A Single Comment — Permalink
© ICCforum.com, 2010–2023. All rights reserved. Policies | Guidelines
- Harlan: The parties to the Statute have agreed to give third states the right to accept the jurisdiction of the Court. The recent decision of the Prosecutor to reject the Article 12(3) Declaration of the State of Palestine was ultra vires in accordance with the rules governing the rights and obligations of third states under treaties contained in Articles 35-37 of the Vienna Convention on the Law of Treaties. English [PDF] The Prosecutor can't revoke or modify an obligation under the Statute after it... (more)
- Harlan: Hi Souheir, The rules by which States are granted permission to deposit treaty instruments after joining one of the UN specialized agencies, like UNESCO, are contained in The Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties under the heading The "Vienna formula"; the,"all States formula"; the practice of the General Assembly. As a member of UNESCO, Palestine unambiguously satisfies the criteria to accede to multilateral treaties opened under the most strict "... (more)
- Souheir: Hi everyone, I understand this debate is still open for contribution despite the fact it has become dormant. Given Palestine's recent admission to UNESCO, I thought it was important to say something about this and also to pick up on some of the comments that have already been made. Palestine’s admission to UNESCO reflects an emerging state practice favouring recognition of Palestinian state The admission of Palestine to UNESCO as a Member State (subject to its signing and ratifying the UNESCO... (more)
- Rosette Bar Haim: A Reply to Mr. Harlan’s Position1 It is necessary to relocate the debate in order to clearly perceive the legal questions at stake in the matter of the PNA Acceptance of Jurisdiction. I firmly believe that this action by the PNA is inherently intermingled with public law, and while public law and politics can coexist, criminal justice and politics cannot. The Statute is the result of a political legal compromise aimed at individual criminal liability,... (more)
- Harlan: Danterzian, I thought that all of Ms. Herzberg's arguments were unconvincing. *The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an... (more)
- danterzian: I find part of Herzberg's argument troubling. She essentially argues that because (1) the Rome Statute must not allow grave crimes to go unpunished and (2) the PNA and Arab League frequently commit grave crimes, therefore (3) the ICC should not exercise jurisdiction over the grievous crimes committed in Palestine. Although I agree that there are other reasons for the Court to not exercise jurisdiction, I don't believe the above argument is one of them. The Rome Statute's preamble states that... (more)
- Herzberg: The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean... (more)
- Harlan: danterzian, I believe that Professor Quigley is correct. In 2004 the General Assembly adopted a resolution, A/RES/58/292, on the status of the Occupied Palestinian territory which noted that Palestine was an observer pending its attainment of full membership in the United Nations. That same year, the non-member Permanent Observer.State of the Holy See launched a bid to apply for full membership in the United Nations. When its efforts were unsuccessful, it asked to be granted upgraded observer... (more)
- Harlan: The United States is not a State party to the Rome Statute. I was just illustrating some points made by Professor Quigley - that the United States had recognized the State of Palestine in accordance with the provisions of conventional international law & that it customarily treats States as continuing to exist if their territory is under foreign occupation. The Baltic States provide an example of an undertaking that lasted for many decades. In cases like Kletter, those routine... (more)
- Harlan: Ti-Chiang Chen's classic "The International Law of Recognition:With Special Reference to Practice In Great Britain and United States has a chapter on the Laws of Recognition of Belligerency and Insurgency which discusses the customary rules and the internal inconsistency of the logic of some scholars on the very point you've raised here. How can an entity have the duties and responsibilities of a State under international law, yet still not possess the necessary legal personality of a State?... (more)
Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”
I thought that all of Ms. Herzberg's arguments were unconvincing.
*The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an unrecognized community that would otherwise be prohibited in cases where the victim is a state. In Military and Paramilitary Activities in and against Nicaragua, the ICJ ruled that the "Definition of Aggression" contained in United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 reflected customary international law. It does not require that the victim be universally recognized as a state before an armed attack upon it can be determined as an act of aggression or a material element of another crime. Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used "in any other manner inconsistent with the purpose of the United Nations".
*Judge Stephen M. Schwebel served as President of the International Court of Justice (ICJ) and the representative of the United States on the UN Special Committee on the Question of Defining Aggression. He said there was nothing to prevent members, and everything to compel them, to interpret "States" as embracing entities whose statehood is disputed. He felt it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. He noted that was demonstrated by the events of the postwar years.The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation - and there has been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the definition of aggression which says that the term "State" is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. See "Justice in international law", Cambridge University Press, 1994, ISBN 0521462843, page 573-574
*The State Parties recently adopted an amendment to the Rome Statute that uses the term "State" to define the acts that constitute the crime of aggression “in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974." That resolution contains the explanatory note mentioned by Judge Schwebel
*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:
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.