International Criminal Court’s Overall Jurisdiction

The question presented is whether and to what extent the International Criminal Court has jurisdiction over the situation of the Israel/Palestine conflict. For this to be answered there needs to be an analysis of each of the jurisdictional categories that come into play: temporal, subject matter, and territorial. Under the Rome Statute, Article 11 governs temporal jurisdiction.6 Under this Article, the Court has jurisdiction over crimes committed after the entry into force of the Statute.7 This means that the Court only has jurisdiction after July 1st, 2002.8 However, for states that become a party to the Statute after this date, the Court only has jurisdiction over crimes committed after the entry into force of the Statute for that State, unless the State makes a declaration under Article 12(3).9 As for its subject matter jurisdiction, the Court is limited to prosecuting four types of crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.10

Finally, the Territorial jurisdiction, the Court has jurisdiction over a crime on a state party territory or on the territory of a state that has accepted jurisdiction, pursuant to Article 12(3).11 The Court also has jurisdiction over crimes committed by nationals of a state party or a state that has accepted the jurisdiction of the Court.12 Additionally, the Court can exercise its jurisdiction when a situation in which at least one crime referred to in Article 5 appears to have been committed is referred to the Prosecutor by a state party following Article 14 of the Statute.13 The Court can also exercise its jurisdiction when the Security Council of the United Nations refers to the Prosecutor a situation in which at least one crime referred to in Article 5 appears to have been committed.14 Moreover, the Court can exercise jurisdiction when the Prosecutor has initiated an investigation in a situation where Article 5 crimes appear to be committed. This is called a proprio motu investigation, which needs to pertain to crimes allegedly committed on the territory or by a national of either a state party or a state that has accepted jurisdiction.15 Again, although admissibility is a different question it is important to keep in mind that the Court is set up to be a complimentary court and that it will only exercise jurisdiction when the State which has jurisdiction over it is “unwilling or unable genuinely” to carry out the investigation or prosecute.

The Court’s Past Refusal to Open an Investigation

It is not the first time that the ICC has been presented with the question of jurisdiction over the Palestine/Israel conflict. In April 2012, then ICC Prosecutor Luis Moreno-Ocampo announced it would not act on the Palestine Authority’s declaration recognizing ICC’s jurisdiction under Article 12(3).16 At the time the reasons behind this decision were that under Article 12 a “State” can accept jurisdiction to the Court. The issue was then, who defined what was a “state” for the purpose of Article 12 of the Statute.17

Under the process of state accession to the Rome Statute, the declaring state must present the instrument of accession to the Secretary-General of the United Nations, therefore it is this entity that has the competence to determine the term “State” in the first instance.18 However, in situations where it is controversial or unclear if the applicant constitutes a “State,” the Secretary-General follows or seeks the General Assembly’s directives on the matter which can be reflected in its resolutions.19

In this case, the Prosecutor has been informed that Palestine has been recognized as a State in bilateral relations by some international organizations, including United Nations bodies, and more than 130 governments. However, at the time, the General Assembly had only granted “observer” status to Palestine.20 Additionally, Palestine had submitted an application for admission to the United Nations as a Member State but the Security Council had not yet made a recommendation regarding the application.21 Overall, the Office of the Prosecutor did state that allegations of crimes committed in Palestine could be considered in the future if the competent organs of the United Nations or the Assembly of States Parties of the Rome Statute resolved the legal issue relevant to an assessment under Article 12, or if the Security Council referred the situation under Article 13(b) to the Court, thus giving it jurisdiction.22

This past analysis of the situation, which relies heavily on decisions made by the United Nations, brings up questions about the independence of the ICC in the larger scheme and the political bias given that the U.N. is a political body. Amnesty International said that the denial of jurisdiction by the ICC prosecutor meant denying justice to the victims of crimes allegedly committed in the Gaza war both on the Israeli and the Palestinian side.23 The decision by the ICC prosecutor meant Palestinian and Israeli victims of crimes allegedly committed during the Gaza war seemed likely to be denied justice. Justice is one of the primary principles pillars of the Court, as pointed out by its Preamble.24 Additionally, as the head of the human rights group’s International Justice campaign Marek Marczynski said:

This dangerous decision opens the ICC to accusations of political bias and is inconsistent with the independence of the ICC. It also breaches the Rome Statute which clearly states that such matters should be considered by the institution’s judges.25

The Court’s Current Open Investigation in the Situation in Palestine

This next consideration of the Court’s jurisdiction over the Situation in Palestine was primarily influenced by the change of status of Palestine in the G.A.. However, it still followed a careful process of examination from the Prosecutor and the Pre-Trial Chamber I.

After Ocampo left the office of the Prosecutor in 2012, Fatou Bensouda started her term in office where she opened an investigation on the Situation in Palestine. In November 2012, the General Assembly of the United Nations voted by an overwhelming majority to accord Palestine “Non-Member Observer State” status in the United Nations.26 The resolution passed with 138 votes in favor, 41 abstentions, and 9 votes against, which included Israel and the United States. One of the statements of the Israel representative emphasized that this decision was a one-sided resolution that did not advance peace in the region.27 He proceeded to state that there was only one route to Palestine statehood, which had no shortcuts.28 To him, this route was direct negotiations between Jerusalem and Ramallah, and that as long as President Abbas preferred “symbolism over reality,” there would be no hope of peace within reach.29 Regardless of the opposition presented by Israel or the other eight countries who voted against this resolution, Palestine’s recognition as a non-member observer state changed its international standing.

Following this resolution, in 2015, Palestine presented its instrument of accession to the Rome Statute to the United Nations Secretary-General.30 This instrument was accepted since it was the practice of the Secretary-General of the U.N. to follow the G.A.’s determination as to whether an entity was a State.31 Moreover, Palestine presented a declaration under Article 12(3) to the Registrar of the Court which was accepted as well.32 This resulted in Palestine becoming the 123rd State Party to the Rome Statute on April 2015.33 Moreover, in 2018 Palestine referred to the Prosecutor the situation since June 13th, 2014 with no end date.34 This triggered a preliminary examination by the Prosecutor who concluded in 2019 that all the statutory criteria under the Rome Statute for the opening of an investigation had been met.35 During this process, the Office of the Prosecutor explained that its focus on the inquiry into Palestine’s ability to accede to the Rome Statute was a question of Palestine’s status in the United Nations, given that the Secretary-General of the U.N. has the role of treaty depositary of the Statute.36 This decision by the Prosecutor further confirmed that the Court recognized Palestine as a State Party for legal purposes and that it considered it had territorial jurisdiction.37 Nonetheless, Bensouda announced that due to the “highly contested legal and factual issues” of this situation, she had requested from the Pre-Trial Chamber a jurisdictional ruling on the scope of the territorial jurisdiction of the ICC.

In this ruling the Pre-Trial Chamber considered two issues. First, whether Palestine can be considered “the State on the territory of which the conduct in question occurred” within the meaning of Article 12(2)(a) of the Statute.38 Second, the specific delineated territorial jurisdiction of the Court in this situation.39

First Issue

On the first issue, the Chamber states that following the Vienna Convention on the Law of Treaties, the interpretation of Article 12(2)(a) of the Rome Statute should be interpreted in good faith following the ordinary meaning to be given to its terms in the light of the object and purpose of the Statute.40 However, the word “State” is not defined by the Statute, its Rules of Procedure and Evidence, or the Court’s Regulations.41 Consequently, the Chamber follows with a textual and structural reading of this Article that ultimately allows it to determine that the Court has jurisdiction over the situation. The Chamber points to the word “following” in Article 12(2) to state that the reference to “State Parties to this Statute” is connected with the reference to “the States on the territory of which the conduct in question occurred” in Article 12(2)(a).42 To the Chamber, this means that the reference to “State” in 12(2)(a) ultimately shall be interpreted as referring to a State Party of the Statute.43 The Chamber then makes it very clear, that this doesn’t require a determination as to whether the entity in question fulfills the prerequisites of statehood under general international law.44 This seems to follow the Chamber’s decision that it is not necessary to apply subsidiary sources of law such as principles and rules of international law.45

With this, I see various issues. First, taking the ordinary meaning of the word “State” under Article 12(2)(a), it is equally possible to me that it isn’t meant to refer to a “State Party.” The absence of the word “Party” in Article 12(2)(a) can be a deliberate choice to indicate a different term than the one referenced in Article 12(2). If it meant to refer to the same term, wouldn’t it use the same words? Furthermore, the reading of Article 12(2) itself can be interpreted to refer to “State” under the view of general international law when it says that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute.” This doesn’t reference “State Parties” but references “States” that are parties to the Statute, meaning that there might be some “States” that aren’t parties to the Statute. Therefore, this would require two different considerations. One, inquiring if the entity is a State, and second if the entity is a State that was a Party to this Statute. The ordinary analysis that would follow in this two-tiered inquiry would be to look for the definition of “State” under the Rome Statute. As the Chamber points out, there is none. Under Article 21(1)(b), this should bring the meaning of the word “State” under principles of international law.

Furthermore, the Chamber states that its decision is coherent with the other provisions of the Statute. Article 125(3) provides that “The Statute shall be open to accession by all States.” The Chamber makes clear that there are no additional criteria to the accession to the Statute beside this one.46 At the end of the day, it points out that the key is that the G.A. through its resolutions finds an entity to be a State even if it doesn’t fall within the provisions of the Vienna Convention (the Vienna Formula).47

Again, lacking any definition for the word “State,” the Vienna Formula presented another opportunity for the Chamber to adhere to some existing international law principles for its analysis. The Vienna Formula was developed to overcome uncertainties in cases where treaties were open to “all States.”48 This is the language chosen by Article 125 of the Statute, “the Statute shall be open to accession by all States.”49 So it follows that this would be a perfect situation for using the Vienna Formula. This formula permits participation in a treaty by Member States of the U.N., parties to the Statute of the International Court of Justice, State Members of specialized agencies or of the International Atomic Energy Agency, and sometimes, by any other State invited by the General Assembly to become a party.50 Under this formula, Palestine would be able in legal capacity to participate in international treaty regimes through its UNESCO membership.51 However, it is important to note that the Viena formula is not about the substantive law of statehood.52 Therefore, it does not create states or clarify international legal status, it is merely a procedural criterion.53 This would be an even bigger incentive for the Court to use the Vienna Formula. It would allow the statehood determination by the Chamber as a procedural determination and keep the Court away from making a substantive determination that would be beyond the Statute’s object and purpose, which is what the Chamber is concerned with. Furthermore, the Chamber is already following the Vienna Convention for some of its analysis, so why not follow this “formula” as well? Can the Chamber, and for that purpose the Court, pick and choose what parts of the Vienna Convention on the Law of the Treaties to follow?

In addition, the Chamber also presents an analysis of the accession process of Palestine to the Statute and how since this process was followed correctly the Chamber could not question its result. The Chamber argues it has no authority to review the outcome of an accession procedure based on whether Palestine did or did not fulfill the requirements for statehood under general international law because it has no authority to review the outcome of the accession procedure at all. It also has no authority to challenge the validity of the G.A. resolution that made Palestine a non-member observer state. The Chamber believes this is further evidence that the Court had jurisdiction.54

Moreover, the Chamber points to the events that followed the accession of Palestine, where both Palestine and other State Parties have acted in accordance with its accession. First, no State Party opposed the Palestine accession aside from Canada. Additionally, the President of the Assembly of States Parties greeted Palestine in a welcoming ceremony.55 Moreover, Palestine has been included in the list of State Parties’ delegations in Assembly of State Parties, it has contributed to the Court’s budget and it was elected from the members of the Asia-Pacific Group to the Bureau of the Assembly of States Parties for the seventeenth to nineteenth sessions.56 Palestine also requested items to be included in the provisional agenda of the seventeenth session of Assembly of State Parties, which is a right held only by State Parties.57 Finally, the Chamber points out that there is a dispute settlement mechanism that allows parties to challenge the automatic entry into force of the Statute under Article 119(2) but no claims have been brought up either.58

I agree that Palestine and the Assembly of State Parties have acted accordingly with the accession of Palestine to the Rome Statute. However, this deviates from the real question, which is whether Palestine should have been allowed to become a State Party in the first place. On one hand, the Chamber’s analysis does show a legal avenue for challenging the entry process to the Rome Statute, under Article 119, which would work as a check on the accession process. The reason behind showing this possible legal avenue is to show that it exists and was not used therefore, it is proof the rest of the State Parties agree that Palestine could access the Statute. The discussion on the actions of Court officials, State Parties, and Palestine just seems to show political support for the acceptance of Palestine as a Party of the Statute once again. These considerations although important are focused on the Chamber’s efforts to provide evidence that there is an implicit recognition in everyone’s actions that Palestine can be a State Party to the ICC. This opens up a question of how important is political recognition in this process. Should this consideration be a strictly legal one? And if so, would it not matter if others supported the accession or not? The Chamber mentions a couple of times the effort of the ICC to be an independent body that is trying to stay away from political debates. However, the importance given to the political recognition itself seems to draw the ICC closer to a body that defers largely to the political considerations of its members.

Moreover, because it was clear that the process of accession was done according to what the law requires, the Chamber rests its next argument on the principle of effectiveness.59 Essentially, the Chamber says that if Palestine is a State Party, there should be no limit on the Statute’s inherent effects over it.60 Given that the Statute doesn’t present any exemption that applies in this case to the jurisdiction of the Court, and Article 20 of the Statute prohibits reservations, once Palestine was considered a State Party all the provisions of the Rome Statute entered into force.61 The Chamber refers to the Court’s previous acceptance of the effectiveness principle in the object and purpose of the Statute, where all provisions are to be interpreted to give the Statute its full meaning and where any interpretation that would nullify or render inoperative a provision of the Statute shall be rejected.62 The Chamber argues that in this case, taking “State” in Article 12(2)(a) to mean a State for purposes of general international law, would exceed the object and purpose of the Statute, to establish individual criminal responsibility, and render most of the provisions of the Statute null for Palestine.63

Once more, this argument makes sense, especially for a treaty that allows no reservations. It is understandable and even desirable for all state parties to have access to all rights, and for provisions to be read and interpreted in a way that doesn’t render other provisions inoperative because this is probably what is closer to the drafter’s intent. However, it diverges from the question of whether Palestine fulfilled the needed requirements to become a State Party in the first place. After all, even if the Chamber points out that there existed no other additional requirements besides Article 125(3), the Chamber cannot ignore that embedded within this article is the requirement that those who accede to the Statute are, in fact, States.

Ultimately, the Chamber’s opinion asserts that the Rome Statute insulated the Court from making the “political” determination of statehood under international law, by having it rely on the determination made by the United National General Assembly, and on the accession procedure.64 The Chamber further accepted that it is not competent to determine matters of statehood that would bind the international community.65 This analysis shows the huge deference toward the United Nations General Assembly’s decision of statehood without much regard for the best known legal international standard for statehood, the Montevideo Convention on the Rights and Duties of the States. While I understand the need for the Chamber to stay within the object and purpose of the Statute and not make decisions it has no authority to make, there are a lot of unanswered questions in its opinion. Furthermore, the overall argument it is trying to support seems to be circular. Essentially, to be a State Party an entity would first have to be a State, but the analysis presented was that Palestine was a State Party because the accession process was done procedurally right and so therefore it was a State. Should there be no consideration within the Court as to the reality of the statehood of its members? Is the ICC truly an independent legal body when it is dependent on the decision of the United Nations as to something so fundamental as its member composition without much available afterward review or say?

Second Issue

As for the second issue at review, the Chamber is clear to say that its decision is neither adjudicating a border dispute nor prejudging the question of any future borders.66 Here, the Chamber finds that the delimitation of the territory of Palestine to define the Court’s territorial jurisdiction is also indicated by the accession procedure. According to the Resolution of the G.A. that gave “non-member observer State” status to Palestine, the Palestinian people have the right to self-determination and independence on their State of Palestine on the Palestine territory occupied since 1967.67 Based on this the Chamber finds that the Court’s territorial jurisdiction in the Situation in Palestine extends to Gaza and the West Bank, including East Jerusalem.68

The Chamber added that this determination followed Article 21(3) of the Rome Statute as well. This Article provides that the interpretation and application of the Statute, including the Court’s jurisdiction, must be consistent with internationally recognized human rights.69 The right of self-determination has been identified in various international treaties and by the International Court of Justice. Additionally, it has been recognized as having particular importance because its realization is an essential condition for the effective guarantee of individual human rights.70 In the Chamber’s view, the right to self-determination amounts to an “internationally recognized human right” that falls under Article 21(3).71 The Chamber states that in this case, Palestines’ right of self-determination has been identified by the International Court of Justice and the G.A., more specifically regarding the occupied territory since 1967.72

While this analysis makes sense to me, the foundation on which it rests seems flawed. I think that the ICC deciding a territory over which it may exercise its jurisdiction essentially is creating a legal precedent that can later be referenced as to what the Palestine territory is. Saying that this determination doesn’t adjudicate a border dispute nor prejudices the question of any future borders will not prevent this decision to be bidding in some way. While the Chamber is trying to keep the determination within the object and purpose of the Statute, the reality is that the ICC’s decisions do have an effect on the international legal system and in the States under its jurisdiction. Charges are filed, arrest warrants are issued and investigations are essentially done under the territory of a specific State. Because of this, this determination should be done carefully and perhaps in a more strict legal manner.

Oslo Accords

On a final consideration, the Chamber discusses the implications of the Oslo Accords in the jurisdiction of the ICC. In the Oslo II Agreements, the Palestine Authority agreed that its territorial and functional jurisdiction would not apply to Israelis.73 As a consequence of this, some observations were submitted to the Chamber arguing that Palestine could not have delegated part of its jurisdiction to the Court. Others argued that the Oslo Agreements did not affect the jurisdiction of the Court but might affect matters of cooperation with the Court instead.74 The Chamber alludes to Articles 97 and 98 of the Rome Statute where a State that identifies a problem possibly preventing it from executing a request to cooperate or assist the Court can consult with the Court.75 Additionally, these Articles also mention that the Court may not proceed with requesting assistance from a State when this would require the State to act inconsistently with its obligations under international agreements it has signed.76 Ultimately, the Chamber finds that this question of jurisdiction is not affected by the Oslo Accords and that their effect may be raised by interested States in relation to the admissibility of a case.77

I agree with this interpretation of the Oslo Accords because, if the Rome Statute was not to be signed at all by States with conflicting obligations under a previously signed agreement, then Articles 97 and 98 of the Statute would be rendered null. Their existence is evidence that a State can agree to be under the Court’s jurisdiction and that, if during an investigation process, its cooperation or assistance would make it act inconsistently with other legal obligations, then it can seek refuge under these two Articles.

Legal Determination

Overall, in its current determination on jurisdiction, the Chamber defers completely to the United Nations for a determination on statehood for purposes of the Rome Statute. The underlying reason for this is a sentiment that the Chamber doesn’t have the authority to make decisions beyond its object and purpose of individual criminal liability. Although I agree with this and understand that the Chamber feels that it cannot make territorial delimitations and decisions on statehood beyond those of the United Nations, I argue that ultimately it is deciding on this issue, and its decision will influence the conversation around Palestine’s statehood in the international community in the future.

Furthermore, the Chamber at one point states that because statehood under international law is such a complex and political issue, the Court is trying to distance itself from this process to remain independent. It states that once the accession process is completed, beyond an Article 119 dispute, there would be no other mechanism to question or review statehood inside the ICC.78 And while I understand that as an independent legal body, it is trying to stay away from political decisions, leaving this statehood and territorial decision to the United Nations the ICC is accepting a political determination to the question overall, as the United Nations depends “on the political will of its Member States to have its decisions put into action.”79

As the best-known standard for statehood, the Montevideo Convention on the Rights and Duties of States (Montevideo Convention) provides deceptively simple criteria.80 Under this Convention a State should possess a permanent population, a defined territory, a government; and the capacity to enter into relations with other states.81 Because of its ambiguity and the flexibility with which it has been applied, those seeking to apply it must choose between two primary theories of statehood.82

Under the declaratory theory, the standards under the Montevideo Convention are enough to fulfill the criteria of statehood.83 Political recognition by other states should not prevent and newly formed state from benefiting from its international rights.84 Challengers of this theory claim that it undermines the power of recognition as an element that would deter would-be states from having an international personality and realistically being able to enforce its rights.85 On the other hand, the constitutive theory states that the act of recognition is what leads to the creation of the state.86 Challengers of this theory state it fails to identify more clear standards as to how many states are required to grant legal recognition of a state.87

In the ICC’s case, it chooses to use the constitutive theory, and the shift from Ocampo’s denial of opening an investigation to Bensouda’s acceptance and the Chamber’s confirmation of the Court’s jurisdiction in Palestine are evidence of this. Nothing drastically changed in the composition of the real territory, population, and government between the denial and the acceptance, as the Office of the Prosecutor notes, the decision that triggered the change within the Court was the United Nations General Assembly (G.A.) Resolution that granted “non-member observer State” status to Palestine.

The G.A. is composed of 193 representatives, one for each of the U.N. members. Consequently, it is not exactly representative of the world’s population.88 However, it is probably the biggest forum where states come together and voice their opinions about all different aspects of the international system. We could say that a resolution where 138 states voted to recognize Palestine as a State is precisely what the constitutive theory means when it comes to recognition for the formation of a State. Nonetheless, because of its ambiguous standards, this might not be the case. If recognition by others is what matters, couldn’t the recognition requirement mean that the majority of the population in the world needs to recognize the entity as a State? And if this is the case does the resolution by the G.A. represent the majority of the world’s population? Or does recognition refer that the most powerful states in the world need to recognize the entity as a State? And if so, would they all need to recognize Palestine? Or only a majority of them?

China, France, Russia, the United Kingdom, and the United States are the world leaders as they are the five permanent members of the S.C.. In the resolution passed by the G.A. the United States was one of nine votes against it.89 Following this vote, the representative of the United States said that they “two states for two people” outcome but that the question of Palestine statehood needed to be negotiated on the ground with Israel. She also argued that this was an “unfortunate and counterproductive” resolution that was an obstacle to peace. So although the United States voted against making Palestine a non-member state, the afterward explanation seems to suggest that their position isn’t that the U.S. will never recognize a Palestine State, but rather that they oppose this way of conferring statehood. On the other hand, the Russian Federation voted in favor of the resolution and has recognized the declaration of Palestinian statehood since 1988.90 France also voted in favor and has had a long history of promoting the two-state solution that would call for the international recognition of a Palestine State.91 As for China, it also voted for the resolution and although it had announced its recognition of the State of Palestine as early as 1988 and established diplomatic relations with it, the representative for the country referred to the adoption of the resolution as “another positive step in Palestine’s progress towards statehood.”92 Finally, the United Kingdom abstained from voting and stated later its concern about the action taken by the assembly as it would hinder negotiations to save a two-state solution.93 Ultimately, even if all five states had voted in favor of the resolution, which they didn’t, it is clear by each of their statements after the vote that figuring out the real opinion or reason behind a state’s action can be harder than it looks and may not always lead to a straight forward answer. Regardless, only three out of the five world powers voted in favor of the resolution, so if recognition under the constitutive theory refers to recognition by the most powerful countries, the ones that have the most political power, then Palestine would still have a chance of passing muster.

In situations where only part of the legal community recognized the entity’s statehood, self-determination comes into play.94 As a principle of international law, self-determination is the ability of a country to determine its own statehood by making its own government and controlling its own population.95 A focus on self-determination would be consistent with Article 21(3) of the Rome Statute and would tip the scale towards Palestine’s statehood.96

On the other hand, if the analysis was done under the declaratory theory, which would require a more formal application of the Montevideo Convention, Palestine would run into more trouble in asserting its statehood.97 According to a report by the Office of International Religious Freedom of the U.S. Department in 2022, there was a five million Palestinean population living in the Gaza Strip and the West Bank.98 This would fulfill the element of the permanent population of the Convention. For the element of “defined territory,” Palestine would start to run into some trouble.99 While some argue that the Gaza Strip and the West Bank are Palestine territories, others claim this territory belongs to Israel.100 Furthermore, essentially there is no single clear entity that has effective control and exclusive authority over the previously mentioned territories.101

According to the Oslo Accords of 1995, the disputed territory is now divided into three areas; areas A, B, and C.102 Area A constitutes eighteen percent of the West Bank and Gaza is under Palestine administrative and police control.103 Area B is twenty two percent of the West Bank and is administered by the Palestinian Authority which shares security control with Israel.104 Finally, Area C covers sixty percent of the West Bank and is administered by Israel.105

Furthermore, the terrorist organization Hamas administers the Gaza Strip.106 As for the fourth element of the Montevideo Convention, Palestine would be able to fulfill it with the G.A. resolution where it got the majority of nations to recognize its statehood.107 Regardless of the theory used to analyze Palestine’s statehood, it would run into some issues in both of them. However, Palestine does have a better chance of being considered a state if the constitutive theory is followed as seen by the Chamber’s acceptance of the Court’s jurisdiction over the situation in Palestine.

Today

The determinations made by the Chamber were made in February of 2021 and since then a lot more violence has taken place. After the attacks of October 7, 2023, the Office of the Prosecutor received a referral under Articles 13(a) and 14 of the Rome Statute by the Republic of South Africa, the People’s Republic of Bangladesh, the Plurinational State of Bolivia, the Union of the Comoros and the Republic of Djibouti.108 After this, Prosecutor Karim Khan confirmed that his office is currently conducting an investigation into the Situation in the State of Palestine which encompasses alleged crimes that may amount to those under the Rome Statute committed since June 13th, 2014 in the Gaza Strip and the West Bank, including East Jerusalem.109 He further reaffirmed that the investigation covers the attacks of October 7th and the hostilities and violence after them.110 During his statements, he also called on all State Parties to the Rome Statute to provide the office with full cooperation and to demonstrate that the States’ political commitments to the principles of the Statute matched with their commitment to provide the resources needed by the Office to fulfill its obligations.111

This call upon the State Parties brings me to my next point. Does the acceptance of jurisdiction by the Court change anything in the middle of the conflict? Does it help? Does it have lasting and crucial effects on violent conflicts? Or do States still need to be a part of the solution? While the ICC provides for a legal consequence to crimes committed and it helps further international justice it is unclear a lot of times how it can provide further peace. The day after Prosecutor Khan made his statements on the current investigation a U.N. school in Gaza that was being used as shelter got hit.112 And although the source of the attack is unknown the reality is that violence has continued. The possible convictions or arrest warrants by the ICC don’t seem to have deterred attacks or further civilian casualties which have been sixty-one percent of the total death toll.113 This is much higher than the average civilian toll in all the conflicts around the world during the 20th century.114 For all we know, if perpetrators of crimes know that prosecutions have been initiated they might have no incentive to stop committing further violence. Moreover, this shows that even if the ICC has jurisdiction, situations like the one in Palestine and Israel will be much more impacted by the political actions of other states. Indisputably, the United States’ diplomatic and military support to Israel has played enormous support for the continuation of the violence. Most recently the United States vetoed a draft resolution presented in the Security Council which called for an “immediate humanitarian ceasefire.”

Universal Jurisdiction

Even if the decision was that the ICC didn’t have jurisdiction over the Palestine/Israel conflict, there is always the possibility of having these crimes be legally accounted for through Universal Jurisdiction.115 However, it is important to admit the short comings of prosecuting through universal jurisdiction.116 Because this process relies on national judicial organs, these courts and prosecutors might not have the competence nor the incentives to consider the full harms of the victims, they might be poorly positioned to assess the interest of the victims and might end up causing harm in the prosecutorial process.

Conclusion

The question of jurisdiction over Palestine has been discussed for many years. Although it had been. Although from a policy and humanitarian perspective there is no question about if those responsible for the crimes and atrocities committed should be held internationally and legally responsible, the legal question under the ICC Statute is more complicated. On one hand, the ICC had previously rejected jurisdiction over the fact that Palestine was not considered a state but after the G.A. resolution Palestine was granted “Non-Member Observer State” status. After a preliminary examination by the prosecutor and an opinion drafted by the Pre-Trail Chamber, the ICC confirms it has jurisdiction over the Palestine situation, more specifically over the Palestine territory occupied since 1967 which extends to Gaza and the West Bank, including East Jerusalem. While the Chamber does a detailed analysis of their reasoning for Palestine’s jurisdiction the ultimate two arguments rely on the deference to the United Nations on what constitutes a State and on the lack of authority to interfere with the accession process once done correctly. The Chamber’s view aligns with the constitutive analysis of statehood but greatly differs from the declaratory theory. Its analysis presents various unanswered questions and seems to follow a circular argument when presenting the connection between being a “State” and being a “State Party.” Nonetheless, this position taken by the Court probably represents the ICC’s belief that the best way to uplift a population in dire need of legal protection is to emphasize its right to statehood.117

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Joanna Tan, Charts Show a Stark Difference in the Human Cost of Israeli–Palestinian Conflicts Over the Years, CNBC, Nov. 12, 2023, available online. ↩

2. 2.

   Id. ↩

3. 3.

   Rome Statute, Preamble. ↩

4. 4.

   Id. Art. 4. ↩

5. 5.

   Id. Arts. 1, 7, 53(1)(c). ↩

6. 6.

   Id. Art. 11. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. Art. 5. ↩

11. 11.

    Id. Art. 12. ↩

12. 12.

    Id. ↩

13. 13.

    Id. Art. 13. ↩

14. 14.

    Id. Art. 13(b). ↩

15. 15.

    Id. Art. 15. ↩

16. 16.

    Office of the Prosecutor, ICC, Situation in Palestine (Apr. 3, 2012) [hereinafter 2012 Decision], available online. ↩

17. 17.

    Id. ¶ 5. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Id. ¶ 8. ↩

23. 23.

    ICC Prosecutor Rejects Palestinian Recognition, BBC News, Apr. 4, 2012, [hereinafter Prosecutor Rejects Recognition], available online. ↩

24. 24.

    Rome Statute, supra note 3, at Preamble. ↩

25. 25.

    Prosecutor Rejects Recognition, supra note 23. ↩

26. 26.

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27. 27.

    Id. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Press Release, ICC, The Prosecutor of The International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation In Palestine (Jan. 16, 2015) [hereinafter Bensouda Opens Preliminary Examination], available online. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

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34. 34.

    Id. ↩

35. 35.

    Id. ↩

36. 36.

    Bensouda Opens Preliminary Examination, supra note 30. ↩

37. 37.

    Id. ↩

38. 38.

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39. 39.

    Id. ↩

40. 40.

    Id. ¶ 91; Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

41. 41.

    Situation in the State of Palestine, supra note 38, ¶ 92. ↩

42. 42.

    Id. ¶ 93. ↩

43. 43.

    Id. ↩

44. 44.

    Id. ↩

45. 45.

    Id. ¶ 88; Rome Statute, supra note 3, at Art. 21(b). ↩

46. 46.

    Situation in the State of Palestine, supra note 38, ¶ 97. ↩

47. 47.

    Id. ¶ 96. ↩

48. 48.

    Final Clauses of Multilateral Treaties: Handbook, 15, UNTC (2003), available online. ↩

49. 49.

    Rome Statute, supra note 3, at Art. 125. ↩

50. 50.

    Vienna Convention, supra note 40, at Art. 81. ↩

51. 51.

    Jure Vidmar, Palestine v United States: Why the ICJ Does not Need to Decide Whether Palestine is a State, EJIL Talk (Nov. 22, 2018), available online. ↩

52. 52.

    Id. ↩

53. 53.

    Id. ↩

54. 54.

    Situation in the State of Palestine, supra note 38, ¶ 99. ↩

55. 55.

    Id. ¶ 100. ↩

56. 56.

    Id. ↩

57. 57.

    Id. ↩

58. 58.

    Id. ¶ 102. ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    Id. ¶ 102. ↩

62. 62.

    Id. ¶ 105. ↩

63. 63.

    Id. ¶ 106. ↩

64. 64.

    Id. ¶ 108. ↩

65. 65.

    Id. ¶ 108. ↩

66. 66.

    Id. ¶ 114. ↩

67. 67.

    Id. ¶ 116. ↩

68. 68.

    Id. ¶ 118. ↩

69. 69.

    Id. ¶ 119. ↩

70. 70.

    Id. ¶ 120. ↩

71. 71.

    Id. ¶ 122. ↩

72. 72.

    Id. ¶ 123. ↩

73. 73.

    See Report of the Secretary-General, UN Doc. S/1997.357, Letter dated 27 December 1995 from the Permanent Representatives of the Russian Federation and the United States of America to the United Nations addressed to the Secretary-General (May 5, 1997), available online; Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, S/1997.357 Annex, Art. XVII(2)(c) (Sep. 28, 1995) [hereinafter Oslo II], available online. ↩

74. 74.

    Situation in the State of Palestine, supra note 38, ¶ 126. ↩

75. 75.

    Id. ¶ 127. ↩

76. 76.

    Id. ↩

77. 77.

    Id. ¶ 129. ↩

78. 78.

    Id. ¶ 108. ↩

79. 79.

    UN Structure, Model UN, available online (last visited Dec. 10, 2023). ↩

80. 80.

    Montevideo Convention on the Rights and Duties of States (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩

81. 81.

    Id. Art. 1. ↩

82. 82.

    Tanvi Bhargava & Rebecca Cardoso, An Examination of Palestine’s Statehood Status through the Lens of the ICC Pre-Trial Chamber’s Decision and Beyond, N.Y.U. J. Int’l L. & Pol. (Oct. 20, 2021), available online. ↩

83. 83.

    Id. ↩

84. 84.

    Id. ↩

85. 85.

    Id. ↩

86. 86.

    Id. ↩

87. 87.

    Id. ↩

88. 88.

    Julian Borger, What is the Point of the UN General Assembly?, The Guardian, Sep. 23, 2019, available online. ↩

89. 89.

    Palestine is Accorded “Non-Member Observer State” Status, supra note 26. ↩

90. 90.

    Id. ↩

91. 91.

    Id. ↩

92. 92.

    Id. ↩

93. 93.

    Id. ↩

94. 94.

    Rome Statute, supra note 3. ↩

95. 95.

    Id. ↩

96. 96.

    Id. Art. 21. ↩

97. 97.

    Montevideo Convention, supra note 80. ↩

98. 98.

    See Office of International Religious Freedom, U.S. Dept. of State, 2022 Report on International Religious Freedom: Israel, West Bank and Gaza (2022), available online. ↩

99. 99.

    Montevideo Convention, supra note 80. ↩

100. 100.

     Id. ↩

101. 101.

     Id. ↩

102. 102.

     What are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Dec. 9, 2023). ↩

103. 103.

     Id. ↩

104. 104.

     Id. ↩

105. 105.

     Id. ↩

106. 106.

     Montevideo Convention, supra note 80. ↩

107. 107.

     Id. ↩

108. 108.

     Karim A. A. Khan, ICC Prosecutor, Statement on the Situation in the State of Palestine: Receipt of a Referral From Five States Parties (Nov. 17, 2023), available online.. ↩

109. 109.

     Id. ↩

110. 110.

     Id. ↩

111. 111.

     Id. ↩

112. 112.

     Chris Lau, Andrew Raine, Lauren Said-Moorhouse, Thom Poole, Christian Edwards, Adrienne Vogt & Tori B. Powell, November 18, 2023 Israel–Hamas War, CNN, Nov. 19, 2023, available online. ↩

113. 113.

     Julian Borger, Civilians Make Up 61% of Gaza Deaths From Airstrikes, Israeli Study Finds, The Guardian, Dec. 9, 2023, available online. ↩

114. 114.

     Id. ↩

115. 115.

     Jack Goldsmith & Stephen D. Krasner, The Limits of Idealism, 132 Daedalus 47 (2003), available online. ↩

116. 116.

     Id. ↩

117. 117.

     Montevideo Convention, supra note 80. ↩