The Monetary Gold Doctrine and the ICC: Can the ICC determine the Territorial Boundaries of Israel and Palestine?

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The Prosecutor of the International Criminal Court (ICC) has been engaged in a Preliminary Examination of the situation in Palestine since January 2015. By December 2019, the Prosecutor had come to the conclusion that there is a reasonable basis to believe that war crimes have been, or are being, committed on territory of Palestine, and that the other conditions required by the Statute for the opening of an investigation exist. At that time, the Prosecutor sought a ruling from the ICC Pre-Trial Chamber that the “‘territory’ over which the Court may exercise its jurisdiction under Article 12(2)(a) [of the ICC Statute] comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza” (para 5 Prosecutor’s Request for a Ruling on the Court’s Territorial Jurisdiction in Palestine 22 January 2020). As Malcolm Shaw noted in his recent posts on this blog (here and here), this request has brought into renewed focus a debate about whether Palestine is a state and whether it is able to confer jurisdiction on the ICC. Numerous amici curiae, including seven States, have filed submissions in response to the Prosecutors request.

In an earlier post, I wrote about the nature of Palestinian statehood (see here), and argued that collective recognition can have the constitutive effect of bringing about a state under international law, even if the entity does not otherwise meet the criteria under the  Montevideo Convention (and also here). I am also of the view that “the overriding importance ascribed to the right of self-determination is taken as compensating somewhat for the defect constituted by the lack of a government in effective control of the territory. In addition, the right to self-determination has also been taken as modifying the traditional interpretation of the criterion of independence …” (Oppenheim’s International Law: United Nations, 2017, para 8.18)

This post will focus on an issue raised by the Prosecutor’s request, which also goes to the heart of the nature of the ICC as an international tribunal. Assuming that Palestine is a state and that the ICC has jurisdiction over crimes committed within its territory, can the ICC determine the extent of Palestinian territory in circumstances where some of that territory is also claimed by Israel? In short, can the ICC determine a territorial dispute between States? This question is significant because the ICC is a criminal court whose mandate is determining individual criminal responsibility and not inter-state disputes. The issue is particularly significant given that one of the parties to that dispute, Israel, does not accept the jurisdiction of the Court.

According to the consent principle, which is reflected in the Monetary Gold doctrine discussed below, international tribunals are not competent to decide disputes between States except where those States have consented to the exercise of jurisdiction over that dispute by the tribunal. The essential questions here are whether that principle (i) applies to the ICC and (ii) would be violated were the ICC to rule on extent of Palestinian territory. These questions have been discussed in some of the submissions to the ICC and notably in the Prosecutor’s  Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States (April 2020). This post seeks to show that the consent principle does indeed apply to the ICC. However, application of the principle does not necessarily mean that the ICC is unable to exercise its jurisdiction over the Palestine situation.

The Consent Principle/The Monetary Gold Doctrine

The consent principle applies, without exception, to every tribunal established to deal with inter-state disputes and ensures that the parties to cases before international tribunals must have accepted the jurisdiction of the tribunal to rule on the case. However, the principle has also been applied more broadly. The International Court of Justice (ICJ) has decided that it is precluded from exercising its jurisdiction where doing so would require adjudication of the legal interests of a third State that was not a party to the case and has not given consent to the Court determining the matter. This is known as the Monetary Gold doctrine (see Monetary Gold case (Italy v. France, United Kingdom & United States), (1954) ICJ Rep 19; also applied in the East Timor case (Portugal v. Australia), (1995) ICJ Rep 90). Thus, even where the parties to the case before the ICJ have consented to the exercise of jurisdiction, that Court has taken the view that the principle of consent requires it to abstain from deciding the case where the legal interests of a non-consenting third State formed “the very subject matter” of the case.

The ICJ and its predecessor, the Permanent Court of International Justice (PCIJ), have viewed the consent principle, from which the Monetary Gold doctrine is derived, as a general principle of international law and not one flowing just from their Statute. Thus, the PCIJ stated in the Eastern Carelia Advisory Opinion (No. 5, 1923, 27) that: “It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement.” It then linked the consent principle to “a fundamental principle of international law, namely, the principle of the independence of States.” Indeed, the ICJ has even gone further and referred to “the fundamental rule, repeatedly reaffirmed in the Court’s jurisprudence, that a State cannot without its consent, be compelled to submit its disputes with other States to the Court’s adjudication.” Western Sahara Advisory Opinion [(1975 ICJ Rep 12,23]

It is the fundamental nature of the consent rule which suggests that adjudication without consent cannot occur even in cases where the State whose rights or obligations are being adjudicated upon is not a party to the case.

Though rarely applied, the Monetary Gold doctrine has been considered and approved by a range of other international tribunals. In Larsen v. Hawaiian Kingdom (2001) and the Philippines v China (South China Sea Arbitration (Jurisdiction and Admissibility, 2016), pp. 71-73, the principle was discussed by international arbitral tribunals. The former applied the principle and rejected the argument that the Monetary Gold doctrine was applicable only to the ICJ. The principle has also been considered by a World Trade Organization Dispute Settlement Panel (in Turkey – Restrictions on Imports of Textiles and Clothing Productions, 31 May 1999, WT/DS34/R). The International Tribunal for the Law of the Sea (ITLOS), in The M/V “Norstar” Case (Panama v. Italy) Preliminary Objections Judgment para. 172, “acknowledge[d] that the notion of indispensable party is a well-established procedural rule in international judicial proceedings…”

The ICC Prosecutor’s arguments about the Monetary Gold Doctrine

The Prosecutor argues in her Response (para. 32) that “several important characteristics … make this principle unfitting to the Rome Statute”. It is suggested that the principle only applies where the ICJ would have had to adjudicate specifically on the international responsibility or lawfulness of the conduct of states not part to the proceedings in question. However, this is not the case. What triggers the application of the principle is that the legal interests of a third state would form “the very subject-matter” of the dispute. Adjudication on the international responsibility of the third state is one example, albeit a primary example, of a case where the legal interests of the state would form the very subject-matter of the dispute. But it is by no means the only one (as made clear by ITLOS in the The M/V “Norstar” Case (Panama v. Italy) Preliminary Objections Judgment para. 172). Decisions on the legal rights and entitlements of a third state, such as on issues of territorial sovereignty, would also be adjudication on its legal interests which bring into play the application of the Monetary Gold principle. In the South China Sea arbitration (para. 180), the tribunal made clear that: “the determination of the nature of and entitlements generated by the maritime features in the South China Sea does not require a decision on issues of territorial sovereignty. The legal rights and obligations of Viet Nam therefore do not need to be determined as a prerequisite to the determination of the merits of the case.” It was on that basis that it held that the Monetary Gold principle did not apply.

The Prosecutor also suggests (para. 37) that if the Monetary Gold principle applies to the ICC, it would bar ICC jurisdiction in all cases involving actions taken by nationals of states not party to the Statute on the territory of states parties, where the person is acting in an official capacity. However, this is incorrect. In an article published in 2003 on the “Jurisdiction of the ICC over Nationals of Non-Parties”, I argued that:

“Even if one assumes that the Monetary Gold doctrine applies to all international law tribunals, it will not, in most cases, be violated by the exercise of jurisdiction by the ICC over non-parties nationals in respect of official acts done pursuant to the policy of that non-party. It is important to note that the Monetary Gold doctrine does not prevent adjudication over a case simply because that case implicates the interests of non-consenting third parties.  Furthermore, there is nothing in the doctrine which requires abstention in any case that may cast doubt on the legality of actions of third States or imply the legal responsibility of those States. As the ICJ noted in the Monetary Gold case, the doctrine only applies in cases in which the ‘legal interests [of a non-consenting third State] would not only be affected by a decision, but would form the very subject matter of the decision.’ Thus, the doctrine only requires abstention in cases in which the court is required to pronounce upon the rights and responsibilities of the third State in order to decide the case before it.” (emphasis added)

This conclusion was reached because in cases concerning actions of nationals of non-parties, the ICC will not be engaged in making determinations about a State’s legal responsibility, nor will it need to do so, in order to convict an individual for war crimes, crimes against humanity or genocide.  Though the decision of the Court in such cases might imply that the non-state party has acted contrary to international law, the Court need not pronounce on this. The situation is different in a case where the Court has to adjudicate on issues of territorial sovereignty and has to make pronouncements on disputed territory, which is claimed by a non-state party.

In a 2010 paper on the crime of aggression, I explained that the consent principle does apply to the ICC, as it does to other international tribunals, and explore the limited circumstances in which the Court would have to refrain from adjudication because of the principle.

Monetary Gold and Criminal Proceedings

The Prosecutor also suggests that the Monetary Gold principle does not apply because the subject matter of ICC proceedings is the determination of the individual criminal responsibility of individuals and because determining the scope of the Court’s territorial jurisdiction does not entail resolution of the territorial ‘disputes’ between Israel and Palestine. However, the whole point of a territorial dispute is that there is a controversy about which entity is entitled to exercise sovereign rights therein. As Arbitrator Max Huber stated in relation to territorial sovereignty in the Island of Palmas Arbitration (1928), “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”  One such right is the exercise of jurisdiction, including criminal jurisdiction. The ICC will only have jurisdiction in cases arising from the situation in Palestine if those cases relate to acts occurring within the territory of Palestine, territory over which Palestine (assuming it to be a state) has criminal jurisdiction which it has then delegated to the ICC. If by contrast, the territory is under Israeli sovereignty then Palestine has no right to exercise jurisdiction and cannot delegate such to the ICC. Thus, for the ICC to resolve the territorial question for its purposes is also to make concrete determinations about the very issues that are at stake in the territorial dispute.

More generally, the suggestion that the Monetary Gold doctrine does not apply to the ICC because it is a criminal court or because it has previously been applied by tribunals which generally dealing with disputes between states is incorrect. First of all, it must be remembered that the ICC is created by states and its powers are derived from such powers that those states are able to confer on it. So, the ultimate question is whether the states parties to the ICC Statute are able to create a tribunal which can then pronounce with important practical consequences on the legal rights of non-consenting states.

The bar on judicial determination by international tribunals of the rights of non-consenting States applies to all international tribunals, i.e. those operating under public international law, and applies even in cases in which determination of the rights or responsibilities of the non-consenting State would take place outside the context of a contentious case between other States. For example, the ICJ is quite clear that the principle of consent applies even in advisory opinions, as that Court stated in the Western Sahara Advisory Opinion, 1975, para. 33 and reiterated last year in the Chagos Advisory Opinion, 2019, para 85.

It can hardly matter what form the judicial proceedings take for the Monetary Gold doctrine or the consent principle to apply. By definition, the rule applies (indeed, Monetary Gold only applies) to cases where the non-consenting State is not a party. The way in which the parties to the case, or those states that have set up the tribunal, have structured the proceedings cannot, and ought not, to affect the rights of the non-consenting party. The point is not whether the non-consenting State will be bound as a formal matter by the decision in the case. In all cases, the non-consenting State is not bound since it is not a party to the proceedings. Article 59 of the Statute of the ICJ makes this clear as far as that Court is concerned. However, despite the fact that the decision is not binding on the non-consenting State, the reason the judicial tribunal stays its hand under the consent principle is because it is deciding a case that the very subject matter of which requires determination of the legal interests of the non-consenting State. Furthermore, the judicial tribunal’s decision may well have practical effects for the State concerned because the decision will be seen as a statement by an authoritative decision maker on the rights or responsibilities of the non-consenting State.

Thus, in principle, the consent principle applies to the ICC as it does to other international tribunals. A judicial determination by the ICC as to whether particular territory in dispute falls under the sovereignty of one state or another will implicate the Monetary Gold principle. The principle is important because it serves to protect against imposition of obligations on states by other states or by other bodies.

Exceptions to the Application of the Monetary Gold principle

It is important to note that an argument that the Monetary Gold principle applies to the ICC does not then mean that it cannot make any determinations about territorial sovereignty. There is a significant exception to the Monetary Gold consent which might be of relevance to determinations regarding the territorial jurisdiction of the ICC over the situation in Palestine.

In Larsen v. Hawaiian Kingdom (para. 11.24, 2001), it was held that “if the legal finding against an absent third party could be taken as a given (for example, by reason of an authoritative decision of the Security Council on the point), the [Monetary Gold] principle may well not apply.” The basis of this assumption is that if the international tribunal is simply applying a legal finding which is already binding or authoritative with respect to the third State there can be no complaint of an overreach of competence as the tribunal is not really exercising its own competence but simply accepting a reality already determined by a competent body.

This exception to the Monetary Gold principle was relied on by Portugal in the East Timor case when it argued that the General Assembly and the Security Council had already determined the status of East Timor as a non-self governing territory and that Portugal was the legitimate administering power of that territory. For Portugal, this meant the Court was not required to pronounce on the lawfulness of Indonesia’s use of force in East Timor and of its presence there. Although the ICJ rejected the conclusion that Portugal drew from its argument, the ICJ did not reject the basis of the argument. The Court held that the points Portugal sought to infer from the UN resolutions did not in fact follow from the fact that those resolutions recognised Portugal as the administering authority of East Timor. It then held that “without prejudice to the question whether the resolutions under discussion could be binding in nature, the Court considers as a result that they cannot be regarded as ‘givens’ which constitute a sufficient basis for determining the dispute between the Parties.” (para 33)

In the context of the situation in Palestine, the question that arises is whether there are relevant authoritative and binding decisions that determine that certain territory does not belong to Israel, which the ICC could rely on as “givens”. If such “givens” exist they might constitute a basis for determining the dispute without the ICC having to exercise competence over the legal interests of Israel. Although, the UN General Assembly has adopted several resolutions on the Palestinian situation, that body does not have the competence to adopt binding decisions. Also, while the ICJ made determinations about the Occupied Palestinian Territory (including East Jerusalem) in its Advisory Opinion on the Wall in the Occupied Palestinian Territory (2004), that opinion is advisory only and thus not binding on Israel.

The UN Security Council has adopted a number of resolutions recognizing that the Occupied Palestinian Territory is occupied  (See UNSC Resolution 465 (1980), para. 5; UNSC Resolution 471 (1980), UNSC Resolution 2334 (2016)). These resolutions, clearly accept or determine that the Occupied Palestinian Territory does not constitute a part of Israel. Whether or not these resolutions constitute “givens” for the purposes of the Monetary Gold rule will depend on (i) the argument that if they formed part of Occupied Palestine they are thus the territory of the State of Palestine and (ii) the extent to which these resolutions can be regarded as binding and authoritative for the states concerned.

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Dapo Akande says

June 16, 2020

Comment from Lawrence Hill Cawthorne
Hi Dapo. Thanks for this fascinating post.

Just a question and a comment from me. First, does it make a difference to your argument that the other State whose legal interests are in play (Israel) is not a State party to the Rome Statute?

Second, I like your approach of seeing the Monetary Gold principle as a general principle of international adjudication, reflecting the limits of what States are able to do collectively. But I wonder if the Prosecutor's arguments might be read as suggesting a slightly different starting point for certain international tribunals, such as the ICC. Some writers, such as Cesare Romano and Yuval Shany, have noted the varying roles of consent as a legitimising principle depending on whether we are considering traditional inter-state dispute settlement bodies, such as the ICJ, or more contemporary international courts, such as the ECtHR or ICC. I wonder if this trend might be something the Prosecutor is trying to draw on.

Best wishes,

Lawrence

Dapo Akande says

June 16, 2020

Comment from Brian McGarry

Many thanks for this very clear analysis. I agree with your earlier distinction of the MG threshold from mere "implicat[ion]", at least insofar as that term is used in the Aegean Sea and Nauru Judgments.

I note that the MG threshold's application beyond inter-State cases -- and beyond as well the bizarre circumstances of Larsen -- appears to have been accepted in principle in ISDS (Chevron II, Ping An). Though I think you are right to carefully analyse its extrapolation to cases alleging individual responsibility.

In a perfect world, perhaps the ASP would refer the question as you've framed it to the ICJ under Rome Statute art 119. This approach could yield general, authoritative clarification on the MG threshold and its scope of application, maybe more so than ICC proceedings (or the current ICJ proceedings) involving the specific situation of Palestine.

Dapo Akande says

June 17, 2020

Comment from Victor Kattan

Thank you very much Dapo for this interesting post.

I will refrain from commenting on whether the Monetary Gold principle is applicable to all international tribunals, as you argue. I just want to comment on the issue raised towards the end of your post as to whether there are relevant authoritative and binding decisions, which can determine that certain territory does not belong to Israel, which the ICC could rely on.

There is, of course, the Plan of Partition with Economic Union appended to General Assembly Resolution 181(II) of 29 November 1947. A respectable body of legal opinion (including Lauterpacht, Sørensen, Schwebel, Bassiouni, Akehurst, Feinberg, Gerson) was of the view that Resolution 181 (II) was binding on all member states (including the provisional government of Israel, which accepted it unreservedly) given the special role conferred on the General Assembly under Chapter XII of the UN Charter – especially Article 85.

In the South West Africa status Advisory Opinion of 1950, the ICJ concluded that the General Assembly and the Mandatory Power, acting together, possessed the competence to modify the international status of a mandated territory. This would include dividing a mandate territory into two states. The ICJ confirmed as much in its decision in the Northern Cameroons, when it described General Assembly resolution 1608 (XV) that confirmed the result of two plebiscites that led to the division of the trust territory, as having “definite legal effect.”

The United Kingdom government made several statements in Parliament to the effect that it considered resolution 181(II) as amounting to a “decision”, even though the resolution itself was framed as a “recommendation.”

So, I would not go as far as you when you say that the General Assembly “does not have the competence to adopt binding decisions.” I think that in special situations provided for under the UN Charter, it may adopt binding decisions, and I think that a respectable argument can be made that resolution 181(II) was one of those decisions.

I also think that when General Assembly Resolution 181(II) is read in conjunction with later General Assembly and Security Council resolutions, it becomes apparent that the territory of the State of Palestine is the occupied Palestinian territory for the purposes of Monetary Gold.

Best wishes,

Victor

Hari says

June 17, 2020

Thank you for your fascinating post.
One remark/question: the ICJ made findings about what international law says about the Occupied Palestinian Territory (including East Jerusalem), thus providing a good basis for a (minimum) territory of Palestine.

While the Advisory Opinion per se is not binding on Israel (and it is not binding on Palestine, either), international law as a whole is binding on both - as they are clearly both subjects of international law. So, regardless of the value of the Advisory Opinion as a legal document, its content is about what international law says - and this IS binding on Israel, right?
The difference between the two sources of law (ICJ pronouncement vs. customary/treaty-based international law) being, for instance, that nobody can allege Israel violates international law by not complying with the Opinion (as they would instead be able to do in case Israel were to violate a binding judgment of the ICJ), but international law writ large still says that the Occupied Territories are Palestine's, and nobody else's, right? So, the ICC has a decent basis to rely on the content (if not on the source) of the ICJ Opinion, and disregard arguments about the Monetary Gold doctrine, doesn't it?

Liron A. Libman says

June 17, 2020

Thanks very much, Dapo, for your clear and illuminating post on this vexed issue.
A few questions on the exceptions part of your post ("applying a legal finding which is already binding or authoritative with respect to the third State"):
1. What is the significance of the fact that UNSC Resolutions you mention are not chapter VII binding decisions?
2. What is the significance of the fact that the same SC supported consistently bilateral negotiations between the parties on a peace treaty resolving all core issues, which includes borders under the Oslo Accords? (for example, UNSC Resolution 1850, para. 2)
3. Even in UNSC Resolution 2334 you mentioned, the SC "Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, **other than those agreed by the parties through negotiations**" (para. 3). Isn't the SC saying it will not recognize Israel's sovereignty in these territories claimed by unilateral steps? I argue this is a very different thing from positively finding that all or part of these territories are part of a sovereign Palestinian State.
In other words, negating the legality of unilateral Israeli steps in the territories is a very different thing from positively settling the question of borders between Israel and Palestine (assuming it is a state). Only the latter (done by a body with competence to make legal findings) may be an authoritative legal finding allowing the ICC to proceed and determine the territorial issue, without Israel's consent, as a third state, not a party to the Rome Statute.
Very interested in your thoughts on this.
Yours,
Liron

Marko Milanovic says

June 17, 2020

Apologies to anyone who has tried to put up a comment but couldn't; we had an issue with the system that's now been fixed.

Michael Kearney says

June 18, 2020

Following on from Victor’s comments, Judge Skubiszewski appended a dissenting opinion in East Timor, drawing on the ICJ’s 1971 Advisory Opinion on Namibia where the Court accepted that the General Assembly has the power to adopt binding resolutions, to note that ‘It is not clear why in the present case the Court seems in fact to look at the resolutions of the Assembly on colonial issues from a different angle. The Court neither denies nor confirms their binding force.’ (Para 73)

The situation in Palestine presents a contemporary manifestation of colonialism, witnessed in the unfolding, US sponsored, plans for further annexation of occupied territory. The reliance on Monetary Gold in the amicus briefs before the PTC brings to mind Judge Cançado Trindade’s dissenting opinions at the ICJ which criticise the ‘Impertinence of the So-Called MONETARY GOLD “Principle”’ and call for a move beyond a strict inter-state outlook when faced with realities such as nuclear weapons or genocide. Whether Monetary Gold could be applied to an ICC situation in Palestine was considered and dismissed by Hannes Jöbstl’s study in the Israel Law Review, and I agree that it is not applicable, on the basis that in the absence of any inter-state dispute before the Court, while the Court’s reasoning and findings might affect Israel’s legal interests, they will not ‘form the very subject matter of the decision’.

In East Timor Skubiszewski held: ‘With respect, I have the impression that in this case the Court has gone beyond the limit of the operation of Monetary Gold’, (Para 84) while Judge Weeramantry, also dissenting, warned that the Judgment served to ‘expand the limited principle of that case and diminish the area of the Court's jurisdiction. The Monetary Gold principle, thus applied, would be discharging a function very different to what it did in the case in which it was formulated.’ (para 169) I think its application by the ICC would be an error, since the subject matter of proceedings is not to resolve a territorial dispute, but to determine individual criminal responsibility, and as such would represent an overly expansive interpretation and application of the principle.

The South China Sea arbitration reaffirmed that the circumstances of Monetary Gold represent the limit of the power of the ICJ to refuse to exercise its jurisdiction, and noted that ‘any more expansive reading would impermissibly constrain the practical ability of courts and tribunals to carry out their function.’ (Para 640) While the International Criminal Court will need to review and consider Israel’s conduct prior to and concomitant with making findings of individual criminal responsibility, particularly with regards crimes such as the transfer of civilians into occupied territory or the crime of apartheid, this is an essential and logical function of the International Criminal Court in arriving at its conclusions. It is this function which means that even if the principle of Monetary Gold were to be considered, then regardless, while the Court’s reasoning and findings might affect Israel’s legal interests, they will not ‘form the very subject matter of the decision’.

In the comments you suggest that the Assembly of States Parties could refer the question of Monetary Gold’s scope and application to the ICJ, but would such an Advisory Opinion not also be merely non-binding? My reading of East Timor is that the matter as to whether the UN resolutions relied upon by Portugal were binding or not, was indicative of, rather than constitutive of, whether the legal obligations in question were a ‘given’. Where resolutions re Portugal’s status as an administering power were held to be lacking the necessary clarity, no such lack of clarity can be ascribed to Israel’s status as the occupying power in the West Bank, including East Jerusalem, and Gaza. Similarly, and again which can be contrasted with East Timor, the Wall Advisory Opinion has affirmed the right of the Palestinian people to self-determination which includes permanent sovereignty over its wealth and natural resources within that fixed territory.

Given the weight of sustained condemnation of Israeli policies and practices in the occupied Palestinian territory as being unlawful, recently being reiterated in response to the US and Israeli plans for formalising further annexationist policies, there can be little surprise, or indeed confusion, were the ICC to also make findings that ‘might imply that the non-state party has acted contrary to international law’. As such, I don’t see how Monetary Gold can be applicable. The ‘very subject matter’ of the ICC’s mandate is individual criminal responsibility, and if it must consider the state of Israel’s conduct in exercising such mandate, and make findings that demonstrate the unlawfulness of Israel’s conduct, then it will likely do so by reference to the ‘given’, expressed by the Security Council in 2016, that the settlement enterprise, the central feature of the occupation ‘has no legal validity and constitutes a flagrant violation under international law’ and its call for all states ‘to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967’.

Two additional points, the first of which concerns the distinction between territory and territorial jurisdiction. I subscribe to the Prosecutor’s April 2020 position that ‘Determining the scope of the Court’s territorial jurisdiction does not entail resolution of territorial ‘disputes’ between Israel and Palestine, which is clearly not the Court’s mandate.’ (para 38) In November 2019 the ICC’s Pre-Trial Chamber affirmed that ‘Customary international law does not prevent States from asserting jurisdiction over acts that took place outside their territory on the basis of the territoriality principle’, (para 56), and held that ‘under customary international law, States are free to assert territorial criminal jurisdiction, even if part of the criminal conduct takes place outside its territory, as long as there is a link with their territory. Second, States have a relatively wide margin of discretion to define the nature of this link.’ (para 58). As such, Palestine can exercise criminal jurisdiction over cases relating to acts which occur in Israel in so far as they satisfy the ‘link’ identified by the Chamber.

Finally, as to ‘whether the states parties to the ICC Statute are able to create a tribunal which can then pronounce with important practical consequences on the legal rights of non-consenting states’, the answer is yes, as we know from the Security Council’s referral of non state parties Sudan and Libya, unless we are to again distinguish here the rights of the state, and the rights of the individuals liable to be prosecuted by the Court. All of which is to say that while it is necessary to have a discussion about Monetary Gold in this context, and I’m grateful for the post and response to comments, the Prosecutor is correct to assert that the principle, which after all is a pre-UN Charter expression of a particular conception of sovereignty, does not operate so as to insulate the nationals of non-state parties, alleged to have perpetrated international crimes within the territorial jurisdiction of a state party to the Rome Statute, from accountability.

Brian McGarry says

June 18, 2020

Re: Michael's query "In the comments you suggest that the Assembly of States Parties could refer the question of Monetary Gold’s scope and application to the ICJ, but would such an Advisory Opinion not also be merely non-binding?", I'll reply as that was my comment (Dapo kindly posted it while user comments were blocked).

This point wasn't intended to distinguish between binding and non-binding decisions, as assessed by Dapo and others above. Rather, it was about whether the ICJ might be a more effective forum than the ICC to refine Monetary Gold.

But to your point, it's not clear to me that the Rome Statute envisages a request for an Advisory Op. (and the prior authorisation that requires). Art. 119's reference to a "dispute between two or more States Parties" arguably foresees the ASP recommending Member States to institute a contentious case.

Martins Paparinskis says

June 18, 2020

A very interesting post, with two points that struck me in particular (the third point is that Monetary Gold, as it has been applied in the last 60ish year, seems to me to be about more than just consent – the Chevron v Ecuador point that a number of principles are at play, including due process, may be a better reading of judicial practice – but I don’t think that much turns on characterisation since Israel would hardly waive a putative objection to admissibility):
(1) As to applicability to all international tribunals, there certainly are non-ICJ cases where Monetary Gold has been applied. But from a glass-half-empty perspective, one could equally say that the real lesson from contemporary practice is that no international tribunal outside (classic) inter-State dispute settlement has recognised the applicability of Monetary Gold in the last two decades, despite opportunities to do so. For that position, the key point is not that one WTO panel relied on Monetary Gold in 1999 but that no other did in the next 21 years; not what one mixed tribunal in the (more than slightly peculiar) Larsen case did in 2001 but that other mixed tribunals (that I am familiar with) in the next 19 years at most reject Monetary Gold on the facts without confirming its applicability in principle, from Chevron v Ecuador to last Friday’s Addiko Bank v Croatia (‘The Monetary Gold principle, such as it is’); that States’ occasional invocations of Monetary Gold before the European Court of Human Rights have never been endorsed in principle by the Court; or that AG Wathelet in Western Sahara thought it limited it to the ICJ (‘principle, which is to be found in the Statute of the International Court of Justice, does not exist in the Statute of the Court of Justice of the European Union’). There may well be arguments that ICC is more like ICJ/ITLOS/inter-State arbitration/early WTO than ICSID/Strasbourg/Luxembourg (or that all that practice is wrong/distinguishable/outlier), and practice may change in the future (indeed, just today Monetary Gold appears to have been considered for the first time in a joint dissent in ECtHR Grand Chamber’s Molla Sali v Greece). But if the argument is put forward in terms of a syllogism ‘It is settled that MG applies to all international tribunals; ICC is an international tribunal; ergo, MG applies’, not everybody will necessarily agree with the major premise.
(2) As to the meaning of ‘givens’, one things to add is that East Timor [32] also seems to consider consistency in State practice as a relevant consideration for determining whether a legal situation can be taken as “givens” – or, at the very least, INconsistency of State and organizational practice as a relevant consideration for confirming that a legal situation is not a “givens”. I will leave it to others to comment on how that proposition applies in the particular instance.

Michael Kearney says

June 19, 2020

Brian, thanks for that clarification, I should have picked up on that. Michael.