Professor John Dugard – together with a number of eminent “scholars and teachers of international law and international criminal law” (including Max du Plessis) – has written to the President of the Assembly of States Parties (ASP) of the International Criminal Court requesting the referral of the question of Palestinian statehood to the ASP. You will recall that in January 2009 the Palestinian Authority lodged a declaration pursuant to article 12(3) of the Rome Statute purporting to grant the ICC jurisdiction over “acts committed in the territory of Palestine since 1 July 2002”.
Earlier this year, the outgoing Prosecutor Mr. Moreno Ocampo (finally) decided that he lacked the competence (under the Rome Statute) to decide whether Palestine qualified as a “State” for the purposes of article 12(3). Noting that the “competence for determining the term ‘State’ within the meaning of Article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of the General Assembly”. (See Bill Schabas’ analysis here)
The Prosecutor added however:
“The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter in accordance with article 112(2)(g) of the Statute. In interpreting and applying Article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies of the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1).”
Taking this as their lead, the “scholars and teachers of international” have requested that the matter be placed on the agenda of the ASP at its November session in The Hague. They do so in the belief that “it is in the interests of international criminal justice and the reputation of the International Criminal Court that the question of the statehood of Palestine for the purposes of Article 12(3) of the Rome Statute be properly resolved as soon as possible.”
The experts don’t let the former Prosecutor off the hook for his obfuscation, noting:
“From 2009 to 2012 the former Prosecutor gave the impression that it was for his Office to decide the question of Palestinian statehood for the purposes of Article 12(3) of the Rome Statute and encouraged international jurists to express their views on the statehood of Palestine for the purposes of making such a determination . We are disappointed that after three years the Prosecutor should decline to answer this question and instead refer it to the United Nations or the Assembly of States Parties.”
The letter was endorsed by: Georges Abi-Saab, Susan Akram, Ove Bring, Eric David, Anton du Plessis, Max du Plessis, Mathias Forteau, Vera Gowlland Debbas, Larissa van den Herik, Victor Kattan, Michael Kearney, Marcelo Kohen, Chantal Meloni, André Nollkaemper, Roger O’ Keefe, Alain Pellet, Bill Schabas, John Quigley, John Reynolds, Jean Salmon, Ben Saul, Nico Schrijver, Iain Scobbie, Carsten Stahn, Sébastien Touzé, Paul de Waart, William Thomas Worster, and Liesbeth Zegveld.