Over the holidays, the Guardian and other media have again raised the specter of the Palestinians joining the International Criminal Court (ICC), or otherwise attempting to invoke ICC jurisdiction, this time around in connection with the announced construction of new settlements in the West Bank. This would not be the first time the situation in the Palestinian Territories has come before the Court. For background, below is a timeline of some (but by no means all, see here for more) events of relevance to this complex and politically fraught issue. Importantly, in order for the Court to exercise jurisdiction over any events on Palestinian territory (including the construction of settlements, assuming arguendo that the settlements are in fact on Palestinian territory notwithstanding that the relevant borders have yet to be definitively demarcated), it would be necessary for there to be a State of Palestine in order to satisfy the jurisdictional preconditions of Article 12 of the ICC Statute. That provision requires that either the territorial state or the state of nationality of the accused be a party to the treaty in the absence of a Security Council referral (which is, for obvious reasons, not an option). So, the prospect of ICC jurisdiction over events in the region hinges largely (although not entirely, as discussed below) on the question of Palestinian statehood.
1. November 22, 1974: The United Nations (UN) granted the Palestinian Liberation Organization “entity” status within the UN with Resolution 3237.
3. April 27, 1989: The PLO sought admission in the United Nations Educational, Scientific and Cultural Organization (UNESCO). The UNESCO Board and General Conference deferred consideration of the application. The World Health Organization (WHO) similarly voted to postpone action, and the International Telecommunications Union (ITU) tabled a contemporaneous effort.
4. September 13, 1989: Following a Palestinian communication concerning accession to the 1949 Geneva Conventions, Switzerland—the treaties’ depository—indicated in a Note of Information that it was
not in a position to decide whether this communication can be considered as an instrument of accession [given] the uncertainty within the international community as to the existence or the non-existence of a State of Palestine and as long as the issue has not been settled in an appropriate framework.
5. September 13, 1993: Clandestine negotiations between Israel and the PLO in Oslo, Norway, produced a “Declaration of Principles on Interim Self-Government Arrangement” that formalized the peace process. The Oslo Accord (I) covered a range of issues; of particular relevance to potential Palestinian action before the ICC is Article XV (“Resolution of Disputes”), which states that the parties commit to resolving any issues by negotiation:
Disputes arising out of the application or interpretation of this Declaration of Principles, or any subsequent agreements pertaining to the interim period, shall be resolved by negotiations through the Joint Liaison Committee to be established pursuant to Article X above. Disputes which cannot be settled by negotiations may be resolved by a mechanism of conciliation to be agreed upon by the parties.
6. September 28, 1995: Israel and PLO signed Oslo II, the Interim Agreement on the West Bank and the Gaza Strip, which became the basis for subsequent agreements between the parties. It has been argued that, pending a final deal, Oslo II (and in particular Article XVII and Annex 4) accorded Israel exclusive penal jurisdiction in parts of the West Bank (including areas where the settlements are located) and over Israelis, which is relevant if the ICC’s jurisdiction is predicated on a delegation of jurisdiction by the territorial state and the general principle that a party cannot delegate a power it does not exercise. Article 98(2) of the ICC Statute—which may apply only to traditional Status of Forces agreements, although this remains to be determined, and which does not speak directly to jurisdiction—provides that the Court may not proceed with a request for surrender that
would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.
7. July 1998: States and other entities participated in the negotiation of the ICC Statute in Rome, Italy. “Palestine” was listed as an “Organization” in the diplomatic roster.
8. September 4, 1999: In the Sharm el-Sheikh Memorandum (and subsequent agreements), the parties to the Declaration of Principles reiterated their shared commitment to negotiations and pledged to eschew unilateral action. Point 10 states:
Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement.
9. April 14, 2002: Following a series of suicide bombings, Prime Minister Ariel Sharon announced that a separation fence would be built in the West Bank.
10. July 2002: The ICC Statute entered into force with its 60th ratification, and the Court was brought into being.
11. July 9, 2004: Following a request from the General Assembly, the International Court of Justice (ICJ) issued its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The opinion notes that current
efforts [should] be encouraged with a view toward achieving as soon as possible, on the basis of international law, a negotiated solution to the outstanding problems and the establishment of a Palestinian state.
12. June 2007: Israel and Egypt established a blockade around Gaza following the 2006 elections that brought Hamas to power and led to the ouster of the rival Fatah party.
13. December 27, 2008: Israel launched Operation Cast Lead in response to repeated rocket attacks fired from the Gaza Strip.
14. January 3, 2009: A ground incursion began in the Gaza Strip. Israel imposed a naval blockade 20 nautical miles off the Gaza coastline by way of a Notice to Mariners released on January 6, 2009.
15. January 12, 2009: The Human Rights Council in Geneva established a fact-finding mission to examine violations of international law committed during Cast Lead. Only Canada voted against the resolution (the United States was not a member of the Council at the time).
17. January 22, 2009: The Palestinian National Authority lodged a declaration with the ICC Registrar under Article 12(3) of the Rome Statute accepting the jurisdiction of the ICC for events on the Palestinian Territories since July 1, 2002, when the ICC entered into force. Article 12(3) allows States that are not party to the Statute to accept the Court’s jurisdiction over international crimes on an ad hoc basis. Article 12 reads:
If the acceptance of a State which is not a Party to this Statute is required [i.e., the territorial or nationality state] … that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.
An Article 12(3) declaration is not equivalent to a referral of a situation; it is simply an acceptance of jurisdiction absent full ratification. But, it is a necessary precondition for the Office of the Prosecutor to exercise its proprio motu powers and initiate an investigation absent a State Party or Security Council referral. Over the years, the Office of the Prosecutor (OTP) has reportedly received over 400 communications concerning crimes allegedly committed in Palestine.
18. January 2009: Upon receipt of the Palestinian declaration, and as is customary when information is received about the potential commission of ICC crimes, the ICC Office of the Prosecutor (OTP) opened a preliminary examination, which is designed to consider whether there is a reasonable basis to proceed with an investigation. (Only a formal investigation can lead to charges being filed against particular individuals). The multifold issues under consideration are set forth in Article 53 of the Statute:
- whether there is jurisdiction (i.e., did the alleged crimes take place on the territory of a state party or were they committed by the nationals of a state party, is temporal jurisdiction satisfied, and do the acts alleged constitute crimes within the jurisdiction of the Court?);
- whether the situation is admissible (which hinges on the gravity of the alleged crimes and the existence vel non of domestic proceedings concerning the alleged crimes (the principle of complementarity)); and
- the interests of justice (a countervailing and discretionary factor that invites the Prosecutor to consider whether there are substantial reasons to believe that an investigation would not serve the interests of justice, taking into account the gravity of the crime and the interests of victims).
The OTP tends to conduct these inquiries in “phases” in the order set forth above; so, it will consider jurisdiction first even if a later factor, such as gravity, offers reasonable grounds not to proceed. This this methodology is not mandated by the Statute and has the tendency to elongate the preliminary examination process and heighten the anxiety of states under scrutiny. With respect to the Palestinians’ original Article 12(3) Declaration, the OTP gave all concerned an opportunity to present arguments; Israeli and Palestinian officials submitted materials, as did a number of academics, in connection with the process. Palestinian officials visited the OTP at least twice.
19. September 25, 2009: The UN Fact Finding Mission on the Gaza Conflict released its report, the Goldstone Report (named after the Chair of the Commission, jurist Richard Goldstone of South Africa). The Mission concluded that both the Israeli military and Palestinian militias committed international crimes during the conflict, including crimes that fall within the jurisdiction of the ICC. The Mission also recommended that the Human Rights Council submit the report to the Prosecutor of the ICC and that the Security Council refer the situation to the ICC if the domestic authorities do not undertake credible investigations of the crimes committed. Specifically, the Report states:
The Mission recommends that … the Security Council should consider the situation and, in the absence of good-faith investigations that are independent and in conformity with international standards having been undertaken or being under way within six months … by the appropriate authorities of the State of Israel, … refer the situation in Gaza to the Prosecutor of the International Criminal Court. …
The Mission called upon the Prosecutor to finalize his evaluation of the Palestinians’ Article 12(3) Declaration as “expeditiously as possible.” Israel did conduct its own investigations into the conduct of its troops (including whether white phosphorus was improperly used) and took various forms of disciplinary and legal action, including the issuance of indictments.
20. December 14, 2009: The Office of the UN High Commissioner for Human Rights, Navi Pillay, apparently inquired of the OTP about the status of the Palestine preliminary examination.
21. January 12, 2010: In response to the High Commissioner’s inquiry, the OTP indicated that it was evaluating the Court’s jurisdiction over events in the conflict in Gaza in December 2008-January 2009, implying that only Cast Lead was under consideration.
22. May 2010: Activists and NGOs launched a “Freedom Flotilla” to challenge the blockade and deliver humanitarian aid to the Gaza Strip. The ships of the flotilla include the MV Mavi Marmara, which was registered in the Union of Comoros. Along with Jordan, Tunisia, and Djibouti, the Comoros is one of the few League of Arab States members that has ratified the ICC Statute. (The Comoros is also a member of the African Union and the Organization of Islamic Cooperation (OIC)). Other ships involved in the flotilla were registered in ICC member states—Greece and Cambodia—and in Turkey and the United States.
23. May 31, 2010: Although the precise facts remain in dispute, when ships of the flotilla refused to reroute to the Port of Ashdod for inspection, they were boarded by Israeli naval forces in international waters. On the Mavi Marmara, Israeli forces faced resistance from a group of activists. Nine activists (all Turkish nationals, including one dual Turkish-U.S. national), were killed, and ten Israeli forces were wounded. These events formed the subject of several commissions of inquiry by, inter alia: the UN Secretary-General (the Palmer Report), Israel (the Turkel Report and Lindenstrauss Report), Turkey, and the UN Human Rights Council. The reports reach differing conclusions as to when lethal weaponry was employed and by whom.
24. April 13, 2011: The UN Human Rights Council in Geneva adopted a resolution urging, in operative paragraph 8, the General Assembly to submit the Goldstone Report to the Security Council with a recommendation that the situation in the Palestinian Territories be referred by the Council to the ICC. Members of the Human Rights Council, the High Commissioner herself, and fact-finding bodies established by the Council (e.g., the Syrian Commission of Inquiry) have recommended the referral of situations (most notably, Syria) to the Court, but it is rare for the Council itself to make such a pointed recommendation. (It should be noted that the Human Rights Council, which has an unprecedented standing agenda item (number 7) on “the human rights situation in Palestine and other occupied Arab territories,” has been accused (e.g., here by Secretary General Kofi Annan) of being disproportionately focused on Israel). Twenty-seven Council members voted for the resolution; Slovakia, the United States, and the United Kingdom voted against it, and there were 16 abstentions. U.S. Ambassador Eileen Chamberlain Donahoe explained her vote on this resolution and 5 others aimed at Israel that came up for a vote in this session of the Council:
We are deeply troubled to once again be presented with a slate of resolutions replete with controversial elements and one-sided references that fail to address the real challenges of the region. As members of the Human Rights Council, we all share a responsibility to promote and protect human rights; it should also be our role to help move the parties to peace, which remains the surest way to protect the rights of Palestinians and Israelis alike. … It should be this Council’s role to support and encourage peace talks between the two parties, not complicate them through divisive and biased resolutions. We believe that through good-faith negotiations, the parties can mutually agree on an outcome that ends the conflict and reconciles the Palestinian goal of an independent and viable state with the Israeli goal of a secure state.
She also took issue with the ICC recommendation.
25. September 23, 2011: Palestinian Authority President Mahmoud Abbas submitted Palestine’s application for full membership in the UN. Membership requires a recommendation by the Security Council, which in turn requires an affirmative vote of 9 of 15 Security Council members (and no veto by any of the permanent 5 members), as well as a decision to this effect by UN General Assembly itself with the support of 2/3 of its membership. The effort was abandoned when it became clear that Abbas did not have the necessary majority votes in the Council and that the United States would exercise its veto. Surrounding the emergence of this bid, the Quartet—the European Union, Russia, the UN and the US—renewed efforts to resume direct negotiations.
26. October 31, 2011: Palestine was admitted as a member of UNESCO. The UNESCO vote was 107 votes in favor, 14 votes against, and 52 abstentions. UNESCO is open to all members of the UN, but states that are not UN members may also be admitted to UNESCO with a two-thirds majority vote at a General Conference and upon recommendation of the Executive Board. All UN specialized agencies have different criteria for membership, which may not be dependent on full UN membership. The International Atomic Energy Agency, for which the United States serves as the depository for instruments of acceptance, has a similar process of membership. Many agencies (such as the ILO) require that the state in question be in a position to fulfill the obligations of membership, and membership will be denied if members are not satisfied that the entity is a “state” within the meaning of the relevant article.
27. October 31, 2011: Following the UNESCO vote, the United States and Israel announced that they would not tender their UNESCO membership dues (with the U.S. share amounting to more than 1/5 of the agency’s total budget), although they did not withdraw from the organization. (The United States withdrew from UNESCO in 1984-2003, citing concerns about politicization, support for programs undermining free speech, and inefficiencies in the organization; President George W. Bush rejoined the agency in the wake of institutional reforms.) The United States’ response was mandated by two pieces of legislation—Foreign Relations Authorization Acts from Fiscal Years 1990-1 and 1994-5—that require, respectively, the withholding of dues to any UN agency that accords the Palestine Liberation Organization “the same standing as member states” or that grants membership to any group that does not “have the internationally recognized attributes of statehood.” Prior efforts by President Obama to obtain a waiver of these provisions or to convince Congress to alter these statutes were not successful.
28. November 2, 2011: Palestinian officials announced that they would focus on full membership in the UN and would not apply to join any more international organizations. This followed statements by UN Secretary-General, Ban Ki-Moon, that these bids to join international organizations are “not beneficial to anybody.”
29. March 22, 2012: The UN Human Rights Council adopted a resolution dispatching an independent fact-finding mission to investigate the impact of Israeli settlements in Occupied Palestinian Territory on the rights of the Palestinian people. The United States was the sole “no” vote on this resolution, decrying the creation of “yet another one-sided UN mechanism related to the Israel-Palestinian conflict.” United States representatives have also stated that:
[T]his politicized fact finding mission on Israeli settlements does not advance the cause of peace and will not add useful information to the debate over settlements.
Ten other members of the Council originally abstained in the vote, but several of them subsequently voted in favor of a follow-up resolution welcoming the issuance of the Report and affirming the illegality of Israeli settlements.
30. March 26, 2012: Israel announced that it would end cooperation with the Human Rights Council following the body’s decision to delve into the settlement issue.
31. April 3, 2012: In one of his final actions in office, then-Chief Prosecutor Luis Moreno Ocampo finally issued his decision declining to move forward with an investigation into events on the Palestinian Territories on the ground that he was not empowered to determine whether Palestine is a “state” within the meaning of Article 12(3). He determined that
it is for the relevant bodies at 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).
32. June 29, 2012: The Pilgrimage Route of Jesus and the Church of the Nativity in Bethlehem are recognized as a UNESCO World Heritage Site and a World Heritage Site in Danger. The United States and Israel abstained in the vote out of concern that the emergency designation (which is normally reserved for sites under imminent threat of destruction) was sought for political, rather than cultural, reasons. U.S. Ambassador David Killion’s statement is here.
33. September 21, 2012: Following remarks before the Council on Foreign Relations, Prosecutor Fatou Bensouda was asked about Palestinian membership in the ICC. She replied that jurisdiction before the Court hinged on the question of Palestinian statehood, and it was not for the Court (either the Prosecutor or the judges) to decide this matter but rather for other UN institutions to do so.
34. November 29, 2012: The UN General Assembly with resolution 67/10 conferred “non-member observer status” on Palestine, giving it the same status at the UN as the Holy See. This new status does not grant much to the Palestinians in the way of new powers in the UN: Palestinian delegates can continue to participate in the general debate, to cosponsor resolutions, and to engage in certain types of procedural votes. They still cannot call for a vote or vote on substantive matters. Given that over 130 states had already established bilateral diplomatic relations with Palestinian officials, the vote (138 member-states in favor (including 2/3 of ICC member states), 41 abstentions, and 9 opposed, including the United States) was somewhat of a foregone conclusion. Reportedly, however, some European states traded a “yes” vote for assurances that Palestine would not rush to join the ICC. Ambassador Susan Rice explained the U.S. “no” vote as follows:
we have long been clear that the only way to establish such a Palestinian state and resolve all permanent-status issues is through the crucial, if painful, work of direct negotiations between the parties. … Today’s grand pronouncements will soon fade. And the Palestinian people will wake up tomorrow and find that little about their lives has changed, save that the prospects of a durable peace have only receded. … We will continue to oppose firmly any and all unilateral actions in international bodies or treaties that circumvent or prejudge the very outcomes that can only be negotiated, including Palestinian statehood.
Indeed, the United States has consistently opposed such unilateral actions, arguing that the best route to Palestinian statehood is through negotiations. In this regard, Secretary of State Hillary Clinton stated that the road to statehood does not go through New York but rather through Jerusalem and Ramallah.
the designation of “State of Palestine” shall be used by the Secretariat in all official United Nations documents.
36. January 28, 2013: Israel did not attend its Universal Periodic Review before the Human Rights Council; the proceedings were suspended.
37. January 31, 2013: The Human Rights Council’s Fact-Finding Mission on Settlements published its Report, concluding that the settlements are in breach of international humanitarian law obligations and that the settlements place a “heavy toll” on the rights of the Palestinians (para. 105). It also notes that the transfer by an occupying power of parts of its population into occupied territory is a prosecutable war crime at the ICC (para. 104).
38. May 14, 2013: The Union of the Comoros, through Turkish counsel, referred the situation involving its flag vessel, the MV Mavi Marmara, to the ICC. Per Article 12(2)(a) of the ICC Statute, acts committed on flag vessels, even presumably when these are mere flags of convenience, can satisfy the Court’s jurisdictional preconditions. Article 12(2)(a) reads:
The Court may exercise its jurisdiction if … [t]he State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft … [has accepted the jurisdiction of the Court].
Subsequently, it was clarified that the referral in question relates to other flotilla vessels bearing state party flags. As such, this is not only a self-referral by the Comoros but also the first activation of Article 14, which allows States Parties to refer situations involving other States Parties to the Court. The OTP has apparently received four other communications concerning the events on the Mavi Marmara.
39. October 28, 2013: Reportedly under pressure from the United States and Germany, who were concerned about the precedent set by Israel’s absence, Israel re-engaged with the Human Rights Council on the eve of the re-scheduled consideration of its Universal Periodic Review.
40. November 8, 2013: Two years after withholding their dues to UNESCO, both Israel and the United States lost their UNESCO voting rights, as required by UNESCO’s Constitution, and were demoted to observer-state status. This move may have put several potential U.S. World Heritage sites in jeopardy.
41. November 18, 2013: The Palestinian delegation cast its first ballot in the GA, participating in the election of a judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
42. December 1, 2013: Israel was invited to join Western European and Other Group (WEOG) in the Human Rights Council beginning January 1, 2014. (Israel was not a member of a regional bloc in Geneva, which is relevant for committee assignments etc.). The U.S. welcomed this development here.
* * *
As it stands today, the Comoros referral remains in the first substantive phase of the preliminary examination, which relates to subject-matter jurisdiction. The OTP has indicated that it is obtaining additional information needed to resolve lingering factual and legal ambiguities, no doubt having to do with the legality of the blockade and Israel’s defense of it under the law of naval warfare and whether the Israeli naval forces’ actions constituted legitimate acts of self-defense and adhered to principles of proportionality. If it satisfies itself that there is presumptive jurisdiction, the OTP will consider issues of complementarity and gravity. The concept of gravity remains in flux although it clearly involves both qualitative and quantitative factors. This element of ICC jurisdiction will undoubtedly loom large in this analysis. By way of comparison, in February 2006, the OTP announced that it would not move forward with an investigation into potential crimes committed in Iraq by British soldiers (the U.K. is a member of the Court) on grounds that the alleged crimes did not satisfy the gravity requirement:
The number of potential victims of crimes within the jurisdiction of the Court in this situation—4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment—was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. … Taking into account all the considerations, the situation [in Iraq] did not appear to meet the required threshold of the Statute.
It remains to be seen if the Palestinian authorities will pursue membership in the ICC or re-file an Article 12(3) declaration, as has been threatened, in order to broaden the Court’s focus. If this transpires, it should be noted that jurisdiction is a two-edged sword; the ICC asserts jurisdiction over entire situations. As a result, crimes committed by Palestinians or other nationals on Palestinian territory on behalf of the Palestinian cause (recognizing that the issue of how to define Palestinian nationality also remains to be resolved) would be susceptible to prosecution. Of course, for some in the Fatah faction eager to marginalize Hamas, this potentiality may be a feature rather than a bug.
In addition, the Court’s temporal jurisdiction would have to be determined, but is unlikely to be deeply retrospective given the ambiguities around the statehood question. Arguably, there should be no jurisdiction over any events that predate the existence of a state of Palestine, whenever that birth is deemed to have occurred and however jurisdiction is established. It is not clear that the November 2012 General Assembly vote established such a state given that so many issues (such as the precise territorial boundaries, full administrative control over territory, etc.) remain unresolved and are the subject of ongoing negotiations (as envisaged by the Oslo Accords). That said, an interesting precedent for Palestine vis-à-vis the ICC is the Cook Islands, which are in a free association with New Zealand but joined the ICC, with little fanfare, on July 18, 2008.
Others, however, have rather blithely argued that jurisdiction could extend back to 2002, when the Court was first formed. It is true that states can “back date” an ad hoc acceptance of jurisdiction as anticipated by Article 11 of the Statute and as evidenced by the situation in Côte d’Ivoire (CDI). Article 11 states that for newly ratifying states, the Court’s temporal jurisdiction is prospective from the Statute’s entry into force for that state, except in situations in which the state makes an Article 12(3) Declaration. CDI originally accepted the Court’s jurisdiction on April 18, 2003, by way of a 12(3) declaration, over the situation in the country since the September 19, 2002 coup attempt. Following the contested elections in 2010, President Ouattara confirmed his acceptance of jurisdiction by letter on December 14, 2010. On his own motion, the Prosecutor opened an investigation in 2011 after receiving the necessary authorization from a Pre-Trial Chamber. Proceedings involving three defendants (including Laurent Gbagbo, President Ouattara’s rival, and the former’s wife) are ongoing. CDI later ratified the ICC Statute in February 2013. At all relevant times, however, there was an extant state that long pre-dated the creation of the ICC.
As noted, it remains to be determined if the General Assembly’s promotion of Palestine to a “non-member observer state” is sufficient to qualify it as a state for the purposes of joining the ICC or submitting an ad hoc declaration to the Court under Article 12(3). Even assuming that the GA vote is sufficient to enable Palestine to either join the ICC as a full party or submit another Article 12(3) declaration, the Court’s jurisdiction would likely be prospective from either the date of ratification/declaration or of the GA vote, at the earliest. This would exclude temporal jurisdiction over some of the more violent incidents in the region, such as Operation Cast Lead. The legality of settlements in the occupied West Bank, however, remains a live issue.
Furthermore, even if an investigation goes forward involving the region, Article 16 of the ICC Statute allows the Security Council with a Chapter VII resolution to defer an investigation or prosecution before the Court for a year on a renewable basis as part of its mandate to promote international peace and security.
As should be clear from the above, a number of open legal issues and strategic questions stand between the Palestinians and The Hague. I welcome additions and corrections to the timeline above as events move forward.