Decolonizing the ICC: The Situation in Palestine and Beyond

On March 3, the International Criminal Court (ICC) Prosecutor, Fatou Bensouda, announced the initiation of an investigation concerning  the “Situation in Palestinewhich will cover crimes that are alleged to have been committed in the Situation. This decision followed on the recent ICC Pre-Trial Chamber (PTC) decision that the ICC has jurisdiction over the “Situation in Palestine” – a decision that was given pursuant to the Prosecutor’s request for a ruling by the PTC on the scope of the ICC’s jurisdiction in this Situation.

In this article I consider the PTC’s decision on, and approach to, the jurisdiction question, and thus to the question of Palestine’s statehood. I argue that the decision is of significance in avoiding a problem inherent in the Rome Statute. The problem is that by determining that (apart from the Security Council) only States (either on a personal or a territorial basis) can confer jurisdiction on the ICC, the Rome Statute perpetuates a colonial premise under which only those accorded the status of statehood can be actors who count in the international legal arena. In this form it replicates the procedural exclusion from the International Court of Justice of peoples who do not “have” a State, which in this context can also create impunity regarding alleged crimes committed against occupied people. As this article shows, the ostensibly formal PTC decision in fact represents overcoming this exclusion in way that is a significant development in public international law.

Interpreting Territorial Jurisdiction – The Reasoning of the PTC and Prosecutor

The seemingly formalistic analysis that led to the PTC’s decision on jurisdiction was as follows: Palestine was admitted in 2015 as a State Party to the Rome Statute of the ICC, and hence to the Assembly of State Parties (ASP) (with no country objecting other than Canada). It would accordingly be contradictory, said the PTC majority, to allow an entity to accede to the Rome Statute and become a State Party while simultaneously limiting the Statute’s inherent effect and denying the consequences of joining by refusing to allow that party to confer on the ICC territorial jurisdiction as other State Parties can. The text in the Rome Statute, which refers to the “State on the territory of which the conduct in question occurred” as one of the grounds for ICC jurisdiction, must be interpreted as referring to a “State Party” to the Statute. As a consequence, Palestine qualifies as the State “on the territory of which the conduct in question occurred” for the purpose of the Rome Statute. This determination, the PTC added, does not say anything about Palestine’s status in general international law – including whether it fulfils the prerequisites of statehood– beyond the context of the interpretation of the Rome Statute.

But the PTC reasoning did not end there. When it came to determining the scope of Palestine’s territorial jurisdiction, the majority relied on a series of U.N. General Assembly resolutions. These included General Assembly Resolution 67/19 (2012) which recognized Palestine as “a non-member observer State in the United Nations,” and which addressed the right of the Palestinians to self-determination and to independence in their State “on the Palestinian territory occupied since 1967.” Also cited was Security Council Resolution 2334 (2016), which reaffirmed the two-State solution (i.e. the idea of a Palestinian State) and the determination that the establishment by Israel of settlements in the Occupied Palestinian Territory (OPT) is illegal and a major obstacle to achieving that two- State solution. The PTC noted that the General Assembly resolutions on self-determination, as well as Resolution 2334, referred to the territories occupied by Israel in 1967 (the West Bank including East Jerusalem and the Gaza Strip). On this basis, held the PTC, the territorial jurisdiction in the Situation in Palestine extends to these territories.

The Role of Self-Determination in Assessing Statehood

In making this determination, the PTC emphasized that in accordance with the Rome Statute, the application and interpretation of law must be consistent with internationally recognized human rights. The right to self-determination, noted the PTC, is just such a right, and Palestine’s right to self-determination within the OPT has been explicitly recognized by bodies such as the International Court of Justice and the U.N. General Assembly. Thus, the conclusion that the ICC’s territorial jurisdiction extends to the OPT was found to be consistent with the right to self-determination.

The Prosecutor’s submission to the PTC in January 2020 also took the position (subsequently adopted by the PTC) that the ICC had jurisdiction over Palestine based on Palestine’s status as a member of the Rome Statute. But the Prosecutor had also put forward an “alternative position” that Palestine fulfilled the criteria for statehood under general international law, a position which relied on the right to self-determination. The PTC avoided the question of Palestine’s status as a State beyond the Rome Statute, finding it both unnecessary and unwarranted to decide. The PTC did rely on the Palestinian right to self-determination as recognized in U.N. decisions, but only for the purpose of determining the territorial scope of Palestine. In this it differs from the position of the Prosecutor.

In making the case for the “alternative position,” the Prosecutor argued that the Montevideo criteria for statehood (permanent population; territory; government; and capacity to enter into relations with other states), generally regarded as customary international law, have been less stringently applied in cases where the circumstances so warrant.  These would include, according to the Prosecutor, the recognition of a right to self-determination of peoples within a territory, and an inability to fulfill all of the criteria because of acts deemed to be illegal or invalid under international law. In cases where a people’s right to self-determination is recognized, said the Prosecutor, statehood has been recognized despite not having stringently fulfilled the Montevideo criteria, particularly in the context of decolonization.

We can see, then, that while both the Prosecutor and the PTC rely on the right to self-determination, they do so for different purposes. For the Prosecutor, in her “alternative position,” self-determination – together with the illegal nature of the acts denying its exercise, such as the settlements – serves to determine Palestine’s status as a State. For the PTC, on the other hand, self-determination only serves to determine the scope of the State’s territory for the purpose of ICC jurisdiction.

Formalistic Analysis – or Decolonizing Interpretation?

In order to see the connection between reasoning that may seem formalist at first and the substantial question at stake in the PTC’s determination, we should recall that the path to Palestine’s membership in the Rome Statute and the ASP was paved after the adoption of U.N. General Assembly Resolution 67/19 (2012) according Palestine “a non-member observer State status” in the U.N. Earlier in 2012, the  former ICC Prosecutor, Luis Moreno Ocampo, had indicated that he would defer to the U.N. or the ASP on the question of whether to accept Palestine as a State. Indeed, once the General Assembly decided to view Palestine as a State, the door was open for Palestine to deposit its instruments of accession to the Rome Statute with the U.N. Secretary General,  join the ICC, and be admitted to the ASP. This was possible because the Secretary General is guided by General Assembly determination as to whether it considers an entity to be a State.

It was through these supposedly technical arguments that the PTC was able to overcome the exclusion of peoples who do not “have” a State from the ICC, an important institution of international law in a way that perpetuates the colonial premises mentioned above. This exclusion could persist, in the ICC’s context, not only because of the way in which  the demand that peoples be organized as a State perpetuates a colonial legacy but also because this requirement, as a built-in feature of the Rome Statute, denies protection to those who may need it most, including those living under foreign rule or occupation. In other words, the position advocated by Israel and the seven States who filed amici curiae briefs before the ICC – that Palestine cannot confer jurisdiction on the ICC because it does not fulfill the criteria of statehood under international law – perpetuates the idea that people living under an occupation that denies their independence and dispossesses them should be excluded from the potential protection of the ICC precisely because they live under occupation. In cases such as that of Palestine, there is also no realistic prospect of ICC protection by way of Security Council referral due to Israel’s support by veto-wielding members of the Council.

Thus, the position taken by Israel, and supported by some States, is that without full control of the territory, Palestine does not fulfill the statehood criteria in international law, and is thus not a “State” for ICC purposes. This position further entails that the denial of the Palestinian right to control its own territory leads to a denial of one of the only international legal mechanisms that could potentially offer redress for war crimes or crimes against humanity on that territory, including those potentially committed by the occupying power.

From this perspective, we can see the connection between the “formal” parts in the Prosecutor’s and PTC’s respective positions – that of reliance on Palestine’s membership in the ASP – and the parts, notwithstanding the differences between the two, relying on self-determination. Palestine’s admittance to the ASP is a way to establish its position within international law, notwithstanding the denial of its ability to exercise independence because of the ongoing occupation.

Here it is crucial to note again that this development – admittance to the ASP – was made possible because of the status awarded to Palestine in General Assembly Resolution 67/19 (2012). The admission of Palestine to the U.N. as a full Member State has not been possible given the U.N. Charter requirement that membership be recommended by the Security Council and  the expected veto by the United States and possibly by other permanent (P5), veto-empowered members. The General Assembly decision accepting Palestine as a “State”  (albeit not a Member State) is a critical way to bypass the “legalized hegemony”  that is entrenched in the U.N. Charter through the veto power given to the P5 in the Security Council. As we know from post-colonial history, General Assembly resolutions can reflect sovereign equality at least among all U.N. member States, thus deciding things that could not pass in the Security Council.

It is for these reasons that the PTC’s decision is, I think, of historical importance. Obviously, the investigation concerning the Situation in Palestine will not by itself bring about the end of the occupation or give Palestinians the justice they deserve. But the decision opens a way through the ICC structure that was designed in a way that denies protection to people living under occupation, particularly in cases where they had never enjoyed independence as a State prior to the occupation. The decision may thus pave the way for investigation of alleged war crimes committed in the Palestinian-Israeli context.

Even if one is skeptical that the Situation in Palestine will ever reach a full ICC trial, we can see various ways in which the ICC’s involvement in the issue may have effects on the ground. Consider, for example, how the Prosecutor’s statement expressing concern over Israel’s plan to evict the Bedouin village of Khan Al Ahmar in the West Bank caused Israel to defer this plan.

Palestinian Statehood in International Law

Of course, the Palestine situation is a complex one from an international law perspective. While occupation does not deny a State’s pre-existing sovereignty, in the case of Palestine the argument that is increasingly being made is that a State emerged under occupation – i.e. during the period when its effective control was denied.

On the other hand,  Yaël Ronen argues that Israel’s effective control as occupier “ipso facto negates satisfaction of the Montevideo criteria by Palestine, regardless of how far reliance on the right to self-determination may lower the bar.” Furthermore, she argues, “One cannot hold that Palestine has sufficient control over a territory to be regarded a State, and at the same time that Israel has sufficient control to be regarded as an occupant in the same territory.”

This latter argument adheres to an occupation/sovereignty binary that as I have analyzed elsewhere does not reflect reality. It also ignores the fact that States are often occupied – e.g. Kuwait under the Iraqi occupation or Iraq under the American and British occupation. There is nothing novel in that, but only in the idea that a State came to exist under occupation while its effective control was denied – which is the contradiction that Ronen presumably aims to point at, though some writers argue that in fact there are precedents for States emerging under occupation.

But in any case, we can consider the case of Palestine from the perspective of the approach cited by the Prosecutor, developed in the decolonization era. According to this approach, when assessing self-determination, recognition can be granted to States with flexibility regarding the question of effective control of the territory. Ronen rejects this comparison, arguing that in the textbook cases of the Congo and Guinea-Bissau that the Prosecutor nods to as examples, there was an existing impetus to recognize statehood that does not exist in the case of Palestine. The absence of statehood in the Palestine case, she argues, would not lead to a legal vacuum of the sort feared in Congo and Guinea-Bissau given that Israel as occupant bears international obligations with respect to the territory and its population.

However, in my view this distinction does not give enough weight to the fact that at least some of the questions at stake are exactly about whether Israel fulfills its obligations as occupier or rather violates its duties as occupier (for example, in regards to the prohibition on settlements) as well as other international law obligations.  Moreover, the approach denying ICC jurisdiction over the Situation in Palestine may legitimize the continuing denial of protection to people living under occupation, especially if they did not enjoy independence as a State before. After all, is a continuing occupation of over 50 years –  that dispossesses the local population rather than providing for them, and that neglects the idea of temporariness essential to occupation –   less risky than a “vacuum”? Robert Heinsch and Giulia Pinzuati are correct to argue that “an occupier cannot complain that an occupied entity does not fulfill the criterion of effective government, as it is the occupier itself that sets the factual reason why the effectiveness of the government is hampered.“

More generally, the case of Palestine in the ICC also shows the importance of a normative rather than merely factual approach to the question of statehood, i.e. one that puts an emphasis on the right to independence rather than on a strict examination of the Montevideo factual criteria. It is not new to point out that such an approach is important if we want to decrease the power of the colonial legacy within international law. However, the way in which the PTC decision will allow Palestine to grant territorial jurisdiction to the ICC – notwithstanding its continued occupation by Israel – is a novelty that overcomes what seemed like a lacuna in the Rome Statute. The objection to this development based on the demand for strict factual adherence to the Montevideo criteria partakes in the effort to deny international legal protection to those who are occupied by other States and who accordingly may need it most.

 

The author is grateful to Catriona Drew and Yaël Ronen for their helpful suggestions.

Image: A picture taken on March 4, 2021 shows the so-called Italian complex in Gaza City which was severely damaged by Israeli airstrikes during the 2014 war. – The International Criminal Court opened a formal investigation on March 4, 2021 into alleged war crimes in the Palestinian territories, in a move blasted by Israeli premier Benjamin Netanyahu as the “essence of anti-Semitism”. (Photo by MOHAMMED ABED/AFP via Getty Images)

 

About the Author(s)

Aeyal Gross

Aeyal Gross (@AeyalGross) is Professor of International and Constitutional Law at Tel-Aviv University and Visiting Professor of Law at SOAS, University of London.