with Articles 24 and 25 of the UN Charter. So, Sudan has an obligation to surrender Bashir to the Court. Palestine is not a member of the UN, nor a signatory of the Genocide Convention. Dr. Gaeta says that "State parties to the Rome Statute are not obliged to comply with the ICC request to arrest and surrender Al Bashir until he no longer remains a sitting Head of State, since such request does not conform with Article 98, par. 1, of the Rome Statute."

The situation in Darfur was referred to the ICC by the Security Council via a Chapter VII resolution, 1593 (2005). The resolution took "note of the existence of agreements referred to in Article 98-2 of the Rome Statute" and decided "that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;"

The accompanying Security Council Press Release cited an explanation that had been given by Representative Ellen Margrethe Løj:

Denmark had only been able to support the text after some alterations were made, she said. Regarding the formulation on existing agreements referred to in article 98-2 of the Rome Statute, she noted that that reference was purely factual and referred to the existence of such agreements. Thus, the reference was in no way impinging on the Rome Statute. The result was a valid compromise leading to the first referral of a situation to the ICC.

Palestine and Sudan are member States of the Organization of the Islamic Conference (OIC). Representatives of Member States on mission to other OIC States enjoy diplomatic privileges and immunities under the terms of the "Agreement on Immunities and privileges for The Organization of The Islamic Conference (1976)"; a similar "Convention on Privileges and Immunities of the League of Arab States"; and customary international law. Even if Palestine has the obligations of a State Party to the Rome Statute, pending a judicial determination on its Article 12(3) Declaration, that would not derogate from its existing obligations under international agreements with a third State, like Sudan according to the terms of Article 98. In addition, the Permanent Observer of the Organization of the Islamic Conference (OIC) to the United Nations advises that Palestine is one of the State parties that have ratified/acceded to the OIC Convention on Combating International Terrorism. That convention contains an agreement on extradition procedures between the State Parties for many crimes that would normally fall under the jurisdiction of the ICC.

The Court should avoid interpretations of the Statute which would leave any part of the provision to be interpreted without effect. It would be untenable for OIC-State parties to the Rome Statute like Jordan or the Court itself to decide "in good faith" that Palestine is a "State" for the purpose of exercising rights in international or special agreements on immunity or extradition - in line with the general principles of international law and Articles 86, and 98 of the Rome Statute - while at one and the same time claiming that Palestine is not a "State" for the purposes of Article 12(3). A construction which would leave without effect any part of the language of the Statute, should be rejected. See for example P.St.J. Langan (ed), "Maxwell on the Interpretation of Statutes", Sweet & Maxwell; 12th Revised edition edition (August 14, 1969), pp 36 & 45.

In the "Reparations" case, the ICJ said that the members of the UN had created an Organization with its own legal personality. The Court noted that one indication was its capacity to conclude agreements and conventions to which the Organization is a party occupying a position distinct from its members. In circumstances involving the responsibility of a State, the United Nations, as an Organization, has the capacity to bring an international claim against the responsible de jure or de facto government without prejudice to questions of UN membership or recognition of that entity by each of its member states. The Organization is entitled to ask the member states to respect those positions. Articles 4 and 87 of the Rome Statute say that the ICC has its own international legal personality and that it can exercise its jurisdiction on the territory of any non-member State by concluding a special agreement.

Professor Fletcher and Ms. Herzberg say that the Courts have no business making determinations of statehood. It is true that the jurisdiction of the Court is limited to "natural persons" under the terms of Article 25, but that does not preclude it from answering legal questions regarding the existence of statehood. For example, the International Law Commission said “An individual cannot incur responsibility for the crime of aggression in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.” Motions based upon disputes concerning the existence of statehood and challenges to jurisdiction based upon state sovereignty have come up in the other international criminal tribunals. Those questions will inevitably have to be answered during criminal proceedings in the ICC.

For example, in "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)", the Amici Curiae motion argued that all "grave breaches" counts in the Croatia Indictment before January 15, 1992, had to be dismissed because the Prosecution failed to establish that Croatia was a state before that time, making the conflict one of a non-international nature. So, there was a genuine dispute regarding the existence of statehood that could have effected the result of the case under governing law. "The Trial Chamber noted that the best known definition of a state is provided by the Montevideo Convention, Art.1 which reads: "The State as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with other States." The most decisive of these is the last. Based upon negotiations with other international actors the Trial Chamber concluded there was sufficient evidence that Croatia was a state.

Many, if not most of the State Parties to Montevideo Convention have already recognized the State of Palestine and have established normal diplomatic relations. Many of those countries are also members of the Assembly of State Parties to the Rome Statute. That Convention does not contain a dispute resolution regime or a compromissory clause. Once again, a construction which says that Palestine is a State for the purpose of Article 98, or Article 86 as Ms. Herzberg insists, but not for the purposes of article 12(3) is completely untenable.