04 Feb ICC and Palestine Symposium: Mind the Gap– The ‘Palestine Situation’ before the ICC
[Alice Panepinto is a lecturer in law at Queen’s University Belfast, where she researches and teaches human rights, international law and contemporary issues in property law.]
In determining its territorial jurisdiction in Palestine, the ICC is presented with a golden opportunity to revive the global reach of international criminal justice. When Pre-Trial Chamber I will rule on the question of whether “the “territory” over which the Court may exercise its jurisdiction comprises the West Bank, including East Jerusalem, and Gaza”, it will do much more than establish whether the ICC has territorial jurisdiction in Palestine. The Court faces a crucial decision: either it recognises that the ICC has judicial oversight over international crimes in Palestine (by virtue of the reasons put forth by my colleagues in this symposium), or it decides that Palestine remains in the blind spot of international justice, a legal black hole of where impunity is granted for the most serious crimes of international concern. As such, in accepting or rejecting territorial jurisdiction over Palestine, the Court will be forced to clarify its position within international law: not just on its ability to seek accountability for alleged crimes in Palestine; but also, more generally, on its willingness to uphold its mandate as “a permanent institution” with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern” (Article 1, Rome Statute). By considering two core tenets of international law, my contribution illustrates how the West Bank, including East Jerusalem and Gaza (which I will not consider in detail) are clearly under Palestinian sovereignty, despite the limitations to the full exercise of that sovereignty imposed by Israel’s protracted occupation. To conclude otherwise would create a gap that no other tribunal can bridge.
International law prohibits annexation through force
The territory indicated in the ICC Prosecutor’s request to Pre-Trial Chamber I comprises the West Bank, including East Jerusalem, and Gaza. These areas are commonly referenced in all UN documents, and by and large across the international community, as constituting Palestine today, distinguishing it from Historic Palestine (prior to 1948), regardless of whether the designation is Palestinian State, the Occupied Palestinian Territories, or Occupied Palestine. The events of 1967, resulting in the occupation by Israeli forces of these parts, which continues today, have not modified the UN and international community’s designation of these territories, which remain Palestinian and never became Israeli (despite Israel’s unilateral declaration of annexation of East Jerusalem, which has not been recognised by the UN and the vast majority of states). Under international law, the “threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” is prohibited (UN Charter article 2(4)). This principle is mirrored in The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (adopted by the General Assembly on 24 October 1970 with resolution 26/25 (XXV), wherein ‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’.
Sceptics could argue that in 1967 Palestine had not reached the criteria for statehood, and thus the maxim that ‘international law prohibits annexation through force’ does not hold. But regardless of the atypical connotations of formal statehood of Palestine at that time, it is undeniable that in 1967 the West Bank, including East Jerusalem, and Gaza were neither Israeli nor terra nullius. Those parts were inhabited by Palestinians, and controlled by Jordan and Egypt respectively, in recognition and support of the Palestinian national project and political independence. Thus, the Palestinian territories constituted a sufficiently and clearly distinct political entity in 1967, suggesting that the prohibition contained in the ratio of Article 2(4) of the UN Charter applied. As such, there is international consensus on the fact that the start of the Israeli occupation of Palestine in 1967 did not annex the West Bank, including East Jerusalem, and Gaza to Israel, nor did Israel attempt to do so openly. Therefore, it would be surprising, and indeed contra legem, if Pre-Trial Chamber I refused territorial jurisdiction over these parts based on the argument that in 1967 they were annexed to Israel, or are disputed between Israelis and Palestinians, because of the prohibition contained in Article 2(4).
Occupation does not transfer sovereignty under international law
The second issue to consider is whether the Israeli occupation of the West Bank, including East Jerusalem, and Gaza, established with the events of 1967 and continuing to the present day can corroborate Israeli claims to those parts. This can be answered conclusively by drawing on International Humanitarian Law as encapsulated in a maxim attributed to Oppenheim: ‘there is not an atom of sovereignty in the authority of the occupying power’. Based on this assessment, even a protracted, transformative occupation, which conceals the intention to conquer territory or establish a single apartheid regime, cannot under international law enable the transfer of sovereignty (for a more detailed discussion of each of these issues, see Gross, Korman, Ben Naftali, Gross & Michaeli, Koskenniemi, Bhuta ). Indeed, even the carving up of the West Bank into Areas A (under Palestinian administration), B (under Palestinian administrative control, and Israeli security control) and C, entirely under Israeli security and administrative control, in Oslo II has not stripped Palestinian sovereignty from Area C (and to an extent, Area B) and substituted it with Israeli sovereignty. Despite the fact that such measures are still in place, they were designed to be a temporary arrangement to administer the West Bank, and certainly do not remove Palestinian sovereignty therein (notwithstanding the limited exercise of Palestinian sovereignty in those parts due to the occupation). And while in practice, in the West Bank and East Jerusalem in particular, Palestinian jurisdiction has been eroded, as I have discussed elsewhere, this does not deny Palestinian title to those areas. The international community, including the ICC, cannot acquiesce lightly to the extraterritorial jurisdiction of Israeli military and civilian courts in the West Bank. Against the backdrop of the current Israeli administration’s intention to annex large swathes of the West Bank and East Jerusalem, the de facto exercise of Israel’s extraterritorial jurisdiction is gradually absorbing Palestinian land within the Israeli state; if this remains unchallenged, the process of conquest through an expansion of jurisdiction could become irreversible, clearly contravening international law.
Taking the example of Israeli settlements in occupied Palestine (which are a “flagrant violation under international law” in the landmark UN Security Council resolution 2334 of 2016), the fact that they are located primarily in Area C has shielded them from scrutiny in the Palestinian justice system. Some have argued that Palestine cannot delegate jurisdiction over the settlements to the ICC (or other international courts) because under Oslo II it does not possess criminal jurisdiction in those parts. But this position is oblivious to the context of the occupation, and the power dynamics between Israel and Palestine. Indeed, one of the side effects of Oslo II, endorsed by the international community, has been the virtual exclusion of the Palestinian Authority from large parts of the West Bank (in particular ‘Area C’ – over 60% of the West Bank), and, relatedly, the suspension of Palestinian jurisdiction over those parts. That vacuum has been filled by Israeli jurisdiction, operating extraterritorially through a range of military and civilian legal means, which have resulted in strengthening Israel’s hold of those parts, including areas where the settlements are located. As such, the limitations imposed on the exercise of Palestinian jurisdiction in the occupied territories is not based on an intentional will to dispose of it in favour of Israel through Oslo II or any other means. The difficulties in exercising Palestinian sovereignty and jurisdiction fully in the West Bank is to be attributed solely to the effects of the ongoing occupation, and an excessive entrenchment of Oslo II that goes beyond the original aims and timeframe of that bilateral agreement.
ICC inaction will allow further Israeli international law violations in Palestine
So according to international law, the West Bank, including East Jerusalem, and Gaza were neither annexed to Israel in 1967, nor subsumed within Israeli sovereignty throughout the protracted occupation and effects of Oslo II that continue today. Thus, there is no legal basis for Pre-Trial Chamber I to recognise those parts as falling outside Palestine, and within Israel. The Court now is faced with a unique opportunity to clarify its adherence to international law in Palestine, recognising once and for all that it is neither Israeli territory nor ‘contested’ between two claimants. The fact that, for some, the contours of Palestinian statehood are atypical, need not hinder the Court’s assessment of its territorial jurisdiction in the West Bank, including East Jerusalem, and Gaza. The ICC’s mandate and international law should guide Pre-Trial Chamber I in affirming the Court’s jurisdiction in Palestine.
Situations of atypical statehood pose a tangible challenge to international courts seeking to enforce international law. Yet, it is paradoxical that the system does not allow international law violations, including widespread harm suffered by the inhabitants of entities approaching statehood, quasi states or de facto states – or however one wishes to conceptualise states which fall short of full statehood – to be properly adjudicated because procedural rules prevent courts from exercising territorial jurisdiction. In some contexts, denying or refusing to acknowledge statehood can “become a pretence for enforcing politics”, and potentially a shield for abusers of human rights, international humanitarian law and criminal justice. By allowing grey areas of contested statehood to become legal black holes of unaccountability, the international legal order seems to concede that there is a degree of “planned misery” tolerated by the system in some places. This would be inconsistent with the international peace and security aims of the UN Charter as the founding document of the present international legal order, and the human rights imperatives set out in numerous instruments that underpin the present system.
In this regard, it is important to consider the exceptional nature of the mandate of the Court as “a permanent institution” with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern” (Article 1, Rome Statute). In considering the universalist v delegation-based foundations of ICC jurisdiction, the “ICC Statute is a special type of multilateral treaty”, because (as argued by Stahn) the “fundamental premise of the Statute goes beyond protection of sovereignty and state interests” and, instead, is “geared at the protection of individuals and the establishment of a system of justice”. Thus, its “normative justification” is supported by “the fact that individuals face direct individual criminal responsibility under international law for international crimes”. Thus (citing Stahn) “accession to the Statute merely activates the power of the ICC to exercise a jurisdiction grounded in international law. Jurisdictional constraints encountered by the acceding state do not necessarily affect the jurisdictional title of the ICC”. So given the Court’s special purpose, it would be paradoxical if Pre-Trial Chamber I did not recognise territorial jurisdiction in the West Bank, including East Jerusalem, and Gaza, as that would trump the Court’s core mandate to hold individuals to account for international crimes.
Indeed, while uncontested Palestinian statehood would alleviate many of the Court’s concerns, “statehood, as a remedy, does not correspond to the reality and scope of Palestinian grievances today”. Accountability for grave violations of international law, such as those considered in the OTP’s preliminary examination activities, cannot be dependent on the formalities of statehood for assessing territorial jurisdiction. So if, by avoiding recognising its territorial jurisdiction, even the ICC is unable and unwilling to pursue accountability for international criminal law violations in Palestine, the prospects of a just solution for Palestinians and Israelis are slim. For a body already struggling with its image and reputation, a more decisive ICC intervention on alleged crimes committed on Palestinian territory provides the perfect opportunity to prove critics wrong.