UN Secretary General Ban Ki Moon has said that Palestine will join the International Criminal Court in April. Yet it is not the Secretary General’s decision to make. Accession to the ICC is governed by its constitutive instrument, the Rome Statute. Under the Statute, the Secretary General merely serves as a depository of Palestine’s accession documents. There is only one way for Palestine to join the ICC under current international law, and that is through Article 125 (3) of the Statute, which provides for accession by “States.” If Palestine is not a State, its accession instrument is null and void.
So the key question is who gets to decide whether Palestine, which is not a Member of the United Nations, counts as a “State” under the ICC’s charter? Much commentary has focused on the role of the Office of the Prosecutor. While the previous ICC chief prosecutor faced the issue of whether Palestine is a State for purposes of determining whether it could as a non-Member accept the jurisdiction of the Court under Article 12 of the ICC Statute, membership is a quite different matter. Normally questions related to membership of international intergovernmental institutions are addressed in the first instance by the existing members in the governing body of the institution.
This is where Article 119 of the ICC Statute comes in. It provides (with an exception for matters concerning the judicial functions of the court), that disputes concerning the interpretation of the Statute that cannot be settled by negotiation within the 3 months are to be referred to the Assembly of States Parties. Ultimately a failure to resolve the dispute there could result in a referral to the International Court of Justice.
But is there a dispute about Palestine’s status as a State under the ICC Statute? According to Article 119, for a dispute to exist at least one existing State Party to the ICC Statute would have to think the right interpretation is that Palestine is not a state, and at least one other State Party would have to take the opposite, or a different, view.
For purposes of resolving any such dispute pursuant to Article 119, the normal rules of treaty interpretation would seem to apply, and thus the relevant background rules of international law. Some commentators, including David Luban on this blog, have pointed to various resolutions and statements of political actors that affirm Palestinian statehood in some way or other, often as an aspiration or goal to be urgently desired, or as in the case of the resolution by Portugal’s parliament, subject to existing rules of international law. The question unanswered is how these political developments could establish that Palestine is a State today, under relevant international law principles (such as those codified in the Montevideo Convention). We as international lawyers need to do a better job of disentangling to the extent possible the legal question of statehood (so fraught with consequences) from the powerful and seductive political rhetoric and symbolism of recognition.