Palestinian Statehood and the International Criminal Court: A Curious Condition from Whitehall  By Prof. William A. Schabas

Britain is prepared to join other EU countries in support of Thursday’s vote in the General Assembly to recognize Palestine as a full observer State of the United Nations, but subject to an interesting condition, according to today’s Guardian.

‘Whitehall officials said the Palestinians were now being asked to refrain from applying for membership of the international criminal court or the international court of justice, which could both be used to pursue war crimes charges or other legal claims against Israel’, writes Ian Black, the newspaper’s Middle East editor.

Article 125 of the Rome Statute declares that ‘all States’ may accede to it. Such a formulation is used so as to enable non-member States of the United Nations to join the International Criminal Court. It was adopted at a time when Switzerland was not yet a member of the United Nations.

Recognition of Palestine as a full ‘Observer State’ by the General Assembly would then enable it to accede to the Rome Statute. This would also clarify any doubt about the validity of the declaration formulated by Palestine in January 2009 giving jurisdiction to the Court (but without joining it, something permitted by article 12(3) of the Statute).

What is so intriguing about the British ‘condition’ is the suggestion that membership in the Court might be bargained for recognition. The United Kingdom is a member of the Court, and would be expected to encourage States to join, not discourage them.

Similar thoughts concerning conditions that might be associated with recognition of Palestinian statehood or even a peace agreement between Palestine and Israel were expressed a few weeks ago at the Washington University conference by Ambassador David Scheffer. He suggested that a final peace agreement might include a clause by which the parties agreed not to appeal to the International Criminal Court with respect to past allegations.

Earlier this year, the Prosecutor of the International Criminal Court refused to act upon the January 2009 declaration by Palestine saying that he lacked authority to determine whether Palestine was a State. He said that this was to be decided by the General Assembly or, possibly, by the Assembly of States Parties.

The Prosecutor does not have the power to set the agenda of the Assembly of States Parties. However, one might think that when he or she suggests it might consider an issue that this would at the very least come up for discussion. Professor John Dugard and myself, along with several other academics, wrote to the President of the Assembly of States Parties several weeks ago urging that this question be addressed at the recent Eleventh Session.

It was not. A few days ago, Professor Dugard received a letter from the President of the Assembly of States Parties, explaining that ‘for any items to be included on the agenda of the Assembly they would have to be proposed by a State Party, the Court or by the United Nations’. One can only conclude that the failure of any of these bodies to proceed on the basis of the Prosecutor’s suggestion amounts to rejection.

The Prosecutor was indeed wrong to think this was a matter for the Assembly of States Parties. That no State Party took up the issue confirms this. Whether or not any particular entity is actually a ‘State’ for the purpose of applying article 12(3) of the Statute is a jurisdictional fact to be assessed and debated within the Court, at various stages of the procedure. It may be raised by the Prosecutor, by the judges and even by a defendant. For example, the Holy See is an ‘Observer State’ at the United Nations, but would it not be possible for an accused person to question its status as a State, as Geoffrey Robertson QC did in his recent book the Case Against the Pope?

Be that as it may, even if the vote in the General Assembly is not necessary for the Statute to operate, confirmation that Palestine is indeed a State will dispel any ambiguity and throw the ball back into the Prosecutor’s court. She should then examine the Goldstone report, with its credible and serious allegations of war crimes and crimes against humanity perpetrated in Gaza in early 2009