In its recent Report on Preliminary Examination Activities 2017 (“the Report”), the Office of The Prosecutor (“OTP”) of the International Criminal Court (“ICC”) provides an overview of different legal issues arising in the Situation of Palestine, under its examination since January 2015. Among these issues, the OTP points to legal and political difficulties with exercising ICC jurisdiction. Despite controversy over Palestinian statehood, the OTP does not address the question of whether Palestine is a State, which is a precondition to the exercise of the Court’s jurisdiction according to Article 12 of the Rome Statute (“RS”). This stance may suggest that the OTP does not view Palestine’s statehood as an open question and regards it as a State under the RS. According to Article 19 RS, however, the Court itself must be satisfied that it has jurisdiction over the matters before it; hence it would have to independently conclude that Palestine is a State under the ICC framework in order to exercise its jurisdiction. In addition, as mentioned by the OTP in the Report, the territorial scope of ICC jurisdiction must also be determined in light of competing claims of sovereignty in different areas of the West Bank. It seems, then, that there is room to consider different solutions to the legal issue of exercising jurisdiction over states that are yet to be recognized as full-fledged sovereigns.
In January 2009 Palestine lodged a declaration pursuant to Article 12(3) RS, accepting the ICC’s jurisdiction retroactive to July 2002. The declaration was rejected by the OTP in April 2012, when the ICC’s prosecutor decided that he lacked the authority to determine whether Palestine constituted a State, suggesting it should be determined by United Nations (“UN”) organs. Less than a year later, in November 2012, the UN General Assembly (“UNGA”), in Resolution 67/19, granted Palestine a “non-member observer state status within the framework of the UN”, which has been viewed by some as an implicit recognition of Palestine’s statehood. Others have opined to the contrary.
Importantly, the OTP and the ICC State-parties viewed Resolution 67/19 as sufficient to settle the question of Palestinian statehood. Palestine’s accession to the RS in January 2015 was followed by an OTP decision to open a preliminary examination upon Palestinian request, implying it was satisfied that the criteria required by the RS were met, i.e. that Palestine is a State. In addition, ICC State-parties have expressed recognition of Palestine as a State-party on different occasions; the most recent was Palestine’s active participation during the Activation Assembly of the ICC’s jurisdiction over the crime of aggression.
Notwithstanding the recognition of Palestine’s statehood by the ICC community, Palestine’s statehood remains controversial at the international fora—both from a factual perspective, considering its limited government capacities and domestic support, as well as from a political perspective, in terms of insufficient international recognition of its sovereignty.
Without delving into the debate on Palestine’s statehood, its scope, and the meaning of UNGA Resolution 67/19, it is safe to say that Palestine exercises a variety of governmental functions delegated by Israel to the Palestinian National Authority (“PNA”) under the Interim Self-Government Arrangements. Those agreements were signed in September 1995 during the Oslo Peace Process between Israel and the Palestinian Liberation Organization (“PLO”), the representative entity of the Palestinian people. The Interim Arrangements essentially divided governmental control over the Occupied Palestinian Territories between Israel and the PNA, which is the recognized government in Palestine. Criminal jurisdiction was also divided under Annex IV of the Interim Agreement, providing Israel with sole criminal jurisdiction over defined areas of the West Bank while Palestine exercises criminal jurisdiction over the remaining areas and the Gaza Strip. Although the Interim Arrangement was deemed extinct by various scholars after Israel’s disengagement from the Gaza Strip in 2005, Israel, the Palestinian Authority and the international community, at least at the practical level, continue to regard the Interim Arrangements as applicable, and they have substantially informed the division of control between Israel and Palestine ever since. In the specific context of criminal jurisdiction, the division set out under the Interim Arrangements is continuously upheld.
Statehood under the ICC’s Framework
Although the ICC enforces individual criminal liabilities, Article 12 RS defines the limits of its treaty-based jurisdiction commensurate to State-parties’ criminal jurisdiction. Accordingly, statehood is a pre-condition to ICC jurisdiction, absent referral by the Security Council (“SC”) under Article 13 RS.
The RS does not provide interpretive guidance for the term “State,” yet an entity’s authority to exercise criminal jurisdiction is a fundamental prerequisite in this regard. Hence, an interpretation of the term “State” under the RS is required, following customary rules of treaty interpretation under the Vienna Convention on the Laws of Treaties (“VCLT”). The ordinary meaning of the term “State,” as illustrated by special cases of states, does not necessarily capture the constituent elements of statehood required for the purpose of the ICC. For example, the Vatican could not be regarded as a “State” under the ICC, as it does not have criminal jurisdiction over its territory. On the other hand, interpreting the term in light of the RS’s objectives and purposes—to end impunity of the most serious international crimes—supports a broader interpretation than addressing only full-fledged sovereigns, as it would exclude jurisdiction over states which had lost effective control over their territories, reflecting the cases in which the role of the ICC is most significant.
According to Article 31(3) VCLT, subsequent state practice applying the term “State” in the context of the RS, such as Palestine’s accession to the RS, should inform its interpretation. There are three plausible ways in which the Court could interpret Palestine’s accession examining the interpretation of statehood. First, it could be argued that Palestine’s accession as a not-fully-recognized State implies that the term “State” should be broadly interpreted under the RS, not limited to full-fledged States. Thus, accession to the ICC should uniformly result in full ICC jurisdiction, despite the fact that Palestine does not have criminal jurisdiction over some of the territories it regards as its own.
In contrast, a second argument might assume that the term “State” refers only to full-fledged sovereigns; therefore, Palestine’s accession would have no effect on its statehood under the RS. Since accession to the ICC does not require any legal analysis of the ICC’s jurisdiction because it is a procedural process held by the UN Secretary General following the practice of the UNGA, it cannot and should not substantiate statehood under Article 12 RS. Therefore, since Palestine is not recognized as a sovereign under international law, the ICC cannot exercise jurisdiction over it.
The third possibility is a functional interpretation of the term “State,” essentially addressing states’ authority to exercise criminal jurisdiction. Accordingly, since Palestine has a criminal jurisdiction to some extent, it can be regarded as a “State” under the RS and delegate its limited jurisdiction. It cannot be ignored that Palestine has acceded to the ICC on one hand, yet neither can it be ignored that it does not have criminal jurisdiction over some of its alleged territories. This difficulty can be mitigated by a broad interpretation of the term “State,” including states with limited criminal jurisdiction which can accept the ICC’s jurisdiction only in accordance with their governmental limitations. As James Crawford explains in his book, The Creation of States in International Law, different forms of statehood are already recognized under modern international law, allowing a variety of entities with differing governing capacities to be recognized as states, without being accorded the same rights and obligations as full-fledged sovereigns. The Cook Islands and the Vatican exemplify such cases, as well as other states which have been accepted as members by different international governmental organizations without being regarded as sovereigns, such as Puerto Rico, which is a member of the World Health Organization,
Which of these scenarios should inform the Court’s interpretation of statehood under the RS?
The question of statehood under the RS involves questions about the nature of the ICC as an international institution, either as a tribunal acting on behalf of the international community as whole in accordance with the universality theory, or as an interstate court acting on behalf of each state that chooses to delegate its own powers, i.e. according to the delegation theory. Although both theories are manifested in the RS in different contexts, in the context of preconditions to treaty-based jurisdiction the delegation theory prevails, as reflected in the political compromise of Article 12 RS. Fundamentally, the ICC draws its authority from states’ consent to delegate their power. The chosen formula for jurisdiction was based upon territorial or active-national jurisdiction, as the most broadly accepted concepts of domestic criminal jurisdiction. As universal jurisdiction was rejected by the ICC founding states, the ICC’s treaty-based jurisdiction should be limited to the scope of authority delegated to it by states. Accordingly, the term “State” should be interpreted with a focus on a state’s authority to delegate criminal jurisdiction.
It follows, then, that the ICC cannot exercise jurisdiction where a State-party could not have delegated its criminal jurisdiction. Therefore, the first plausible scenario presented above is not compatible with the ICC’s jurisdictional foundations. Suggesting that Palestine can accept the ICC’s jurisdiction—notwithstanding its lack of criminal jurisdiction over a significant portion of its alleged territories—is inconsistent with the concept of delegation. Admittedly, a holistic approach that recognizes jurisdiction over the entire territories over which Palestine alleges sovereignty is more consistent with the ICC’s objectives and purposes to end impunity, as is allowing the extension of the ICC’s jurisdiction as much as possible. However, fulfilling the ICC’s objective to end impunity by extending its jurisdiction cannot go beyond the ICC’s institutional limitations. The adoption of the delegation concept by its nature limits the ICC’s jurisdiction and therefore cannot be disregarded on the basis of purposive interpretation.
The second proposed interpretation also does not fit in the ICC’s framework. It leads to an obscure situation in which the ICC cannot exercise jurisdiction over a State-party, contradicting the language of Article 12(2) RS and also undermining the triggering mechanism articulated under Article 13 RS. Moreover, it would create inconsistency in the application of the term “State” under the RS, differentiating between “State” under Article 125(3) RS, i.e. admission purposes, from Article 12 RS, i.e. jurisdictional purposes.
Therefore, Palestine’s accession should imply that the term “State” under Article 12 RS be given a functional interpretation, focusing on a state’s capacity to delegate criminal jurisdiction. Applying this concept in the case of Palestine, the ICC can exercise jurisdiction over Palestine as a State which exercises criminal jurisdiction to some extent and thus meets the statehood requirement under Article 12 RS. Nevertheless, the ICC’s jurisdiction would be limited to the criminal authority Palestine could delegate to it.
In order to define Palestine’s territorial authority to exercise criminal jurisdiction, the Interim Agreement may indicate which territories Palestine has criminal jurisdiction to delegate to the ICC. However, if Palestine is later recognized as a full-fledged sovereign, its jurisdictional boundaries would have to be determined, and a different conclusion about the ICC’s jurisdiction could be drawn. Nevertheless, the functional interpretation of statehood under the RS would advance its objective and purpose to end impunity without undermining its legal foundations. As its scope of jurisdiction is linked, inter alia, to states’ political will (as the recent withdrawal of Burundi from the RS may illustrate), it is in the ICC’s institutional interest to limit itself to the jurisdiction of the State in question, either territorial or personal.
The ICC’s jurisdiction over Palestine is an example of the opportunities entailed in a functional approach to statehood under the RS, extending its protection to populations living under political uncertainty, to an extent that does not exceed its legal limitations.
Tom Nachtigal is an LL.M. student at Columbia Law School. She holds an LL.B./B.A. in law and international relations from the Hebrew University of Jerusalem. After graduation, she worked at the Department of Special International Affairs of Israel’s State Attorney’s Office, practicing in-house litigation with respect to international allegations based on international humanitarian or criminal law brought against the State of Israel and its officials.