On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) ruled that the court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem and Gaza. This decision follows the Prosecutor’s request for a ruling on the court’s territorial jurisdiction in Palestine to confirm her ability to investigate alleged crimes committed in the occupied Palestinian territory since June 13, 2014.
Is the issue at hand political and as such non-justiciable?
As one of the preliminary issues, the Pre-Trial Chamber (PTC) discussed the argument raised by certain amici curiae, State Parties and representatives of victims according to which the Prosecutor’s request was of a political nature rather than a legal one (§53).
The PTC noted that the request did raise legal questions regarding the Court’s jurisdiction and stressed that considering that the consequences of the request would be the creation of a new state reflected ‘a misunderstanding of the actual subject-matter of the Request’. Indeed, the Chamber explained that the creation of a new state falls outside the ICC’s mission (§54). Further, the Chamber asserted that, as by the very nature of the core crimes under the Rome Statute, the mere fact that the Situation in Palestine carries highly political aspect cannot prevent the Court from exercising its mandate (§55-57).
Is Palestine a State for the purpose of Article 12(2)(a)?
After determining that a ruling on a question of jurisdiction pursuant to Article 19(3) of the Rome Statute (Statute) may be sought and issued before a case emanates from a situation (§68), the Chamber assessed whether Palestine can be considered ‘[t]he State on the territory of which the conduct in question occurred’ within the meaning of Article 12(2)(a) of the Statute.
Noting that neither the Statute nor the Rules of Procedures and Evidence, nor the Regulations of the Court provide a definition of ‘State’ (§92), the PTC underlined that the chapeau of Article 12(2) of the Statute stipulates ‘the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute’. Hence, the Chamber explained the connection between ‘States Parties to this Statute’ contained in the chapeau and ‘[t]he State on the territory of which the conduct in question occurred’ in Article 12(2)(a). While the ‘State’ referred to in Article 12(2)(a) must be a State Party to the Statute to comply with the chapeau, there is no prerequisite of statehood under general international law (§93).
Further, the PTC assessed whether the preconditions to the exercise of the Court’s jurisdiction under Article 12(2) have been met, notably with regards to the accession procedure under Article 125(3) of the Statute according to which ‘[i]nstruments of accession shall be deposited with the Secretary-General of the United Nations’. The PTC pointed out that the transmittal of a depositary notification ‘is premised on the practice of the UN General Assembly which ‘is to be found in unequivocal indications from the [United Nations General] Assembly that it considers a particular entity to be a State’ and ‘[s]uch indications are to be found the [United Nations] General Assembly resolutions’’ (§96). Therefore, a determination by the UN General Assembly renders an entity capable to accede to the Statute.
The PTC added that the UN Office of Legal Affairs has indicated that the Secretary-General, ‘in discharging his functions as depositary of treaties containing an ‘all States’ clause, will be guided by the determination that the General Assembly has accepted Palestine as a non-Member observer State in the United Nations, and that, as a result, Palestine would be able to become party to any treaty that are open to ‘any State’ or ‘all States’ deposited with the Secretary General’ (§98). Thus, Palestine acceded to the Statute in compliance with Article 125(3) of the Statute.
The Chamber noted that only one State Party manifested its opposition at the time of Palestine’s accession process, and that following it accession, Palestine undertook an active role in the work of the Assembly of States Parties which was not contested by any other State Party (§100-101s).
The PTC concluded that irrespective of Palestine’s status under general international law, its accession to the Statute was lawful, so that the Statute has automatically entered into force for Palestine (§102). The PTC explained that interpreting ‘[t]he State on the territory of which the conduct in question occurred’ as referring to a State fulfilling the criteria for statehood under general international law would ‘exceed the object and purpose of the Statute and, more specifically, the judicial functions of the Chamber to rule on the individual criminal responsibility of the persons brought before it’ (§106).
Delimitation of Palestine’s territory
The second question to answer for the Chamber, was the delimitation for the territory of Palestine ‘for the sole purpose of defining the Court’s territorial jurisdiction’ (§114).
The PTC first recalled that disputed borders have never precluded a State from becoming a State Party to the Statute and cannot impede as such, the Court from exercising its jurisdiction (§115).
Second, the PTC noted that in granting ‘non-member observer State status in the United Nations’ to Palestine in Resolution 67/19, the UN General Assembly ‘[reaffirmed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967’ (§116).
Further, the Chamber noted that the Palestinian right to self-determination within with occupied territory has been explicitly recognised by different bodies, including the International Court of Justice (§121). Therefore, the PTC concluded that the Court’s territorial jurisdiction extended to the territories occupied by Israel since 1967, in compliance with the right to self-determination (§123).
The Oslo Accords
While the Chamber noted that the Oslo agreement contains a number of clauses limiting the scope of the jurisdiction of the ‘Palestinian Interim Self-Government Authority’ (§125), the judges considered the arguments according to which such clauses would prevent international cooperation or judicial assistance because it would put Palestine in breach of pre-existing obligations were not pertinent to the resolution of the issue under consideration, i.e., the scope the of the Court’s territorial jurisdiction in Palestine (§129). Therefore, the Chamber did not address these arguments.
An outcome limited to the Court’s territorial jurisdiction
Considering the political sensitivity of the situation and to avoid any misunderstanding, the Chamber ended its ruling by recalling that its conclusion ‘are without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court’s jurisdiction’ i.e., Palestine statehood under general international law. ‘In particular, by ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.’ (§130).