It is not surprising to see the United States’ response toward the joining of the Palestine to the International Criminal Court (“ICC”). Only within 21 days the United States challenged the basic tenet of the Palestine-ICC relationship: settle your statehood status first!
On the communication to the UN Secretary General, the United States disapproves the statehood of Palestine and explicitly mentions that accession by the Palestine to the ICC is a “purported” act. The government of the United States believes that Palestine is not qualified to accede to the Rome Statute, hence, against it.
It is interesting to note that the UN Secretary General had already received the instrument of accession and further notified the ICC’s Assembly of States Parties on 6 January 2015; which was promptly followed up by a press release by the ICC on the following day, stating that “the President of the Assembly of States Parties to the Rome Statute, Minister Sidiki Kaba, welcomed the deposit by the state of Palestine of the instrument of accession to the Rome Statute of the International Criminal Court…”.
To make it cherry on top, on the same day, the Registrar of the ICC addressed a letter to the government of Palestine, accepting Palestine’s declaration on 31 December 2014 to recognize the jurisdiction of the ICC for the purpose of identifying, prosecuting and judging authors and accomplices of crimes within the jurisdiction of the ICC committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014. The Registrar also mentioned that the declaration has been further transmitted to the Prosecutor of the ICC for her office consideration.
So what’s the scenario?
The United States’ communication is a strong message. Clear and sound. Under article 76-77 of the Vienna Convention on the Law of Treaties 1969, the UN Secretary General, as the depository of the Rome Statute, is obliged to act impartially in their performance, including to: i) receive communication relating to the Rome Statute’s accession; and ii) bringing the communication to the attention of the Palestine.
If the UN Secretary General bring the communication to the Palestine, it is unlikely that the Palestine will be interested to address it bilaterally with the United States. Hence, the communication may fit to serve another purpose: to intimidate and attack the ICC.
The communication may shake the Assembly of States Parties. But only a little. It is far to alter the decision of the Assembly of States Parties that had “already” acknowledged Palestine as a sovereign state. However, the communication can affect on, at least, two things.
First, it will pressurize the Prosecutor of the ICC for the benefit of Israel. It will stall time for both Israel and the United States to play their influences to the member states of the ICC.
The ICC-funding-cut campaign for example, is an evidence of war game to the ICC Prosecutor that is known that her office is currently lacking of enough resources to support their duties. However, as several big countries had already rejected this campaign, it might be that the communication by the United States is a new ammunition to re-attack the Prosecutor: not to open any investigation on the matter brought by the Palestine by its 31 December 2014 declaration to our ally!!
All eyes are now on the Prosecutor, whether to take the bait or to leave it under the rug for a certain period of time. Chances are now 50:50 for the Prosecutor to take the call.
Secondly, if the Prosecutor finally choose to open investigation based on the Palestine’s 31 December 2014 declaration, the communication can be used by the United States to utilize article 16 of the Rome Statute, that is, to draft UN Security Council resolution to instruct the ICC to defer its investigation or prosecution for an “unspecified time” – there was a precedent by UNSC resolution No 1497/2003 that deferral might be an infinity.
UN Security Council Resolution No 1497 is bad precedent that was adopted during the armed conflict in Liberia in 2003. Resolution 1497 precludes the ICC from investigating or prosecuting any crimes committed by personnel serving as part of the Multinational Force in Liberia. The elements of the 1497 Resolution raise fundamental legal issues on the competence of the Security Council not just to defer ICC jurisdiction, but also to terminate it. This is because the Resolution contains neither a time limitation nor a renewal clause. Thus, implying that the Resolution may remain current.
If the communication is intended to propose a Security Council resolution similar to 1497, it is reasonably sound to argue that the United States for a second time, is attempting to rewrite the Rome Statute from twelve months period of deferral to eternity by utilizing the UN Security Council. All for its ally.
This is a major setback. The United States will most likely utilize article 25 of the UN Charter, that bound states to implement the decision of the Security Council, as one of the elements of the new Resolution. And if it happens, let’s just hope that the remaining permanent-five countries will act against it.
Maybe Prof. William Schabas is right that if the Security Council is perceived of being able to terminate ICC jurisdiction by utilization of article 25 UN Charter in combination with article 16 of the Rome Statute, then the ICC should be considered as being able to assess whether or not the Security Council is validly acting pursuant to Chapter VII UN Charter.
Two questions are left: how and who (which organ of the ICC) should be able to do so
Only time will tell.