By Alexander Knoops

Professor, Politics of International Law, University of Amsterdam

In its February 5, 2021 decision,  the International Criminal Court Pre-Trial Chamber assumes territorial jurisdiction in the situation of Palestine, while ruling that this extends to the territories occupied by Israel since 1967. This ruling reflects two fundamental questions: The first being whether the ICC is constitutionally competent to determine matters of statehood, and the second, whether the Oslo Agreement and its clauses, which limit the scope of Palestinian jurisdiction, are pertinent to the determination of the ICC’s territorial jurisdiction in Palestine.

Both questions were answered in favor of accepting the ICC’s jurisdiction; yet the reasoning of the majority of the three judges is questionable from a legal perspective.

As to the first question, the Chamber abstained from ruling on the status of Palestine under public international law, especially when it concerns the principles set forth by the  Montevideo Convention, which defines the basic criteria of statehood. It is noteworthy that the Office of the Prosecutor did acknowledge in its initial request that Palestine is not a state under this convention.

Instead of applying these principles on Palestine, the Chamber held that the accession procedure under the Rome Statute with which Palestine became a state party on April 1, 2015, was sufficient to qualify as a state. It further contemplated that a determination as to whether that entity fulfilled the prerequisites of statehood under general international law is not required.

Yet, this accession procedure is only conducted at the Assembly of State Parties (ASP) and operates within the Rome Statute as a purely administrative procedure, akin to the United Nations Secretary General (UNSG). Such procedures function merely as a depositary of accession instruments. Equal to the UNSG, the ASP is not called upon to make substantive determinations when it concerns statehood under public international law. Moreover, both the ASP and the UNSG are purely political organs and do therefore not exercise independent judicial control, which is up to a court of law. Hence the approach of the ICC negates this judicial supervisory role.

Since jurisdiction is at the fundament of the criminal trial, no relaxation on the principles of statehood should be accepted, not at the least merely on the basis of non-binding instruments such as resolutions or decisions rendered by the UNGA or ASP.

As to the second question, the majority of the ICC Chamber also abstained from ascertaining whether the Oslo Agreement would have a relevant impact on the court’s jurisdiction. However, this view negates two important aspects.

 The first being that international legal instruments reveal that Palestine has never assumed exclusive possessory interest or power in the West Bank, Gaza Strip or East Jerusalem. As a matter of fact, since 1918 there has been no state able to convincingly defend an undisputed and legally sound sovereignty claim over those areas on part of any state.

The second aspect pertains to the fact that the court underestimates the legal relevance of the Oslo Process which in 1995 resulted in an interim agreement; control over the West Bank was divided between the PA and the Israeli military government under a three-region regime and did not contain a termination clause, while neither party terminated it. Its preamble even mentions that this process is “irreversible”. Notably, the Oslo Principles were embraced by several other legal instruments, such as Security Council Resolution 2334. The majority decision seems to have misapprehended that this Agreement is still binding on the Parties which should have been transpired in the decision.

The court’s reference to UN resolution 67/19,  accepting the right of the Palestinian people to self-determination, does not alter this conclusion, bearing in mind that this resolution is of a political nature. An analysis of the majority decision learns that the court did not perform its role as the principal legal gatekeeper of the rule of law.

What are the future challenges? Notwithstanding a “State” not being mentioned in the Rome Statute as having the explicit right to appeal such decision, the right to appeal can also apply to “either Party”. Several commentaries on the Rome Statute suggest that “either Party” might embrace not only the suspect and the Prosecutor, but also States. It is therefore defendable that the State of Israel is entitled to appeal this jurisdictional ruling, despite its absence at the proceedings until so far. In any event, it could, once the Prosecutor would proceed with a formal investigation, challenge the admissibility of this case in light of its own investigation into Operation “Protective Edge”. Israel still has a legal arsenal to its disposal if it wishes to challenge both the jurisdiction and admissibility of this case.

G.G.J. Alexander Knoops is professor by special appointment of Politics of International Law at the University of Amsterdam and visiting Professor of International Criminal Law at Shandong University (Jinan, China).