Settlements, Territory, and the ICC

The President of Palestine, Mahmoud Abbas, has threatened to accept the jurisdiction of the International Criminal Court in order to pursue a case against Israeli settlement construction. At first, this seems an odd choice. One might expect suits over more classic war crimes involving military forces, of the kind dealt with by the Goldstone Commission, to be a be a safer course.

Such cases have been repeatedly tried in international and national tribunals, and have a well-established jurisprudence. But the rule against “deporting or transferring” one’s civilian population into occupied territory would be a case of first impression, and thus pose potentially daunting obstacles. The attraction of settlements, however, is that the issue is not bilateral. Israel could not counter-claim, as it were.

The talk of taking settlements to the Court is difficult to understand. States refer “situations” to the ICC, not cases. Countries cannot simply engage in strategic claim-splitting, referring the alleged crimes of their enemies and not their own. What is the “situation” here? The scope of the term is not well understood. One might say, at the broadest level, it would seem be the conflict between Israel and the Palestinians, of which settlements is a part – and Palestinian violence is another part. More narrowly, given the security buffer justification of many settlements, it would still be artificial to split the situation into an Israel-only offense.

However, while the GA vote makes the path to such a referral easier, there remains an under-underappreciated hurdle that a settlements-suit would have to clear. If Palestine accepts the jurisdiction of the ICC under Art. 12(2)(a) of the Rome Statute, the Court would only have jurisdiction over Israel for conduct that occurred “on the territory” of Palestine. Thus exercising jurisdiction requires determining Palestine’s territory.

The General Assembly resolution may not answer the question. All it “decides” is to accord Palestine non-member status. Even the non-operative provisions are unclear as to borders. On one hand Par. 1 refers to “Palestinian territory occupied since 1967.” This itself appears to be more of a claim about indigenous rights than a determination of national borders, as there was no Palestinian state or entity in 1967. On the other hand, Par. 5 expresses hope for the eventual “achievement” of  a “State of Palestine living side by side in peace and security with Israel on the basis of the pre-1967 borders,” suggesting both that the Israel-Jordanian armistice line is not the ultimate border and that the Palestinian state does not yet have these borders. (It also calls for the fate of settlements to be determined through the peace process, and thus presumably not through the ICC.)

Even if the GA resolution expresses a view on Palestine’s borders, it is not binding or authoritative. The General Assembly has an internal bureaucratic power to determine its membership. That determination may or may not be the required trigger for “statehood” for ICC purposes. But determining the territory of states is generally thought of as far beyond the powers of the GA.

The mere fact of Israeli occupation does not make the territory part of Palestinian sovereign borders. To be sure, the dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state.  Yet even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of the Palestinian state.

To put it differently, even if violating the Geneva-based norm of transfer need not take place in the territory of a state, it still must be “on the territory” of a state for the ICC to have jurisdiction, as the ICC exercises delegated territorial jurisdiction. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are inherent.

If the ICC were to take on a settlements case, it would face daunting challenges. The borders of Palestine would need to be determined. The Armistice line does not serve this function. The simplest illustration is the existence of significant pockets of no-man’s land, especially near important locations. Palestine considers Israeli towns in no-man’s land to be settlements. But are they on the territory of Palestine?  Another illustration: the teleological and proverbial peace deal whose parameters “everyone knows” involves Israel retaining many settlement blocs. Should this be understood as a cession of sovereign Palestinian territory, or the division of territory disputed by the two states? The matter is not generally framed as a cession, and certainly such a framing would reduce the likelihood of a deal’s acceptance by the Palestinians.

Jewish settlements in the West Bank all lie in Area C, where Israel has full control. It would be an additional difficulty to take jurisdiction under Art. 12 for territory over which the government of Palestine has at no time had control and which remained under Israeli authority – including criminal jurisdiction – by Palestinian agreement in the Oslo Accords.

Accepting a referral would make the scope of the ICC’s jurisdiction always indeterminate – non-member nations would be vulnerable to ICC suits simply by neighbors convincing the Court that a certain territory is theirs. Such action would also greatly discourage membership by nations with disputed frontiers. Territorial jurisdiction was envisioned as useful for self-referrals of the kind the ICC has dealt with so far, and clear aggression and invasion of previously recognized sovereign frontiers. The ICC has not been understood as a border-determination body; that role more naturally falls to the International Court of Justice, and even then only when both parties consent to jurisdiction.

To be sure, the territorial jurisdiction conferred on the court upon accession is not limited to areas where the country currently exercises control, as William Schabas points out in his massive Commentary on the Court. He gives the example of Cyprus, which acceded after the Turkish invasion: this still gives the ICC jurisdiction over “Northern Cyprus.” But this only applies to territory that at one point was clearly within the sovereignty of the acceding state; there is no dispute about Northern Cyprus’s status before the invasion. The territory here was never under the sovereignty of Palestine. Instructively, Schabas gives the Syrian Golan as another example of territory that would fall within ICC jurisdiction if the occupied country accedes – but not the West Bank. This is because when Israel occupied the Golan, it was clearly Syrian sovereign territory. The West Bank was not sovereign Palestinian territory.

In short, even assuming the GA determination makes Palestine a state for ICC purposes, the discussion of potential ICC referrals is quite speculative, as there are a number of difficult jurisdictional hurdles that would have to be cleared. And that may be why Palestine has not followed its announcement of statehood with even an acceptance of the Court’s jurisdiction.