On Friday, in a 2-1decision, the International Criminal Court (ICC) affirmed that the Chief Prosecutor Fatou Bensouda has the jurisdiction investigate crimes in Palestine, including those allegedly perpetrated by Israeli nationals. Palestine joining the ICC as a State Party has been a matter of considerable controversy. Israel and some other states, especially including the United States, have maintained that Palestine cannot be a State Party of the ICC because it has not fulfilled the requirements for full Statehood under general international law and, in any case, territorial jurisdiction of the Court assumes that the offenses in question took place on the territory of a fully sovereign state. The ICC Pre-Trial Chamber (PTC) rejected these arguments, finding that for purposes of applying the jurisdictional provisions of the Rome Statute, statehood under general international law was largely irrelevant. At the same time, the Court underlined that, in confirming jurisdiction for purposes of an investigation, it was in no way compromising the right of any defendant to raise jurisdictional defenses at a later stage in regard to their own case.
In the realm of politics, the supporters of Israel’s position are not giving up. Israel did not intervene directly in the ICC proceeding, despite being offered a chance to do so (instead, amici such as Canada and Germany took up aspects of its objections). Israel’s government has consistently rejected the very legitimacy of the ICC, and Prime Minister Benjamin Netanyahu was quick to label the Pre-Trial Chamber’s ruling “pure anti-Semitism.” The U.S. response, in a statement issued by the State Department’s spokesperson, repeated a long-held position that the Court “the court’s jurisdiction should be reserved for countries that consent to it,” i.e., leave alone the nationals of Non-States Parties (here Israel). The lengthy dissenting opinion of Judge Peter Kovacs, which echoes many of the arguments of opponents of ICC jurisdiction over Israeli nationals, will doubtless provide fodder for further attacks on the Pre-Trial Chamber’s majority opinion. (Even Kovacs backed opening an investigation, albeit with caveats about geographical scope and Israeli nationals).
The Majority Decision
The PTC found that Palestine had followed the accession procedure in the Rome Statute, depositing its instrument of accession with the Secretary General of the United Nations who in turn accepted it, “guided by the determination that the General Assembly has accepted Palestine as a non-Member observer State in the United Nations” (paragraph 98). As for the substantive question of Palestine’s eligibility as a “State” under the Rome Statute itself, the Court held that “the only manner of challenging the automatic entry into force of the Statute for an acceding State Party is through the settlement of a dispute by the Assembly of States Parties.” As the PTC noted, no State Party had brought such a dispute under Article 119 (2), the relevant provision of the Statute.
Palestine’s accession to the Rome Statute without any such challenge settled the issue of territorial jurisdiction, according to the PTC. Article 12 (1) of the Statute stipulates that accession itself constitutes acceptance of the territorial jurisdiction of the Court: “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court” (emphasis added). Thus, the PTC concluded that, for purposes of territorial jurisdiction, “State” has no meaning other than “State Party.” There is then no need for “a determination as to whether that entity fulfils the prerequisites of statehood under general international law” (paragraph 93). The PTC further observed: “it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute’s inherent effects over it.”
Israel maintains that Palestine’s territory is disputed, and that any determination of its borders must await a negotiated settlement to which Israel agrees. Unsurprisingly the PTC rejected this view, which implies that Israel (a non-State Party yet) would have a de facto veto on when and where the Court exercised its jurisdiction. The PTC observed “that disputed borders have never prevented a State from becoming a State Party to the Statute and, as such, cannot prevent the Court from exercising its jurisdiction” (paragraph 115). The PTC then accepted the prosecutor’s position that, pursuant to several UN resolutions, the territory of Palestine extends to Gaza and the West Bank, including East Jerusalem — the entire area under Israeli occupation. At the same time, the PTC underlined: “by ruling on the territorial scope of its jurisdiction, the Court is neither adjudicating a border dispute under international law nor prejudging the question of any future borders” (paragraph 130).
The Oslo Accords
Finally, opponents of jurisdiction had asserted a conflict with the Oslo Accords, where Palestine transferred jurisdiction to Israel in respect of offenses by Israeli nationals on the territory of Palestine, a tack picked up by Judge Kovacs in his dissent. The majority of the PTC noted that in the case of cooperation with the Court during an investigation or prosecution (on rendition of suspects, for instance), the Rome Statute made allowances for other international legal obligations of a State Party that were conflicting. But such a conflict of obligations was irrelevant to the question of jurisdiction as opposed to cooperation.
I have argued elsewhere that there is no conflict, since ICC jurisdiction is subject to complementarity — no case is admissible before the ICC where the state with primary jurisdiction is able and willing to investigate and/or prosecute. Israel’s primary jurisdiction over offenses of its nationals in Palestine is obviously not impaired by ICC jurisdiction in those cases where Israel abandons its rights to investigate and/or prosecute.
Besides anger and rejection, reaction to the decision in Israel has been replete with factual misunderstandings and untruths about the ICC. In addition to labeling the Court anti-Semitic, Netanyahu attacked it for not going after Iran and Syria, a ridiculous accusation since the ICC has no territorial jurisdiction in those countries; they are not ICC Members. (Ironically, because its jurisdiction is not limited to nationals of States Parties, a reach to which the US and Israel strenuously object, the Court could, if requested, investigate Syrians or Iranians, if they engaged in criminal acts committed, at least in part, on the territory of an ICC member state.) Also, a kind of wishful thinking has emerged in the Israel response to the PTC’s ruling. A suggestion is that despite the Court’s go-ahead an investigation can still be forestalled. Chief Prosecutor Bensouda’s term is up in June and, wishing to avoid more rancor and political pressure, she might simply stall and hand over the issue to her successor; in turn, the United States and other friends of Israel could attempt to influence the final choice of a new chief prosecutor in the direction of the candidate seen as having least appetite for pursuing the Palestine file. Bensouda, however, is already, as with her investigation of Afghanistan, braving severe sanctions on her that were imposed by the Trump Administration and that have not been lifted by the Biden White House.
More fundamentally. the Rubicon has been crossed. A young Israeli soldier at the Gaza border now knows she can be held accountable to an international authority — maybe not today or tomorrow but possibly for the rest of her life. This awareness alone is likely to affect Israel’s military operations down the chain of command. In anticipation of the PTC’s ruling, Israel had already reportedly drawn up a list of officials vulnerable to ICC prosecution, presumably to warn about the risk of arrest they might face if traveling outside the country.
It is important to differentiate three sets of offenses that the Prosecutor has found she has a reasonable basis to investigate. One set relates to past incidents involving either Israelis or Palestinians (including armed groups such as Hamas) that involve, inter alia, alleged disproportionate military attacks. In these cases, a key question, following the principle of complementarity, is whether Israel is prepared to investigate (or reinvestigate) those incidents that concern its nationals. If so, Israel will be entitled to a deferment of the ICC investigation. A second set of offenses concerns Israel’s settlement activity in the occupied territories. Here the crime under the Statute is “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” The relevant actions involve a continuing policy of Israel established and promoted at the highest political levels. No meaningful question arises of domestic investigation or prosecution.
Finally, the ICC investigation will include the ongoing practice of using lethal and non-lethal force against unarmed Gazans protesting at the wall between Israel and Gaza.
This last aspect of the ICC investigation should reverberate far beyond the Israel-Palestine conflict. The international legal limits on the use of force by authorities against non-violent protesters. This is an issue that is as alive in the streets of Moscow and Minsk, Cairo and Tehran, Santiago and Rangoon, as it is on the Gaza border. Indeed, in the United States, it is a concern of Black Lives Matter. A strong statement by the ICC that unjustified lethal or grievously harmful force against non-violent protesters is an international crime will ring out wherever democracy and freedom are being claimed or reclaimed in the streets.
Editor’s note: Readers may also be interested in Ambassador (ret.) Todd Buchwald’s two-part series published last year, International Criminal Court and the Question of Palestine’s Statehood – Part I and Part II; and Jeremie Bracka’s No “State”-ing the Obvious for Palestine: Challenging the ICC Prosecutor on Territorial Jurisdiction.