ICC Jurisdiction in Palestine: Blurring Law and Politics

Following a long and arduous process, a number of remarks are merited on the nature and content of the decision and the procedural and substantive issues considered during the examination, to complement issues examined by Dapo Akande, Kevin Jon Heller, Michael Kearney and the latest from Professor William Schabas.

Firstly, the questions which the OTP cited as the basis for its determination concerning the validity and admissibility of Palestine’s declaration raise serious concerns. There was never any place for the OTP to examine whether Palestine is a state in general terms, as no objective definition of a state exists in international law. Statehood is a relativist, bilateral matter of pure fact and politics, and states and international organisations are left to decide individually whether they treat an entity as a state for their specific purposes. Palestine has been treated as a state by the majority of states and international organizations (over 130, as noted by the OTP decision). The relevant question is whether Palestine can be considered a state for the Rome Statute, which is why it is arguably for the Court to determine Palestine’s statehood status. In the wake of Palestine’s UN initiatives, Al-Haq published Questions and Answers on Palestine’s UN Initiatives and the Representation of the Palestinian People’s Rights’ which examine some of these questions.

In formulating its own practice in this regard, it is only reasonable that the OTP should be informed by the UN Secretary-General’s and others’ practice, whilst also relying on its own established institutional apparatus, including the Assembly of States Parties (ASP), which Akande notes is the most logical body to resolve this matter. So when ICC Chief Prosecutor Luis Moreno-Ocampo told Al-Arabiya that “In order to proceed we need the General Assembly of the UN accepting Palestine as an observer state,” he was arguably directing the issue to the wrong place. Moreover, as Amnesty International points out, “delegating this decision to a political body undermines the vital independence of the Court and exposes the ICC to political influence over justice issues.” The position of Amnesty, which called “for an independent judicial determination of the issue by the ICC judges rather than a political determination by external bodies,” is that “the ICC Pre-Trial Chamber is currently the only judicial body that can conduct such a legal process.”

Be that as it may, the OTP was arguably wrong to remove the matter from its case docket. The fact that the OTP does not have a procedure or practice on the determination of statehood status does not let the OTP off the hook. The fact that there is no set procedure for the OTP to make a determination on the statehood status of an entity that brings a declaration before it does not mean that the OTP has nowhere to turn for help in resolving the issue. The indeterminacy of the question of statehood status in international law has been managed in practice through procedural avenues, such as the example of the UN Secretary-General’s practice in his role as a depository of international treaties who either seeks guidance from the General Assembly or looks at whether the entity was admitted to a UN agency to consider it a “state,” as Schabashas pointed out. The Secretary-General’s interpretation of the so-called “All States” clause, found in the majority of treaties for which he acts as depository, is a telling example for the way certain procedural gateways within the international legal order have emerged to re-formalize the de-formalized definition of a “state” in international law, and re-inject this hollow shell with some context-specific, operational content.

Whether or not one agrees with the OTP’s argument that it is not the appropriate authority to make a determination concerning the status of an entity under international law, it should be recalled that over the course of three years, the OTP itself presented the Palestinian legal services with elaborate, substantive questions; called for the submission of expert opinions to the Court by various practitioners and institutions; and initiated an extensive academic debate surrounding the legal issues. If the OTP has now concluded that it is not the one to decide on these questions to start with, it should also have explained why it took so long to arrive at this conclusion, after having gone to such lengths to examine these very questions.

If its extensive examination had left the OTP stymied, it would have been more appropriate for the OTP to redirect the challenging questions it had formulated either to the ASP or to the General Assembly, if there were good reason to do so. Instead, this dramatic change in the OTP’s approach to the examination process raises doubts about both the propriety and adequacy of the examination that led it to this decision, and the true motives behind its sudden decision.

The OTP’s actions to date amounted to an implicit assurance that it would persist with a substantive examination of these questions, involving other relevant bodies if necessary. The OTP acknowledged the possible relevance of Palestine’s UN initiatives in recent months and reportedly stated that it was waiting for the UN to process Palestine’s application for membership.

The OTP’s fuzzy reasoning, which blurred the law and the politics of international relations, begs the question of whether the decision on Palestine was as impartial and rigorous as should be expected. Arguably, the sharp turn in the OTP’s approach could even form the basis for a claim that the quality of the examination breached the OTP’s professional duties to ensure a standard of rigor and impartiality in its examination of cases. It recalls Schabas’s remark about the outrage that would arise if a national prosecutor would whimsically decide to investigate crimes from some neighborhoods whilst ignoring others, the way the OTP has done. This move by the ICC is indeed “dangerous,” as Amnesty notes, for at least two reasons: for the message it sends about certain actors being out of the Court’s reach, and for further politicizing the Court’s work.

As for Palestine’s options looking ahead, this decision in itself appears to be only procedural; its reversal or reaffirmation depends on a determination from the UN concerning Palestine’s statehood status. Even if the OTP has closed Palestine’s file for the time being, the General Assembly could apparently require the OTP to reopen it by adopting a resolution upholding Palestine’s statehood. So could a choice by Palestine to deposit instruments of accession to the ICC on the basis of its status as a state member of UNESCO, which places it within the Secretary-General’s understanding of a state in his practice as depository of treaties, which includes members of UN agencies.

Palestine could downplay the significance the OTP’s decision, argue that it is procedurally improper and politically obstructive, and recall the substantive and procedural flaws made by the OTP throughout the examination process. Nonetheless, the OTP’s decision may well focus Palestinian energies back on its other UN initiatives from September 2011, namely the need to obtain a General Assembly resolution on its statehood status. If at some point Palestine’s Article 12(3) declaration is resurrected, this will be significant due to the declaration’s retroactive coverage of Israel’s “Operation Cast Lead” in the Gaza Strip. Nonetheless, Palestine should also submit accession instruments to the Rome Statute through the Secretary-General who acts as its depository to become a full state party — a call that has been recently made bySchabas and the Palestinian Centre for Human Rights, a prominent Palestinian human rights organization based in the Gaza Strip.

Suggested citation: Valentina Azarov, ICC Jurisdiction in Palestine: Blurring Law and Politics, JURIST – Forum, Apr. 9, 2012, http://jurist.org/forum/2012/04/valentina-azarov-icc-palestine.php.