In his formal depository notification (C.N.13.2015.TREATIES-XVIII.10. Communicated on 6 Jan. 2015), the UN Secretary General announced, in his capacity as depositary, that the ICC statute will enter into force for “the state of Palestine” on 1 April 2015, in accordance with ICC statute art. 126(2) which refers to States acceding to the Statute.
The Secretary General in his capacity as depositary should have refused to accept the Palestinian request on the strength of the Rome statute’s limitation of membership to States only.
Depositary functions, according to Art. 77 of the 1969 Vienna Convention on the Law of Treaties, require the depositary to check that the request for accession be in good order and require the depositary to act impartially.
There is no doubt that the 2012 UN General Assembly Palestinian upgrade resolution was nothing more than a political expression of opinion by those states voting in favor. It was not a legal determination and could not create a Palestinian state, nor could it serve as a legal basis for determining that the Palestinians are a state, or for a depositary’s accepting them as such.
The same goes for the ICC prosecutor. Since the previous 2012 refusal by the former prosecutor to accept the 2009 Palestinian attempt to join the court, nothing has changed legally and therefore the court should not accept the Palestinians now only on the strength of the political upgrade resolution.
In view of the above, the acceptance by the Secretary General of the Palestinian request is legally flawed and was determined under false pretenses – “false” because there exists no sovereign Palestinian state, and “pretenses” because of the pretension by the Secretary General as if such a state exists when he is fully aware that there is no legal basis for this.
In light of the above, the Secretary General must revoke his communication and respond to the Palestinian request that after due examination, since they are not a sovereign state, they cannot, pursuant to the provisions of Art. 126(2) of the ICC statute, accede thereto.