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

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Judge Péter Kovács’ Partly Dissenting Opinion Public Table of Contents Introduction ...................................................................................................................... 3 Methodology and reasoning............................................................................................. 3 A)

What is the legal value of the United Nations resolutions? ................................... 4

B)

Interlocking presumptions? ..................................................................................... 7

C) Competence for an in merito assessment of the notion of ‘the territory of the State’ in the situation sub judice ....................................................................................... 11 D)

The Majority Decision and the rules of interpretation of the Vienna Convention 19

E)

Did the Majority provide a practical answer to the Prosecutor? ....................... 32

The legitimacy and importance of relying on international law when assessing the impact of international legal documents on the situation sub judice................................. 35 The issue of the Montevideo criteria ............................................................................. 42 A)

The Montevideo Convention and customary law ................................................. 42

B)

The ‘permanent population’ criterion................................................................... 45

C)

The ‘defined territory’ criterion ............................................................................ 46

D)

The ‘government’ criterion .................................................................................... 47

E)

The ‘capacity to enter into relations with the other states’ criterion ................. 51

F) Interpretation of statehood in the jurisprudence and practice of interstate institutions ........................................................................................................................... 57 G)

Conclusions on the importance of the Montevideo criteria................................. 66

The issue of Resolution 67/19 of the General Assembly .............................................. 68 A) Outsourcing or fait accompli in the relationship between the Court and the General Assembly of the United Nations? ....................................................................... 68 B) ‘Precedents’ in United Nations and specialized agencies’ practice of participation by ‘pre-sovereign’ States and special subjects of laws ............................ 70 C)

Resolution 67/19 and the States’ explanation of votes at the time of adoption . 76

D)

Resolution 67/19 and its balanced wording on ‘territory’ and ‘borders’ .......... 80

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E)

The actual - well balanced - content of Resolution 67/19..................................... 81

F) Impact of Resolution 67/19 on the Secretary-General as depositary of the accession instrument .......................................................................................................... 84 G) The actual content of Resolution 67/19 in light of subsequently adopted UN Security Council and General Assembly resolutions ...................................................... 87 Palestine in the ICC since 2015 ................................................................................... 105 Why challenging the legality of the ‘occupation’ has no impact on how this issue will be politically resolved in the future (as shown by historical examples) ................... 107 The importance of the Oslo Accords ................................................................... 113 A)

The Oslo Accords in the Request ......................................................................... 113

B)

The importance of also relying on article 21(1)(b) of the Statute ..................... 114

C) The Oslo Accords and the reasons for their perception as agreements of an international legal nature ................................................................................................ 115 1.

The texts and their wording ................................................................................. 115

2. The perception of the nature of Oslo I and Oslo II in the practice of the United Nations and of important actors dealing with the issue (the US, the Quartet) ....... 119 3.

Jurisprudential practice ....................................................................................... 121 a) The Oslo Accords and jurisprudential practice in Israel .............................. 121 b) The Oslo Accords and jurisprudential practice of the Palestinian Authority 122

4. Some doctrinal interpretations of the international legal nature of the Oslo Accords .......................................................................................................................... 123 5.

The question of President Mahmoud Abbas’ statement of 19 May 2020 ........ 123

D) The relevance of the Oslo Accords in answering the main question of the Request .............................................................................................................................. 129 E) Similarity between repartition of competences in the regime established by the Oslo Accords and in some special regimes established for the protection and selfadministration of minorities, ethnic groups and/or co-existing peoples ..................... 134 F) Are there any reasons for not taking into account the Oslo Accords? ................ 136 My answer to the main question raised in the Request: the geographical scope of the Prosecutor’s investigative competence ........................................................................ 149 Annex I - Recent statements of leading Palestinian personalities on the ‘State of Palestine’ as an ‘aim to achieve’ and not as an existing, sovereign and independent State Annex II – Overview of how the question of Palestine’s statehood and territory is dealt with in several UN documents N° ICC-01/18

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Introduction 1.

I share the Majority’s finding that Pre-Trial Chamber I (the ‘Chamber’) is competent to

answer the question raised in the Prosecutor’s request1 (the ‘Request’). Together with Judge Alapini Gansou, I share the view that the Chamber’s competence is grounded in article 19(3) of the Statute, as the Prosecutor rightly submitted. As it is evident in his partly separate opinion, Judge Brichambaut does not entirely share this view even if he agrees on the applicability of article 19(3) of the Statute. 2.

Regarding the merits, I do not agree on the conclusion reached by the Majority regarding

the First Issue (‘whether Palestine can be considered “[t]he State on the territory of which the conduct in question occurred” within the meaning of article 12(2)(a) of the Statute’2). I note that the way the Majority Decision frames the First Issue is different from the way it was originally formulated in the Request.3 In any case, I agree neither with the conclusion, nor with the Majority’s reasoning and analysis in reaching such a conclusion. Regarding the Second Issue (the geographical scope of the Court’s jurisdiction), again, I agree neither with the Majority’s conclusion nor with its reasoning. Therefore, I hereby append a dissenting opinion to the Majority Decision, in which I develop my position on the merits of the questions at hand and the analysis which in my view should have been followed. Methodology and reasoning 3.

I find neither the Majority’s approach nor its reasoning appropriate in answering the

question before this Chamber, and in my view, they have no legal basis in the Rome Statute, and even less so, in public international law. 4.

Abstraction is rightly made in the Majority Decision of the political sensitivity of the

issue (which is certainly not up to the Chamber to evaluate) and of the complexity of the Palestinian-Israeli situation. However, in my opinion, the deep involvement of the United Nations Organization (the ‘United Nations’, ‘UNO’ or ‘UN’) in finding a proper solution for the realization of the so-called ‘two-state vision’, the contribution of the Quartet with the Road Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020, ICC-01/18-12, together with Public Annex A, ICC-01/18-12-AnxA. 2 Majority Decision, para. 87. 3 Request, para. 41 (‘The Prosecution thus considers Palestine, an ICC State Party within the meaning of articles 125 and 12(1), to be a “State” for the purposes of article 12(2).’). 1

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Map and the previous peace initiatives generally supported and promoted by the United Nations and reflected in the long line of resolutions adopted by the UN General Assembly (the ‘General Assembly’), the UN Security Council (the ‘Security Council’) as well as other UN bodies, and the references in these resolutions to the Oslo I Accords 4 (‘Oslo I’ or ‘Declaration of Principles’) and Oslo II Accords 5 (‘Oslo II’ or ‘Interim Agreement’), together form an important network of international law instruments. These instruments must not be swept behind the formal observation of the accession instrument of the State of Palestine (‘Palestine’), and its interplay with resolution 67/19 of the General Assembly of the UNO (the ‘General Assembly’)6 (the ‘Resolution 67/19’). 5.

We shall first address the problem by examining the question of the legal value attributed

by the Prosecutor to resolutions adopted by the United Nations.

6.

In her arguments, the Prosecutor does not rely on positive (existing and binding)

international law applicable vis-à-vis the question of Palestine relating to statehood and borders de lege lata, which is likely due to the scarcity or absence of such type of instruments. Instead, the Prosecutor refers to statements from soft law documents which are certainly favourable to Palestinians but are nevertheless non-binding. The presented legal picture seems to belong largely to the realm of de lege ferenda and judges should not base their decision on rules of such a nature. Moreover, judges cannot ignore that the documents to which the Prosecutor refers (i. the resolutions adopted by the Security Council, which are all ‘mere’ Chapter VI type resolutions, as none of them contain the well-known formula ‘Acting under Chapter VII’ and ii. the resolutions of the General Assembly) are non-binding in nature. 7.

The current situation is vastly different from the formation of custom where repetitive

practice could create a norm which was formerly only an ‘emerging’ norm (pending adequate proof of the existence of an opinio juris). However, with respect to borders, I am concerned Declaration of Principles on Interim Self-Government Arrangements (‘Oslo I’), 13 September 1993. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (‘Oslo II’), 28 September 1995. 6 United Nations, General Assembly, UNGA Resolution 67/19 Status of Palestine in the United Nations (‘Resolution 67/19’), 29 November 2012, A/RES/67/19. 4 5

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that not a single ‘precedent’ can be shown for situations where a ‘recommendation’ would establish definitely and per se an international legal frontier.7 8.

It should be noted that the approach is even more unusual given that in the issue sub

judice, the arguments presented to the Chamber fail to mention, at a minimum, equally important excerpts of the same documents, which often note expressis verbis the necessity of establishing borders by way of internationally promoted negotiations. 9.

Of course, the Prosecutor does not state that a recommendation is binding. However, in

the Palestinian situation, she apparently does not deem it important to distinguish what is binding from what is only a recommendation, a suggestion, or an opinion. An analysis of the distinction between the auto-normative and hetero-normative competences 8 is missing and even the potential impact of article 25 of the United Nations Charter - as interpreted by the International Court of Justice (the “ICJ”) in the Namibia case9 - is not addressed as regards Resolution 67/19, from the point of view of auto-normativity and hetero-normativity. The Prosecutor’s position is a bit more nuanced in the ‘Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States’10 (the ‘Response’) but, as will be elaborated in the following pages: i. she presents a simplified reading of the resolutions; ii. For example, without a special rule enshrined in Turkey’s peace treaty conferring dispute settlement authority on the Council of the League of Nations, this organ could not have passed a binding decision in the Mossul case. See Permanent Court of International Justice (the ‘PCIJ’), Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory opinion of 21 November 1925, 21 November 1925, Series B, No. 12 (‘Advisory Opinion of 21 November 1925’) (addressing the interplay between the peace treaty and the competence of the Council of the League of Nations).

8 ‘Auto-normative’ and ‘hetero-normative’ competences are understood, respectively, as the competences of an organization to regulate its own internal functioning, and the competences of an organization to regulate other issues with members states or other states. 9 ICJ, Case Concerning Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory opinion of 21 June 1971, 21 June 1971, paras 108, 112-114. 10 Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States, 30 April 2020, ICC-01/18-131 (the ‘Response’), para. 14 (‘It has never been the position of the Prosecution that the administrative act of a treaty depositary in accepting an instrument of accession can, itself, endow the acceding entity with Statehood. Nor indeed that a UN General Assembly resolution has the effect of endowing Statehood. To the contrary, both these circumstances reflect no more than an appreciation by the depositary and/or the UN General Assembly that the entity in question already and independently possesses sufficient attributes of Statehood. Yet such appreciations of Statehood are important, for the purpose of the Statute, because article 125 conditions the acquisition of the rights and obligations of a State Party on such criteria.

This is without prejudice to the principle—with which the Prosecution agrees—that Statehood is a condition precedent for accession to the Statute. One of the key questions implicit in the Request is simply which entity has the competence to determine that question—is it a matter for the Court, or for States Parties themselves (initially through their actions in the UN General Assembly, to which the depositary looks when considering whether to accept an instrument of accession, and then subsequently in exercising their rights under the Statute if the accession is accepted by the depositary)?’) (emphasis added) (footnotes omitted). 7

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she does not attribute any importance to the fact that a non-binding resolution, adopted by majority voting, has very limited legal value in a judicial procedure; and iii. the resolutions adopted by the Security Council and the General Assembly subsequently to Resolution 67/19 far from prove a fait accompli, but rather present a reserved attitude vis-à-vis the actual status of Palestine’s statehood, despite the General Assembly’s undeniable sympathy towards the Palestinian situation. 10.

I cannot accept and even less understand why a Chamber should accept as given, and

quasi mandatory, a statement on the existence of ‘the territory of the State’ when, as it will be shown below, all the indicia show that it is premature to speak of a full-fledged ‘State’ and of ‘the territory of the State’. 11.

In my view, speaking about a State in statu nascendi would be closer to the current state

of affairs and there is nothing pejorative or outdated therein. Peculiar circumstances (for example, State identity vs. State succession problems) were also presented before the ICJ.11 To accept as determinative a unilateral statement12 concerning the exact demarcation of a territory that is known to be the object of a very slowly progressing and frequently suspended series of negotiations, would have required at least an explanation. 12.

When there exists a manifest discrepancy between the legal qualification of commonly

known facts on the one hand and their presentation in the Request on the other, judges cannot decline the responsibility of examining the reliability and adequacy of the legal constructions. A ruling should be based on positive law. In the present ruling, I am unable to identify the actual rules of international law and the actual legal approach of the UNO regarding Palestine’s statehood and its territory and borders on which the Majority Decision is based. The given legal background is much closer to expectations, which advocate for a more generous approach than one based on positive law. 13.

The ‘State Party’ qualification cannot change this fact. Acrobatics with provisions of the

Statute cannot mask legal reality. 11

ICJ, Croatia v. Serbia and Montenegro (Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide), Judgment of 18 November 2008, Preliminary Objections, 18 November 2008, paras 126-127; Judgment of 3 February 2015, 3 February 2015, paras 81, 103. See also Separate Opinion of Judge Owada, paras 9, 12, 20; Declaration of Judge Xue, paras 2, 4, 5. 12 Of course, I do not contest that unilateral statements in territorial disputes could produce such an effect, for example in the context of renunciation. See PCIJ, Legal Status of Eastern Greenland, Judgment of 5 April 1933, 5 April 1933, Series A/B, No. 53.

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14.

The Response suggests that: i. Palestine’s statehood was clear prior to its accession; ii.

the validity of the accession is at the center of the present question; iii. its validity could have been challenged at the time of the accession; and iv. since no challenge was made de jure, differentiated treatment at this point in time would violate the equal treatment rule.13 15.

As it will be elaborated thereafter, the greatest problem with this line of reasoning is that:

i. Palestine’s statehood was not at all (and is still not) a settled issue within the United Nations, contrary to what the Prosecutor argues; ii. the focal point of the discussion is not the validity of the accession but rather the legal character of the territory falling (potentially) under the jurisdiction of the ICC; iii. it is highly questionable – and certainly not substantiated either in the Request or in the Response14 – that article 119(2) of the Statute applies to the contestation of validity, given that the wording of the text15 manifestly does not promise a final and legally binding settlement of the dispute; 16 and iv. the ‘equality of States’ rule, as applied by intergovernmental organizations, does not preclude consideration of particularities or special circumstances in situations following accession, if such consideration is required to resolve an actual problem.17 There is no reason why the ICC should proceed differently and I do not see See Response, subsection B (‘B. Primary argument: accession to the Statute is not dispositive of Statehood as a matter of general international law, but binds organs of the Court to treat all States Parties equally as States, for the purposes of the Statute. B.1. The Prosecution has always agreed that Statehood under public international law does not result from treaty accession. B.2.

The validity of an entity’s accession to the Statute is not a matter for review by the organs of the Court, but rather for States Parties through the mechanisms of the Statute. B.3. No State Party employed the mechanisms of the Statute to challenge Palestine’s accession to the Statute. B.4. Interpreting the Statute to mean that organs of the Court are not bound to treat all States Parties equally as States, for the purposes of the Statute, leads to consequences which are inconsistent with the object and purpose of the Statute.’). 14 Response, paras 19-23. 15 Article 119(2) of the Statute reads as follows: ‘Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.’ 16 See R. S. Clark, ‘Article 119: Settlement of disputes’ in K. Ambos and O. Triffterer (eds) The Rome Statute of the International Criminal Court: A Commentary (2016) (‘Ambos and Triffterer Commentary’), pp. 2278-2280; E. Decaux, ‘Article 119 - Règlement des différends’ in J. Fernandez and X.

Pacreau (eds) Statut de Rome de la Cour pénale internationale, Commentaire article par article (2019) (‘Fernandez and Pacreau Commentary’), pp. 2528-2529 (‘De renvoi, en renvoi, l’obligation tourne à vide.’). 17 See e.g. Security Council, Resolution 1101, 8 March 1997, S/RES/1101. This resolution was adopted by the Security Council in the context of Albania’s fall into a state of anarchy. See also Resolution 733, 23 January 1992. This resolution was followed by many other resolutions adopted by the Security Council aiming to restore stability in the State of Somalia. In the meantime, both Albania and Somalia enjoyed the same rights as other Member States of the UN. 13

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how such an approach would inevitably lead ‘to consequences which are inconsistent with the object and purpose of the Statute.’18 The assessment of a State’s ‘inability or unwillingness’ to prosecute in the jurisprudence of the Court shows that certain circumstances and particularities specific to a State (such as the inability to prosecute due to the temporary collapse or stay of the proper functioning of State organs, a civil war, en epidemic, natural disasters etc.) can and should be the object of an examination without conflicting with the equal treatment rule. 16.

The Prosecutor also argues that ‘[i]t would appear contrary to the principle of

effectiveness and good faith to allow an entity to join the ICC but to then deny the rights and obligations of accession’.19 While such a denial would certainly be contrary to these principles, the crucial issue is rather whether the given geographical territory can be considered hic et nunc ‘the territory of the State’ on the basis of international law. 17.

The Request and the Response follow a circulus vitiosus reasoning.

18.

In fact, the Prosecutor follows an approach which should be rightly qualified as a

‘presumption’ or more precisely a series of complex interlocking presumptions. Neither the Request nor the Response use this notion (excluding reference to the word ‘presumption’ in certain citations and a single mention in a different context20), but if one follows the reasoning of the Prosecutor’s argument, one can only reach this conclusion.21 19.

It is well known that there are two types of presumptions: i. the rebuttable/refutable

presumption (presumptio iuris)22 and ii. the irrefutable/conclusive presumption (presumptio iuris et de iure).23 All legal systems recognize the value of these presumptions, which enable a party to establish a fact without requiring its proof. However, the use of irrefutable presumptions is rather exceptional. They are typically used as a legislative tool in resolving disputes and often have a high moral background. 18

Response, subsection B.4, p. 17. Request, para. 114 (footnotes omitted); Response, para. 28. 20 Response, para. 21 (‘As the Prosecution has previously observed, the delicate nature of Statehood determinations - and the political issues which are inevitably associated with them - may raise the presumption that such matters are best regulated by States themselves.’). 21 See Request, para. 7 (‘There is no reason why this logic should not apply to Palestine.’). 22 For example, the principle of presumption of innocence or the presumption of a husband’s paternity for a child born inside of wedlock. 23 For example, the principle of presumption of 300 days as the date of conception for a newborn child. 19

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20.

Both the primary and secondary (alternative) positions laid out in the Request can be

qualified as a series of presumptions. 21.

In my reading, the Prosecutor makes the following presumptions in her primary position:

i. Palestine’s ‘already existing’ statehood is reflected in Resolution 67/19; ii. the State Party status resulting from Palestine’s accession according to the ‘all States’ formula excludes ab ovo any doubts on its ‘statehood’ and ‘territory’;24 and iii. with respect to the geographical scope of the Court’s territorial jurisdiction, it is sufficient to rely ‘on the views of the international community as expressed primarily by the UN General Assembly’.25 22.

The Prosecutor’s secondary position includes the following presumptions: i. the status of

the ‘State for the purpose of the Statute’ exists;26 ii. if an entity is a ‘State for the purpose of the Statute’, it should be treated equally in every respect;27 iii. the use of the terms ‘non-member observer State’ in the wording of Resolution 67/19 means that the General Assembly was convinced of Palestine’s ‘statehood’;28 iv. recommendation type resolutions can fill the gap created by the lack of binding resolutions of the Security Council; and v. whatever in-depth examination of the particularity of the ‘statehood’ or ‘territory’ issues is ab ovo an illegitimate obstacle to Palestine’s accession and incompatible with judicial functions.29 Request, para. 7 (‘In order to exercise its jurisdiction in the territory of Palestine under article 12(2), the Court need not conduct a separate assessment of Palestine’s status (nor of its Statehood) from that which was conducted when Palestine joined the Court. This is because, under the ordinary operation of the Rome Statute, a State that becomes a Party to the Statute pursuant to article 125(3) “thereby accepts the jurisdiction of the Court” according to article 12(1). Article 12(2) in turn specifies the bases on which the Court may exercise its jurisdiction as a consequence of a State becoming a Party to the Statute under article 12(1) or having lodged a declaration under article 12(3).

Simply put, a State under article 12(1) and article 125(3) should also be considered a State under article 12(2).’), para. 101 (‘Further, the Prosecution considers that Palestine is the “State on the territory of which the conduct in question occurred” (under article 12(2)(a)) because of its status as an ICC State Party. Once an entity has become a State Party, the Rome Statute does not require the Prosecutor to conduct a new assessment regarding its statehood to trigger the Court’s jurisdiction.’), para. 106 (‘Moreover, since its accession to the Statute, the Assembly of States Parties (“ASP”) has not treated Palestine any differently from any other State Party. There is no reason why the Court should do so now.’). 25 Request, para. 11. See also paras 44, 102. 26 Request, para. 101 (‘Alternatively, if the Chamber disagrees and finds it necessary to conduct such assessment, the Prosecution submits that Palestine is also a “State” for the purposes of the Rome Statute under relevant principles and rules of international law.’). 27 Request, para. 182; Response, para.

15 (‘In the Prosecution’s view, once an entity is permitted to accede to the Statute, the organs of the Court are required to accept the status of that entity as a State Party (and, in the context of the treaty, their status as a State) for all purposes under the Statute and may not substitute their own assessment for that of the depositary (and, if necessary, the UN General Assembly) and the States Parties, as explained below.’). 28 Response, para. 14. 29 Response, paras 22, 23, 24. See also para. 30 (‘[T]he protection and deterrence that accession provides to States Parties [is a] […] substantial benefit for States Parties [that] would be substantially diminished if “two tiers” of 24

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23.

It bears repeating that the Prosecutor does not herself characterize these statements as

‘presumptions’ or state that she is permitted to make presumptions.30 However, by their nature, the approaches laid out in both the Request and Response are presumptions and more specifically are worded as irrefutable presumptions.31 In this way, a presumption forms the basis of a second presumption, which then forms the basis of a third, and so on. 24.

Some of the above presumptions (for example, iii. the ‘non-member observer State’

language in Resolution 67/19 means that the General Assembly was convinced of Palestine’s ‘statehood’) might eventually be accepted as a starting point if we treat them as refutable presumptions subject to evaluation. But in the Prosecutor’s view, no such evaluation is allowed32 or deemed necessary.33 25.

Why should the Chamber accept interlocking presumptions instead of legal

argumentation? Would it not be preferable to identify, as soon as possible, the risks of relying on presumptions and not to delay further such exercise? 26.

While recognizing the Prosecutor’s professionalism and the value of her analysis, my

impression is that, in basing her arguments on presumptions, she aims to avoid answering the real question: can the West Bank, East Jerusalem and Gaza be considered hic et nunc (in 20202021) ‘the territory of the State’ according to well-established notions of public international law? 27.

Alternatively, can per analogiam, the repetitive reference to the same few articles of the

Statute, and arguments focused on the validity of the accession alone, support the position that the link between Palestine (in its current status) and these geographical, administrative and political units (in their current status) could equate to ‘the territory of the State’? accession to the Statute were possible, such that the acceptance of an entity’s accession to the Statute was not understood to be a guarantee that the Court could in principle exercise jurisdiction over crimes committed on its territory.’). 30 In my reading, the presumption is mentioned only once (if we abstract a few citations from the doctrine). See Response, para. 21 (‘As the Prosecution has previously observed, the delicate nature of Statehood determinations—and the political issues which are inevitably associated with them—may raise the presumption that such matters are best regulated by States themselves.’). 31 See e.g. Response, para. 55 (‘Yet, it cannot be denied that the Occupied Palestinian Territory must have a sovereign.’), para. 68 (‘the Occupied Palestinian Territory must have a sovereign’). But what is the legal basis for affirming hic et nunc that this sovereign already exists? Despite its inherent cynicism, the famous statement ‘certus an incertus quando’ must not be forgotten. See on this issue below VII.

Why challenging the legality of the ‘occupation’ has no impact on how this issue will be politically resolved in the future (as shown by historical examples). 32 Request, para. 106; Response, paras 18, 22. 33 Request, paras 101, 114, 119, 218.

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28.

According to the legal doctrine regarding the issue of enlargement (States’ accession),

international conventions can be classified into four categories: i. closed treaties (where no accession is permitted); ii. half-closed treaties (where accession is permitted only with the approval of the current member States, by unanimity, qualified majority or simple majority, according to the provisions of the given treaty); iii. half-open treaties (where there is no admission procedure but there are some objective criteria limiting the eligibility for accession, such as geographical belonging or participation in a specific treaty); and iv. open treaties (where there is no admission procedure and there are no special conditions). 29.

The ‘all States formula’ is a well-known characteristic of open treaties, while the ‘Vienna

formula’ is a classical example of half-open treaties. Typically, open treaties are conventions comprised of general interests, contracted for the purpose of protecting human rights, fighting against criminality, or protecting the environment. 30.

Statutes, constitutions, and founding treaties of international organizations are typically

considered by the doctrine half-closed treaties where the admission procedure aims to preserve coherence, commonly shared values, solidarity, and economic, political and/or military efficiency. It is also well-known that the attitude of organizations towards successive enlargement may change based on the historical or political context of the time. As an example, while the UNO was rather reluctant to admit small States in the 1950-1960’s, this attitude changed in the 1970’s and it became a quasi-universal organization. 31.

However, the Court and its chambers must recognize that the founding fathers, contrary

to the traditions of other organization-creating treaties (the so-called ‘constitutive treaties’), opted for the ‘all States formula’ and incorporated it under article 125(3) of the Statute. 32.

It is worth noting that in the Request, the Prosecutor characterizes an assessment of

Palestine’s statehood by this Chamber as unnecessary 34 rather than statutorily forbidden. Request, para. 103 (‘No additional consent or separate assessment is needed.’), para. 114 (‘Nor does it require the Court to conduct a separate assessment of the status of a State Party before it can exercise its jurisdiction under article 12.’). 34

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Nevertheless, elsewhere in the Request, the Prosecutor seems to indicate a preference that the Chamber not undertake such an assessment.35 33.

Similarly, in the Response, the Prosecutor makes statements reflecting that such an

assessment is unnecessary36 while other numerous statements openly contest the Chamber’s competence to carry out such an assessment.37 However, the Prosecutor’s challenge to judicial Request, para. 105 (‘[I]n 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.’), para. 114 (‘It would appear contrary to the principle of effectiveness and good faith 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. Notably, the Statute does not provide for or regulate the implications of a negative determination of statehood by the Court.’) (footnotes omitted), para. 115 (‘The most plausible interpretation resulting from the interplay between article 12 and article 125 is that the Court can exercise its jurisdiction on the territory of a member State or “State Party” if the requirements under article 53(1) are met, but without any additional precondition, such as a determination of statehood under international law.’). 36 Response, para. 11 (citing Request, para.

103). 37 Response, para. 11 (‘It is consistent with the principle that organs of the Court (including the Prosecution) should not allow themselves to be drawn into political decision-making concerning membership of treaty regimes, and that questions of capacity to join treaties are best resolved by States themselves.’) (footnotes omitted), para. 15 (‘In the Prosecution’s view, once an entity is permitted to accede to the Statute, the organs of the Court are required to accept the status of that entity as a State Party (and, in the context of the treaty, their status as a State) for all purposes under the Statute and may not substitute their own assessment for that of the depositary (and, if necessary, the UN General Assembly) and the States Parties, as explained below.’), para. 18 (‘Consistent with the views of some participants, the Prosecution submits that organs of the Court cannot rule on the validity of an accession to the Statute, which is a matter reserved for States Parties under article 119(2).’) (footnotes omitted), para. 21 (‘As the Prosecution has previously observed, the delicate nature of Statehood determinations - and the political issues which are inevitably associated with them - may raise the presumption that such matters are best regulated by States themselves.’), para.

22 (‘Nothing in the Statute supports the view that the drafters considered it “appropriate” to endow the organs of the Court (as defined in article 34) with a role in approving the validity of accessions. Not only is article 125 of the Statute silent on this matter, but there appears to be no mechanism for a State Party to seise the Court of any objection to an accession, as might be envisaged by article 77(2) of the VCLT. Nor does the Court have any power to grant an appropriate remedy if it were to determine that an accession was indeed invalid.’), para. 23 (‘For her own part - subject to the further guidance of the Chamber - the Prosecutor does not consider that she would be well placed (as an organ of the Court) to resolve any dispute between States Parties as to the validity of an accession to the Statute. As judicial bodies, the chambers of the Court may naturally be better situated for such a task than the Prosecutor - yet the delicate and politicised nature of the subject matter still remains a particular concern, and is potentially incompatible with the concept of a “judicial function” in article 119(1).’), para. 24 (‘Subjective expressions of disapproval, or unilateral measures, are wholly insufficient, and it is not for the Court to attempt to resolve any ambiguities in the stance of States Parties. Indeed, such an exercise is potentially fraught with difficulty.

Either an entity is a valid State Party - entailing the acceptance of its Statehood by the Court, for its own purposes - or it is not. The Statute does not foresee any “halfway” status, nor would it be consistent with the object and purpose of the Court for the status of a State Party to be uncertain for a sustained period after its instrument of accession has been accepted.’), para. 29 (‘In particular, it follows from articles 12(1) and 125 of the Statute, and Part 9, that the threshold criterion for all participation in the Statute - membership of the ASP, acceptance of the jurisdiction of the Court, and obligations to cooperate with the Court - is that the entity in question is a “State” for all the purposes of the treaty. This being so, there is no logical reason why acceptance of the Court’s jurisdiction would be divisible from accession to the Statute and participation in the Court’s maintenance and governance; to the contrary, considerations of equity would suggest that the two spheres of activity must be linked.’), para. 30 (‘Furthermore, a primary reason for States to accede to the Statute is the protection and deterrence that accession provides to States Parties - simply put, any person who commits an 35

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competence only concerns the validity of the accession. 38 The legality of assessing the specificities of statehood is therefore not ab ovo contested by the Prosecutor. Rather, she only contests the Chamber’s competence to issue a decision on the validity of a State’s accession to the Rome Statute. 34.

This means that the Majority Decision seems to go beyond what is argued in the

Response when it denies ab ovo its competence to conduct an examination, by assimilating the analysis of statehood specificities with that of the validity of a State’s accession to the Statute.39 In my view, however, the Chamber has the right to clarify what should be understood by ‘State’ in the formula ‘State on the territory of which’ with respect to Palestine. There is no reason to consider this clarification as an a posteriori review of Palestine’s accession. 35.

I think that the Majority’s error originates in the incorrect formulation of some of its

starting points, in particular when it denied having competence to assess ‘matters of statehood’. As the Majority Decision states: ‘The Court is not constitutionally competent to determine matters of statehood that would bind the international community. In addition, such a determination is not required for the specific purposes of the present proceedings or the general exercise of the Court’s mandate.’40 36.

In itself, I agree with the first sentence, even if the adverb ‘constitutionally’ is a bit

misleading. However, the question is not at all about the existence or non-existence of an erga omnes competence in matters of statehood. The real question is whether the Court is competent to determine matters of statehood or rather is competent to determine matters of statehood provided that this is necessary to adjudicate a case or in other terms if the determination is required for the specific purposes of the present proceedings. article 5 crime on the territory of a State Party is liable to investigation and prosecution either by a State or at the Court, irrespective of their citizenship. Ensuring this deterrence is one reason why the drafters of the Statute rejected a double jurisdictional requirement (both for territoriality and nationality of the perpetrator). This substantial benefit for States Parties would be substantially diminished if “two tiers” of accession to the Statute were possible, such that the acceptance of an entity’s accession to the Statute was not understood to be a guarantee that the Court could in principle exercise jurisdiction over crimes committed on its territory.’). 38 See Response, para. 30. 39 See Majority Decision, para.

102 (‘The Chamber has no jurisdiction to review that procedure and to pronounce itself on the validity of the accession of a particular State Party would be ultra vires as regards its authority under the Rome Statute,’), para. 103 (‘It follows that the absence of such a power conferred upon the Chamber confirms the exclusion of an interpretation of “[t]he State on the territory of which the conduct in question occurred” in article 12(2)(a) of the Statute as referring to a State within the meaning of general international law. Such an interpretation would allow a chamber to review the outcome of an accession procedure through the backdoor on the basis of its view that an entity does not fulfil the requirements for statehood under general international law.’). 40 Majority Decision, para. 108 (emphasis added).

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37.

The Majority is thus dealing with something which is an uncontested issue (namely the

lack of erga omnes competence / competence ‘that would bind the international community’ to determine matters of statehood). However, it does not pay attention to the most important legal issue, namely whether it is within the competence of the Chamber to assess ‘matters of statehood’ hic et nunc, in concreto, and within the limits of the case sub judice, and all of this considering that its decision and findings have no erga omnes character. This logical possibility is not examined at all by the Majority. 38.

Several decisions of the Court follow another path. It is worth remembering that Pre-

Trial Chamber I, in its ‘Decision on the Prosecutor’s request for authorization of an investigation’ taken in 2016 in the Situation in Georgia, found the following: ‘the Chamber agrees [….] that South Ossetia is to be considered as part of Georgia, as it is generally not considered an independent State and is not a Member State of the United Nations.’41 Some other decisions point to a more nuanced understanding of the notion of ‘matters of statehood’.42 39.

It goes without saying that the assessment of a State’s ‘inability’ (from the formula

‘unwillingness or inability’) can hardly be done without entering into ‘matters of statehood’. As it was stated by PTC I in the Decision on the admissibility of the case against Saif Al-Islam Gaddafi: The Chamber considers that the ability of a State genuinely to carry out an investigation or prosecution must be assessed in the context of the relevant national system and procedures. In other words, the Chamber must assess whether the Libyan authorities are capable of investigating or prosecuting Mr Gaddafi in accordance with the substantive and procedural law applicable in Libya.43 40.

If the assessment of the judiciary’s functioning (as one of the three branches of a state’s

power according to Montesquieu and as the sub-component of the ‘government’ within the Pre-Trial Chamber I, Situation in Georgia, Decision on the Prosecutor’s request for authorization of an investigation, 27 January 2016, ICC-01/15-12, para. 6. 42 See e.g. Pre-Trial Chamber I, Situation in the Republic of Kenya, Corrigendum of the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 1 April 2010, ICC-01/09-19-Corr, para. 89 (‘With regard to the definition of the terms “State or organizational”, the Chamber firstly notes that while, in the present case, the term “State” is selfexplanatory, it is worth mentioning that in the case of a State policy to commit an attack, this policy “does not necessarily need to have been conceived ‘at the highest level of the State machinery.’”’), n. 81 referring to ICTY, Prosecutor v. Blaškić, Case No. IT-95-14-T, Judgment, 3 March 2000, para. 205. 43 Pre-Trial Chamber I, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Saif Al-Islam Gaddafi, 31 May 2013, ICC-01/11-01/11-344-Red, para. 200. 41

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Montevideo criterion of statehood) is undoubtedly within the competence of the Court (and in the given case, of a pre-trial chamber), it is even more difficult to understand the Majority’s reluctance ‘to determine matters of statehood’ where needed. 41.

From my perspective, the Majority uses the formula ‘matters of statehood’ as being

equivalent to ‘full-fledged State’ and the formula ‘to determine matters of statehood’ quasi as State-recognition. However, this leads the Majority towards erroneous conclusions and conflicts with previous judicial decisions of the Court. 42.

As a historical jurisprudential ‘precedent’, it is worth remembering that the Permanent

Court of International Justice (the ‘PCIJ’), when seized with a request for an advisory opinion dealing with the question of the rights granted to Poland and its postal services, did not refrain from examining some of the specificities of the territorial administration in the port situated in the territory of the Free City of Danzig.44 Apparently, the PCIJ judges did not believe that such an examination – and the ultimate recognition of the lawfulness of the Polish claim – would per se challenge the validity of the international legal status of the Free City of Danzig, as established by the Versailles Treaty 45 and subsequent agreements, and placed under the protection of the League of Nations. 43.

In order to better understand the reasons why chambers are permitted to undertake such

an assessment, in accordance with the rules of contextual interpretation, it is worth comparing the similarity in the construction of article 12(2)(a) and (b) of the Statute. 44.

Looking at the second half of article 12(2)(a) of the Statute, it is clear that in the context

of a ‘crime […] committed on board a vessel or aircraft’, checking the registration document to verify its conformity with the applicable conventions and rules of maritime law46 or air law,47 and to establish whether there is a ‘State of registration of that vessel or aircraft’ and whether this particular State is a State Party, by no means implies a challenge to the validity of that State’s accession to the Rome Statute. Moreover, in cases where sub-state entities are also granted the right of registration,48 and the given entity holding the ‘droit du pavillon’ is itself 44

PCIJ, Polish Postal Service in Danzig, Advisory Opinion of 16 May 1925, 16 May 1925, Series B, No. 11. Diplomatic Conference, Versailles Treaty, 28 June 1919, Section XI (‘Free City of Danzig’), articles 100-108. 46 United Nations, United Nations Convention on the Law of the Sea, 10 December 1982. 47 International Civil Aviation Organization, Chicago Convention on International Civil Aviation, 7 December 1944. 48 M. Stephens, ‘Jersey Ship Registry’, 1 April 2015, p. 6 (‘Under the United Nations Convention on the Law of the Sea (UNCLOS) and under international law, all ships registered within the Crown Dependencies and UK 45

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not a State Party, the establishment of the nexus to a State Party requires an examination of the overlapping commitments of the State under the United Nations Convention on the Law of the Sea and the Rome Statute, with special regards to the declarations on responsibilities for ‘overseas territories’. 45.

Additionally, the ratione temporis criterion regarding the Court’s jurisdiction, the vessel,

the flag and the timeframe when the alleged crimes occurred, must also be evaluated.49 46.

Similarly, as to the jurisdiction ratione personae, formulated in article 12(2)(b) of the

Statute, the assessment of whether there exists a legal relationship between a given State and a person and of whether ‘[t]he State of which the person accused of the crime is a national’ is a State Party, cannot be considered to contest the validity of the accession of the State Party involved. 47.

The similarity between the three legal constructions, namely ‘State on the territory of

which’, ‘State of registration of that vessel or aircraft’ and ‘[t]he State of which the person accused of the crime is a national’, must be emphasised. Assessing any of those requirements does not impact in any way the validity of the State’s accession. 48.

Moreover, such an assessment, which must be carried out within the strict limits of what

is necessary to properly answer the question raised in the Request, may be substantiated by the principle of Kompetenz/Kompetenz. Even the Prosecutor recognizes that in some respect, the Overseas Territories are British Ships. In exercise of its powers, the United Kingdom as the Flag State under international law for these ships has devolved to the Crown Dependencies and UK Overseas Territories, which collectively with the United Kingdom are known as the Red Ensign Group (REG) […] Under the Merchant Shipping (Categorisation of Registries of Relevant British Possessions) Order 2003, the ship registers of Bermuda, British Virgin Islands, Cayman Islands, Gibraltar, UK and the Isle of Man have been granted Category 1 status, permitting them to register international trading fleets of unlimited tonnage, type and length, because the UK’s ratification of certain international conventions has been extended to these jurisdictions. In each case, the UK is the State Party to these conventions and remains ultimately responsible as a matter of international law for the discharge of treaty obligations by relevant REG members. The same Order makes provision for Anguilla, Falkland Islands, Guernsey, Jersey, Montserrat, St Helena and the Turks and Caicos Islands to operate a Category 2 register which limits the registration to passenger ships or of other ships of less than 150 gross tons.

However, there is an exemption which allows the registration of domestic passenger ships, pleasure vessels between 150 and 400 tons and ships of special local importance, provided that arrangements are in force for such ships to be surveyed and inspected by reference to the standards set out in UK safety and pollution regulations.’). 49 For an example of the assessment of the ratione loci and ratione temporis conditions, see Situation on Registered Vessels of Comoros, Greece and Cambodia, Annex A_Notice of filing the report prepared by the Office of the Prosecutor pursuant to article 53(1) of the Rome Statute, 6 November 2014, ICC-01/13-6-AnxA, para. 17, n. 20.

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Chamber definitely enjoys a certain margin of appreciation in its interpretation of what constitutes a ‘State’.50 49.

All this is consistent with the jurisprudence of other ICC chambers, which recognizes the

relevance of the Kompetenz-Kompetenz principle in the framework established by the Rome Statute. As stated in the Majority Decision of the Chamber (with the same composition) in its ‘Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”’51 (the ‘PTC I Rohingya Decision’): ‘[t]here is no question that this Court is equally endowed with the power to determine the limits of its own jurisdiction. Indeed, Chambers of this Court have consistently upheld the principle of la compétence de la compétence.’52 PreTrial Chamber II held in the Situation in Uganda in 2006 that ‘[i]t is a well-known and fundamental principle that any judicial body, including any international tribunal, retains the power and the duty to determine the boundaries of its own jurisdiction and competence’.53 PreTrial Chamber II later stressed – on different occasions and in different compositions – in the same line as the ICTY, that this power existed ‘even in the absence of an explicit reference to that effect’ as an ‘essential element in the exercise by any judicial body of its functions’.54 The same approach was followed by Pre-Trial Chamber III.55 50.

The cited cases concerned in concreto the relationship of Kompetenz-Kompetenz vis-à-

vis article 19(1) of the Statute, though they were formulated in rather broad, general terms. Request, para. 118 (‘Moreover, this approach would not prevent the Court from defining “State” differently in other areas of the Statute to the extent needed. Specifically, although the Court should follow the General Assembly practice and resolutions on whether an entity is permitted to become a State Party (in accordance with the Secretary-General depository functions under article 125(3)), such determinations would be without prejudice to the Court’s own judicial functions in interpreting and applying the term “State” in other parts of Statute, such as in the contextual element of war crimes, for the crime of aggression, or for complementarity purposes.’) (footnotes omitted). 51 Pre-Trial Chamber I, Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, 6 September 2018, ICC-RoC46(3)-01/18-37. 52 PTC I Rohingya Decision, para. 32. 53 Pre-Trial Chamber II, Situation in Uganda, 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-02/0401/05-147, paras 22-23; The Prosecutor v. Joseph Kony et al., Decision on the admissibility of the case under article 19(1) of the Statute, 10 March 2009, ICC-02/04-01/05-377, para. 45.

54 Pre-Trial Chamber II, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC01/05-01/08-424, para. 23; The Prosecutor v. William Samoei Ruto et al., Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, 8 March 2011, ICC-01/09-01/11-1, para. 8; The Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (‘Ruto et al. Confirmation of Charges Decision’), 23 January 2012, ICC-01/09-01/11-373, para. 24. 55 Pre-Trial Chamber III, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision on the Prosecutor’s Application for a Warrant of Arrest against Jean-Pierre Bemba Gombo, 10 June 2008, ICC-01/05-01/08-14-tENG, para.11. 50

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51.

That is why I am not persuaded by the Prosecutor’s narrow position taken in the

Response, which mostly relies on the arguments of some amici curiae and focuses on the validity of the accession. I am more persuaded by the standpoint articulated in the Request being that the assessment of specificities is not ultra vires even if not necessarily required. 52.

However, it is up to the Chamber to determine what is and what is not necessary. The

complexity of the issue, as evidenced by the opposing positions of dozens of amici curiae, supports that some examination is without a doubt necessary. This is especially so considering that such an assessment was performed by neither the Secretary-General of the United Nations (the ‘Secretary-General’) nor the other States Parties of the Assembly of States Parties (the ‘ASP’), based on the assumption that such an examination was the other’s prerogative. 53.

To conclude, the crucial issue raised in the Request relates to the existence or non-

existence of the ‘territory’, or more precisely, the ‘territory of the State’ as understood under current international law. In my view, a Chamber has the competence to rule on this issue after an in-depth examination, and within the limits of what is necessary to answer the question raised in the Request. On this basis, I do not share the Majority’s view, which de facto rejects the Kompetenz-Kompetenz principle and bases its reasoning on its purported lack of competence due to the Rome Statute’s alleged silence as to a chamber’s assessment of a State’s accession.56 The Majority follows more or less the Prosecutor’s approach as expressed in her primary position which seems to accept that the validity of the accession is at the heart of the present question and that any a posteriori assessment of statehood would equate to challenging the validity of such accession. As I previously mentioned, I do not think that the validity of the accession is at stake and I do not share the Majority’s view that an assessment of the elements of statehood would equate to challenging the validity of the accession. Rather, I think that these two issues can be separated and be treated independently. 54.

In my view, the central issue relates to the existence or non-existence of the ‘territory’ or

more precisely, the ‘territory of the State’ as understood under contemporary international law. 56

Majority Decision, para. 102.

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55.

As to the first issue, the Majority begins its argumentation in a way which is already

difficult to agree with. Indeed, in paragraph 93 of the Majority Decision,57 only the first half of article 12(2) of the Statute is quoted (‘the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute’). The whole text reads as follows in the Statute: ‘In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3’. 56.