The ICC Prosecutor’s Problematic Palestine Self-Determination Analysis
Published by The Lawfare Institute
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On May 20, the prosecutor of the International Criminal Court (ICC) announced his request for arrest warrants against three Hamas leaders and two Israeli leaders, in the context of the Situation in the State of Palestine. The prosecutor was acting pursuant to the Feb. 5, 2021 decision of Pre-Trial Chamber I that the court can exercise its criminal jurisdiction in the Situation in the State of Palestine and that the territorial scope of this jurisdiction extends to Gaza and the West Bank, including East Jerusalem. Since that announcement, however, the court has consented to accept amici curiae briefs relating to the issuance of the arrest warrants. Numerous such briefs were submitted by states, nongovernmental organizations, and private individuals such as academics. On August 23, 2024, the Office of the Prosecutor (OTP) published its consolidated response to observation, largely dedicated to rejecting a nemo dat quod non habet argument, which claims that the State of Palestine cannot confer jurisdiction over Israeli nationals to the court because under the Oslo Accords, it does not have such jurisdiction itself.
This article does not engage in the question of the impact, if any, of the Oslo Accords for determining the court’s jurisdiction. Its focus is the OTP’s reliance, in addressing this question, on various problematic propositions on the relationship between self-determination, the law of occupation, and jurisdiction. Regardless of the court’s ultimate decision on its jurisdiction with respect to Israeli nationals, these propositions are likely to reverberate throughout the international legal environment, meriting critical attention.
The OTP notes that the Oslo Accords were concluded by an occupant and that “[o]ccupation does not and cannot transfer title of sovereignty to the occupying power.” From this the OTP deduces its main proposition, that “[p]lenary jurisdictional competence—as an aspect of sovereignty—rested in the Palestinian people as a group entitled by international law to exercise the right of self-determination.” While indeed occupation does not and cannot transfer sovereignty to the occupant, what follows is both a non sequitur and unsustainable.
Jurisdiction Follows the Exercise of Effective Control
Criminal jurisdiction is an aspect of sovereignty, but sovereignty depends on statehood under international law, which, in turn, depends on the exercise of effective control. Palestine’s statehood for ICC jurisdiction purposes, however, is not grounded in effective control over territory. In its Feb. 5, 2021 decision, Pre-Trial Chamber I confirmed Palestine qualifies as “the State on the territory of which the conduct in question occurred” for the purposes of article 12(2)(a) of the ICC Statute based on its membership in the statute according to the latter’s formal requirements for state accession, irrespective of Palestine’s status under general international law. It thus does not generate the same consequences in international law for identifying the existence of criminal jurisdiction as would sovereignty.
Moreover, while states’ criminal jurisdiction extends primarily to their sovereign territory, it applies also to other territories under their effective control. Thus, for example, the law of occupation recognizes the power and even the obligation of an occupant—a state exercising effective control—to temporarily exercise jurisdiction in the occupied territory. The occupant’s jurisdiction is limited in scope, but undoubtedly encompasses the enforcement of applicable criminal law. An occupant who wishes to accept ICC jurisdiction over crimes committed in territory under its effective control is not legally barred from doing so. The ICC Statute confers jurisdiction on the court over crimes committed “on the territory of” a state that has accepted its jurisdiction. The phrase “on the territory” is not necessarily limited to sovereign territory, in the same way that under the Fourth Geneva Convention, the words “the territory of a High Contracting Party” have been interpreted as not limited to territory under the sovereignty of a state party. Admittedly, in the Iraq/U.K. Situation, the OTP relied only on Article 12(2)(b) for the court’s jurisdiction, namely the acceptance by the state of nationality—but the allegations concerned only the conduct of U.K. forces, not of Iraqi nationals operating in the area under effective U.K. control. In contrast, now that Ukraine is occupying territory in Russia, the court should not arguably decline to exercise jurisdiction over international crimes committed on Russian soil by Russian nationals or nationals of other non-party states, on the grounds that Ukraine is not sovereign in Russia (compare with European Court of Human Rights jurisdiction relating to international human rights law violations by states parties outside the European Convention on Human Rights space).
Be that as it may, the absence of sovereignty in the occupant does not engender, in and of itself, jurisdictional power for the people in the occupied territory—notwithstanding their potential right to self-determination. This is the first problem with the OTP’s response. Who actually possesses jurisdiction depends on the situation underlying the occupation. In a typical instance of occupation, namely by one state over the territory of another state (for example, the occupation by Russia of Ukrainian territory), there is no doubt that the acceptance of ICC jurisdiction by the state whose territory is occupied (whether partially or completely) extends to crimes committed in the occupied territory. This jurisdiction is grounded in the sovereignty of the occupied state, which is not transferred to the occupant nor extinguished by the occupation, and perseveres notwithstanding the fact that it cannot be directly exercised (as noted by the OTP in paragraph 75). It is vested in the state whose territory is occupied, not in the population of any particular territory. In contrast, when the occupation is of territory that was previously under the effective control of a state having no sovereign title over the territory, there is no extant jurisdiction to confer upon the court. In other words, an occupation does not create new jurisdiction for the occupied territory where none existed previously. Applied to facts of the case, before 1967 the Occupied Palestinian Territories did not constitute a sovereign state, and the sovereign states that controlled them—Jordan and Egypt (which regarded itself as an occupying power in Gaza)—do not maintain today any jurisdictional links to the Palestinian Territories. The Israeli occupation also does not confer a title that did not previously exist.
Self-Determination Does Not Generate State Attributes
The OTP maintains that jurisdictional competence “rested in the Palestinian people as a group entitled by international law to exercise the right of self-determination.” Herein lies the second, and fundamental, shortcoming of the argument: The right to self-determination does not generate state attributes before the right is realized. The OTP’s proposition goes directly against accepted doctrine and practice, that international law distinguishes the right to self-determination from actual statehood. The entitlement to exercise the right to self-determination is only that: an entitlement. It is the right of a people to freely determine its political status and freely pursue its development (UN General Assembly Resolutions 1514(XV) and 2625(XXV), the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights Article 1), including (if not primarily) through independent statehood; but it does not ipso facto generate, before its realization, the consequences of the future realization of the right (such as plenary jurisdictional competence).
The attribution of jurisdiction is not the only context in which the OTP’s response overstates the reach of the right to self-determination. The response also suggests that the obligation of the court under Article 21(3) to interpret and apply the ICC Statute (in this case, Article 12) consistently with internationally recognized human rights extends to the right of the Palestinian people to self-determination, “which encompasses the enjoyment of fundamental rights guaranteed by international law.” This proposition disregards established doctrine and practice that the applicability of international human rights law is contingent on the exercise of effective control (primarily over territory), first and foremost by states, or, in the extreme, by non-state actors. The right to self-determination does not generate powers that stem from statehood or sovereignty, but only the right to statehood and sovereignty.
The proposition that Article 21(3) requires the ICC to recognize jurisdictional competences for the Palestinian people based on the (human) right to self-determination moreover diverges from the court’s own jurisprudence, which interpreted Article 21(3) as limited to fair trial rights. Even if that interpretation is excessively narrow, it is a far stretch to hold that the statute should be interpreted in accordance with a group right, or to maintain that the individual right of access to justice includes a “right to acceptance of ICC jurisdiction,” thereby potentially imposing a corresponding duty to accept ICC jurisdiction on a people whose right to self-determination has not yet been realized.
Admittedly, the right to self-determination exceptionally brings about one attribute of state sovereignty before its realization: permanent sovereignty over natural resources. This exceptionality stems from the fact that natural resources must be protected from depletion before the right to self-determination is realized. Even so, the protection lies in the constraints placed on the administering state (whether colonial or occupant) not to exploit the resources other than in accordance with the interests of the people (e.g., Hague Regulations Article 55). It does not express itself in attributes of statehood.
The Right to Self-Determination Is the Right of a People
Returning to the proposition that plenary jurisdictional competence vests in “the Palestinian people as a group entitled by international law to exercise the right of self-determination,” the OTP adds that “[f]or present purposes, [the right to self-determination] rests in the State of Palestine as a State Party to the Rome Statute.” This is the third problem with the OTP’s proposition, as the right to self-determination is vested in peoples, not in states. Thus, even if the right to self-determination generated jurisdictional competence, such competence would accrue to the Palestinian people. However, in order to rely on that right to support ICC jurisdiction, the Palestinian people must be associated with the State of Palestine—hence the erroneous piggy-back of the right to self-determination to the State of Palestine.
Furthermore, while the association of the Palestinian people with the member state of Palestine (or rather its reverse—the association of the state with the people) is self-evident to those who argue that a State of Palestine exists as a matter of general international law, under the ICC regime specifically, Palestine is a state only because an entity by that name had followed the procedures for treaty accession. The substantive connection between the people and that entity must still be established. However, to do so requires an analysis of the status of Palestine under general international law, including, for example, whether the right to self-determination of the Palestinian people suffices to meet the conditions for statehood. Yet the court had foregone this analysis in its 2021 decision on jurisdiction. Palestine’s nominal status as a state party cannot be the source of rights and powers that derive from international law and are governed by it. Nonetheless, the OTP seeks to endow this status with attributes based on the very same contentious issues—the legal status of Palestine—that were left undecided by the court previously.
The Principle of Equality Among Treaty Parties Does Not Create Status
The OTP contends that not only is Palestine’s jurisdiction not limited, but it also should not be limited, as this would “limit the Statute’s inherent effects” over a state party and would constitute “treating the State of Palestine differently from any other State Party.” Here, too, the legal propositions are inaccurate.
To begin with, recognition of state-party jurisdiction is not an “inherent effect” of the statute “over” a state party. Quite the reverse, it is state-party jurisdiction that has an effect, according to the statute, over the court’s jurisdiction. In the absence of a valid conferral of jurisdiction from a state to the court, treaty membership and the statute would not “effect” it.
This deficiency is not remedied by the principle of equality. Equality operates as a governing principle in the procedural rights of parties within the treaty regime to which they are parties. It does not vitiate underlying differences between parties, including those of international status. The State of Palestine does differ greatly from other states parties. Specifically, its treaty membership is not grounded in sovereignty, from which jurisdictional competence follows. In this respect, it entered the ICC regime on a different footing from other states parties. Therefore, the OTP’S fourth mistake is that to regard the State of Palestine as capable of conferring jurisdiction on the court in the same manner as any other state party would constitute not equal treatment but unequal treatment (treating equally entities that are differently situated).
Conclusion
This article is not suggesting that the ICC should exercise jurisdiction only over Palestinians, but not Israelis, in the Situation in the State of Palestine. Rather, it posits that the OTP’s reliance on the right to self-determination to substantiate any claims regarding court’s jurisdiction flies in the face of international law doctrine and practice.
The OTP’s response mistakenly attaches to the right to self-determination the attributes of statehood, thereby conflating entitlement to statehood with statehood itself. Yet criminal jurisdiction does not accrue to peoples merely on the basis of the right to self-determination, without effective control over territory.
In addition, the OTP seeks to attribute competence to Palestine as a nominally recognized state by invoking arguments on general international law and equal treatment of all states parties. However, without first establishing the status of Palestine under general international law and the rights it has thereunder, such a construction is legally untenable.
