International Criminal Court rules that it has jurisdiction over Palestinian territory and Prosecutor announces the opening of an investigation

On 5 February 2021, the International Criminal Court (ICC) issued one of the most anticipated rulings in the Court’s history. More than a year after Prosecutor Fatou Bensouda requested (22 January 2020) a ruling to confirm the scope of the Court’s jurisdiction in the Situation in Palestine, the Pre-Trial Chamber I, composed by three judges, decided, by majority, that the Court can exercise jurisdiction over the territory of Palestine and that the scope of this territory should include the West Bank, including East Jerusalem, and Gaza.

In her Request, the Prosecutor said that “there 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” . Nevertheless, being aware of complexity of the circumstances and the existence of contrary views regarding Palestine, she opted to seek a ruling from the Chamber in order to confirm the jurisdiction of the Court, so she could proceed with the investigatory work.

The complexity raised by the prosecutor stems from the uncertainty about Palestine’s situation under international law, since arguably Palestine’s statehood status is still unclear and part of its territories are disputed with Israel, a non-State Party to the Rome Statute (the founding document of the ICC). To better comprehend that, it is important to note that the Rome Statute is an international treaty open to accession to States and the utmost effect of an accession is the exercise of the Court’s jurisdiction on the territory of a State Party. That is to say that, when acceding to the Statute, a state consent that the ICC might exercise jurisdiction and prosecute international crimes on its territory, under certain requirements.

The analysis of the merits of the decision was structured in two parts – two issues. The first issue was whether the Court could exercise jurisdiction in the Situation of Palestine. The second issue was a determination of the areas of the jurisdiction’s application.

In answering the first issue, the Chamber did not need to assert whether Palestine was a State or not under international law. In fact, it would be far beyond the powers assigned to it. The ICC does not have powers to solve interstates disputes as it is the case of the International Court of Justice (ICJ), for instance. Therefore, the judges decided that instead of discussing whether Palestine was a ‘State’ under international law, it was necessary to define if Palestine is a ‘State Party’ to the Rome Statute and therefore whether it could function as the “the State on the territory of which the conduct in question occurred” . They pointed out that the Rome Statute does not bring any definition of ‘State’ in its text but, in an interpretative analysis, what the Statute actually requires as a pre-requisite for the exercise of its jurisdiction is a territory of a ‘State-Party’, regardless an entity’s status under international law.

Therefore, the Chamber noted that Palestine became a State Party to the Rome Statute in 2015 , when it ratified the Statute and the General Secretary of the United Nations (the Treaty depositary of the Rome Statute) accepted it. In the moment of the accession, apart from one State (Canada), none of the other State Parties manifested any contradiction. The decision further stated that since its accession, Palestine has participated actively in the work of the Assembly of State Parties of the Rome Statute as an ordinary member, including contributing to the Court’s budget. Therefore, since its accession in 2015, Palestine had been ‘functioning’ for the purpose of the Rome Statute as a State Party as any other.

On that, the decision argued that the accession procedure of a State Party may not be reviewed by a Chamber of the ICC, this procedure is therefore binding and the effects of the Rome Statute – including the Court’s jurisdiction – enter into force automatically when an entity becomes party. Therefore, if the judiciary does not have the powers to review a State’s accession, the Statute does not expect judges to analyse State ‘statehood’ generally, but solely “memberhood” so to say. This means that for the Court’s purposes, what matters is if a conduct occurred on the territory of one of its State Parties not necessarily on a State (meaning State under international law).

It is noteworthy that the Chamber made an important clarification on this aspect by settling the confusion regarding “who” would be responsible for deciding in case the automatic effects of a State Party accession was to be challenged or, whether an entity would qualify or not to accede to the Rome Statute. In this case, the Chamber explained that the Assembly of State Parties – the “Court's management oversight and legislative body” – would be responsible for deciding “through the settlement of a dispute […] under article 119(2) of the Statute” .

When addressing the second issue, namely the territorial scope of Palestine, the Chamber considered it to be completely related to the first issue. Therefore, the decision recalled the UN resolution that conferred non-Member Observer State status to Palestine (Resolution 67/19) in which it reaffirmed the rights to self-determination and independence of the Palestinian people in their ‘State of Palestine’ on “the Palestinian territory occupied since 1967” , areas which comprise ‘Gaza and the West Bank, including East Jerusalem’. To further substantiate its reasoning, the Chamber invoked article 21(3) of the Rome Statute, according to which the interpretation and application of an applicable law in the Court’s jurisdiction must be in accordance with ‘internationally recognized human rights’ and, as such, the right to self-determination of Palestinian people played in an important role in defining the scope of the territory over which the Court can exercise jurisdiction in the Situation of Palestine.

Finally, the Chamber concluded that Palestine is a State Party to the Rome Statute (the founding document of the ICC). As a result of that, the Court can exercise jurisdiction over its territory which “extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem” . It further noted that in allowing Palestine acceding to the Statute but denying the legal effects of an accession would contradict the Rome Statute itself and the Principle of Effectiveness.

In practical terms, the decision confirmed that the prosecutor can conduct investigations on the territorial areas indicated by the Chamber in Palestine and, in the event of finding accused persons of any international crime committed from 13 June 2014 (the date indicated by Palestine in the referral to the Prosecution), that those can be brought before the Court to be prosecuted internationally. Most recently (3 March 2021), the prosecutor released a statement where she confirmed the opening of an investigation regarding the Situation in Palestine. In essence, the decision might point toward justice and hope for the people of the region who aspire for a future of peace.

The Chamber made it clear that the Court had no jurisdiction to rule on the statehood nature of any entity, since its jurisdiction serves fundamentally to prosecute and investigate international crimes. As a criminal court it is, the ICC exercises jurisdiction over persons (not states). The Chamber acknowledged the complexity and political dimension of statehood under international law and affirmed that such determinations are beyond the fundamental competence of the Court. The decision in itself does not change Palestine’s situation under international law.

Furthermore, it seems clear from an analysis of the decision that the judges were mindful that international actors motivated by different interests could try to use the decision in the current dispute of the territories that comprise the Situation in Palestine. The Chamber stated that “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 filed of international law”. It then went further to state that “by ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudicing the question of any future borders.”. Therefore, the decision does not create any legal effects that would affect the dispute between Israel and Palestine, which is still ongoing, an object of political contention.

The ICC
The ICC is invested with jurisdiction to investigate and prosecute international crimes, namely Genocide, Crimes Against Humanity, War Crimes and Aggression, when the criminal conduct happened within the territory of one of its State Parties or was committed by a national of any of those states. It has seat in the Hague, the Netherlands and its powers are conferred by the Rome Statute, its founding document.