The recent majority ruling of the International Criminal Court (ICC) regarding territorial jurisdiction in Palestine appears to have been based on an error of fact and a failure to examine a key document on which it relies.
Attention has so far been focused on the fundamental errors of law in the majority judgment, which Presiding Judge Kovacs described in his monumental dissenting judgment as having “no legal basis in the Rome Statute, and even less so, in public international law”.
However, amongst other errors of fact and law, the majority judgment states at paragraph 100:
“The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 ….”
The alleged instrument of accession does not appear to have been published, so we asked the Registrar of the ICC for a copy. He replied on 18 February 2021 stating “The Court does not have a copy of the accession instrument for the State of Palestine”.
We then sent a Freedom of Information request to the Foreign, Commonwealth and Development Office of the British Government. The UK is a State Party to the Rome Statute, so would have received the instrument of accession if it was circulated.
The reply dated 15 March 2021 stated:
“I am writing to advise you that following a search of our paper and electronic records, I have established that the information you requested is not held by this Department.
The United Nations Secretary-General circulated the depositary notification at https://treaties.un.org/doc/Publication/CN/2015/CN.13.2015-Eng.pdf to States Parties to the Rome Statute, but not the instrument of accession itself.”
Several things appear to follow from this:
The statement in the majority judgment that the instrument of accession was circulated to States Parties is untrue.
The majority judgment was wrongly based on the premise that States Parties had seen the instrument of accession and had not objected to its form or content or the authority of its signatory.
The judges did not check whether the instrument of accession was actually circulated to States Parties.
The majority did not examine the instrument of accession themselves.