Some reflections on the International Criminal Court decision on its territorial jurisdiction Palestine

François Dubuisson

Mondoweiss  /  February 6, 2021

The ICC decision to investigate war crimes in Palestine has huge symbolic significance and will likely consider the crime of apartheid, given recent reports.

It is an understatement to say that the decision of the Trial Chamber of the International Criminal Court on the opening of an investigation in the situation of Palestine was awaited, given that the process of bringing before the ICC the examination of international crimes committed on Palestinian territory, in the context of the Israeli occupation, has been long and tumultuous since the first attempt was made in 2009. In its decision of 5 February, the Pre-Trial Chamber confirmed the position of the Office of the Prosecutor, set out in the document transmitted to it in December 2019, that the Court has jurisdiction to investigate all crimes committed in all of the Occupied Palestinian Territory, including East Jerusalem.

In its decision, the Chamber took a cautious approach to limit the scope of its reasoning to the specific framework of the Rome Statute and the jurisdiction of the Court, without affecting the broader outcome of the dispute between Palestine and Israel. However, the symbolic significance of this decision goes beyond the strict framework of the ICC.

The Chamber first established that Palestine was to be considered a “State Party to the Rome Statute”, following the recognition of a “non-member observer State status in the United Nations” in 2012, through the adoption of UN General Assembly Resolution 67/19. As a State Party, Palestine can therefore trigger the jurisdiction of the ICC, in particular its territorial jurisdiction, and can also submit a referral (complaint) to the Office of the Prosecutor, which it did in 2018. The second crucial point was to determine the precise extent of the territories over which the Court can exercise its criminal jurisdiction. According to the Rome Statute, the Court may exercise jurisdiction over crimes committed on the territory of a State Party. In the present case, the question was to determine the precise extent of the territory of Palestine, taking into account the Israeli occupation and the annexation of East Jerusalem. Before the Chamber, disputes had been raised in that regard, pointing out that it should not be for the ICC to determine the borders of the Palestinian State, which remained disputed by Israel, and that too many uncertainties persisted in that regard. Again, the Chamber was cautious in indicating that it should only determine the framework for territorial criminal jurisdiction in the context of the Rome Statute, but not set the boundaries between Palestine and Israel. In order to establish that the territory of Palestine over which the Court has jurisdiction includes all of the occupied Palestinian territories, the Chamber relied primarily on the right to self-determination of the Palestinian people, as set out in numerous UN General Assembly resolutions. In particular, the Chamber referred to resolution 67/19 granting Palestine the status of a non-Observer State, which “reaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967”. Finally, the Chamber considered that the Oslo Accords, which exclude Israeli nationals from the criminal jurisdiction of the Palestinian Authority, had no effect on the determination of the Court’s territorial jurisdiction.

The Chamber therefore validated the Court’s jurisdiction to the maximum extent possible, without territorial restriction, which will enable the Office of the Prosecutor to conduct its investigations into all crimes committed on the Palestinian territory, including East Jerusalem, since June 2014. What will be the precise consequences of the Chamber’s decision, for the proceedings before the ICC but also more generally, in the context of the Israeli-Palestinian conflict?

The Office of the Prosecutor (OTP) will now be able to formally open an investigation to establish individual criminal responsibility for crimes under the Statute (in particular, war crimes, crimes against humanity). So far the OTP has identified four main categories of war crimes that it intends to investigate: Crimes committed by Hamas and other Palestinian groups in the context of the Gaza War of 2014 (Operation “Protective Edge”), consisting mainly of the firing of missiles at Israeli civilian populations; crimes committed in the same context by the Israeli army, consisting mainly of the targeting and killing of Palestinian civilians and the destruction of civilian buildings; crimes committed by the Israeli army in the context of the 2018 “Great March of Return” in Gaza, during which soldiers opened fire and killed approximately 200 Palestinian civilians and injured many others; and crimes committed in the context of the policy of colonization of the Palestinian territory, in particular the installation of Israeli Jewish civilian population.

The Office of the Prosecutor has indicated that these different facts could be supplemented by others in the course of the investigation. Indeed, only war crimes have been identified, while many international reports refer to crimes against humanity, especially when considering the Israeli policy of occupation as a whole. In this respect, the examination of the crime of apartheid will probably have to be taken into consideration, particularly in view of the recent reports by the Israeli associations Yesh Din and B’Tselem, which concluded that there was a crime of apartheid attributable to the Israeli authorities, taking into account all the characteristics of the occupation policy, which systematically discriminates between Israeli settlers and the Palestinian population.

The task of the Office of the Prosecutor will now be to investigate more accurately the most serious facts and identify the individuals responsible, for whom a trial should be held. From this perspective, the situation will be different for Palestinian and Israeli suspects. For the former, the Court may rely on the obligation of cooperation incumbent upon Palestine as a State Party to the Statute, which will relate both to the investigation of the facts and to the possible arrest of the persons on whom charges will be brought. For crimes involving Israeli officials, the situation will be more complicated, as Israel will refuse cooperation and obstruct access for investigators to both Israeli and Palestinian territory. The investigation will therefore have to rely mainly on information provided by other sources and existing international reports. It will also be extremely difficult to obtain the arrest of Israeli suspects. Nevertheless, for the most obvious aspects of crimes committed by Israeli officials, such as the settlement policy implemented in a very official manner, through fairly easily identifiable decision-making channels, the determination of individual criminal responsibility will normally be easier and can be traced back to the highest levels of the State. Even if the holding of a trial in The Hague against Israeli officials may prove to be very hypothetical, the mere indictment or issuing of an arrest warrant against senior Israeli military or political officials would already carry a great symbolic force, likely to put a certain amount of pressure on the Western states, allies of the State of Israel.

Although the Chamber was careful to limit the scope of its decision to the strict framework of the International Criminal Court, it must be noted that the legal position of Palestine in the international arena is strengthened as a result. Firstly, Palestine must indeed be considered as a State for all legal proceedings that it is likely to undertake, before the ICC or elsewhere (as in the proceedings pending before the ICJ relating to the installation of the American Embassy in Jerusalem). Secondly, and even more fundamentally, the Palestinian people’s right to a State is recognized as applying to all the territories occupied since 1967, including East Jerusalem. Although the Chamber formally indicated that it was only pronouncing on the Court’s criminal jurisdiction, its decision does in fact relate to the substance of the right to self-determination and the territorial framework within which it must be exercised. It is therefore well accepted that the Palestinians “have a right” to all occupied territories beyond the Green Line, and that Israel’s territorial claims in this respect, which had recently manifested themselves through plans for annexation, are unfounded. This point is crucial in the perspective of any solution, be it a two-state or one-state solution.

The continuation of the OTP’s investigation process is likely to take many more years, so concrete results will take some time to emerge. But the practical and symbolic significance of the decision is already a reality.

François Dubuisson is professor of International Law, at the Centre de droit international, Université libre de Bruxelles