Bijlage 1.ICC Dissenting Opinion Judge Péter Kovács.jurisdictie Palestina.CR2021 01167.PDF

To select only the wording ‘if one or more of the following States are Parties to this

Statute’ and to wilfully disregard the portion ‘or have accepted the jurisdiction of the Court in accordance with paragraph 3’, is surprising. Moreover, the importance of the conjunction ‘or’ is obvious in this disposition of the Statute. We might thus speak of a construction based on two limbs: namely that the Court may exercise jurisdiction when States ‘are Parties to this Statute’, but also when States ‘have accepted the jurisdiction of the Court in accordance with paragraph 3’. 57.

Thus, it is clear that the interpretation of the word ‘following’ in paragraph 93 of the

Majority Decision is flawed because, grammatically, the word ‘following’ is manifestly related to both limbs (i. States which ‘are Parties to this Statute’ and ii. States which ‘have accepted the jurisdiction of the Court in accordance with paragraph 3’), and not only to the first one. To limit the applicability of the word ‘following’ only to the first limb would be grammatically incorrect and annihilate the legal value of the conclusion in paragraph 93 of the Majority Decision (‘In more specific terms, this provision establishes that the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute must, in conformity with the chapeau of article 12(2) of the Statute, be interpreted as referring to a State Party to the Statute.’). Majority Decision, para. 93 (‘The Chamber notes however that the chapeau of article 12(2) of the Statute stipulates in the relevant part that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute”. The word “following” connects the reference to “States Parties to this Statute” contained in the chapeau of article 12(2) of the Statute with inter alia the reference to ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute.

In more specific terms, this provision establishes that the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute must, in conformity with the chapeau of article 12(2) of the Statute, be interpreted as referring to a State Party to the Statute. It does not, however, require a determination as to whether that entity fulfils the prerequisites of statehood under general international law.’) (footnotes omitted). 57

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58.

If we take into account the importance of the conjunction ‘or’ and identify both limbs,

we arrive at the conclusion that the word ‘State’ was probably understood by the drafters in its traditional, ordinary meaning. 59.

However, a purely grammatical interpretation does not provide an answer to the question

of what is to be done when a ‘State Party’ is not a State or its statehood is not yet fully fledged. Further, it cannot entirely answer the question of how to interpret the interplay between articles 12 and 13 in such an hypothesis. To answer this question, all methods of interpretation contained in the Vienna Convention on the Law of Treaties 58 (the ‘VCLT’ or the ‘Vienna Convention’) should be applied. 60.

Although the Majority assumes that it follows the rules of interpretation of the Vienna

Convention, I cannot say that its interpretation indeed conforms to articles 31 and 32 of the said convention. 61.

The Majority satisfies itself with having recourse only to article 31 of the Vienna

Convention, and by doing so, its interpretation is not lege artis. This is obvious when one reads paragraph 93 of the Majority Decision,59 which suggests that the formula ‘States Parties to this Statute’ appears in the chapeau of article 12(2) of the Statute, when in reality, the formula worded as such, does not. Article 12(2) of the Statute rather reads: ‘if one or more of the following States are Parties to this Statute’.60 The arbitrary disappearance of the word ‘are’ in the phrase ‘States are Parties to this Statute’ is not explained at all, and paragraph 94 is worded in such a way as to suggest that the chapeau contains two similar expressions, namely ‘States are Parties to this Statute’ and ‘States Parties to this Statute’. Of course, only the former is actually present in the chapeau, and the latter is not more than the Majority’s creation. 62.

Moreover, instead of using legal arguments, the Majority uses its own perception in order

to prove its point.61 In other words, the Majority’s reasoning is flawed due to its circular logic 58

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 United Nations Treaty Series 18232. Majority Decision, para. 93 (‘The Chamber notes however that the chapeau of article 12(2) of the Statute stipulates in the relevant part that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute”. The word “following” connects the reference to “States Parties to this Statute” contained in the chapeau of article 12(2) of the Statute with inter alia the reference to ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute.) (emphasis added). 60 Emphasis added. 61 Majority Decision, para. 93 (‘In more specific terms, this provision establishes that the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute must, in conformity with the chapeau of article 12(2) of the Statute, be interpreted as referring to a State Party to the Statute. It does 59

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whereby proper inferences are not made: point A proves point A. The formulation of the premises used in the Majority’s syllogism is unconvincing to me. 63.

At the end of paragraph 93, in stating that ‘[i]t does not, however, require a determination

as to whether that entity fulfils the prerequisites of statehood under general international law’, the Majority seems to pay no attention to article 31(3)(c) of the Vienna Convention.62 I have to note, however, that the Chamber (under the same composition) adopted a very different view in the Rohingya Decision63 when it referred to the applicability of international law in the contextual interpretation of article 12(2)(a) of the Statute expressis verbis. This was also the approach taken by Pre-Trial Chamber III in its decision in the same situation.64 64.

It is worth remembering that the Preamble of the Statute refers several times to ‘States’

(more precisely once as ‘States Parties’, once as ‘every State’, once as ‘all States’ and twice as ‘any State’).65 So do the articles of the Statute: among them, I cite only article 8bis on the crime of aggression,66 the English text of which follows quasi verbatim Resolution 3314 (XXIX) of not, however, require a determination as to whether that entity fulfils the prerequisites of statehood under general international law.’). 62 VCLT, article 31 (3) (‘There shall be taken into account, together with the context: […] (c) any relevant rules of international law applicable in the relations between the parties.’). 63 See PTC I Rohingya Decision, para. 64 (‘In this regard, the Chamber considers that the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute are, as a minimum, fulfilled if at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.’), 65 (‘First, this finding is based on a contextual interpretation of article 12(2)(a) of the Statute, which takes relevant rules of international law into account.106 In this regard, the Chamber observes that public international law permits the exercise of criminal jurisdiction by a State pursuant to the aforementioned approaches.’) and n.

106 referring to Article 31(3)(c) of the Vienna Convention on the Law of Treaties; Observations of Members of the Canadian Partnership for International Justice, ICC-RoC46(3)-01/18-25, para. 19. 64 Pre-Trial Chamber III, Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, 14 November 2019, ICC-01/19-27, para. 55 (‘As noted above, the wording of article 12(2)(a) is generally accepted to be a reference to the territoriality principle. In order to interpret the meaning of the words ‘on the territory of which the conduct occurred’, it is instructive to look at what territorial jurisdiction means under customary international law, as this would have been the legal framework that the drafters had in mind when they were negotiating the relevant provisions. It is particularly significant to look at the state of customary international law in relation to territorial jurisdiction, as this is the maximum the States Parties could have transferred to the Court.’) (footnotes omitted).

65 Statute, Preamble (‘The States Parties to this Statute […] [r]ecalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all States shall refrain from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations, Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State’). 66 Statute, article 8bis (‘Crime of aggression’) (‘1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale,

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the General Assembly. Obviously, in this article, the notion of ‘State’ is to be understood in its traditional sense: if the perpetrator entity or victim entity is not a State, then the crime of aggression cannot be constituted. In article 8bis of the Statute, the notion of ‘territory’ (‘territory of another State’ or ‘a State in allowing its territory’) should not be taken lightly either. In my humble view, the wording of article 8(3) of the Statute 67 also points to the understanding that the word ‘State’ is used in its traditional sense, or in other words, as it is used in the Charter of the United Nations. 65.

Even in article 12(2) of the Statute, we find the word ‘State’ in ‘State of registration of

that vessel or aircraft’ and ‘State of which the person accused of the crime is a national’.68 66.

In its interpretation ‘in the light of the object and purpose of the Statute’, the Majority’s

recourse to the Preamble of the Statute seems one-sided. The two sentences quoted,69 one from the Preamble and one from article 1 of the Statute, are without any doubt important but pertinent only to the uncontested issue of individual criminal responsibility. They hardly furnish any additional argument as to the issue of the ‘State’, or the ‘territory of the State’,70 a constitutes a manifest violation of the Charter of the United Nations. 2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.

Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) The blockade of the ports or coasts of a State by the armed forces of another State; (d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (g) The sending by or on behalf of a State of armed bands, groups,

irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.’). 67 Statute, article 8(3) (‘Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’). 68 On the importance of the similarity between the phrase ‘the State, on the territory of which’ and the other notions contained in article 12(2)(a) and (b), see supra paras 43-47. 69 Majority Decision, para. 104 (‘As specified in article 1 of the Statute, the Court has been established to ‘exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute’. The preamble further emphasises that the States Parties are ‘determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes’.). 70 Majority Decision, para. 104 (‘The reference to ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute must, accordingly, be understood as defining the territorial parameters of the Court’s jurisdiction for the sole purpose of establishing individual criminal responsibility.’).

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notion interpreted as ‘defining the territorial parameters of the Court’s jurisdiction’ in the Majority Decision. 67.

Turning to the issue of the ‘principle of effectiveness’ as used in the Majority Decision

(and in the Request),71 I have the following remarks to make. Of course, I do not question the ‘principle of effectiveness’ as such (effet utile, ut res magis valeat, quam pereat), referred to in paragraph 105 of the Majority Decision, but I do not share the conclusion derived from it in paragraph 106,72 nor do I think that this approach is compatible with the Vienna Convention or the Court’s jurisprudence. Request, para. 105 (‘There is no indication that the term ‘State’ in article 12(2) should be interpreted in a different way from that term in article 12(1). Likewise, in the ICC context it would contradict the principle of effectiveness to permit an entity to agree to the terms of the Rome Statute and thereby join the Court, to then later negate the natural consequence of its membership - the exercise of the Court’s jurisdiction in accordance with the Statute.’) (footnotes omitted), para. 114 (‘It would appear contrary to the principle of effectiveness and to allow an entity to join the ICC but then to deny the rights and obligations of accession - i.e. the Court’s exercise of jurisdiction for crimes committed on its territory or by its nationals, whether prompted by the State Party or otherwise.’) (footnotes omitted). 72 Majority Decision, para.

106 (‘Therefore, the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute cannot be taken to mean a State fulfilling the criteria for statehood under general international law. Such a construction would exceed the object and purpose of the Statute and, more specifically, the judicial functions of the Chamber to rule on the individual criminal responsibility of the persons brought before it. Moreover, this interpretation would also have the effect of rendering most of the provisions of the Statute, including article 12(1), inoperative for Palestine.’) (footnotes omitted). 71

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68.

It is worth remembering that when referring to the ‘principle of effectiveness’, different

chambers of the Court (Pre-Trial Chamber, 73 Trial Chamber74 or Appeals Chamber75) took 73

Pre-Trial Chamber II, The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen, Decision on the Prosecutor’s Application that the Pre-Trial Chamber disregard as irrelevant the Submission filed by the Registry on 5 December 2005, 9 March 2006, ICC-02/04-01/05-147, para. 25 (A. ‘The second necessary condition to be met for the Chamber to be able to actually exercise its powers, including the power to assess its own jurisdiction and competence, is that any information which might be relevant for the exercise of such powers be promptly submitted to it. With specific regard to the powers enshrined in article 57, paragraph 3(c), of the Statute, it is of essence for the Chamber to receive without undue delay relevant information to enable it to determine whether it is “necessary” to make provision for the protection of victims and witnesses. To state that the Chamber has a power to provide on its own motion for the security of victims and witnesses, without at the same time ensuring that the information required to do so actually flows to the Chamber, would be tantamount to depriving this power of any meaningful content.

It is a general principle of international law that the provisions of a treaty must be interpreted not only in “good faith in accordance with the ordinary meaning” to be given to the relevant terms, but also “in their context” and “in the light of its object and purpose” (article 31, paragraph 1, of the 1969 Vienna Convention on the Law of the Treaties), i.e., in such a way as not to defeat that object and purpose. The method of interpretation aimed at achieving this result is usually referred to as “functional” or “teleological” interpretation. Equally inferred from article 31 of the 1969 Vienna Convention, and equally generally accepted, is the principle (commonly referred to as “effet utile”, “useful effect” or “principle of effectiveness” ) that a treaty as a whole, as well as its individual provisions, must be read in such a way so as not to devoid either the treaty as such or one or more of its provisions of any meaningful content.’) (emphasis added) (footnotes omitted) ; Pre-Trial Chamber I, Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros, 15 November 2018, ICC-01/13-68, para.

105 (‘Third, even if arguendo a request under article 53(3)(a) of the Statute could potentially be interpreted as not imposing an obligation on the Prosecutor to comply with a decision of the Chamber, as the Prosecutor appears to believe, the principle of effectiveness nonetheless requires that a request under article 53(3)(a) of the Statute be interpreted as entailing an obligation of compliance on the part of the Prosecutor.’) (emphasis added), para. 106 (‘Indeed, according to this principle, “[w]hen a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted”. The possibility of the Prosecutor simply disregarding a decision under article 53(3)(a) of the Statute would mean that the oversight function of the Pre-Trial Chamber is without effect and that a State Party’s opportunity to challenge the Prosecutor’s decision not to proceed with an investigation is devoid of substance. This interpretation must, therefore, yield to the interpretation giving effect to article 53(3)(a) of the Statute, namely that a decision under this provision compels the Prosecutor to comply with it.’) (emphasis added). 74 Trial Chamber V, The Prosecutor v.

William Samoei Ruto and Joshua Arap Sang, Decision on Mr Ruto’s Request for Excusai from Continuous Presence at Trial, 18 June 2013, ICC-01/09-01/11-777, para. 39 (‘That particular debate is easily resolved against the proposition advanced by the Defence. To say that Article 63(1) expresses a right is to presume that the drafter had used words in vain. The law abjures such a presumption. Ut res magis valeat quam pereat. The drafter had clearly expressed a “right” of the accused specifically so described in Article 67(l)(d) “to be present at the trial”. It is not then readily to be supposed that in also providing in Article 63(1) that the ‘accused shall be present during the trial’ the drafter had intended another instance of the same right. Such a supposition would clearly have rendered Article 63(1) entirely redundant.’) (emphasis added); Trial Chamber II, Situation in the Democratic Republic of the Congo, Judgment pursuant to article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG, para. 46 (‘The principle of effectiveness of a provision also forms an integral part of the General Rule as that Rule mandates good faith in interpretation. Thus, in interpreting a provision of the founding texts, the bench must dismiss any solution that could result in the violation or nullity of any of its other provisions.’) (emphasis added); Trial Chamber III, The Prosecutor v.

Jean-Pierre Bemba Gombo, Judgment pursuant to Article 74 of the Statute, 21 March 2016, para. 77 (‘As stressed by the Appeals Chamber, Article 31(1) of the VCLT sets out the principal rule of interpretation, or, as determined by Trial Chamber II, “one general rule of interpretation”. In that sense, Trial Chamber II considered that the various elements referred to in this provision – i.e., ordinary meaning, context, object, and purpose – must be applied together and simultaneously, rather than individually and in a hierarchical or chronological order. It further stressed that, on the basis of the principle of good faith provided for in this provision, the general rule also comprises the principle of effectiveness,

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special care to use standardized wording and specified that they were making a general statement applicable to similar cases in the future. This jurisprudence - grosso modo similar to the dicta of other international courts and tribunals - underlines the importance of the criterion of ‘meaningful content’, to ‘enable the treaty to have appropriate effects’, to avoid ‘rendering any other of its provisions void’ and ‘any solution that could result in the violation or nullity of any of its other provisions’. However, in paragraph 106 of the Majority Decision, after the sentence criticising the restrictive interpretation of article 12(2)(a) of the Statute and repeating that the assessment of the statehood criterion falls outside of the Chamber’s scope of competence, the following statement suddenly appears: ‘Moreover, this interpretation would also have the effect of rendering most of the provisions of the Statute, including article 12(1), inoperative for Palestine.’76 69.

As explained above, the test for the recourse to the ‘principle of effectiveness’ was, until

now, logically a general test of relevance. Should the well-established jurisprudence in regard to article 12(2)(a) of the Statute be considered erroneous for the reason that it does not fit a single (but certainly very complicated) case? 70.

While I profoundly respect the Majority’s standpoint, I have to emphasise that this

reasoning is in contravention of both the law of the Vienna Convention and the Court’s jurisprudence. 71.

I do not contest the importance of jurisprudential innovation but, according to practice,

those developments should be justified by a comprehensive reappraisal of the travaux préparatoires, the emergence of new rules of customary international law, the impacts of new requiring the Chamber to dismiss any interpretation of the applicable law that would result in disregarding or rendering any other of its provisions void. The Chamber agrees with this approach.’) (emphasis added) (footnotes omitted). 75 Appeals Chamber, The Prosecutor v. Omar Hassan Ahmad Al Bashir, Judgment in the Jordan Referral re AlBashir Appeal, 6 May 2019, para. 124 (‘As stated by Pre-Trial Chamber II in the South Africa Decision, if States Parties to the Statute were allowed to rely on immunities or special procedural rules to deny cooperation with the Court, this would create a situation which would ‘clearly be incompatible with the object and purpose of article 27(2) of the Statute’. Indeed, as noted by Pre-Trial Chamber II ‘the Court’s jurisdiction with respect to persons enjoying official capacity would be reduced to a purely theoretical concept if States Parties could refuse cooperation with the Court by invoking immunities based on official capacity’. If article 27(2) were to be read narrowly only to encompass proceedings before the Court (i.e.

the Court’s adjudicatory jurisdiction), it would be unclear, as noted by the Prosecutor, whether any Head of State – even of a State Party – could ever be effectively arrested and surrendered, absent an express waiver by the State concerned. To read the Statute in this way would be contrary to the principle of effectiveness.’) (emphasis added) (footnotes omitted). 76 Emphasis added.

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conventions or jurisprudential interactions between international tribunals, etc. The ‘principle of effectiveness’ has been used rather as an additional argument, alongside others. 72.

I also have doubts about the fact that the ‘ordinary meaning’, as used in the Majority

Decision, is in conformity with article 31 of the Vienna Convention. The formulation chosen by the Majority in paragraph 109 of the Majority Decision (‘In light of the foregoing, the Chamber finds that, in accordance with the ordinary meaning given to its terms in their context and in the light of the object and purpose of the Statute, the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Statute.’) is so complex that it is much closer to a ‘special meaning’ than to an ‘ordinary meaning’. The ‘special meaning’ is of course compatible with the Vienna Convention, but requires the application of its article 31(4).77 Yet, there is no indication that the Majority ever examined the intention of the States participating at the Rome Diplomatic Conference. 73.

This leads me to wonder why the Majority stops at article 31 of the Vienna Convention

– but excluding the recourse to the instruments mentioned in article 31(3)(c) (‘any relevant rules of international law applicable in the relations between the parties’) – instead of profiting from the rules of article 32 of the said convention78 in accordance with the jurisprudence in the Katanga case.79 74.

The argument in paragraph 88 of the Majority Decision stating that ‘recourse to article

31(3)(c) of the Vienna Convention on the Law of Treaties [..] being a rule of interpretation, cannot in any way set aside the hierarchy of sources of law as established by article 21 of the Statute, which is binding on the Chamber’ reflects the Majority’s misunderstanding of the relationship between this disposition of the VCLT and article 21 of the Statute in the context VCLT, article 31(4) (‘A special meaning shall be given to a term if it is established that the parties so intended.’). VCLT, article 32 (‘Supplementary means of interpretation’) (‘Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’). 79 Trial Chamber II, The Prosecutor v. Germain Katanga, Judgment pursuant to article 74 of the Statute, 7 March 2014, ICC-01/04-01/07-3436-tENG, para. 49 (‘It must also be recalled that, in addition to the General Rule, article 32 of the Vienna Convention provides for “supplementary means of interpretation” such as the preparatory work of the treaty and the circumstances of its conclusion.

Having examined the texts in accordance with the General Rule, the bench may then have recourse to the supplementary means of interpretation to confirm the meaning resulting from the application of article 31, or to determine the meaning of a provision where the interpretation according to article 31 “leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable”.’) (emphasis added). 77 78

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of the issue sub judice. When strongly advocating for the sacred character of the hierarchy of norms of article 21(1) of the Statute, the Majority does not take notice of the fact that the legal problems are elsewhere, namely in: i. how to identify the real and full content of those UNO resolutions which are referred to by the Prosecutor; ii. how to measure the actual weight of these resolutions in conformity with international law; iii. how to identify the international agreements, the pertinence of which, is emphasized in these resolutions; iv. how to doublecheck the accuracy of some of the Majority’s statements when it is prima facie evident that conflicts of norms may emerge not only with general international law but also with some recent dicta of the ICC and; vi. when and how to assess whether the norms of article 21(1)(a) of the Statute are in themselves sufficient or that recourse is required to other instruments under article 21(1)(b) of the Statute.80 75.

Everything points towards the conclusion that the interpretation made by the Majority on

the basis of article 31 should have been completed by applying the instruments mentioned in article 32 of the Vienna Convention. The problem with accepting the Majority’s interpretation is that, according to it, ‘[t]he State on the territory of which the conduct in question occurred’ in article 12(2)(a) of the Statute’ is to be understood as a State Party to the Statute, while in the context of article 8bis of the Statute, the very similar wording of ‘the territory of another State’ is to be understood differently. 76.

Moreover, according to the Majority, ruling on the quality of ‘statehood’ does not fall

within the judicial competence of the Court in the context of article 12(2)(a) of the Statute, while in the context of article 8bis of the Statute, a chamber would hardly be able to avoid ruling on the matter if the statehood of the attacking or attacked entity was challenged before it. The same can be said about the necessity of fulfilling the criterion of ‘territory’ understood as ‘the territory of another State’ under article 8bis of the Statute. Therefore, following the Majority’s logic, the assessment of statehood in concreto undeniably falls within the judicial competence of the Court in the context of article 8bis, but not in the context of article 12(2)(a) of the Statute. However, it is hardly arguable that those two contradicting logics would coexist in the same Statute. 80

See also III. The legitimacy and importance of relying on international law when assessing the impact of international legal documents on the situation sub judice.

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77.

To conclude this section, I should say that at least one of the four hypothesis listed under

article 32 of the Vienna Convention seems to be applicable when reading the interpretation of the Majority Decision, which is in my view only partially based on the Vienna Convention. 78.

At least two additional verifications demonstrate that the rules of the Vienna Convention

were not correctly applied and why the achieved result is manifestly flawed when the Majority concludes that ‘[i]n light of the foregoing, the Chamber finds that, in accordance with the ordinary meaning given to its terms in their context and in the light of the object and purpose of the Statute, the reference to “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Statute.’81 79.

The first assessment consists of comparing the meaning attributed to the Majority’s

formula and the use of the same formula elsewhere in the Statute. The second assessment is linked to the identification of the formula in other legal documents, fruits of current international law-making. 80.

As to the first method: the formula ‘the State on the territory of which’ can be found three

times in the Statute. In addition to article 12(2)(a), it also appears in articles 89(1)82 and 99(4)(a) of the Statute.83 If the Majority is right, ‘the State on the territory of which’ formula could, without difficulty, be replaced in articles 89(1) and 99(4)(a) of the Statute with the formula ‘a State Party to the Statute’. However, this is not the case because in article 89(1) of the Statute, 81

Majority Decision, para. 109. Rome Statute, article 89 (‘Surrender of persons to the Court’) (‘1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.’) (emphasis added). 83 Rome Statute, article 99 (‘Execution of requests under articles 93 and 96’) (‘4.

Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows: (a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party; (b) In other cases, the Prosecutor may execute such request following consultations with the requested State Party and subject to any reasonable conditions or concerns raised by that State Party. Where the requested State Party identifies problems with the execution of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the matter.’) (emphasis added). 82

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the second sentence is devoted only to States Parties while the first sentence concerns ‘any State on the territory of which’. Therefore, in article 89(1) of the Statute, one may see two concentric circles where the larger one concerns ‘any State on the territory of which’ and the smaller one covers only the States Parties.84 Concerning article 99(4)(a) of the Statute, which closely resembles the structure of article 12(2)(a) of the Statute, if one substitutes ‘the State on the territory of which’ with the formula ‘a State Party to the Statute’, the sentence becomes redundant and will lose its meaning. 81.

It follows that the formula ‘the State on the territory of which’ may only be interpreted

in its traditional, grammatical meaning in articles 89(1) and 99(4)(a) of the Statute. It would be at least atypical to assume that such a formula could have different meanings in different parts of the Statute, namely an ordinary meaning in article 12(2)(a) of the Statute and a different ordinary meaning common to articles 89(1) and 99(4)(a) of the Statute. Taking into account the similarity of the formulas referring to the Court’s ratione loci jurisdiction in articles 12(2)(a) and 99(4)(a) of the Statute, the existence of two ‘ordinary meanings’ is even less credible. 82.

We arrive at a similar conclusion when observing the use of the formula ‘the State on the

territory of which’ in different international treaties, instruments and decisions. For example, this formula is present in the following conventions: the Convention for the Establishment of a European Organization for Nuclear Research,85 the Hague Convention of 1 March 1954 on Civil Procedure, 86 the Budapest Treaty on the International Recognition of the Deposit of See C. Kreß and K. Prost, ‘Article 98’ in Ambos and Triffterer Commentary, p. 2048 (‘Finally, the term “State” is used here to recognize that the Court has the power to transmit requests to all States – States Parties and nonStates Parties. This is to contrast the next sentence, which imposes obligations on States and is therefore limited in application to States Parties.’). See also Fernandez and Pacreau Commentary, pp. 2218-2219. 85 Convention for the establishment of a European Organization for Nuclear Research, 1953, article XIV, ‘Dissolution’ (‘The Organization shall be dissolved if at any time there are less than five Member States. It may be dissolved at any time by agreement between the Member States.

Subject to any agreement which may be made between Member States at the time of dissolution, the State on the territory of which the seat of the Organization is at that time established shall be responsible for the liquidation, and the surplus shall be distributed among those States, which are members of the Organization at the time of the dissolution, in proportion to the contributions actually made by them from the dates of their becoming parties to this Convention. In the event of a deficit this shall be met by the existing Member States in the same proportions as those in which their contributions have been assessed for the financial year then current.’) (emphasis added). 86 Convention of 1 March 1954 on civil procedure, article 4 (‘Where a request for service complies with Articles 1, 2 and 3, the State on the territory of which it has to be effected may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security.’) (emphasis added), article 6 (‘The provisions of the foregoing Articles shall not interfere with - (1) the freedom to send documents, through postal channels, directly to the persons concerned abroad; (2) the freedom of the persons concerned to have service effected directly through the judicial officers or competent officials of the country of destination; (3) the freedom of each State to 84

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Microorganisms for the Purposes of Patent Procedure, 87 the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, 88 the Vienna Agreement on Succession Issues between Successor States of the Former Yugoslavia 89 and the CzechUkrainian Agreement on War Graves.90 It can also be found in the law of the European Union, have service effected directly by its diplomatic or consular agents of documents intended for persons abroad. In each of these cases, the freedom mentioned shall only exist if allowed by conventions concluded between the States concerned or if, should there be no convention, the State on the territory of which service must be effected does not object. That State may not object when, in the cases mentioned in sub-paragraph 3 of the above paragraph, the document is to be served without any compulsion on a national of the requesting State.’) (emphasis added), article 15 (‘The provisions of the foregoing Articles shall not exclude the right of each State to have Letters of Request executed directly by its diplomatic officers or consular agents, if that is allowed by conventions concluded between the States concerned or if the State on the territory of which the Letter is to be executed does not object.’) (emphasis added).

87 Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, 1977, article 7 (‘Acquisition of the Status of International Depositary Authority’) (‘A depositary institution shall acquire the status of international depositary authority by virtue of a written communication addressed to the Director General by the Contracting State on the territory of which the depositary institution is located and including a declaration of assurances to the effect that the said institution complies and will continue to comply with the requirements specified in Article 6(2). The said status may be acquired also by virtue of a written communication addressed to the Director General by an intergovernmental industrial property organization and including the said declaration.’) (emphasis added). 88 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, 1996, article 6 (‘1 For refugee children and children who, due to disturbances occurring in their country, are internationally displaced, the authorities of the Contracting State on the territory of which these children are present as a result of their displacement have the jurisdiction provided for in paragraph 1 of Article 5.

2 The provisions of the preceding paragraph also apply to children whose habitual residence cannot be established.’) (emphasis added). 89 Agreement on Succession Issues, adopted in Vienna on 29 June 2001, article 2 (‘(1) (b) External debt in (i)-(iv) above is described as allocated debt if the final beneficiary of the debt is located on the territory of a specific successor State or group of successor States. Allocated debt is not subject to succession and shall be accepted by the successor State on the territory of which the final beneficiary is located.’) (emphasis added). 90 Agreement Between the Cabinet of Ministers of Ukraine and the Government of the Czech Republic on War Graves, article 6 (‘3. The exhumation and re-interment of remains shall be carried out in accordance with the procedure provided for by the national legislation of the state on the territory of which they are located taking into account ethnical, religious and cultural traditions.’) (emphasis added).

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for example in the law relating to internal market91 or victims of crimes.92 Guidelines adopted by the Council of Europe also belong to the latter category. 93 83.

When observing the wording of these conventions, treaties, rulings or resolutions, it

seems clear that the formula ‘the State on the territory of which’ is used in its traditional meaning, irrespective of the criminal, administrative or civil law nature of the given instrument. Where the drafters of a given instrument deemed it necessary, they added the words ‘Member’ or ‘Contracting’ to the formula. 84.

Thus, even the treaty-making process and the norms created by international

organizations do not sustain the Majority’s interpretation of the formula ‘the State on the territory of which’. 85.

Consequently, the comparative analysis of identical formulas within the Statute as well

as the review of identical or similar formulas in other treaties, contradict the statement that the ordinary meaning of the formula ‘the State on the territory of which’ equates the formula ‘a State Party to the Statute’. 91

Council of the European Union, Council Regulation (EC) No 2679/98 of 7 December 1998 on the functioning of the internal market in relation to the free movement of goods among the Member States, Preamble, (‘8) Whereas a Member State on the territory of which obstacles to the free movement of goods occur should take all necessary and proportionate measures to restore as soon as possible the free movement of goods in their territory in order to avoid the risk that the disruption or loss in question will continue, increase or intensify and that there may be a breakdown in trade and in the contractual relations which underlie it; whereas such Member State should inform the Commission and, if requested, other Member States of the measures it has taken or intends to take in order fo fulfil this objective’) (emphasis added).

92 Council of the European Union, Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, article 1 (‘Right to submit an application in the Member State of residence’) (‘Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State.’), article 2 (‘Responsibility for paying compensation’) (‘Compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed.’) (emphasis added). 93 Council of the European Union, Guidelines on the Protection of Victims of Terrorist Acts, 2 March 2005 (‘Compensation’) (‘1. Victims of terrorist acts should receive fair, appropriate and timely compensation for the damages which they suffered. When compensation is not available from other sources, in particular through the confiscation of the property of the perpetrators, organisers and sponsors of terrorist acts, the state on the territory of which the terrorist act happened must contribute to the compensation of victims for direct physical or psychological harm, irrespective of their nationality. 2.

Compensation should be easily accessible to victims, irrespective of nationality. To this end, the state on the territory of which the terrorist act happened should introduce a mechanism allowing for a fair and appropriate compensation, after a simple procedure and within a reasonable time. 3. States whose nationals were victims of a terrorist act on the territory of another state should also encourage administrative cooperation with the competent authorities of that state to facilitate access to compensation for their nationals. 4. Apart from the payment of pecuniary compensation, states are encouraged to consider, depending on the circumstances, taking other measures to mitigate the negative effects of the terrorist act suffered by the victims.’) (emphasis added).

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86.

As indicated above, the Majority follows more or less the Prosecutor’s primary approach

as elaborated in her Response, with the notable difference that, in the end, it does not provide a clear answer to the Prosecutor’s question. After the first finding, adopted by unanimity and stating that ‘Palestine is a State Party to the Statute’, the second finding, adopted by majority, stipulates that ‘as a consequence, Palestine qualifies as “[t]he State on the territory of which the conduct in question occurred” for the purposes of article 12(2)(a) of the Statute’.94 87.

The clear wording of this finding is, however, in conflict with the third finding, adopted

again by majority, and stating that ‘the Court’s territorial jurisdiction in the Situation in the State of Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem’.95 88.

In paragraph 131 the Chamber states: ‘It is further opportune to emphasise that the

Chamber’s conclusions pertain to the current stage of the proceedings’. The reason for the presence of the phrase ‘at this stage of the proceedings’ is unclear. This reasoning96 seems to suggest that, at a later stage of proceedings, the Court may arrive at a different conclusion. Of note, this lack of clarity is what the Prosecutor sought to avoid, as underlined in her Request97 and in her Response.98 94

Majority Decision, Disposition, p. 60. Majority Decision, Disposition, p. 60. 96 Majority Decision, para. 131 (‘It is further opportune to emphasise that the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor pursuant to articles 13(a), 14 and 53(1) of the Statute. When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time. ’). 97 Request, para. 6 (‘The resolution of this foundational issue is necessary now for several reasons. First, it will allow judicial consideration of an essential question before embarking on a course of action which might be contentious. The jurisdictional regime of the Court is a cornerstone of the Rome Statue, and it is therefore in the interests not only of the Court as a whole, but also of the States and communities involved, that any investigation proceeds on a solid jurisdictional basis. And it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking.

Second, an early ruling will facilitate the practical conduct of the Prosecutor’s investigation by both demarcating the proper scope of her duties and powers with respect to the situation and pre-empting a potential dispute regarding the legality of her requests for cooperation. By ensuring that there is no doubt as to the proper scope of the Prosecutor’s investigation, it will potentially save considerable time and effort for all parties concerned.’) (emphasis in original). 98 Response, subtitle A, p. 8 (‘There is no basis to require the Prosecutor to defer her request for a ruling on jurisdiction until she has made any application under article 58, and the Chamber should promptly rule on the merits.’). See also para. 7 (‘[R]esolving the question of jurisdiction at the present time not only favours procedural economy but also ensures that the Court remains on the correct course. [….] Nothing in a prompt ruling causes 95

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89.

As an aside, given the a priori refusal of examining anything else than the interplay

between articles 125(3) and 12(2)(a) of the Statute in the mirror of the - only partially quoted Resolution 67/19, without convincingly substantiating this choice, and which seemingly predetermined the outcome, I do not believe that the reasonable basis standard was correctly applied at all. 90.

The Majority attempts to defend its position from a possible criticism of acting ultra

vires, which is why it warns against applying the decision outside the scope of the issue sub judice.99 However, the Majority mentions at the same time the right to self-determination in a way that negates the intended effects of the warning.100 Some parts of the Decision are worded as a clear cut statement 101 while others use wording that reverts back to ‘diplomatic’ ambiguity.102 unfair prejudice to the victims, who are fully able to participate, and will benefit either from a clear ruling on the scope of the Court’s territorial jurisdiction (and consequently its entitlement to expect full cooperation from all ICC States Parties in conformity with Part 9 of the Statute), or that the Court cannot be the proper forum for them to have access to justice.’) (footnotes omitted), para. 10 (‘[The Chamber] should promptly issue the requested ruling on the merits.’). 99 Majority Decision, para. 60 (‘As such, it must be emphasised that the present decision is strictly limited to the question of jurisdiction set forth in the Prosecutior’s Request and does not entail any determination on the borders disputes between Palestine and Israel.

The present decision shall thus not be construed as determining, prejudicing, impacting on, or otherwise affecting any other legal matter arising from the events in the Situation in Palestine either under the Statute or any other field of international law.’), para. 62 (‘Therefore, any territorial determination by the Chamber for the purpose of defining its territorial jurisdiction for criminal purposes has no bearing on the scope of Palestine’s territory.’). 100 Majority Decision, para. 123 (‘More specifically, the Chamber is of the view that the aforementioned territorial parameters of the Prosecutor’s investigation pursuant to articles 13(a), 14 and 53(1) of the Statute implicate the right to self-determination. Accordingly, it is the view of the Chamber that the above conclusion – namely that the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967 on the basis of the relevant indications arising from Palestine’s accession to the Statute – is consistent with the right to self-determination.’). 101 Majority Decision, para. 116 (‘with regard to the territory of Palestine for the sole purpose of defining the Court’s territorial jurisdiction’), para. 130. 102 Majority Decision, para. 114 (‘the delimitation of the territory of Palestine for the sole purpose of defining the Court’s territorial jurisdiction’).

Note in particular the use of the words ‘delimitation’ and ‘State of Palestine’, as compared to the wording used in para. 116 (‘with regard to the territory of Palestine for the sole purpose of defining the Court’s territorial jurisdiction’). See also para. 60 (‘As such, it must be emphasised that the present Decision is strictly limited to the question of jurisdiction set forth in the Prosecutor’s Request and does not entail any determination on the border disputes between Palestine and Israel. The present decision shall thus not be construed as determining, prejudicing, impacting on, or otherwise affecting any other legal matter arising from the events in the Situation in Palestine either under the Statute or any other field of international law.’), para. 62 (‘Therefore, any territorial determination by the Chamber for the purpose of defining its territorial jurisdiction for criminal purposes has no bearing on the scope of Palestine’s territory.’).

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91.

Moreover, the Majority finds that territorial jurisdiction may be further examined at a

later time, in the context of a request for an arrest warrant.103 I have to note that the Prosecutor wanted precisely to avoid such a decision, as underlined in her Request104 and Response.105 92.

The consequence is that the Majority Decision leaves the in depth examination for the

future, at a stage when, in the context of the arrest warrant (or summons to appear) procedure, the reasonable grounds to believe standard should be applied. One may wonder if there is an actual difference between the ‘reasonable basis’ standard to be applied now and the ‘reasonable grounds to believe’ standard of the arrest warrant (or summons to appear) procedure.106 93.

Why postpone the in depth assessment? What is supposed to happen in the meantime?

Which important legal provisions will be different from those that are already identified and were abundantly analysed by the Prosecutor, the amici curiae and the victims’ representatives? One cannot reasonably expect resolutions of the General Assembly – the main legal basis of the Request – to become binding. Moreover, and abstraction made of the legal nature of the resolutions, if one pays close attention to the text of the resolutions adopted in the last years Majority Decision, para. 131 (‘It is further opportune to emphasise that the Chamber’s conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor pursuant to articles 13(a), 14 and 53(1) of the Statute. When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.’). 104 Request, para. 6 (‘The resolution of this foundational issue is necessary now for several reasons. First, it will allow judicial consideration of an essential question before embarking on a course of action which might be contentious.

The jurisdictional regime of the Court is a cornerstone of the Rome Statue, and it is therefore in the interests not only of the Court as a whole, but also of the States and communities involved, that any investigation proceeds on a solid jurisdictional basis. And it would be contrary to judicial economy to carry out an investigation in the judicially untested jurisdictional context of this situation only to find out subsequently that relevant legal bases were lacking. Second, an early ruling will facilitate the practical conduct of the Prosecutor’s investigation by both demarcating the proper scope of her duties and powers with respect to the situation and pre-empting a potential dispute regarding the legality of her requests for cooperation. By ensuring that there is no doubt as to the proper scope of the Prosecutor’s investigation, it will potentially save considerable time and effort for all parties concerned.’) (emphasis in original). 105 Response, para. 8 (‘A. There is no basis to require the Prosecutor to defer her request for a ruling on jurisdiction until she has made any application under article 58, and the Chamber should promptly rule on the merits’). See also para. 7 (‘resolving the question of jurisdiction at the present time not only favours procedural economy but also ensures that the Court remains on the correct course.

[…] Nothing in a prompt ruling causes unfair prejudice to the victims, who are fully able to participate, and will benefit either from a clear ruling on the scope of the Court’s territorial jurisdiction (and consequently its entitlement to expect full cooperation from all ICC States Parties in conformity with Part 9 of the Statute), or that the Court cannot be the proper forum for them to have access to justice.’) (footnotes omitted), para. 10 (‘the Chamber […] should promptly issue the requested ruling on the merits.’). 106 I note that the commentaries do not provide a clear answer to the question of what standard should be applied in the context of a challenge submitted by a State under article 19(2) of the Statute. 103