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ICC Decision on its Jurisdiction in Palestine
International Criminal Court
Pre-Trial Chamber I
Situation in the State of Palestine
Decision on the ‘Prosecution Request Pursuant to Article 19(3)
for a Ruling on the Court’s Territorial Jurisdiction in Palestine’
The Hague, 5 February 2021
I. Procedural History
[…]
II. Submissions and Observations
[…]
III. DETERMINATION BY THE CHAMBER
A. Preliminary issues
1. Is the issue at hand political and as such non-justiciable?
53. Some participants, including certain amici curiae, State Parties, and representatives of victims, have raised the argument that the Prosecutor's Request is of a political nature rather than a legal one. On this basis, some have argued that a ruling on the Court's jurisdiction over the territory of Palestine, with the political consequences it would entail, would constitute a political decision and potentially affect the Court's legitimacy. Others have stated that the territorial scope of the Court's jurisdiction is a legal question and falls within the Court's competence to determine. It is necessary to address those arguments since they not only encompass the case and its developments but also the Court's work and its very mandate.
54. The issues raised by the Prosecutor, as set out in its Request, clearly raise legal questions regarding the Court's jurisdiction. Arguments to the effect that the aim or consequence of the Prosecutor's Request would be the creation of a 'new State' reflect a misunderstanding of the actual subject-matter of the Request. Indeed, the creation of a new state pursuant to international law, as stated by numerous amici curiae, is a political process of high complexity far detached from this Court's mission.
55. Further, some participants have stated that because of the highly political aspect of the Situation in Palestine, it should not be examined by this Court. It should however be noted that, by the very nature of the core crimes under the Rome Statute, the facts and situations that are brought before the Court arise from controversial contexts where political issues are sensitive and latent. Accordingly, the judiciary cannot retreat when it is confronted with facts which might have arisen from political situations and/or disputes, but which also trigger legal and juridical issues.
56. The judges can and must examine the emerging legal issues, as long as they are framed by the contours of the relevant law. This is a central part of the jurisdictional activity, as stated by the International Court of Justice in its Advisory Opinion on Western Sahara: 'It is true that, in order to reply to the questions, the Court will have to determine certain facts, before being able to assess their legal significance'. This does not mean that the Chamber will address facts that are politically based or motivated, but merely that it will need to look at a range of facts, practices, and documents which, while sometimes based on political decisions, form part of the legal contours of the situation and whose legal consequences might need to be addressed for the purpose of the jurisdictional activity. In the situation at hand, the Prosecutor addressed a legal issue to the Chamber, namely whether 'the "territory" over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza', that is capable of a legal answer based on the provisions of the Statute.
57. Similarly, the fact that the present decision on the Prosecutor's Request might entail political consequences shall not prevent the Chamber from exercising its mandate. In this regard, some participants have questioned whether it would be appropriate for the Chamber to decide on the Prosecutor's Request, arguing that a potential decision could hinder the developments of future political agreements between Palestine and Israel. However, potential political outcomes alone should not pose any restrictions on the exercise of the jurisdictional activity. As stated above, the Chamber's mandate is limited to analysing the relevant facts of which the Chamber is seized, in accordance with the Court's applicable legal framework. In the present case, the Chamber shall only assess the question of the Court's jurisdiction over the Situation in Palestine and its extent. Potential consequences that might arise from the present decision are outside the scope of the Chamber's mandate.
2. Israel's participation in the proceedings
58. Some participants have argued that the subject-matter of the Prosecutor's Request cannot be examined by this Chamber as this assessment would take place without the participation of one of the main stakeholders - Israel - and directly impact its territorial sovereignty, referring to the principle of *Monetary Gold* to support their argument. The International Court of Justice consecrated this principle in the Monetary Gold Removed from Rome in 1943 case, in which it declared that it could not decide on a matter when the legal interest of third parties 'would not only be affected by the decision, but would form the very subject matter of the decision'.
59. However, unlike the International Court of Justice, the Court cannot rule on interstates disputes as it does not have jurisdiction over States, but exercises its jurisdiction solely over natural persons. In any event, the Chamber notes that Israel was invited in the 'Order setting the procedure and the schedule for the submission of observations' of 28 January 2020 to submit observations, but chose not to avail itself of that opportunity.
60. As such, it must be emphasised that the present decision is strictly limited to the question of jurisdiction set forth in the Prosecutor's Request and does not entail any determination on the border disputes between Palestine and Israel. The present decision shall thus not be construed as determining, prejudicing, impacting on, or otherwise affecting any other legal matter arising from the events in the Situation in Palestine either under the Statute or any other field of international law.
3. Criminal jurisdiction v. territory of States
61. It should be noted that national criminal courts sometimes have to determine the extent of the territory of States in order to identify the extent of their territorial jurisdiction, without constituting a determination on the actual scope of that State's territory.
62. More importantly, as recognised by the Permanent Court of International Justice and explicitly affirmed by this Chamber in the 'Decision on the "Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute"' of 6 September 2018, '[t]he territoriality of criminal law [...] is not an absolute principle of international law and by no means coincides with territorial sovereignty'. Therefore, any territorial determination by the Chamber for the purpose of defining its territorial jurisdiction for criminal purposes has no bearing on the scope of Palestine's territory.
B. The Legal Basis
63. At the outset, the Chamber recalls that, in relation to the 'Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute' of 9 April 2018 (the '9 April 2018 Request'), it did 'not see the need to enter a definite ruling on' the applicability of article 19(3) of the Statute in the context of those proceedings as it considered that it could rule on the question set forth in that request pursuant to an alternative legal basis. Thus, the Chamber did not reject the possibility of applying article 19(3) of the Statute with regard to the 9 April 2018 Request.
64. In any event, the present proceedings are distinguishable from those pertaining to the 9 April 2018 Request. The latter request arose out of a preliminary examination by the Prosecutor and was assigned to the Chamber under regulation 46(3) of the Regulations of the Court as a 'matter, request or information not arising out of a situation' in the absence of either a referral by a State Party or the Security Council, or a request for authorisation of a proprio motu investigation. Conversely, with regard to the present request for a ruling on a question of jurisdiction, the Prosecutor has indicated that she 'is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute'. In this regard, she has specified that '[t]here is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip', 'potential cases arising from the situation which would be admissible' have been identified, and '[t]here are no substantial reasons to believe that an investigation would not serve the interests of justice'.
65. The legal consequence is that, as clarified by the Appeals Chamber, the Prosecutor is, in principle, obliged to initiate an investigation. The reason is that article 53(1)(a) of the Statute stipulates that '[t]he Prosecutor shall […] initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute'. The Prosecutor has similarly acknowledged that she 'has a legal duty to open an investigation into [a] situation' if she is satisfied that the relevant criteria established by the Statute are fulfilled. This means that, although the Prosecutor has not officially announced that she has opened an investigation into the present Situation, such an investigation has, in principle, already been opened as a matter of law, subject to the application of article 18 of the Statute.
66. Accordingly, the principal difference is that the Chamber had to rule on the 9 April 2018 Request in the context of the initial stages of a preliminary examination, while the present request arises out of an investigation that has, in principle, already been initiated. In addition, the Prosecutor has identified potential cases in the present Situation for the purposes of determining whether such cases are or would be admissible.
67. In these circumstances, the Chamber considers it appropriate to determine whether article 19(3) of the Statute is applicable. Specifically, the Chamber must determine whether, in relation to an investigation that has, in principle, already been initiated by the Prosecutor, a ruling on a question of jurisdiction may be sought and issued on the basis of article 19(3) of the Statute either in the situation or once a case arises from that situation. In this regard, the Chamber recalls that the legal texts of the Court draw the following distinction between a situation and a case:
Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, [...] entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.
68. The Chamber considers that a ruling on a question of jurisdiction pursuant to article 19(3) of the Statute may be sought and issued before a case emanates from a situation. As specified below, it has arrived at this conclusion on the basis of an interpretation of this provision in accordance with the ordinary meaning to be given to its terms in their context and in the light of the Statute's object and purpose.
1. The ordinary meaning of article 19(3) of the Statute
69. The first sentence of article 19(3) of the Statute reads as follows in the relevant part: '[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction'. This sentence generically defines the subject-matter of a ruling as 'a question of jurisdiction' without imposing further restrictions. In addition, it omits any temporal parameter for requesting or issuing such a ruling.
70. The Chamber is of the view that the provision's broad and general wording, in conjunction with the absence of temporal parameters, indicates that its scope of application is not restricted to a case emanating from a situation.
2. The context of article 19(3) of the Statute
71. The context of article 19(3) of the Statute further supports the Chamber's interpretation of the ordinary meaning to be given to its terms.
72. First, the structure of article 19 of the Statute, which distinguishes between three distinct procedural mechanisms, establishes that the scope of application of the third paragraph of article 19 of the Statute is not restricted to a case on account of references to 'case' appearing throughout this provision.
73. Article 19(1) of the Statute provides that '[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it'. Article 19(2) of the Statute stipulates that 'challenges to the jurisdiction of the Court may be made by' an accused, a person for whom a warrant of arrest or a summons to appear has been issued, or certain States. As mentioned, article 19(3) of the Statute accords a specific right exclusively to the Prosecutor. These three mechanisms regulate different situations and, therefore, have independent functions. This structure entails that the references to 'case' specifically restrict the scope of application of the mechanisms set forth in article 19(1)-(2) of the Statute. The absence of such references in article 19(3) of the Statute confirms, a contrario, that this mechanism extends beyond a case.
74. The Chamber observes that several other paragraphs of article 19 of the Statute also contain references to 'case'. However, paragraphs 4 to 11 of this provision merely specify other aspects of this provision. Therefore, the references to 'case' in these paragraphs do not detract from the conclusion that article 19 of the Statute sets forth three mechanisms regulating different situations.
75. Similarly, the reference to '[c]hallenges' in the heading of article 19 of the Statute does not restrict its entire scope of application but merely denotes the main purpose of this provision. The obligation of a chamber to satisfy itself that it has jurisdiction arising from article 19(1) of the Statute omits a reference to 'challenge' and, thus, also applies in the absence of a challenge. This is comparable to the mechanism contained in article 19(3) of the Statute. It, namely, acknowledges that the Prosecutor's mandate regarding the initiation of investigations and prosecutions may give rise to the need to resolve a question of jurisdiction or admissibility at an early stage of the proceedings by way of a ruling by the Pre-Trial Chamber without a challenge to the Court's jurisdiction having been lodged. Moreover, it is well-known that various other headings in the Statute also do not entirely encapsulate the contents of the articles they pertain to, which lends further support to the finding that the heading of article 19 of the Statute is not determinative of its scope of application.
76. The drafting history of article 19 of the Statute is also instructive in interpreting its structure. Whereas article 19(1) of the Statute originated in article 24 of the 1994 Draft Statute for an International Criminal Court by the International Law Commission, the second paragraph of article 19 of the Statute resulted from articles 34 to 36 of that Draft. The mechanism laid down in article 19(3) of the Statute was not contained in this Draft but only appeared in a 1997 document by the Preparatory Committee. It is noteworthy that the latter document did not refer to either 'challenge' or 'case', but broadly stipulated that '[t]he Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility'. Therefore, although the final version of article 19 of the Statute grouped these three mechanisms together, they were developed independently for different purposes.
77. The Chamber is not persuaded by the argument that '[r]ulings on territorial jurisdiction necessarily impair a suspect/accused's right to challenge jurisdiction under Article 19(2)(a) of the Statute'. A Chamber of this Court has previously held that an 'accused will always be entitled to raise a challenge under article 19(2) of the Statute, whether or not the Chamber has exercised its powers under article 19(1)'. By the same token, a ruling pursuant to article 19(3) of the Statute does not impair the right of a suspect or accused (or the relevant States) to subsequently challenge the jurisdiction of the Court under article 19(2) of the Statute.
78. Second, the rationale reflected in article 15 of the Statute, according to which it must be ensured that an investigation proceeds on a sound jurisdictional basis as early as possible, similarly finds application in relation to an investigation resulting from a referral by a State Party under articles 13(a) and 14 of the Statute.
79. Under article 53(1) of the Statute, the Prosecutor must consider the same factors, including whether there is 'a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed', in deciding whether to initiate a proprio motu investigation or an investigation resulting from a referral by a State Party. In the event the Prosecutor initiates a proprio motu investigation, her jurisdictional assessment is reviewed by a Pre-Trial Chamber under article 15(4) of the Statute. If article 19(3) of the Statute is interpreted to extend beyond a case, the Prosecutor would be similarly enabled to request, if deemed necessary, judicial review of a question of jurisdiction in relation to an investigation resulting from a referral by a State Party. Conversely, a restrictive reading of article 19(3) of the Statute would create an untenable distinction. On the one hand, a proprio motu investigation would proceed on a sound jurisdictional basis from the outset. On the other hand, an investigation resulting from a referral by a State Party would have to be conducted on an uncertain basis if it gives rise to doubts regarding the Court's jurisdiction. These questions would eventually have to be assessed by a Pre-Trial Chamber in relation to an application under article 58 of the Statute, which could lead to the dismissal of a case following a lengthy and costly investigation.
80. The importance of an early judicial assessment of the Court's jurisdiction has also arisen in other circumstances. Pre-Trial Chamber I (in a different composition) has considered that it 'has prima facie jurisdiction to entertain' a request by the Prosecutor to preserve evidence under article 56 of the Statute. It is noteworthy that the Chamber made this determination prior to any cases emanating from the investigation by the Prosecutor, which was triggered by a State Party referral.
81. Third, on the basis of the 'principe de l'effet utile', the interpretation of article 19(3) of the Statute must avoid rendering it devoid of practical effect.
82. A Pre-Trial Chamber is mandated to address questions of jurisdiction in the context of a case pursuant to a number of legal bases, namely articles 19(1), 19(2) and 58(1)(a) of the Statute. In light of these provisions, article 19(3) of the Statute would have no practical effect if it would apply solely in the context of a case. Conversely, article 19(3) of the Statute would have a distinct effect if it were understood to apply outside of a case. Specifically, it would permit the Prosecutor to request a ruling on a question of jurisdiction for the purposes of determining the scope of the investigation to be conducted following a referral by a State Party, as opposed to unnecessarily delaying judicial scrutiny of matters of jurisdiction until an application under article 58 of the Statute is submitted.
3. The object and purpose of the Statute
83. As enshrined in the preamble and article 1 of the Statute, the Court was established to hold individuals to account for some of the most serious crimes of international concern. However, the mandate of the Court is circumscribed by the jurisdictional parameters defined by the Statute. The Court may not take any action in the exercise of its mandate unless these conditions are met. An interpretation of article 19(3) of the Statute according to which a ruling on a question of jurisdiction may be requested and issued before a case arises is most conducive to the exercise of the Court's mandate within its jurisdictional limitations.
84. In general, if it would appear that the Court has acted in the absence of a jurisdictional basis, its mandate would be adversely affected due to the implications such acts would have for those affected by the Court's operations, in particular suspects, witnesses and victims.
85. With regard to the present request, the Chamber notes that the Prosecutor considers that there is a reasonable basis to believe that members of the Israeli Defense Forces, Israeli authorities, Hamas and Palestinian armed groups have committed a number of crimes falling within the jurisdiction of the Court. In addition, the Prosecutor has concluded that the potential cases concerning crimes allegedly committed by members of the Israeli authorities, Hamas and Palestinian armed groups would currently be admissible, while her assessment of the admissibility of potential cases regarding crimes allegedly committed by members of the Israeli Defense Forces is ongoing and will be kept under review.
86. The identification of potential cases by the Prosecutor and her evolving investigation, which is likely to be protracted and resource-intensive, entails that the question of jurisdiction under consideration has concrete ramifications for the further conduct of the proceedings. The initiation of an investigation by the Prosecutor also means that States Parties are under the obligation to cooperate with the Court pursuant to part 9 of the Statute. It is, therefore, all the more necessary to place the present proceedings on a sound jurisdictional footing as early as possible.
C. The Merits
87. Having determined that article 19(3) of the Rome Statute is applicable in the present proceedings, the Chamber will now turn to the merits of the Prosecutor's Request. More specifically, the Chamber will first determine whether Palestine can be considered '[t]he State on the territory of which the conduct in question occurred' within the meaning of article 12(2)(a) of the Statute (the 'First Issue'). Thereafter, the Chamber will delineate the territorial jurisdiction of the Court in the present Situation (the 'Second Issue').
88. As will be explained below, the Chamber is satisfied, in keeping with article 21(1)(a) of the Statute, which stipulates that the Court shall apply '[i]n the first place, [the] Statute', that the issues under consideration primarily rest on, and are resolved by, a proper construction of the relevant provisions of the Statute, including in particular articles 12(2)(a), 125(3) and 126(2) of the Statute. In the view of the Chamber, it is not necessary to have recourse to subsidiary sources of law under article 21(1)(b) and (c) of the Statute. Furthermore, the Chamber considers that recourse to article 31(3)(c) of the Vienna Convention on the Law of Treaties (the Vienna Convention), being a rule of interpretation, cannot in any way set aside the hierarchy of sources of law as established by article 21 of the Statute, which is binding on the Chamber.
1. The First Issue
89. With regard to the First Issue arising from the Prosecutor's Request, the Prosecutor's primary position is that 'Palestine is a "State" for the purpose of article 12(2)(a) because of its status as an ICC State Party'. The Prosecutor further indicates that, '[a]gainst this position, it has been argued that the term "State" should be defined in the Rome Statute in accordance with its ordinary meaning and general rules of international law governing Statehood'.
90. Article 12 of the Statute contains the alternative preconditions under which the Court may exercise jurisdiction: the Court's ratione loci jurisdiction under article 12(2)(a) or its ratione personae jurisdiction under article 12(2)(b). Regarding the former, the Court may exercise its jurisdiction in relation to '[t]he State on the territory of which the conduct in question occurred'.
91. The Chamber must therefore assess 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. To answer this question, the Chamber shall, pursuant to article 31(1) of the Vienna Convention, interpret article 12(2)(a) in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the Statute.
a) The ordinary meaning of article 12(2)(a) of the Statute
92. The Chamber notes that the Statute, the Rules of Procedure and Evidence, and the Regulations of the Court do not provide a definition of 'State'.
93. The Chamber notes however that the chapeau of article 12(2) of the Statute stipulates in the relevant part that 'the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute'. The word 'following' connects the reference to 'States Parties to this Statute' contained in the chapeau of article 12(2) of the Statute with inter alia the reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute. In more specific terms, this provision establishes that the reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute must, in conformity with the chapeau of article 12(2) of the Statute, be interpreted as referring to a State Party to the Statute. It does not, however, require a determination as to whether that entity fulfils the prerequisites of statehood under general international law.
b) The context of article 12(2)(a) of the Statute
94. The Chamber notes that according to article 31(2) of the Vienna Convention, 'the context for the purpose of the interpretation of a treaty shall comprise [...] the text, including its preamble and annexes'. In this regard, the Chamber wishes to clarify that it understands this provision as referring both to the text of article 12 of the Statute and to the text of other provisions of the Statute. Having regard to the more general context of the Statute, an assessment as to whether the preconditions to the exercise of the Court's jurisdiction under article 12(2) of the Statute have been fulfilled must be conducted in keeping with the outcome of the accession procedure pursuant to articles 125(3) and 126(2) of the Statute, subject to the settlement of a dispute regarding the accession of an entity by the Assembly of States Parties under article 119(2) of the Statute.
95. The Chamber notes that article 125(3) of the Statute, which provides that '[t]his Statute shall be open to accession by all States' and that '[i]nstruments of accession shall be deposited with the Secretary-General of the United Nations', as well as article 126(2) of the Statute, which stipulates that, '[f]or each State [...] acceding to this Statute [...], the Statute shall enter into force on the first day of the month after the 60th day following the deposit by such State of its instrument of [...] accession'. Article 12(1) of the Statute specifically states that '[a] State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5'. The Chamber further notes that article 119(2) of the Statute states that '[a]ny other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties'.
96. With regards to the accession procedure, the Rome Statute follows the 'depositary system', under which instruments of accession shall be lodged with a 'depositary' - namely, under Article 125(3) of the Statute, the United Nations Secretary-General - who has responsibility over administrative matters linked to the concerned treaty. The Chamber considers it appropriate to clarify that the transmittal of a depositary notification by the United Nations Secretary-General does not, as such, render an entity a State Party to the Statute. The transmittal of a depositary notification is rather premised on the practice of the United Nations General Assembly which 'is to be found in unequivocal indications from the [United Nations General] Assembly that it considers a particular entity to be a State even though it does not fall within the "Vienna formula"' and '[s]uch indications are to be found in [United Nations] General Assembly resolutions'. In other words, in discharging his functions as depositary of treaties, the United Nations Secretary-General is guided by the United Nations General Assembly's determination (as to whether it considers a particular entity to be a State).
97. With respect to the Rome Statute, article 125(3) of the Statute provides that the 'Statute shall be open to accession by all States' and neither this provision nor any other provision in the Court's legal texts imposes additional criteria on, or otherwise qualifies, the accession to the Statute. Therefore, a determination by the United Nations General Assembly renders an entity capable to accede to the Statute pursuant to article 125 of the Statute and the depositary notification by the United Nations Secretary-General merely gives effect to the United Nations General Assembly's determination.
98. Accordingly, in determining whether Palestine can accede to treaties that have adopted the 'all States' formula, the United Nations Secretary-General currently follows the determination of the United Nations General Assembly, which adopted Resolution 67/19 on 4 December 2012, reaffirming therein 'the right of the Palestinian people to self-determination and to independence in their State' and according Palestine a 'non-member observer State status in the United Nations'. As mentioned by some amici curiae, on 21 December 2012, the United Nations Office of Legal Affairs is reported to have indicated, by way of interoffice memorandum, that the Secretary-General, in discharging his functions as depositary of treaties containing an 'all States' clause, will be guided by the determination that the General Assembly has accepted Palestine as a non-Member observer State in the United Nations, and that, as a result, Palestine would be able to become party to any treaties that are open to 'any State' or 'all States' deposited with the Secretary-General. This Resolution drastically changed the practice of the United Nations Secretary-General as regards its acceptance of Palestine's terms of accession to different treaties, including the Rome Statute, as he concluded that Palestine would now be able to deposit instruments of accession and become a party to any treaties deposited with the Secretary-General that are open to 'all States' or 'any State'.
99. In this regard, some amici curiae have questioned the role and authority of the United Nations Secretary-General, as depositary of the Rome Statute, to accept Palestine's accession thereto. Pursuant to article 77 of the Vienna Convention, the depositary of a treaty is inter alia responsible for receiving instruments of accession to this treaty. However, under the same provision, 'in the event of any difference appearing between a State and the depositary as to the performance of the latter's functions, the depositary shall bring the question to the attention of the signatory State and the contracting States or, where appropriate, of the competent organ of the international organization concerned'. Such 'difference' could potentially include situations of uncertainty as regards the capability of an entity to become a State party to the treaty in question. As such, these amici curiae have argued that the judiciary of the Court, as the 'competent organ of the international organization concerned', should conduct an assessment of the validity of Palestine's accession to the Rome Statute, as a preliminary step before determining whether Palestine can be considered a State under article 12(2)(b) of the Statute. However, it clearly appears that the Chamber may not review the outcome of the accession procedure. Moreover, the Chamber is neither endowed with the authority to challenge the validity of Resolution 67/19 that admitted Palestine as a non-member observer State and granted its eligibility to accede to the Statute. Since the only requirements to become an ICC State Party are indeed explicitly stated in article 125(3) of the Statute – the deposit of an instrument of accession accepted by the United Nations Secretary-General - the Chamber will now turn to the circumstances of Palestine's accession.
c) Palestine's accession to the Rome Statute
100. The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine's instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine's accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the 'Assembly of State Parties') greeted Palestine in a welcoming ceremony, which 'marked the entry into force of the Rome Statute for the State of Palestine [...] thereby becoming the 123rd State Party'. Further, following its accession, Palestine developed an active role in the work of the Assembly of State Parties, as a State Party to the Statute. During the fourteenth session of the Assembly of States Parties, Palestine was included in the list of States Parties' delegations, as opposed to another category. At its sixteenth session, the Assembly of States Parties 'elected the Bureau for the seventeenth to nineteenth sessions' and '[t]he members from the Asia-Pacific group elected to the Bureau, on the recommendation of the Bureau, were Japan and the State of Palestine'. At the same session, Palestine's representatives participated in and made proposals at the discussions regarding the activation of the crime of aggression. Palestine also requested items to be included in the provisional agenda of the seventeenth session of the Assembly of States Parties in 2018, a right held only by States Parties. Moreover, since its accession, Palestine has contributed to the Court's budget and has participated in the adoption of resolutions by the Assembly of State Parties.
101. The Chamber notes that, in the context of the present proceedings, seven States Parties submitted observations on the Prosecutor's Request as amici curiae thereby arguing that Palestine cannot be considered a State for the purposes of article 12(2)(a) of the Statute, namely the Czech Republic, Austria, Australia, Hungary, Germany, Brazil and Uganda. However, it should be noted that these States remained silent during the accession process and that none of them challenged Palestine's accession before the Assembly of State Parties at that time or later. It is also noteworthy that a significant number of States Parties to the Statute are also States Parties to the League of Arab States and the Organization of Islamic Cooperation, which intervened in support of Palestine's full participation as a State Party and further argued that for the sole purpose of the determination of the scope of the Court's territorial jurisdiction, Palestine has legally transferred its criminal jurisdiction to the Court, allowing it to exercise its territorial jurisdiction on the Occupied Palestinian Territory as a whole (i.e. the West bank, including East Jerusalem, and the Gaza strip).
102. Consequently, regardless of Palestine's status under general international law, its accession to the Statute followed the correct and ordinary procedure, as provided under article 125(3) of the Statute. In this respect, in the view of the Chamber, once the conditions for accession pursuant to article 125 of the Statute have been fulfilled, the effect of articles 12(1), 125(3) and 126(2) of the Statute, taken together, is that the Statute automatically enters into force for a new State Party. By becoming a State Party, Palestine has agreed to subject itself to the terms of the Statute and, as such, all the provisions therein shall be applied to it in the same manner than to any other State Party. Based on the principle of the effectiveness, it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute's inherent effects over it. This is further confirmed by the fact that, on the basis of article 124 of the Statute, the only exemption to the jurisdiction of the Court relates to a particular category of crimes, namely war crimes, for a limited period of time, which entails that the Statute is automatically activated in respect of all other matters. In addition, denying the automatic entry into force for a particular acceding State Party would be tantamount to a reservation in contravention of article 120 of the Statute. The Chamber also considers that the only manner of challenging the automatic entry into force of the Statute for an acceding State Party is through the settlement of a dispute by the Assembly of States Parties under article 119(2) of the Statute. This conclusion further entails that, in all other circumstances, the outcome of an accession procedure is binding. The Chamber has no jurisdiction to review that procedure and to pronounce itself on the validity of the accession of a particular State Party would be ultra vires as regards its authority under the Rome Statute.
103. It follows that the absence of such a power conferred upon the Chamber confirms the exclusion of an interpretation of '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute as referring to a State within the meaning of general international law. Such an interpretation would allow a chamber to review the outcome of an accession procedure through the backdoor on the basis of its view that an entity does not fulfil the requirements for statehood under general international law. The fact that the Statute automatically enters into force for a new State Party additionally confirms that article 12(2)(a) of the Statute is confined to determining whether or not 'the conduct in question' occurred on the territory of a State Party for the purpose of establishing individual criminal responsibility for the crimes within the jurisdiction of the Court.
d) Article 12(2)(a) of the Statute in the light of the object and purpose of the Statute
104. As specified in article 1 of the Statute, the Court has been established to 'exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute'. The preamble further emphasises that the States Parties are 'determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes'. The reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute must, accordingly, be understood as defining the territorial parameters of the Court's jurisdiction for the sole purpose of establishing individual criminal responsibility.
105. Moreover, the Court, in line with other international tribunals, has referred multiple times to the principle of effectiveness in rejecting any interpretation that would nullify or render inoperative a provision of the Statute. In the case of The Prosecutor v. Jean-Pierre Bemba Gombo, Pre-Trial Chamber III noted that:
[A] teleological interpretation which is mirrored in the principle of effectiveness and based on the object and purpose of a treaty means that the provisions of the treaty are to be interpreted so as to give it its full meaning and to enable the system [...] to attain its appropriate effects', while preventing any restrictions of interpretation that would render the provisions of the treaty 'inoperative'.
106. Therefore, the reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute cannot be taken to mean a State fulfilling the criteria for statehood under general international law. Such a construction would exceed the object and purpose of the Statute and, more specifically, the judicial functions of the Chamber to rule on the individual criminal responsibility of the persons brought before it. Moreover, this interpretation would also have the effect of rendering most of the provisions of the Statute, including article 12(1), inoperative for Palestine.
107. The Chamber additionally notes that the International Court of Justice has held that it 'attaches the utmost importance to the factual and legal findings made by the [International Criminal Tribunal for the former Yugoslavia (the 'ICTY')] in ruling on the criminal liability of the accused before it', but '[t]he situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and [...] the resolution of which is not always necessary for deciding the criminal cases before it'.
108. Indeed, given the complexity and political nature of statehood under general international law, the Rome Statute insulates the Court from making such a determination, relying instead on the accession procedure and the determination made by the United Nations General Assembly. The Court is not constitutionally competent to determine matters of statehood that would bind the international community. In addition, such a determination is not required for the specific purposes of the present proceedings or the general exercise of the Court's mandate. As discussed, article 12(2)(a) of the Statute requires a determination as to whether or not the relevant conduct occurred on the territory of a State Party, for the sole purpose of establishing individual criminal responsibility. Such an assessment enables the Prosecutor to discharge her obligation to initiate an investigation into the present Situation, which would eventually permit the Court to, in accordance with the Statute, exercise its jurisdiction over persons alleged to have committed crimes falling within its jurisdiction.
e) Conclusion
109. In light of the foregoing, the Chamber finds that, in accordance with the ordinary meaning given to its terms in their context and in the light of the object and purpose of the Statute, the reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Statute.
110. The Appeals Chamber has held that, if 'a matter is exhaustively dealt with by [the Statute] or [...] the Rules of Procedure and Evidence, [...] no room is left for recourse to the second or third source of law [in article 21(1) of the Statute] to determine the presence or absence of a rule governing a given subject'.
111. As set out above, the Chamber has found that the Statute mandates that the preconditions to the exercise of the Court's jurisdiction under article 12(2) of the Statute be assessed in keeping with the outcome of the accession procedure pursuant to articles 12(1), 125(3) and 126(2) of the Statute, subject to the settlement of a dispute regarding the accession of an entity by the Assembly of States Parties under article 119(2) of the Statute, and consistent with the purpose of the Court of ending impunity by establishing individual criminal responsibility for crimes. The Statute, thus, exhaustively deals with the issue under consideration and, as a consequence, a determination on the basis of article 21(1)(b) of the Statute as to whether an entity acceding to the Statute fulfills the requirements of statehood under general international law and related questions is not called for.
112. Accordingly, in the view of the Chamber, Palestine acceded to the Statute in accordance with the procedure defined by the Statute and, in addition, the Assembly of States Parties has acted in accordance with Palestine's accession. In view of its accession, Palestine shall thus have the right to exercise its prerogatives under the Statute and be treated as any other State Party would. Moreover, Palestine's accession has not been challenged under article 119(2) of the Statute. Palestine is therefore a State Party to the Statute, and, as a result, a 'State' for the purposes of article 12(2)(a) of the Statute. These issues have been settled by Palestine's accession to the Statute.
113. In order to avoid any misunderstanding, the Chamber wishes to underline that these findings are without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court's jurisdiction. In particular, by ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.
2. The Second Issue
114. The Chamber finds that the Second Issue arising from the Prosecutor's Request, namely the delimitation of the territory of Palestine for the sole purpose of defining the Court's territorial jurisdiction, is inextricably linked to the First Issue arising from the Prosecutor's Request. It is again the accession procedure which provides the relevant indications as to the extent of the Court's territorial jurisdiction in the situation sub judice.
115. First, the Chamber wishes to reiterate that disputed borders have never prevented a State from becoming a State Party to the Statute and, as such, cannot prevent the Court from exercising its jurisdiction.
116. Second, with regard to the territory of Palestine for the sole purpose of defining the Court's territorial jurisdiction, the Chamber notes that in according 'non-member observer State status in the United Nations' to Palestine in Resolution 67/19, the United Nations General Assembly '[reaffirmed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967'.
117. In the same Resolution, the United Nations General Assembly recalled other similarly-worded resolutions. On such occasions, it notably: (i) '[affirmed] the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967'; (ii) '[affirmed] that the status of the Palestinian territory occupied since 1967, including East Jerusalem, remains one of military occupation, and [...] that the Palestinian people have the right to self-determination and to sovereignty over their territory'; and (iii) '[stressed] the need for respect for and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory, including East Jerusalem'. The United Nations General Assembly also recalled relevant Security Council resolutions.
118. On this basis, the Chamber finds that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
119. In addition, the Chamber notes that article 21(3) of the Statute provides that '[t]he application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights'. In this regard, the Chamber recalls that the Appeals Chamber held that '[h]uman rights underpin the Statute; every aspect of it including the exercise of jurisdiction of the Court' and that '[i]ts provisions must be interpreted and more importantly applied in accordance with internationally recognized human rights'.
120. The right to self-determination is set forth in the Charter of the United Nations, the International Covenant on Civil and Political Rights, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. According to the International Court of Justice, the right to self-determination is owed erga omnes, and 'as a fundamental human right, [this right] has a broad scope of application'. Furthermore, the United Nations Human Rights Committee has specified that '[t]he right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights'. However, the Chamber recognises that controversies arise as to the consequences attached to this right and the way in which it can be exercised. While 'all people' have the right to self-determination - the right to freely determine their political status and freely pursue their economic, social and cultural development - only certain 'people' have been recognised as having a right to independence derived from the right to self-determination.
121. In the present situation, the Chamber notes that the Palestinian right to self-determination within the Occupied Palestinian Territory has been explicitly recognised by different bodies. The International Court of Justice observed that the 'legitimate rights' of the Palestinian people referred to in the Israeli-Palestinian Interim Agreement 'include the right to self-determination, as the General Assembly has moreover recognized on a number of occasions' and that certain measures adopted by Israel in areas of the West Bank 'severely [impede] the exercise by the Palestinian people of its right to self-determination', while stressing the risk that 'further alterations to the demographic composition of the Occupied Palestinian Territory [would result] from the construction of the wall'. The United Nations General Assembly has indeed adopted resolutions to this effect, where it consistently associated the Palestinian People's right to self-determination with the Occupied Palestinian Territory demarcated with the Green Line, and stressed the need for respect for and preservation of the territorial unity, contiguity and integrity of all of the Occupied Palestinian Territory. More recently, this was further reaffirmed by the United Nation Security Council which called on States not to recognise acts in breach of international law in the Occupied Palestinian Territory by 'condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem', and:
1. Reaffirm[ed] that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. [...]
3. Underlin[ed] that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. [...]
5. Call[ed] upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.
122. Therefore, in the view of the Chamber, the right to self-determination amounts to an 'internationally recognized human [right]' within the meaning of article 21(3) of the Statute. The Chamber notes that the United Nations General Assembly and the International Court of Justice have affirmed that this right finds application in relation to the Occupied Palestinian Territory.
123. The Chamber considers that, in light of the broad remit of the Appeals Chamber's determination, it must also ensure that its interpretation of article 12(2)(a) of the Statute, in conjunction with articles 125(3) and 126(2) of the Statute, is consistent with internationally recognised human rights. More specifically, the Chamber is of the view that the aforementioned territorial parameters of the Prosecutor's investigation pursuant to articles 13(a), 14 and 53(1) of the Statute implicate the right to self-determination. Accordingly, it is the view of the Chamber that the above conclusion - namely that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967 on the basis of the relevant indications arising from Palestine's accession to the Statute - is consistent with the right to self-determination.
3. The Oslo Accords
124. For the sake of completeness, the Chamber will briefly address the issue of the Oslo Accords and examine whether the submissions advanced by the parties and participants in this regard are pertinent to the present proceedings.
125. The Chamber notes the Oslo process and the agreements arising from this process (the 'Oslo Agreements') and, in particular, the 'Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II)' which was concluded on 28 September 1995. The Chamber notes that this agreement contains a number of clauses limiting the scope of the jurisdiction of the 'Palestinian Interim Self-Government Authority'. Most noticeably, article XVII(2)(c) of this agreement stipulates inter alia that '[t]he territorial and functional jurisdiction of the [Palestinian Interim Self-Government Authority] will apply to all persons, except for Israelis, unless otherwise provided in this Agreement'. Article I(1)(a) of Annex IV to this agreement, the 'Protocol Concerning Legal Affairs', further provides that '[t]he criminal jurisdiction of the [Palestinian Interim Self-Government Authority] covers all offenses committed by Palestinians and/or non-Israelis in the Territory, subject to the provisions of this article. For the purposes of this Annex, "Territory" means West Bank territory except for Area C which, except for the Settlements and the military locations, will be gradually transferred to the Palestinian side in accordance with this Agreement, and Gaza Strip territory except for the Settlements and the Military Installation Area'.
126. As briefly outlined above, two lines of argument may be drawn from the observations submitted to the Chamber regarding the Oslo Agreements. On the one hand, certain victims and amici curiae, relying on the nemo dat quod non habet rule, have argued that, in accordance with the Oslo Agreements, Palestine could not have delegated part of its jurisdiction to the Court. On the other hand, the Prosecutor, Palestine, certain victims, and certain amici curiae have argued that the Oslo Agreements did not affect the jurisdiction of the Court, although, in the view of some, they could affect matters of cooperation with the Court.
127. The Chamber notes in this respect that article 97 of the Statute enjoins a State Party that identifies a problem possibly impeding or preventing the execution of a request pertaining to international cooperation or judicial assistance to consult with the Court, including in relation to '[t]he fact that execution of the request in its current form would require the requested State to breach a pre-existing treaty obligation undertaken with respect to another State'. Pursuant to article 98, the Court may not proceed with requests for surrender and/or assistance which would require a requested State to act inconsistently with its obligations under either 'international law with respect to the State or diplomatic immunity of a person or property of a third State' or 'international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court'. The inclusion of these provisions appear to indicate that the drafters expressly sought to accommodate any obligations of a State Party under international law that may conflict with its obligations under the Statute.
128. In any event, the Chamber recalls that the Appeals Chamber has recently held in its judgment in relation to the Situation in the Islamic Republic of Afghanistan that:
*[a]rguments were also advanced during the hearing that certain agreements entered into between the United States and Afghanistan affect the jurisdiction of the Court and should be a factor in assessing the authorisation of the investigation. The Appeals Chamber is of the view that the effect of these agreements is not a matter for consideration in relation to the authorisation of an investigation under the statutory scheme. As highlighted by the Prosecutor and LRV 1 [Legal Representatives of the Victims], article 19 allows States to raise challenges to the jurisdiction of the Court, while articles 97 and 98 include safeguards with respect to pre-existing treaty obligations and other international obligations that may affect the execution of requests under Part 9 of the Statute. Thus, these issues may be raised by interested States should the circumstances require, but the arguments are not pertinent to the issue of the authorisation of an investigation.*
129. Similarly, the Chamber finds that the arguments regarding the Oslo Agreements in the context of the present proceedings are not pertinent to the resolution of the issue under consideration, namely the scope of the Court's territorial jurisdiction in Palestine. The Chamber considers that these issues may be raised by interested States based on article 19 of the Statute, rather than in relation to a question of jurisdiction in connection with the initiation of an investigation by the Prosecutor arising from the referral of a situation by a State under articles 13(a) and 14 of the Statute. As a consequence, the Chamber will not address these arguments.
4. Final Considerations
130. As a final matter, the Chamber finds it appropriate to underline that its conclusions in this decision are limited to defining the territorial parameters of the Prosecutor's investigation in accordance with the Statute. The Court's ruling is, as noted above, without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court's jurisdiction. In particular, by ruling on the territorial scope of its jurisdiction, the Court is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.
131. It is further opportune to emphasise that the Chamber's conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor pursuant to articles 13(a), 14 and 53(1) of the Statute. When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.
FOR THESE REASONS, THE CHAMBER HEREBY
FINDS that Palestine is a State Party to the Statute;
FINDS, by majority, Judge Kovacs dissenting, that, as a consequence, Palestine qualifies as '[t]he State on the territory of which the conduct in question occurred' for the purposes of article 12(2)(a) of the Statute; and
FINDS, by majority, Judge Kovacs dissenting, that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
Done in both English and French, the English version being authoritative.
Judge Peter Kovacs appends a partly dissenting opinion.
Judge Marc Perrin de Brichambaut appends a partly separate opinion.
Dated this Friday, 5 February 2021
At The Hague, The Netherlands
Signed:
Judge Peter Kovacs, Presiding Judge
Marc Perrin de Brichambaut
Judge Reine Adélaïde Sophie Alapini-Gansou
Source: “ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine.”
https://www.icc-cpi.int/news/icc-pre-trial-chamber-i-issues-its-decision...