The notion of jurisdiction is fundamental to the operation of the International Criminal Court (ICC). Jurisdiction refers to the competence or authority of the Court to investigate or review a particular matter. The ICC lacks universal jurisdiction. Its jurisdiction is limited both in terms of subject matter and territoriality. Thus, the Court has the authority to investigate genocide, crimes against humanity and war crimes as defined in Articles 6, 7, 8 and 9 of the Rome Statute. Further, the crimes must have been committed on the territory of a State Party or a State which has accepted the jurisdiction of the ICC. Alternatively, the accused must be a national of a State Party or a State which accepted the Court’s jurisdiction. Article 11 of the Rome Statute stipulates that the Court can exercise jurisdiction only over events that have taken place since 1 July 2002 or a later date at which the Statute entered into force in the State.

The Court has discretion to determine whether to investigate alleged war crimes, even if such crimes fall within the scope of its jurisdiction. Under Article 53 of the Rome Statute, there must be a reasonable legal and factual basis for the Court to proceed.

Significantly, the Court must be careful not to undermine the rights of States which have not ratified the Rome Statute. The ICC is a treaty based body: it cannot exercise jurisdiction over crimes or persons of sovereign states that have not submitted to the authority of the Court. This is reflected in Part 9 of the Statute. Article 86 says that “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” Similarly, Article 87(1) provides that the Court has the authority to make requests to State Parties for cooperation. Non-party states are dealt with in Article 87(5) which reads as follows:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.
(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

At present, Israel has not ratified the Rome Statute. There is no ad hoc arrangement between ICC and Israel which would provide a legal basis for the ICC to determine whether the alleged war crimes have been committed in the 2008-09 Gaza conflict. Moreover, the Security Council has not called upon the ICC to act. Essentially then, the issue turns on the legal status of the ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ lodged by the Palestinian Minister of Justice on 21 January 2008.

Here, the first question that arises is: can the declaration be used as a basis for ICC’s acquisition of jurisdiction in the Gaze conflict? Article 12(3) of the Rome Statute supplies the answer. The Article is tied to the notion of a “State.” It provides that a State which is not a party to the Statute may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to a crime. The core purpose of the Article is to allow non-party States to cooperate with the court. It follows that Palestine must qualify as a “State” in order to come within the scope of the provision.

Article 1 of the Montevideo Convention of 1933 specifies distinct criteria for the attribution of international legal personality. Pursuant to Article 1, a State should possess a permanent population, a defined territory, a government and the capacity to enter into legal relations. Hence, as a matter of general law Palestine must show sufficient evidence of the existence of these facts to prove statehood.

The existence or non-existence of Palestine as a State is a contentious and politically divisive issue. However, this issue cannot be resolved through judicial mechanisms. Already established States would need to formally declare their acknowledgment of Palestine for Palestine to be able to claim statehood. The primary function of the ICC is to exercise judicial power. As a consequence, it cannot interfere in the process of the formation of new states.