Thursday, 3 November 2011

Relevant Depositary Practice of the Secretary-General and its Bearing on Palestinian Accession to the Rome Statute

Earlier this week, I posted a blog entry discussing possible accession by Palestine to the Rome Statute. Were Palestine to attempt accession, by depositing a document with the Secretary-General of the United Nations (who is depositary of the Rome Statute), the question of the Secretary-General’s reaction arises. I had dinner with Prof. Andrew Clapham in Geneva yesterday evening, who helpfully pointed me to the Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties.
The Summary of Practice discusses multilateral treaties open to ratification or accession by ‘all States’. This is the case for the Rome Statute of the International Criminal Court. Here is the relevant paragraph (references omitted).

2. The "all States formula"

81. Nevertheless, a number of treaties adopted by the General Assembly were open to participation by "all States" without further specifications (see, for example, the Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons). In reply to questions raised in connection with the interpretation to be given to the all States formula, the Secretary-General has on a number of occasions stated that there are certain areas in the world whose status is not clear. If he were to receive an instrument of accession from any such area, he would be in a position of considerable difficulty unless the 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.

3. The practice of the General Assembly.

82. This practice of the Secretary-General became fully established and was clearly set out in the understanding adopted by the General Assembly without objection at its 2202nd plenary meeting, on 14 December 1973, whereby "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. The "practice of the General Assembly", referred to in the above-mentioned understanding is to be found in unequivocal indications from the Assembly that it considers a particular entity to be a State even though it does not fall within the "'Vienna formula". Such indications are to be found in General Assembly resolutions, for example in resolutions 3067 (XXVIII) of 16 November 1973, in which the Assembly invited to the Third United Nations Conference on the Law of the Sea, in addition to States at that time coming within the long-established "Vienna formula", the "Republic of Guinea-Bissau" and the "Democratic Republic of Viet Nam", which were expressly designated in that resolution as "States".
Thus, should the General Assembly recognize Palestine as a State in the coming weeks, the Secretary-General would be satisfied and would accept an accession by Palestine to the Rome Statute. The so-called ‘Vienna formula’ is derived from the Vienna Convention on the Law of Treaties, and allows participation by ‘all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or Parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention’. But this is not what the Rome Statute provides, so the Vienna formula is not relevant here.

It seems that even without General Assembly endorsement, the recognition of Palestine as a State by UNESCO would be sufficient. Here are the relevant paragraphs:
 C. Applications of the practice of the General Assembly 1. Colonial countries upon independence 

84. Further decisions of the General Assembly, taken within the context of its deliberations on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples (see para. 264 below), noted with satisfaction the accession of various countries to independence. Such was the case, for example, with the decision concerning Brunei taken within the context of agenda item 18 at the thirty-eighth session. These decisions have been considered by the Secretary-General as allowing for the inclusion of those newly independent countries in the "all States" formula. 

2. Cook Islands 

85. The question of whether the Cook Islands was an "independent" entity,
i.e. a State, was also raised. For a period of time it was considered that, in view of the fact that the Cook islands, though self-governing, had entered into a special relationship with New Zealand, which discharged the responsibility for the external affairs and defence of the Cook Islands, it followed that the status of the Cook Islands was not one of sovereign independence in the juridical sense. Moreover, the General Assembly, in its resolution 2064 (XX) of 16 December 1965 on the question of the Cook Islands, had reaffirmed the responsibility of the United Nations "to assist the people of the Cook Islands in the eventual achievement of full independence, if they so wish, at a future date". That resolution, which was adopted in view of a change in the status of the Cook Islands, further indicated that the latter had not yet attained full independence within the meaning of the term in United Nations usage. It followed that, unless specifically invited to participate in a treaty, the Cook Islands could not invoke the "all States" clause.86. However, in 1984, an application by the Cook Islands for membership in the World Health Organization was approved by the World Health Assembly in accordance with its article 6, and the Cook Islands, in accordance with
 article 79, became a member upon deposit of an instrument of acceptance with the Secretary-General.... In the circumstances, the Secretary-General felt that the question of the status, as a State, of the Cook Islands, had been duly decided in the affirmative by the World Health Assembly, whose membership was fully representative of the international community. The guidance the Secretary- General might have obtained from the General Assembly, had he requested it, would evidently have been substantially identical to the decision of the World Health Assembly. The same solution was adopted by the Secretary-General when Niue, in 1994, applied for membership in the World Health Organization. Moreover, on the basis of the Cook Islands' membership in the World Health Organization, and of its subsequent admittance to other specialized agencies (Food and Agriculture Organization of the United Nations, United Nations Educational, Scientific and Cultural Organization and International Civil Aviation Organization) as a full member without any specifications or limitations, the Secretary-General considered that the Cook Islands could henceforth be included in the "all States" formula, were it to wish to participate in treaties deposited with the Secretary-General.
I think the previous paragraph makes it clear that admission to UNESCO would be satisfactory as far as the Secretary-General is concerned. Its membership is ‘fully representative of the international community’ and any guidance from the General Assembly would be ‘substantially identical’ to the position taken by UNESCO earlier this week.
Thus, nothing stands in the way of Palestine acceding to the Rome Statute except Palestine itself.
The Prosecutor of the International Criminal Court might also take some guidance from the practice of the Secretary-General. If UNESCO membership is good enough for the Secretary-General in terms of accession to an 'all States' clause, then it should be good enough for the Prosecutor in terms of the application of article 12(3) of the Rome Statute. He should now move on to an assessment of the substance of the allegations that crimes under the Statute have been committed in Palestine since 1 July 2002.

7 comments:

Harlan said...

It is logically inconsistent for the ICC to deal with Palestine as a non-state actor, when so many of its member states have long-since extended it formal recognition.

The meaning of the undefined term "third State" in article 98(1) can ultimately be cited to adduce the meaning of the term "State" in Article 12(3) and answer the questions posed here in the past by Dov Jacobs, Michael Kearney, and others. Neither the Court nor the Secretary General have the boundless discretion to ignore the official submission provided by the Arab League to the Office of the Prosecutor regarding multilateral agreements with the State of Palestine on diplomatic immunity and extradition of terrorists for crimes subject to the jurisdiction of the Court. Similar multilateral agreements exist with the 56 OIC member states.

The Secretary General and ICC should consider the practice of other multilateral treaty organizations along with the practice of the General Assembly and UN specialized agencies. It must be recalled that the General Assembly had affirmed that the option of a Palestinian state is a matter of self-determination that is not subject to the peace process or to any veto. See operative paragraphs 1&2 of resolution A/RES/55/87, 21 February 2001.

The General Assembly also endorsed the ICJ Advisory Opinion which affirmed the responsibility of all the parties concerned to remove any impediment to the exercise of the right of self-determination by the Palestinian people. See ES-10/15, 2 August 2004

When the General Assembly adopted resolution 3314 (XXIX) (1974) "Definition of Aggression" it provided a very broad definition of the term "State". That definition has been incorporated by reference in the recent amendments to the Rome Statute. Some have argued that the Court has no authority to make determinations regarding statehood, but 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.”

Similar examples can be adduced for the necessity of such determinations in cases of population transfer or deportation, e.g. see "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)"

In the Case Concerning The Military And Paramilitary Activities In And Against Nicaragua, the ICJ cited a portion of the Definition of Aggression containing the term state and noted that it reflected customary practice. The ICJ said that it was clear that it is the State which is the victim of an armed attack which must form and declare the view that it has been attacked.

Presumably the same test could apply in a case where a so-called "Bantustan" is the victim state of the crime of apartheid. It would certainly be an odd result if copyrights are given better legal protection than communities of human beings. Bophuthatswana, Transkei, Venda and Ciskei may be considered legal nullities for the purpose of international criminal law, but great care has been taken after the fact to integrate intellectual property rights subsisting in those states into the national and international legal systems, e.g. See for example the Intellectual Property Laws Rationalisation Act, 1996.

Deborah said...

As a proud student of Prof. Clapham I agree with this view. On a side note, it is interesting that Palestine decided to make a declaration and not to ratify the Statute. It seems that there is no full agreement within the Palestine Authority on that point yet.

The avenue you suggest Professor on calling the Prosecutor to use the SG practice might be desirable, but it might be asking too much from the Prosecutor or the ICC to initiate a debate on statehood.

However, if there is genuine international support to such opening of an investigation there is an alternative route to allow the Prosecutor and the Judges be part of this decision-making without initiating it.

The solution lies in the Statute itself. Art. 12.3 if linked to Article 13c and 15 relies solely on the Prosecutor finding that there is 'reasonable basis to open an investigation'. The Rome Statute provides no mechanism of accountability to 'force' the Prosecutor to explain why or how come he or she did NOT find those grounds. Indeed, Article 15, applicable to proprio motu action aims at controlling an over-active Prosecutor.

The drafters were not too worried about an inactive Prosecutor, but the States Parties have some say here. Article 13a is also relevant to a declaration under 12.3 and may provide, in my view a solution, to activate the discussions on jurisdiction in Palestine. If a state party, that considers the 12.3 declaration of Palestine valid refers the situation of Palestine to the ICC, the Prosecutor would have to open the investigation, UNLESS he finds NO reasonable basis to commence an investigation. (Art 53.1) The Prosecutor is accountable to raise legal grounds for lack of jurisdiction (Art. 53.2.a), and the State party that referred the situation must be informed (Art. 53.2.c), and can challenge such discussion.

The participation of states in this process would enrich the legal discussion and would force a desirable level of accountability for the prosecutorial policy. The participation of states in the legal process may also reduce the political burden on ICC organs to initiate this discussion.
This solution applies globally. If states are so genuinely concerned about the focus of the Prosecutor on Africa, they have in Article 13.a a solution. hAny state party could refer the situation in Afghanistan to the ICC, or the situation in Colombia, or the situation in Georgia. Such a practice on the basis of factual information could eventually contribute to normalise the practice of referrals and active examinations on situations where there are concrete indicators of the occurrence of the most serious crimes. It would also enhance accountability of the Prosecutor and of states to respond to situations potentially under the jurisdiction of the Court.

Harlan said...

Deborah you write "If a state party, that considers the 12.3 declaration of Palestine valid refers the situation of Palestine to the ICC, the Prosecutor would have to open the investigation,..."

Four members of the League of Arab States are state parties. The Prosecutor received submissions from League Secretariat including a report from its own international fact finding mission to Gaza and an exhibit listing the various multilateral agreements between the members and the State of Palestine.

Why shouldn't the Prosecutor consider that material a valid referral from Jordan, Comoros Island, Djibouti, and Tunsia? In any event, the Prosecutor already has an Article 12(3) declaration in hand from an entity that is a full member state of the Arab League, the OIC, and a UN special agency - UNESCO. Professor Schabas is correct. The Prosecutor should react to the UNESCO vote and move on to an assessment of the substance of the allegations that crimes under the Statute have been committed in Palestine since 1 July 2002.

Deborah said...

Harlan, your position is that the "Prosecutor should react to the UNESCO vote and open an investigation in the situation in Palestine". Your 'should' is a moral or a logic one on the basis of the available legal bases. My comment instead addresses a procedural 'should'. The Prosecutor has no obligation, under the Rome Statute to open an investigation. The drafters were not concerned with an inactive Prosecutor. My point instead is to highlight that if states parties refer, under Article 13(a) the situation in Palestine they would create a 'procedural obligation'.

I do not agree with you that the submission of information under Article 15 is the equivalent of a referral. The referral should clearly give indications to conclude that the given state party is referring a given situation on the basis of Article 13(a). It would be legally wrong, and politically dangerous for the Prosecutor to consider 'points of view' as legal basis for opening of investigations.
A proper formal referral would be instead not only legally sound but also procedurally compelling.
My appeal thus is to broaden the pool for responsibility for the lack of action in Palestine to the entire international community that has the tools to move forward but does not use them. It is erroneous legally (under the Rome Statute) and politically to think that the Prosecutor of the ICC is the sole entity capable to spinning the ICC machinery. My same comment applies to those states who complain of the lack of activity in regions other than Africa. Where are the ratifications from Arab Countries? Why is the AU no-cooperation resolution not been revoked while at the same time they are calling for ICC action in Somalia? Where are the referrals under Article 13(a) or 13(b) for the many recent or ongoing instances of crimes against humanity and war crimes (Afghanistan, Colombia, Lebanon, Sri Lanka, Syria, Myanmar, Yemen)? The situation in Palestine is just another example where "supportive states" hide behind institutions only alleging solidarity with the victim in Palestine. Genuine support for ICC intervention in Palestine 'morally' should and legally 'could' be expressed through a referral under Article 13(a).

Harlan said...

Deborah the Registrar advised that the Judges would to decide at the appropriate moment if Palestine's communications fulfilled the requirements of Article 12(3). Instead we've been given a status update which indicates that the Prosecutor has decided that Palestine is not a state.

I haven't found any legal requirement or published procedure in the Court's rules that requires a member state to do a delicate dance or anything special when it refers a report containing evidence of war crimes or crimes against humanity to the Prosecutor. I'm sure the Judges could determine whether or not it meets the criteria of the Statute for a state referral without anyone having to spell things out for them. After all, Wikileaks revealed that the IDF's JAG said that Israel considered Palestine's Article 12(3)declaration an act of war and asked for US help in getting it quashed. http://wikileaks.org/cable/2010/02/10TELAVIV417.html

Four State parties to the Rome Statute and Palestine are fully represented in the Secretariat of the League of Arab States and the Prosecutor reported to he Deputy High Commissioner for Human Rights that he paid an official visit to the Secretariat in Cairo to discuss the report submitted by an Independent International Fact Finding Mission that was established by the League.

Baby Siqueira Abrão said...

I'm a journalist graduated in Philosophy, not an especialist in International Law, and because of that I want to put here my doubts:
1. Where, in the Rome Statute, is said that the Prosecutor has the competence for accepting or not an investigation based on the status of a country, that is, if it is or not a State? I've read the Rome Statute and haven't seen anything like that. I've only seen that the Prosecutor has the competence for open or not an investigation based on proves or informations about the crimes, not based on something I consider prior to that (the right of a country to ask for investigations). To me it seems that the Prosecutor would have to refer this question to other ICC's instances;
2. Palestinian National Council, Palestine's representative body, declared Palestine's statehood in 1988. Because of that, Yasser Arafat, then chairman from PLO, was invited to UN GA, which, as John Quigley remind, "adopted a resolution in which it
'acknowledg[ed] the proclamation of the State of Palestine by the Palestine National Council on
15 November 1988,' and, further, decided that 'the designation 'Palestine'should be used in
place of the designation 'Palestine Liberation Organization'in the United Nations system.' One
hundred four states voted for this resolution, forty-four abstained; only the United States and
Israel voted against.
That strong vote indicates that Palestine was regarded as a state. Had there been
opposition, it would have been expressed. One may contrast in this regard the U.N. reaction in
1983 to a declaration of statehood for a Turkish Republic of Northern Cyprus. The international
community found this declaration invalid, on the grounds that Turkey had occupied Cypriot
territory militarily and that the putative state was an infringement on Cypriot sovereignty." (In THE PALESTINE DECLARATION TO THE INTERNATIONAL CRIMINAL COURT:THE STATEHOOD ISSUE - http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B1-ACC0-B41706BB41E5/281882/QuigleyPalestinedeclarationandtheICC1.pdf). So, prior the UNESCO, the IN GA recognized Palestine as a State. As Quigley document was adressed to the Prosecutor, why he didn't take it in consideration too? To me it's very strange, because, if he has done so, the question on which he's based to got his decision was resolved and he could open the investigation. Besides, Palestine go to UN in September 2011 for asking full membership, not for be recognized as a State, because UN GA has yet decided it is a State;
3. To be or not a full member of UN is not an imperative for a country to be recognized as a State. See the case of Switzerland.
4. According Vienna, a country is recognized as a State if it is part of some UN bodies. Palestine is part, as a State, of UNESCO;
5. I've read in Ynet website a declaration from Avigdor Lieberman according which his ministry "work(s) hardly" against Palestine bid in ICC, and to me it seems it can be an answer for the strange decision taken by the Prosecutor. I'm sorry to say that, but I've been studied Zionism for many years and because of that I know well some of their practices;
6. I understand that, before crimes, the rights of the victims precede procedural details. As Goldstone Report concluded, it seems that there were crimes against humanity in Gaza, during the Cast Lead Operation. So, it's very important investigate and clarify the case, in order of preventing that Israeli government keep violating human rights in Palestine. I've been lived there in 2011, as a Brazilian international press correspondent, and I can testify that Israeli army perpretates crimes which fit in the IV Geneva Conventions and Rome Statute.
Sorry for my English grammar mistakes (I'm not writing in Portuguese, my mother language) and thanks for your consideration.
Baby Siqueira Abrão

Harlan said...

Re: "Where, in the Rome Statute, is said that the Prosecutor has the competence for accepting or not an investigation based on the status of a country, that is, if it is or not a State?"

Article 12 contains preconditions to the exercise of jurisdiction that are only applicable to States.

Article 4 of the Rome Statute explains that the Court has its own international legal personality.

In the "Reparations" case, the ICJ noted that the UN organization had its own personality and possessed rights that the members are bound to respect, including the power to conclude binding agreements on its own behalf with other parties. For example, the United Nations has the right to make arrangements to exercise its powers and functions on the territory of the State of Israel whether or not all of the UN members choose to recognize Israel as such.

Article 4 of the Statute also allows the Court to exercise its functions and powers, by special agreement, on the territory of "any state".

The Prosecutor can conclude agreements with non-member states to provide assistance (Article 87) and the Court can conclude agreements with any state (Article 54) in order to obtain cooperation and assistance. The Defintion of Aggression finally agreed upon for the Rome Statute cites and conforms to the definition found in UN General Assembly Resolution 3314 (XXIX). The definition in the resolution contains an explanatory note which says that the term "State" is used without prejuduice to questions of recognition or UN membership.

So there's an implicit capacity for the Court or the Prosecutor to use the term "State" when making determinations regarding aggression or concluding agreements with entities without regard to recognition or UN status.

All states have the capacity to conclude treaties. There are now 130 countries that have recognized Palestine. They are presumably under an obligation to treat it as a High Contracting Party to the Geneva Conventions. I don't think the Prosecutor has the option of treating that situation as anything other than a question of fact. The 2004 ICJ advisory opinion in the Wall case identified at least one grave breach of the 4th Geneva Convention, which is subject to the ICC's jurisdiction. The ICJ advised that all of the High Contracting Parties had responsibilities in that connection.

It's embarrassing to argue that an entity can be considered a member of the international community of states for the purposes of 130 countries and UNESCO, but not for the purposes of some other states and the ICC. An unrecognized state should not be treated as a legal nullity under international law.