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  • Anushka PS

Operationalising the Jurisdiction of the ICC in Palestine

This blog has been authored by Anushka PS, a second year student at the National Law School of India, Bangalore.


Introduction:

The Two-State Solution has been the primary focus of debate and discussion surrounding the Israel-Palestine conflict. Presented by the Quartet to the Israeli and Palestine Governments as a response to the escalating conflict between their peoples, the Two-State Solution is a settlement which, if effectuated, will result in a viable, democratic Palestinian state living in security and peace alongside Israel. However, Israel’s recent pernicious activities within Palestine have undermined this sanguine goal. This includes the increase in Israeli settlements on the West Bank, an area where the Palestinians seek statehood, as per the Oslo Accords and the Solution. Resolution 77/247 of the United Nations General Assembly (UNGA) casts special attention on the blatant human rights infractions precipitated by the settlement activities, especially involving the eviction and prosecution of Palestinian residents in those areas. This resolution also took a stance against the settlement-induced violation of Palestinian citizens’ rights to self-determination and sovereignty (the existence of which was emphasised in UNGA’s Resolution 66/146 and the Security Council’s Resolution 242).


Statehood as an Essential Criterion for Exercising ICC Jurisdiction:

Israel can be held responsible for such impunity by invoking the jurisdiction of the International Criminal Court (“ICC”), an institution whose objective is to hold accountable those who engage in humanitarian violations. The ICC is governed by the Rome Statute, which outlines the preconditions for invoking its jurisdiction. Article 4 of this Statute empowers the ICC to exercise its powers and functions within the territories of States party to the Statute, or other States which acquiesce to its jurisdiction via special agreement. Article 5 places various crimes within the jurisdiction of the court.


Simply put, for Palestine to challenge Israel’s settlement activities before the ICC, it should satisfy two criteria- first, it should prove that Israel’s activities constitute a crime under Article 4; and second, Palestine should qualify as a State under Article 5. Michael Lynk, the United Nations Special Rapporteur on the human rights situation in Palestine has succinctly demonstrated how Israel’s settlement activities have turned into an “ominous instance of apartheid.” The veracity of this statement has been stressed by several organizations (see here, here, and here). Nevertheless, the question of whether Palestine is a “state” under the Rome Statute is still under wide debate. This article seeks to lay these contentions to rest by demonstrating that Palestine constitutes a “State” as per the applicable international legal frameworks. To do this, first, it highlights relevant objections to Palestine’s statehood and the ICC’s jurisdiction. Second, it analyses UN-affirmed definitions of statehood to buttress its argument. It also refers to the Montevideo Convention, which has provided a concrete definition of a state.


ICC’s Affirmation of Palestine’s Statehood:

Article 12(3) of the Rome Statute allows a non-party State to accept the ICC’s jurisdiction by issuing a declaration to that effect. In pursuance of this, the President of Palestine, Mahmoud Abbas, issued a declaration allowing the ICC to prosecute crimes committed within Palestine’s jurisdiction. However, this declaration is fraught with one obvious defect- the lack of clarity as to whether Palestine is a state in the first place, given the lack of Palestinian control over its own territory. Palestine lacks sovereign control over settlement areas on the West Bank- areas which are controlled by the Israeli Government.


This defect was subsequently acknowledged by ICC’s Prosecutor. By virtue of the power bequeathed to her under Article 19(3) of the Rome Statute, she requested the Pre-Trial Chamber in 2015 to determine the scope of the Court’s jurisdiction in Palestine. Essentially, the Chamber affirmed Palestine’s statehood on two primary grounds. First, it held that the United Nations had deemed Palestine to be a state via two resolutions. In 2012, the General Assembly adopted Resolution 67/19, granting Palestine “non-member observer state” status. The Assembly based its decision upon the recognition of the Palestinian people’s right to self-determination. This resolution was considered by the Pre-Trial Committee as an adequate affirmation of Palestine’s statehood. Second, it held that Palestine was a party to the Rome Statute. In 2015, Palestine handed over its instruments of accession to the ICC, and the President of the Assembly of State parties to the Statute formally welcomed Palestine as a State-party to the Rome Statute. The Pre-Trial Committee thereby contended that the inherent statehood of Palestine was irrelevant, as long as it had acceded formally to the ICC’s jurisdiction. Upon request, on February 5th 2021, the Chamber decided by a Majority that the ICC could also exercise its jurisdiction over the areas where Israeli settlements were erected, including the West Bank and East Jerusalem. Due reliance was placed on the Oslo Accords to arrive at this conclusion.


Persistent Objections to Statehood:

It is evident that the ICC Prosecutor’s Office has based its jurisdictional determination upon the United Nations’ acceptance of Palestine as a state authority as against any confirmation of its inherent state characteristics.


Despite such acceptance of Palestine as a non-party state by the UNGA and the ICC Prosecution Chambers, opposition to the ICC’s jurisdiction persists as long as it remains possible to demonstrate Palestine’s departure from the normative statehood criteria enumerated by international law. As Professor John Quigly has argued, being a “state” is a prerequisite for the ICC’s jurisdiction since only a “sovereign” country which exercises full control over its territory can confer ICC power to operate within its boundaries. The Hague Initiative defined a sovereign entity as one having an independent government and further concluded that the Palestinian government, being an interim creation of the Oslo Accord, could not be considered an independent entity. Further, Robert Weston has documented instances of Palestinian Officials- members of the Palestinian Liberation Organisation and the Palestinian Authority- openly disclaiming Palestine’s statehood (for instance, consider PLO President Mohammad Abbas’s statement where he stresses his people’s aspirations for an independent state). Weston, therefore, concludes that statehood constitutes a “goal” of the peace process, as against an existing reality itself. These and various other objections have been posited to undermine Palestine’s statehood. Consequently, it is pertinent that Palestine’s statehood is determined according to objective criteria.


Satisfying the Montevideo Convention’s Criteria for Statehood:

The Montevideo Convention on the Rights and Duties of States defines a “state” conclusively. Article I of this Convention provides that a State, as an international person, should have the following characteristics: a) a defined territory, b) a defined population, c) a government and d) the capacity to enter into relations with other states. Article I of the Convention is often criticised for its imprecision and incompleteness. Mathew Craven has deemed this article’s requirements as being “too abstract or too strict” in the sense of their not encompassing all the characteristics of a modern state. Nevertheless, none of these criticisms strike at the criteria’s existence- they only highlight the difficulties encountered during application. The Montevideo convention remains the only international instrument to have defined a state entity.


Palestine satisfies the Convention’s four-pronged test. One, Palestine has a defined territory, as concretised by the Oslo Accords and the multiple Resolutions acknowledging the existence of a two-state solution. As demonstrated above, the Two-state solution envisages the states of Palestine and Israel “living together in peace and security.” It doesn’t advocate for the creation of two states, but only for their harmonious co-existence. It takes the existence of a defined Palestinian territory for granted. Two, Palestine has a fixed population as recognised by the UNGA Resolution 77/225. This resolution also outlines the rights of the Palestinian people to “self-determination” by condemning Israel’s settlement activities on the West Bank. Third, Palestine has a government- comprising the PLO and the PA. While several scholars have contended the effectiveness of this government, effectivity does not form a facet of the Conventions’ requirements. Palestine also has several Ministries for governance. Lastly, Palestine’s capacity to enter into relationships with other states has already been demonstrated. A majority in the UN has already affirmed Palestine’s statehood. Such recognition grants Palestine access to UN agencies and the ability to participate in international forums. Additionally, Palestine has diplomatic relations with over 130 countries, including several European nations.


Conclusion:

Summarily, this article has accomplished two objectives. First, it has been argued that Israel’s settlement activities in Palestine constitute an instance of “apartheid.” Second, it has demonstrated that Palestine is a “state” for the purposes of the Rome Statute. That is, it has argued that both criteria required by the Rome Statute for the exercise of ICC’s jurisdiction- statehood as per Article 5, and the perpetration of a crime under Article 4- have been categorically fulfilled. While it is impossible to capture the nuanced arguments propounded over the course of several decades, this analysis goes a long way in legitimising the exercise of ICC’s jurisdiction over Palestine. The ICC may not be a panacea for Palestine’s problems, but it would play a significant role in holding Israel accountable for its violation of humanitarian norms.



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