The ICC’s Prosecutor announced today the opening of a “preliminary examination” into “the Situation in Palestine.” This means she will consider, on jurisdictional, evidentiary and policy grounds whether to open an investigation into crimes that may have been committed during this summer’s Gaza conflict. Opening such an investigation is a fairly standard step after receiving a declaration of acceptance of jurisdiction under Article 12(3) of the Rome Statute, and would not normally warrant much notice (other preliminary investigations also involve alleged crimes by the U.S. in Afghanistan and the U.K. in Iraq, though precious few Americans or British are aware of this).

But this decision of the prosecutor is quite different, and extremely significant. The decision to open the inquiry involved the prosecutor determining that the Palestinian Authority is in fact a “state,” a necessary precondition to jurisdiction under the Rome Statute, the Court’s constitutive treaty.

The ICC has never accepted jurisdiction over what is clearly at most a “marginal” state – one that is not a U.N. member, that has not ever claimed to govern any territory, and whose recognition by other states is limited (for example, the U.S., Canada and most Western European states do not recognize the existence of a Palestinian state). This is clearly dramatically different from anything the Court has done before.

But the prosecutor did not actually determine the Palestine qualifies as a “state” under the well-established legal definitions of the term. Rather, she said that the U.N. General Assembly’s vote in 2012 to call Palestine a “non-member state” is dispositive of the question. In short, she substituted the determination of the General Assembly for her own. The GA is not a judicial body, but  a political one. Its determinations are political, not legal. (It also has no power under the U.N. Charter, to create or recognize states.)

Statehood, however, is a legal term, with legal criteria (“the Montevideo test”), which involve judgement and the application of law to facts. Of particular relevance is the requirement that to become a state, a territory have a functioning government exercising supreme control in at least part of its claimed territory. The requirements for the creation of a state do not mirror those for its extinguishing. Thus the possibility of a “state under occupation,” to use the Palestinian’s favored term, does not preempt the need for there to first be a state under Montevideo definitions. The Palestinians, however, claim all of their territory is and has always been under the control of Israel.

The U.N. General Assembly need not be troubled by such legal problems because it is an explicitly political body. It need not be coherent or consistent, unlike a court. For the Prosecutor to take the judgements of such a body on the application of legal terms in the Rome Statute to particular facts as binding upon the Court is to surrender her independence. The Court’s statute, as well as its press releases, demand and proclaim its independence. Yet decisions like this one violate independence, making it a mere organ of the U.N., and of the General Assembly at that.

Unfortunately, this is not the first time the prosecutor has deferred to judgements of the General Assembly in lieu of legal analysis. Even more unhappily, the other recent occasion also involved Israel, and the prosecutor grabbed onto General Assembly resolutions to find an “occupation” where it could not be said to exist under normative international law, including International Court of Justice precedents. An OPT that merely echoes the General Assembly is in danger of becoming simply another U.N. Human Rights Council.

The Prosecutor’s statement today puts great weight on the “practice” of the Secretary General under treaties that are deposited with him to follow the view of the General Assembly on statehood.

The Office considers that, since Palestine was granted observer State status in the UN by the UNGA, it must be considered a “State” for the purposes of accession to the Rome Statute . . .
For the Office, the focus of the inquiry into Palestine’s ability to accede to the Rome Statute has consistently been the question of Palestine’s status in the UN, given the UNSG’s role as treaty depositary of the Statute. The UNGA Resolution 67/19 is therefore determinative of Palestine’s ability to accede to the Statute pursuant to article 125, and equally, its ability to lodge an article 12(3) declaration.

The argument is a cop-out. The practice of the S.G. need not be binding on the Court unless it chooses for it to be. The Rome Statute is, as its proponents often celebrate, different from other treaties. It creates an independent court, it creates the possibility of criminal liability. “Statehood” is not simply a requirement for treaty ascension, it is also a part and limit on the jurisdiction of a the Court.

Indeed, the existence of a “state” is a jurisdictional requirement under Art. 12. The Court must independently confirm the existence of its jurisdiction, according to Art. 19 and the customary practice of international courts with regard to jurisdiction. All this shows that whatever the case may be for membership in treaties, for the jurisdiction of the Court, the General Assembly’s views can not be conclusive.

Even on the OTP’s terms, the Palestinian’s “status” at the U.N. remains that of a non-member, and there is no precedent for a non-member (like the Holy See ) joining the ICC. Finally, the Rome Statute must trump “the practice of the SG” for purposes of interpreting and applying the Rome Statute. Under the Statute, any political role in determining statehood would logically fall to the Security Council rather than the General Assembly.

The ICC Statute creates particular powers and duties for the Security Council, and none for the General Assembly. The Council can both initiate and suspend investigations. The Assembly, under the text of the statute, can not do anything. Thus, the Council is an express part of the “ICC system” in a way the Assembly is not. Moreover, the Council’s particular role is quite relevant — it is the only avenue available to the Court to obtain territorial jurisdiction over crimes that do not occur within a territory of a state that has accepted the Court’s jurisdiction.

Thus the Security Council would be the obvious route under the ICC statute for creating jurisdiction over a situation like Palestine, where statehood is far from clear. The fact that such a route is politically unlikely is of course not a bug, but a feature. Putting such jurisdiction in the hands of the SC is done to make it difficult to exercise.

Yet under the prosecutor’s view, a majority vote in the General Assembly is enough to create jurisdiction for the Court in situations where the Statute otherwise explicitly requires a supermajority in the Security Council. This is a massive, non-textual back-door to jurisdiction. The notion that a majority vote in the GA can confer jurisdiction over non-sate parties is deeply threatening to all non-member states, which explains Washington’s strong response to the Palestinian’s ICC initiative.

The prosecutor naturally wishes to pass the buck to the Secretary General, who wishes to pass it to the General Assembly. Ultimately, under Art. 19, the question rests with the Court.