ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

ICC Prosecutor Decides that He Can’t Decide on the Statehood of Palestine. Is He Right?

On Tuesday, the Office of the Prosecutor at the International Criminal Court issued a statement denying the Prosecutor’s competence to decide on Palestine’s acceptance of ICC jurisdiction. The ICC Prosecutor indicated in his statement that he could not take any action as a result of the declaration made by the Palestinian National Authority in January 2009, accepting the jurisdiction of the ICC over crimes committed on the territory of Palestine. The declaration by the Palestinian Authority was made under Article 12(3) of the ICC Statute. That provision allows States that are not party to the ICC Statute to accept the jurisdiction of the Court over crimes committed on the territory of that State or by its nationals. If the Palestinian declaration were accepted as a basis for ICC jurisdiction, it would grant the ICC jurisdiction over all ICC crimes (genocide, war crimes and crimes against humanity) committed on Palestinian territory since July 2002. Crucially, the declaration would give the Court jurisdiction not only over acts of Palestinians but also over acts by Israeli officials and nationals in Gaza and the West Bank. The key question with regard to the Palestinian declaration is whether Palestine is a State, since only States may make declarations under Article 12(3) of the ICC Statute. In his one and a half page statement, the Prosecutor has decided that:

“competence  for  determining  the  term  “State”  within  the meaning of article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt,  will  defer  to  the  guidance  of  General Assembly. The  Assembly  of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute.”

In short, it has taken the Prosecutor over three years to decide that it is not up to him to decide the question of the statehood of Palestine. The Prosecutor’s decision that it is up to the organs of the UN or to the Assembly of State Parties to the ICC Statute to decide on the statehood of Palestine, even in the context of decisions relating to the ICC is reasonable, both from the political and legal points of view. To the extent that the Prosecutor is asking throwing this explosive decision back to States, the Prosecutor is seeking to safeguard himself and his office from allegations that he is taking political decisions. However, there are questions as to whether this reasonable decision is legally correct. Oddly, an important factor, ignored by the Prosecutor is Palestine’s admission to UNESCO (see previous EJIL:Talk! post on that issue here). At first glance, the admission of Palestine to UNESCO seems most unrelated to questions to do with the jurisdiction of the ICC. However, as explained below, and by Bill Schabas on his blog last year, UNESCO’s decision may be highly relevant.

The Prosecutor’s view that the UN Secretary General and General Assembly have responsibility for taking the decision on the Statehood of Palestine is based on the view that the question whether an entity is State for the purposes of the ICC Statute has to receive a uniform answer. In the Prosecutor’s view, whether an entity is a State that can make a declaration under Article 12(3) is the same question as to whether that entity is a State such that it can accede to the ICC Statute (under Article 125, ICC Statute) and refer matters to the Court (under Article 12(1)). For him, the same procedure must be followed in answering those questions. It is the UN Secretary General that acts as the depositary of the ICC Statute and that has responsibility for accepting ratifications of, and accessions to, that treaty by States. Under Article 125 of the Statute, accession to the Statute is open to “all States”.  Whenever an entity claiming to be a State seeks to accede to the treaty, it is the UN Secretary General that will decide, in the first place, whether to accept that instrument of accession or not. It does not seem to follow that because the Secretary General has responsibility for deciding on questions of accession to the Statute, he must also be the one that decides on declarations made by States under Article 12(3). The SG has to decide on question of statehood in order to perform his administrative function as a depositary but that does not give him overall competence on this question. For example, no one would assert that if the question of statehood came up with regard to immunity of third States under Art. 98, it is the UN SG that should decide that question. Presumably, in that context it would be the judicial organs of the court that would make the claim. One may even suggest that since it is the ICC Registrar that performs the statutorye function of receiving Art. 12(3) declarations, he or she is in the same position as the SG with regard to accessions and it is he or she that must, in the first place, decide on whether to accept the declaration, subject perhaps to being overruled by other organs of the ICC.

Even if the Prosecutor is right that the same procedure must be used with regard to determining statehood, whether one is dealing with Art. 12(3) declarations or accessions, it is arguable that UN practice already provides an answer on whether Palestine should be regarded as a State for these purposes. I do not mean to suggest that there is a definitive answer but only to suggest that the Prosecutor’s analysis does not seem complete and that there is more to be said here.

The phrase used in the ICC Statute that “all States” can accede to the Statute is quite common in treaty practice. However, this “all States” formula has given rise to problems in the past in determining which entities in particular qualify as States and therefore have a right to accede to the treaty question. The UN Secretary General has stated that:

“If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the [General] Assembly gave him explicit directives on the areas coming within the “any State” or “all States” formula. He  would not wish to determine, on his own initiative, the highly political and controversial question of whether or not the areas whose status was unclear were States. Such a determination, he believed, would fall outside his competence. He therefore stated that when the “any State” or “all States” formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the “Vienna formula”, i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice” [see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 81,  cited by ICC Prosecutor]

Thus, the UN SG has indicated that he would look to the General Assembly in cases of particular difficulty. The General Assembly has endorsed this practice of the SG when it adopted an understanding in 1973 in which the GA stated that:

“the Secretary-General, in discharging his functions as a depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.” [ see Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev. 1, para 82]

So far, all of this appears to support the Prosecutor’s view that it is for the SG to decide on statehood issues which arise in the context of treaties in which he is depositary, but that in contentious cases the SG will defer to the General Assembly. However, the key question is when is General Assembly guidance required? The ICC Prosecutor states in relation to Palestine that:

“In instances where it is controversial or unclear whether an applicant constitutes a ‘State’, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter.”

He derives this from the practice referred to above. However, the question is what does controversial mean? Clearly, the question of Palestinian statehood is controversial. This cannot be disputed. However, further analysis of UN practice suggests, that the SG only looks to the GA for guidance in cases of States which fall outside what is known as the “Vienna formula”. The Vienna formula which is referred to in the Summary of Practice referred to above, is the formulation found in Art. 81 of the Vienna Convention on the Law of Treaties. This formula refers to States that are members of the UN,  or any UN specialised agency, or of the International Atomic Energy Agency or a party to the Statute of the International Court of Justice. Where an entity falls within the Vienna formula, the SG deems that it is a State and he will accept accession by that State. This much should be clear from the quotes above. The point also emerges from an Opinion of the UN Legal Counsel of Feb. 1974 where it was stated that:

“the reference in [a particular resolution] to “all States” is to be understood as referring to States Members of the United Nations or members of the specialized agencies or the International Atomic Energy Agency and States parties to the Statute of the International Court of Justice and also to the Democratic Republic of Viet-Nam [which the GA had specifically designated as State in the previous year].” [p. 158, para. 4]

All of this is relevant because, though Palestine is not a member of the UN, it has now become a member of one UN agency – UNESCO (see previous post here). This means that Palestine is now within the Vienna formula and, under previous practice, can accede to treaties open to all States (see Bill Schabas’ post on this here), even without reference to the UN GA. It also appears that, under previous practice, the UN SG would not have to refer to the UNGA. If the Prosecutor had not taken so long to decide on this issue (over three years!), he could have safely come to the conclusion that the matter is so controversial that it is for the political organs of the UN (or the ICC) to decide on the question. However, the admission of Palestine to a UN specialised agency last year might have changed this. It may seen strange that admission to UNESCO could be so influential. However, the reason why the “Vienna formula” includes States that are members of a UN agency is that the composition of these agencies is very similar to that of the UN General Assembly. This means that if faced with a decision on the question of statehood, the UN GA is likely to give the same answer as that given by UN specialised agencies. The difference betrween membership of the UN itself and membership of a UN Specialised Agency is that the former requires Security Council approval which means that it is subject to a veto by a permanent member.

One last point is the Prosecutor’s point that the Assembly of States Parties to the ICC Statute can decide on the Palestinian declaration. This is not specifically provided for in the ICC Statute but the Prosecutor refers to a catch all clause on the functions of the Assembly – Art. 112(2)(g) which provides that the Assembly shall:

“perform any other function consistent with the Statute or the Rules of Procedure and Evidence.”

If the UN GA can give direction to the SG in the performance of his depositary functions it would seem reasonable that the Assembly can also do this. Whether this would be binding would be another matter.