A critical assessment of the Government of Israel’s memorandum to the ICC – Part I

On 20 December 2019, the Prosecutor of the International Criminal Court (ICC) published a 112-page document requesting that Pre-Trial Chamber 1 rule within 120 days on the Court’s territorial jurisdiction in the situation in Palestine. On the same day the request was made public, the Government of Israel (GOI) published a 34-page memorandum of the Office of the Attorney General (GOI memo) arguing that the ICC lacks jurisdiction over the “Situation in Palestine”.

The GOI memo was prepared by a joint team from the Ministry of Foreign Affairs, the Ministry of Justice, and the National Security Council. In the memo, the GOI argues, inter alia, that the purported accession by Palestine to the Rome Statute does not fulfil the substantive requirement for the Court’s jurisdiction because UNGA resolution 67/19 did not determine the substantive legal question of whether a sovereign Palestinian state exists under international law. In the GOI’s view, no Palestinian state has ever been in existence; sovereignty over the West Bank and Gaza is in abeyance; Palestine does not meet the criteria for statehood under international law; Palestine’s claims regarding recognition are misleading; and the scope of Palestine’s territory is undefined.

In many respects, the GOI memo foreshadowed the Trump administration’s “deal of the century”, which refers to a “future State of Palestine” and envisages the annexation by Israel of substantial parts of the West Bank (see the map in Appendix 1). The deal of the century also calls on the Palestinians to dismiss “all pending actions” against the State of Israel and the United States, and any of their citizens, before the International Criminal Court and the International Court of Justice.

I had already anticipated some of the arguments that appeared in the GOI memo, which had been raised before, and which I have criticised previously (see here, here, here, here, and here). I will not repeat what I have written elsewhere. Instead, I will advance some additional arguments as to why the legal arguments advanced by the GOI in the memorandum may be open to challenge. In so doing, I do not address the argument that Palestine is a state for the purpose of the Rome Statute, which has been addressed by the Prosecutor. Instead, I argue that Palestine is a state under general international law, and that sovereignty over the West Bank and the Gaza Strip is not in abeyance. In Part II, I explore issues relating to self-determination, recognition, and effective control.

A Palestinian state existed prior to 1967

The recognition of Palestine’s sovereignty dates to statements made by the Allied and Associated Powers during the First World War before the League of Nations was established. Palestine was not an Ottoman colony. As the French Government made clear at the San Remo conference in 1920, the inhabitants of Palestine had been Ottoman citizens who had fully participated in the government and legislature and had the right to vote. (See Rohan Butler and J.P.T. Bury (eds.), Documents on British Foreign Policy 1919-1939, Vol. 8 (1958), pp. 169-170). Article 22, paragraph 4, of the Covenant of the League of Nations (28 June 1919) recognized that certain communities formerly belonging to the Turkish Empire were independent nations, but that the exercise of sovereignty by these communities was suspended for the duration of the mandate. The whole purpose of the mandates system, according to the express terms of Article 22, was that the tutelage of these communities was to be entrusted to “advanced nations who by reason of their resources, their experience or their geographical position” could “best undertake this responsibility” until the moment had arrived when the communities under the mandate could “stand by themselves under the strenuous conditions of the modern world”. Article 28 of the Palestine mandate made specific provision for its termination, when the Council of the League of Nations was to make arrangements for safeguarding in perpetuity, under guarantee of the League, the rights secured by Articles 13 and 14, which referred to the Holy Places in Palestine.

 The UN Partition Plan for Palestine

On 29 November 1947, the UN General Assembly (UNGA) adopted a Partition Plan for Palestine that provided for the establishment of an Arab state, a Jewish state, and a special regime (corpus separatum) for the City of Jerusalem. The resolution was considered vital by the Jewish Agency, as it considered it the first binding legal document that acknowledged its right to establish a state in Palestine (as opposed to a national home). By adopting the resolution, the UNGA was also making arrangement for the protection of the Holy Places that were to be safeguarded in perpetuity as envisaged in Article 28 of the mandate, but which could no longer be honoured by the League of Nations following its dissolution on 18 April 1946. The Partition Plan was viewed as a legally binding decision by the UN Secretariat, the GOI (see here), the Soviet Union, and the US.

When the Partition Plan was adopted by the UNGA, its members knew that it would be opposed by most of Palestine’s Arab community. Despite their opposition, the resolution was adopted by a majority of two thirds of members of the UNGA and was a valid act of international law.

The State Department Legal Adviser’s view

In a legal opinion dated 11 May 1948, Ernest A. Gross, the Legal Adviser at the Department of State, advised the US Government that although the UK had not undertaken the steps contemplated by Part 1 A of the UN Partition Plan, and although the work of the Palestine Commission established by the Partition Plan had been suspended, “the law of nations recognizes an inherent right of people lacking agencies and institutions of social and political control to organize a state and operate a government”. This included Palestine’s Arab community that was “entitled to organize a state and government in the areas of Palestine which it occupies”. In Gross’ view, “the United States should not recognize the existence of either an Arab or Jewish unitary state for all of Palestine in the absence of consent by the communities, since to do so would contravene obligations and rights arising out of the provisions of the League Covenant, the mandate instrument, the General Assembly resolution of November 29, 1947, and the principles of the law of nations regarding self-determination of peoples” (FRUS, vol. V, (1976), pp. 959-965).

Accordingly, it could be argued that the UN Partition Plan modified the provisional recognition that had been accorded to certain communities formerly belonging to the Turkish Empire in Article 22 of the League Covenant by delineating the spheres of sovereignty over which the Arab and Jewish states would be established. Neither community had the right under international law to extend their sovereignty to the territory of the other state without the consent of that state.

The establishment of the All-Palestine Government

On 1 October, within the time limits stipulated by the transfer of power envisaged in the UN Partition Plan for Palestine, a Palestinian state was proclaimed over all of Palestine by the All-Palestine Government (APG). Although the APG did not last a long time, it was sufficiently “sovereign” to have proclaimed independence, drafted a constitution, issued passports, and established diplomatic relations with the Arab League and with other Arab states. Had the APG limited its claim to the territory of the Arab state delineated in the UN Partition Plan, rather than over all of Palestine, we can surmise that the state would have been more widely recognised.

The situation in the West Bank and Gaza (1948-1967)

As for the Palestinians in the West Bank who were loyal to the King of Jordan, they organised themselves into political parties and approved of the merger between Palestine and Jordan following an election that was held in the territory. (See also, Palestine’s written submission to the ICJ in the Wall advisory opinion, p. 37, §85). Significantly, the merger of the two states in the Act of Union acknowledged the separate identity of Palestine and the right of its people to self-determination. The separate identity of Gaza as being linked to the land and people of Palestine was also recognised by the Egyptian Government and other members of the Arab League in the years between 1948-1967. No attempt was made by Egypt to incorporate the Gaza Strip into its territory. Instead, Egypt, along with most Arab states, recognised the territory as an indispensable part of the State of Palestine proclaimed in 1948. The Palestine Liberation Organization (PLO), established in 1964, was established following the dissolution of the APG the year before.

The competence of the UNGA to modify the status of a mandate

The UNGA had the competence to modify Palestine’s status, with the concurrence of the mandatory power, including by modifying the provisional recognition of Palestine’s independence in Article 22 of the Covenant by delineating the spheres of sovereignty over which the Arab and Jewish states would be established. Palestine was comprised of a people that had attempted “to organize a state and operate a government” by establishing “agencies and institutions of social and political control” to paraphrase Gross. What has happened since 1948 is that Palestine’s territory and sovereignty has been curtailed through successive illegal actions by Israel; first, by extending its territory beyond the 1948 partition lines, and then by extending its sovereignty to Jerusalem in 1967, and most recently, by announcing plans to extend its sovereignty to the Jordan Valley.

The normative character of the UN Partition Plan  

The UN Partition Plan has never been abandoned by the international community. It was mentioned by Israel when it applied for UN membership in November 1948 and in the resolution admitting Israel to UN membership. It was raised by UN mediators with Israel throughout 1948 and 1949. The Partition Plan was raised by the US Government during the Lausanne negotiations (in the spring and summer of 1949) when it said that Israel was “expected to offer territorial compensation for any territorial acquisitions which it expects to effect beyond the boundaries set forth in the resolution of the General Assembly of November 29, 1947” (FRUS, vol. VI, (1977), pp. 1073). The Partition Plan was again mentioned in UNGA resolution 303 (9 December 1949), which reiterated the UN’s resolve to establish a special status for the City of Jerusalem. The Partition Plan was explicitly mentioned by the Soviet Union, Pakistan, Morocco, and Iraq, during the debates in the UNGA following the June 1967 war, when these states criticised the extension of Israeli sovereignty beyond the territory delineated in the UN Partition Plan and called on Israel to withdraw from territories occupied in that conflict. The Partition Plan continued to be raised in UN debates throughout the 1970s, and was mentioned twice in resolution 43/177 adopted by the UNGA in 1988 acknowledging the Palestinian Declaration of Independence that also referred to the UN Partition Plan. In 2011, the Partition Plan was mentioned again by Palestine in its application for UN membership, and in the resolution that accorded Palestine observer state status in the UN. Following President Trump’s decision to recognise Jerusalem as the capital of Israel in December 2017, the UN Partition Plan was mentioned in debates in the Security Council by Sweden, Egypt, Uruguay, Senegal, the United Kingdom, and Palestine (see here and here).

Even if one were to consider the UN Partition Plan a mere recommendation, the resolution appears to have acquired a normative quality over time, in view of the principle of self-determination, and the number of references to Resolution 181 (II) by numerous states over seven decades (including by states that were not even members of the UN in 1947), and is opposable erga omnes.