On February 5, 2021, a Pre-Trial Chamber of the International Criminal Court (ICC) ruled that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. The decision, which was made by a divided chamber over a vigorous 154-page dissent, clears the way for the ICC’s Prosecutor to investigate, arrest, and try any individual whom it finds has committed serious violations of international law in those territories. Israel, which is not a party to the Rome Statute (Statute), which created the ICC and governs its jurisdiction, has rejected this decision and its applicability to Israeli nationals, especially Israeli soldiers. The United States, which is also not a party to the Statute, offered similar criticism of this decision, which may have implications for whether it can continue to provide certain kinds of financial assistance to the Palestinian Authority (PA) under U.S. law. More importantly, the largely unpersuasive legal basis for the decision to authorize expansive jurisdiction will undercut the ICC’s future effectiveness and legitimacy.
Facts and Procedural Background
The PA accepted the jurisdiction of the ICC in 2015, and referred matters relating to alleged war crimes in the occupied territories to the ICC Prosecutor in 2018 pursuant to Articles 13(a) and 14 of the Statute. The Pre-Trial Chamber (Chamber), after preliminary consultations and fact-finding, received a January 2020 request from the ICC Prosecutor seeking a ruling on the Court’s territorial jurisdiction over the “Situation in Palestine.” The Chamber invited the PA, Israel, and victims of alleged war crimes to submit their views on jurisdiction. While the PA did submit a brief, the government of Israel did not (although Israel’s views on jurisdiction were published in a December 2019 public document). The Chamber also allowed various amici curiae, including states, non-governmental organizations, and individual persons (often international law scholars) to submit their views as well. This broader group of submissions included groups both opposing and supporting the ICC’s exercise of jurisdiction.
After rejecting a number of preliminary objections, the Chamber turned to the merits of whether Palestine’s disputed status as a state under international law should preclude the exercise of jurisdiction under the Statute. On this central question, the Chamber was sharply divided between the majority’s ruling in favor of jurisdiction and the presiding judge’s long and detailed dissent.
Under the Statute, the ICC can exercise jurisdiction if a “State which becomes a Party” accepts the tribunal’s jurisdiction and then refers the situation to the ICC Prosecutor. In addition, Article 12(2) further limits the exercise of jurisdiction to situations where the referring State is “(t)he State on the territory of which the conduct in question occurred” or “ (b) [t]he State of which the person accused of the crime is a national.” In essence, the ICC must have the consent of either the territorial state where the events occurred or the state of the accused’s nationality.
The repeated reference in the Statute to “State” strongly suggests that only states as defined under general international law may grant jurisdiction to the ICC. Traditional international law, as set forth in the 1933 Montevideo Convention (and which the United States ratified in 1934), requires states to possess “a permanent population; a defined territory; government; and capacity to enter into relations with the other states.” The PA lacks several of these qualifications, especially the “defined territory” condition. Even the United Nations General Assembly, a strong supporter of the Palestinians’ cause, did not purport to settle the PA’s status under international law or indeed its membership in the UN when its granted the PA status as a “nonmember observer state” in a nonbinding 2012 resolution.
Perhaps realizing the difficulty of establishing the PA’s status as a state under international law, the Prosecutor sought to distinguish between a State Party to the ICC and a “State” for purposes of Article 12(2)(a). In her view, whether or not Palestine qualified as a “State” under general international law is irrelevant as long as the PA validly joined the Statute. The Chamber majority agreed with this approach, which allowed it to avoid ruling on the difficult and contentious question of whether the PA is a “State” under international law.
The Chamber reasoned that although the Statute does not provide any definition of “State,” the chapeau (introductory paragraph) to Article 12(2) states that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute.” In the Chamber’s view, the word “’following” connects the reference to ‘Parties to this Statute’” to the reference to “State on the territory of which the conduct in question occurred” in Article 12(2)(a). As such, the Chamber held, Article 12(2)(a) should be read to authorize jurisdiction on the territory of any “State Party” to the Statute whether or not that State Party can be considered a state under international law. As the dissent pointed out, this reading of Article 12(2)(a) seems untenable as a textual matter because the chapeau’s plain text actually distinguishes between “States” and “Parties to this Statute.” It would also suggest that the creators of the Statute wanted to allow non-states to authorize ICC investigations and ultimate prosecutions despite the lack of any evidence of this intent in the drafting history of the treaty.
Nonetheless, the Chamber continued by ruling that the PA’s accession to the Statute complied with all relevant procedures, and met no objection from the ICC’s governing Assembly of States Parties. The Chamber suggested that another state could have challenged the PA’s accession under the Statute’s inter-state dispute resolution procedure under Article 119(2) of the Statute, but no state brought any such objection to the PA’s 2015 accession. Indeed, the Chamber went further and argued that this inter-state dispute settlement procedure meant that the Chamber lacked jurisdiction to determine the PA’s status as a State. The dissent sharply criticized this conclusion arguing that it was at odds with the ICC’s own prior jurisprudence and requires the ICC to ignore most sources of international law when determining its own jurisdiction, even when those sources are relevant and directly applicable to the question before the Chamber. We would add that this approach treats inaction by the Assembly of States Partis as affirmative authorization, which is a widely unaccepted approach to discerning “legislative intent.”
After determining it had jurisdiction over the PA as a “State Party,” the Chamber then went on to consider what constitutes the “territory of Palestine” for the purposes of Article 12(2)(a). The PA’s lack of internationally recognized borders led the Chamber to rely again on the 2012 UN General Assembly Resolution giving the PA observer state status. That resolution endorsed the “right of the Palestinian people to self-determination and independence in their State of Palestine on the Palestinian territory occupied since 1967.” The Chamber used this resolution to define the PA’s territory as all territory occupied by Israel since 1967, “namely Gaza and the West Bank, including East Jerusalem.” The dissent objected strongly to this reliance on the UN General Assembly’s resolution given its uncertain legal significance and subsequent UN General Assembly and UN Security Council resolutions that refer to a future (as opposed to existing) State of Palestine.
Some amici and the dissent had argued that the Oslo Accords, which contain international promises by the PA to limit the scope of what it administers, should block the exercise of jurisdiction under the Statute, at least over matters that exceed the PA’s actual control under its own domestic law. The Chamber did not reject the relevance of the Oslo Accords, but held that they did not affect the question of whether the Prosecutor is authorized to initiate an investigation. The Chamber noted that parties may make objections based on the Oslo Accords at later stages of a proceedings, such as after charges are made or arrest warrants are issued.
Conclusion and Assessment
The Chamber’s decision to authorize the ICC Prosecutor’s intervention into the Israeli-Palestinian conflict rests on deeply unpersuasive textual readings of the Statute. Although this allowed the Chamber to avoid squarely facing the real and difficult problems of treating the PA as a full-fledged state under international law, its decision will be interpreted as a judicial endorsement of the PA’s claim to such status and will be wielded as a weapon in the ongoing Israeli-Palestinian conflict. Moreover, the Chamber’s decision will likely result in arrest warrants for Israeli Defense Force members and Israeli government officials for their activities in territories that the Chamber itself concedes are disputed and politically complex. The tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case (as well as similarly aggressive findings over U.S. activities in Afghanistan) will only further weaken the tribunal’s overall international legitimacy going forward.
Reprinted with permission from the April 22 issue date of the “New York Law Journal” © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.