Thursday, 20 September 2012

Assembly of States Parties Should Consider Palestine Statehood Issue

A group of prominent academics in the field of international law has written to the President of the Assembly of States Parties of the International Criminal Court asking that she put the issue of Palestinian statehood before the next session of the Assembly.  Earlier this year, this blog reported on the decision of the Prosecutor of the Court not to proceed upon the declaration by Palestine giving jurisdiction to the International Criminal Court. The Prosecutor decided that deciding upon whether or not Palestine was a State did not fall within his remit. He suggested that this issue lay with the United Nations General Assembly or, possibly, with the Assembly of States Parties.
The decision was criticized by many observers, including this blog. Palestinian statehood is simply a fact, like so many others, that the Prosecutor must consider in exercising his (now, her) authority. But since the Prosecutor has suggested that this hot potato be passed to the Assembly of States Parties, the letter to the President asks that the matter be followed up.
Here is the letter to the President of the Assembly of States Parties.

1 comment:

Harlan said...

Re:" The Prosecutor decided that deciding upon whether or not Palestine was a State did not fall within his remit.

By the time that he wrote the opinion, Palestine was already a full member of UNESCO. The UN Vienna Conventions on the Law of Treaties and Diplomatic Relations both stipulate that members of UN special agencies belong to a "category of states" which have an open invitation to become state parties to those two particular international agreements. That's a matter fact, and a matter of customary and conventional international law that was codified by the terms of those two conventions - and the same rules apply to any constituent instrument of an international organization, including the Rome Statute.

In the advisory opinion regarding "Reparation for Injuries Suffered in the Service of the United Nations," the International Court of Justice noted that the members had established an Organization with the intent to bring into being an entity possessing objective international personality - and that it had been given the legal capacity to conclude agreements with the members. The Court also acknowledged that the Members, by entrusting certain functions to it, with the attendant duties and responsibilities, had clothed it with the competence required to enable those functions to be effectively discharged.

The Rome Statute affirms that the ICC has its own international legal personality. It also states that the Court can exercise its jurisdiction on the territory of any state by special agreement. Various provisions entrust the Prosecutor (Article 54) and the Court (Article 87) to enter into agreements with any state.

Several State Parties of the ICC are members of the League of Arab States or the Organization of the Islamic Conference. They have each entered into multilateral treaties on extradition and immunity with third states, including the State of Palestine. The League furnished an exhibit which contained a table of treaties between Palestine and its members to the Prosecutor. That's an undisputed fact which Article 98 tends to place beyond the remit of any organ of the Court.

It logically follows that the Prosecutor already has the authority to enter into special agreements with third states that have established formal relations with the state parties to the Statute. A "third state" for the purposes of Article 98 is also a "state" for the purposes of Article 12(3).