Palestine, UN Non-Member Observer Status and ICC Jurisdiction

On 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. This indeed has been argued (Ronen, JICJ 12 (2014), 23), but it seems overly formalistic to distinguish, for the purpose of the representation of the Palestinian people and the underlying right to self-determination, between the PLO, the PNA and the government of Palestine (tripartite approach). Be that as it may, it seems more plausible to question the jurisdictional limitations produced by Oslo II from the perspective of the ICC and the underlying criminal accountability claims. Can the ICC’s jurisdiction really be limited by bilateral accords? Does this not stretch the delegation theory of Article 12(3) too far? Can this theory really limit the Court’s jurisdiction once the door to this jurisdiction, so to speak, has been opened by the, in principle, jurisdictional sovereign, the bearer of the jurisdictional claim, i.e., the State of Palestine?

I would submit that Oslo II cannot limit the ICC’s jurisdiction, even on the basis of the delegation theory, for essentially three reasons. First, Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction. In other words, pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.  Secondly, Oslo was only meant to provide rules for a transitional period not exceeding five years. Because this period has expired and, in addition, the legal situation has radically changed (with the recognition of Palestinian statehood), Oslo can no longer operate as a restriction of Palestinian rights. In any case, should one consider that the triggering of ICC jurisdiction would violate pre-existing third party rights (in casu those of Israel under Oslo), the only limitation arising from the ICC Statute is the one of Article 98 referring to cooperation with the ICC, in particular the surrender of suspects.

Secondly, the PNA would have to file a new declaration, since the 2009 Declaration must be considered void in light of the Prosecutor’s decision and the non-retroactive effect of GA Res. 67/19. In other words, the GA resolution changed the status of Palestine only ex nunc with a view to future Palestinian declarations (Zimmermann, JICJ 11(2013), 308-9). Here another problem with Oslo arises, since Art. IX(5) Interim Agreement severely limits the PNA’s power to conduct foreign relations. However, it is not clear from this provision whether it also prohibits the triggering of international criminal jurisdiction. It is fair to assume that at the time of drafting nobody thought that such a possibility would ever arise. In any case, here again one could argue – with more reason than above – that the government of Palestine cannot be bound by this provision, not having been a party to Oslo. Indeed, if this government can accede to international treaties, as indeed it does, it is, a fortiori, entitled to lodge an Article 12(3) Declaration.

Third, the question arises whether such a (new) declaration can have a retroactive effect. The 2009 Declaration sought retroactive jurisdiction reaching back to 1 July 2002, the date of entry into force of the ICC Statute. I would submit that such a retroactive effect is possible. This possibility follows from the delegation theory underlying Articles 12(3) and 11(2). Article 12(3) implies that it is the sovereign right of the State delegating its territorial jurisdiction to do so within the temporal parameters of the ICC Statute, i.e., going back, in principle, to the Statute’s entry into force. Article 11(2) prohibits a retroactive effect of jurisdiction, but not with regard to (‘unless’) the State that ‘has made a declaration under article 12, paragraph 3.’ Zimmermann’s argument that Article 12(3) is a different, indeed, ad hoc, form of triggering jurisdiction does not prove otherwise, since the very fact that Article 12(3) is such an exceptional channel to jurisdictionimplies that the non-retroactivity rule of Article 11 does not apply.

Further, the possibility of a retroactive effect is also confirmed by the ICC’s practice so far, accepting several Article 12(3) declarations granting retroactive jurisdiction. For example, the Declaration of Ivory Coast of 18 April 2003 referred to events since 19 September 2002, and the recent Declaration of Ukraine of 17 April referred to events from 21 November 2013 to 22 February 2014. Of course, in the case of Palestine, such a declaration cannot go further back than the actual recognition of statehood on 29 November 2012, since the authority to lodge it is premised on the existence of a State of Palestine.

Fourth, if such a declaration can only give jurisdiction with regard to events occurring after 29 November 2012 it will, ratione temporis, have to focus on crimes committed since that date. However, there may be an exception to this temporal limitation with regard to the possible criminalization of the transfer of settlers into the occupied territories. Such a transfer – as one of the Occupying Power’s ‘own civilian population’ – clearly amounts to a war crime in international armed conflict (Article 8(2)(b)(viii) ICC Statute). Indeed, the systematic establishment of settlements creates faits accomplis on the ground, the very facts to be prevented by the primary IHL norms (Articles 49 (6) GC IV and 84(5) (a) AP I). Arguably, the settlement policy is the primary obstacle to the creation of a Palestinian State as a single, homogeneous territorial unit; thus, it touches upon the very essence of the primary IHL prohibition. Against this background, the still-existing dispute on thecustomary character of this provision (Cassese et al., International Law, 3rd ed. 2013, 80-1), apart from putting a heavy burden on the ICC (having to inquire whether Article 8(2)(b)(viii) is in line with customary international law), can hardly be an obstacle to adjudication here.

A more difficult question is raised by the character of the crime as a continuous or permanent crime. Could that imply that transfers anticipating the coming into existence of the State of Palestine would fall within the ICC’s jurisdiction? What is the decisive point in time to sever the jurisdictional link with regard to continuous crimes? There are quite a few theoretical answers to this question. One could focus on the commencement of the transfer and thus exclude all transfers which commenced before 29 November 2012. This is similar to the solution chosen by the State Parties for the crime of enforced disappearance. They required – by footnote 24 to the Elements of Crime to Art 7(1)(i) – that the attack (as the context element of crimes against humanity) must have commenced after the entry into force of the Statute. Of course, the problem of the enforced disappearance approach is that it focuses on the context, not an individual element of the crime, and therefore is too restrictive. The other side of the coin is the question of what has to be ‘continuous’? In other words, what has to reach into the present or even the future? Is it the actual act (as proposed by Art 14(2) of the ILC Articles on State responsibility), i.e., the transfer as such, or do its mere effects or consequences suffice? For reasons of space this cannot be further explored here. In any case, these temporal considerations do not affect the Court’s jurisdiction over the ongoing settlement policy and practice.

This post is the written version of an expert statement given at the ‘Roundtable on Legal Aspects of the Question of Palestine Convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People’, UNOG, Geneva, 24-25 April 2014.