ICC and Palestine Symposium: ‘Sometimes They Come Back’: The Question of the ICC’s Territorial Jurisdiction in Palestine

[Triestino Mariniello is Senior Lecturer in Law and Coordinator of the Research Unit in ‘International Justice and Human Rights’ at Edge Hill University, UK. Chantal Meloni is Associate Professor at the University of Milan, Italy where she teaches International Criminal Law and Senior Legal Adviser to the European Center for Constitutional and Human Rights, Germany.]

This Symposium on ‘The Question of the ICC’s Territorial Jurisdiction in Palestine’ follows the most recent developments that concluded the preliminary examination into the ‘Palestine situation’: On 20 December 2019, the ICC Prosecutor found that there is a reasonable basis to start an investigation into the ‘situation Palestine’, pursuant to Article 53(1) of the Rome Statute. According to the Office of the Prosecutor (OTP), there are reasonable grounds to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip. However, before initiating a formal investigation, the Prosecutor requested the Pre-Trial Chamber to rule on the scope of the Court’s territorial jurisdiction. With a request under Article 19(3), the OTP is asking for judicial confirmation that the territory, over which the Court may exercise its jurisdiction, comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and the Gaza Strip.

A big portion of the request, which totals 110 pages (and was filed again by the OTP on 22 January 2020 after an order by the PTC), is dedicated to the issue whether Palestine is a State. The Prosecutor concluded that given the fact that on 2 January 2015, Palestine became a State Party to the Rome Statute under article 12(1), “[t]he Court need not conduct a different assessment regarding Palestine’s Statehood to exercise its jurisdiction”.

Thus far, the story of Palestine and the ICC has become what might be called, in Akhavan’s term, a failed ‘judicial romance’. Palestine’s formal engagement with the ICC began over 10 years ago with the submission of an Article 12(3) declaration to the Court, after Israel’s ‘Operation Cast Lead’ in Gaza, in January 2009. If one wants to be less romantic, the question of the existence, or extent, of the ICC territorial jurisdiction in Palestine – that keeps coming back (like a zombie) even when it seemed to be finally solved – resembles more a horror movie than a love story.

Already in 2009, the most controversial issues before the OTP were related to the status of Palestine as a State under international law and to the territorial jurisdiction. In the book ‘Is there a Court for Gaza?  A Test Bench for International Justice’, a number of experts had laid down a comprehensive and solid compilation of arguments on why Palestine could be considered as a State before the ICC and the Court should have started an investigation into the situation with no further delay (as it had been requested inter alia by the UN Fact Finding Mission on The Gaza Conflict, whose Report issued in September 2009 was endorsed by the UN, the European Parliament and a number of other international bodies).

However, the OTP’s deliberation process was utterly disappointing at that time: it lasted over three years and was concluded by a mere two-pages decision in April 2012, that effectively deferred the question to a host of political bodies. The then-Prosecutor ‘delegated’ to the ICC Assembly of States Parties and the UN General Assembly the competence to determine whether Palestine could be considered a State under the Rome Statute. Numerous international experts identified flaws (see, inter alia, Kearney here and Akande here) in the Prosecutor’s 2012 ‘decision not to decide’. Scholars argued that Palestine’s 2009 declaration was validly lodged and could have been accepted by the ICC. Commentators also noted that the OTP erred by overlooking relevant UN practice, which confirmed Palestine’s statehood status; among others, Schabas noted that the OTP decision failed to acknowledge the relevant practice of the UN Secretary General. Moreover, commentators questioned that the OTP was the best placed organ within the Court to make a final determination on the issue, and asked why the Judges were not seized of the matter by the Prosecutor.

While the April 2012 decision raised serious concerns about the OTP’s attitude towards the Palestine situation and its ability and willingness to act in the face of overwhelming political forces, it also had a boosting effect on the political process of recognition of Palestine at the UN level. Indeed, on 29 November 2012, the UN General Assembly upgraded Palestine’s observer status in the General Assembly to that of a non-member state (previously entity), thus affirming its status as a State. As scholars noted at that time, the OTP could have used this opportunity to initiate a proprio motu preliminary examination, reconsidering its previous decision not to open an investigation; instead, the Prosecutor took the position that Palestine should have submitted a new declaration under Article 12(3) of the Statute or ratify the Statute. However, in a May 2014 interview for the Israeli press, Moreno-Ocampo (who, however, was not the Prosecutor anymore by then) was reportedly “eager to point out that joining the ICC could backfire for the Palestinians.”

Now, many years after, and following Palestine’s accession to the Rome Statute in January 2015, its parallel ad hoc declaration under Article 12(3), and the State referral of 2018, the situation in Palestine continues to constitute the critical test bench for the Court (and for international criminal justice in general). This is particularly true in the present moment where the Court’s ability to withstand political pressures and interference is under ‘special surveillance’, following the very controversial decision not to authorize the investigation in Afghanistan of last year. Pursuant to the current Prosecutor’s request under Article 19(3), the Pre-Trial Chamber is called to rule on a seemingly merely technical aspect – the territorial jurisdiction in the Palestine situation – which however has much broader implications in terms of defeating the criticism of ‘double standards’ that has been voiced against the Court in the past years. In this sense, the situation is also an opportunity for the ICC to rescue its normative power. Opening the investigation in the Palestine situation would be an opportunity for the Court to reaffirm its role in ensuring equal access to justice for all peoples without discrimination.  

By bringing together experts, both scholars and practitioners, the present Symposium aims to provide a critical assessment of the legal issues that arise from the Prosecutor’s request under Article 19(3) of the Rome Statute. The six commentaries that compose the Symposium and will be published in the following days shall contribute to the vivacious and constructive debate around the goals and challenges the ICC is facing today. We are looking forward to a lively discussion on these important issues this week, and we are very grateful to Opinio Juris for hosting this Symposium.

Symposium Posts:

‘Injustice Anywhere is a Threat to Justice Everywhere’ – Palestine, Israel, and the ICC by Mark Kersten

Mind the Gap– The ‘Palestine Situation’ before the ICC by Alice Panepinto

General Assembly Resolution 67/19 and Palestine as a State before the ICC by John Quigley

The (Non) Effects of Oslo on Rights and Status by Jeff Handmaker and Alaa Tartir

Prosecuting Settlements as War Crimes and Crimes against Humanity–The ICC’s Jurisdiction over the Occupied Palestinian Territory by Katharine Gallagher

‘Imprisoning’ Self-Determination–The Israeli Military Law Enforcement System in the West Bank and Its Relevance for the ICC by Luigi Daniele