Of Legal Reasoning and Wishful Thinking: The ICC and Gaza

In December, a well established Palestinian Human Rights organisation issued a Position Paper on whether the ICC should recognise the Palestinian's Authority's submission of a declaration to the OTP under article 12(3) of the Statute. For memory, this article provides that:

"If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9."

 The position paper argues that one should not adopt the general international law definition of statehood, and that in line with the "spirit" of the Statute, the question should be whether the PA has a jurisdictional authority over the crimes and can therefore transfer this authority to the ICC. The answer is positive (unsuprisingly... and I say that not because I doubt the intellectual honesty of the drafters of the policy paper, but because I doubt they would have published the paper had the conclusion be otherwise...).
I find the argumentation pretty smart, but ultimately flawed and unconvincing. Here are a few issues I have with the policy paper.

The question of a different definition of "State" in 12(3)
Here for me lies the biggest flaw in the argumentation. The policy paper refers, among other things to the fact that the Security Council can refer a "situation" to the ICC, as in the Darfur case, that doesn't cover a State as defined in international law and therefore that it has some flexibility to circumscribe the investigation of the ICC . That is true... but irrelevant. As we say in French, "comparaision n'est pas raison". There is no link between the definition of a "situation" in the Rome Statute and the definition of "State" in article 12(3). Indeed, the Security Council could very well refer, for example, the situation in the western provinces of China and the repression of the ouigours and that would not mean that the Xingjian region would itself be recognise as being able to make a declaration under 12(3). These are two different legal issues altogether.
More importantly, 12(3) refers to a "State which is not a Party to the Statute". The Statute itself therefore considers that a "State" is an entity capable of joining the ICC Statute. In order for the PA to use 12(3), it must be established that it has the capacity to join the Rome Statute and is therefore a State itself, under general international law, which the Policy Paper itself recognized as difficult to establish under current international circumstances. I have difficulty in interpreting 12(3) differently against its wording.

The limits of "the object and purpose" approach to treaty interpretation
One paragraph(paragraph 20) of the Paper is particularly troubling and I quote it in full to be accurate:

"The Court has not been long in existence but it is clear from the cited examples that past precedent suggests a tendency to interpret the mechanisms of the Rome Statute expansively, while respectful of the rule of law, and in a manner which prefers fulfilment of the aims of the Statute over a narrow and unduly legalistic reading of international criminal law. It would be contrary to the purposes set forth in the Statute’s Preamble to exclude from the scope of the Court’s jurisdiction a geographical zone in which war crimes and crimes against humanity are perpetrated, on the sole premise that it is not generally recognized either as constituting a state, or a part of any state. Given the Preamble’s affirmation “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation” and its determination “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, it is not unreasonable, indeed, it must be expected, that in interpreting the meaning of ‘state’ for the purposes of Article 12(3) of the Rome Statute, an expansive approach, divorced from the political considerations which otherwise tend to guide state recognition, and rooted firmly in the principles and purposes of the UN Charter, must be followed." (my emphasis)

This shows a tendency in a lot of Human Rights activists of interpreting broadly international instruments. It is at the basis for a lot of the case law of the ad hoc tribunals and at the ECHR. Taking the high moral ground allows people who have a more traditional approach to treaty interpretation to be labelled "ennemies of the cause". If I don't accept a HR-friendly expanding of a legal text to cover more situations than initially envisioned, it shows that I'm against HR. That is a dangerous route and plays with the limits of law and morals. It is one thing to recognize the atrocious nature of certain human conducts, it is another to go beyond the law to apply directly a moral rule. As a lawyer, I cannot agree with this "common sense" approach which basically renders the rule of law meaningless.
The "on the sole premise" comment I put in bold above shows the way things are considered. We appear as petty lawyer technocrats who can't see the bigger moral picture. But it is not "on the sole premise"! It is the application of the Statute, a document negotiated, drafted and entered into force based on that drafting. If we follow the "common sense" approach, we might as well give up any rules of international law and at the least any certainty in its application. Who is to decide what is best for whom? I think it is the advocates of this approach who fail the see the bigger picture: that in most cases (with the adequate checks and balances of course) the rule of law implies the mediation of process in the establishment and change of rules in order to avoid arbitrariness. You can't just change the rules just because you think its right or wrong. I perfectly recognise the inadequacies in the international lawmaking process, which is pervaded by selfish State interests. But I don't think that the solution, on the long run, is to bypass the legal process entirely, even if it offers a short-term solution to a apparent loophole.
As for the "political neutrality" called for by the Paper, it is very nice, but totally unconvincing. Human Rights often cloud themselves in the shroud of universal morals detached from politics. But everything is political, in the strongest sense of the term. Societies make choices in governance. Nothing is imposed from above. Al Haq should recognise that it has a political agenda, and there is no shame in that. Like I said before, I doubt they would have published a policy paper saying that the PA was not able to make a declaration and that is perfectly understandable. But let's not pretend to live in an apolitical utopia of HR and goodwill to all men. This is not the nature of men, and more importantly, clouds issues that are key in understanding the world. But i've gone off on a little of a tangent here... back to the issue...

Other relevant criteria
Having interpreted 12(3) as it did, the Policy Paper moves on to answer three questions as posed by the OTP to decide whether to accept the declaration under 12(3). In this sense, the OTP is contributing to the interpretational confusion of article 12(3) by even accepting to discuss the issue. The 3 questions are as follows:

1. Does the PA have the capacity to enter into international agreements?

2. Does the PA have the capacity to try Palestinians on criminal charges?

3. Does the PA have the capacity to try Israeli citizens on criminal charges?

I won't go into a detailed consideration about these three questions and the argumentation put forward by Al Haq. More generally, I don't see how these considerations are relevant.to the application of 12(3). 12(3) only refers to the exercise of 12(2) (blatantly absent from the Policy Paper!!!) which gives the two following jurisdictional criteria:

"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:

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

(b) The State of which the person accused of the crime is a national."

 12(3) doesn't exist in a void and has to be read in conjunction with 12(2). Therefore, accepting that the PA is a State under 12(3) is also recognizing that it is State under 12(2) which refers to two very traditional attributes of the State: territory and nationality. Presumably, the PA is not giving its "authorisation" for 12(2)(b), given that the alleged perpetrators will be Israeli, so 12(3) must apply in this case to 12(2)(a), thus indirectly accepting that the PA is a State with some territorial sovereignty. Pretty close to Statehood in the traditional sense.
Outside this consideration, the 3 questions posed are broadly irrelevant. The first one is, if one accepts the Policy Paper's interpretation of 12(3). If the PA is not a State, it must still have the capacity to enter into a cooperation agreement with the ICC. But the other two are not. The criminal jurisdiction over the crimes is not helpful to apply 12(3). As the Policy Paper itself argues, most international crimes carry a certain obligation to exercise universal jurisdiction. Does it mean that any country in the world that passes a law allowing to prosecute Palestinians and Israelis can make a declaration under 12(3) about gaza? it doesn't make sense. Again, the two considerations for 12(3) are those contained in 12(2): nationality and territory.

Why the confusion?
Why have these criteria been considered at all, including by the OTP? This is a totally uninformed guess, but I think there might be confusion as to the extent of 12(3). As I said before, it is linked to 12(2) and the jurisdictional links that circumscribe ICC jurisdiction. But 12(3) is not an additional trigger mechanism. There are only three: referral by a State Party, the Security Council and the exercise of proprio motu powers by the Prosecutor (are people actually still holding their breath on that one?). The conditions put forward by the OTP and the Policy Paper are better fit to the triggering of a case or the admissibility of the case, not the existence of the territorial and national jurisdiction over the case, which is what 12(2) and 12(3) are concerned with. Even if the declaration were to be accepted, it would still be required that a State or the Security Council refer the situation, or that the prosecutor seize himself of the situation.

Conclusion
This is once again a case of mass delusion in my opinion, of wanting the Statute to say something it doesn't and therefore pretending that it does. The challenges of combating international crimes must be met, but not at the cost of legal certainty. Now that I think about it, the Policy Paper is wrong in saying that the Statute does not provide for situations like this, thus allowing alleged crimes go unpunished. The Security Council, as the Paper mentions, can refer any situation with a lot of discretion, irrespective of the status of the territory or the nationality of the alleged perpetrators. Of course, the US will never allow a case involving Israel to be referred to the ICC, but this reveals a problem with the Security Council, where the fight should be taken, not the ICC Statute, which, as a treaty is bound by a fundamental rule of international law, that an agreement binds only those who consented to it. Of all people, Human Rights activists should agree with this concept of liberty that you can't impose something on someone against his will...