On March 16, 2020, NGO Monitor and its partners submitted an amicus to the International Criminal Court (ICC) highlighting the inaccuracies and shortcomings of the formal investigation of war crimes committed in the West Bank and Gaza.
The submission is a response to the ICC Prosecutor’s announcement in December 2019, stating that she plans to begin a formal investigation into Israel for “war crimes” committed in the West Bank and Gaza. Our submission presents several arguments on why the ICC does not have jurisdiction over Israelis and why the Prosecutor’s claims in this regard are flawed.
Unsurprisingly, the anti-Israel NGO network (many funded by European governments), which have been centrally involved in driving the ICC agenda, also submitted amicus briefs. NGO Monitor researchers are closely examining their submissions, as well as other “evidence” that these groups are compiling.
- In accordance with the Chamber’s Order of 20 February 2020 granting the undersigned Organisations leave to submit Observations on the Prosecutor’s Request, the undersigned Organisations respectfully submit these written observations on the question of jurisdiction set forth in Paragraph 220 of the Prosecutor’s Request with respect to the so-called “Situation in Palestine”.
- As set forth in detail below, under well-settled principles of international law, there is no presently-existing “State of Palestine” capable of referring matters to the International Criminal Court. A State that does not exist is not capable of delegating sovereign jurisdictional competencies to the ICC. Accordingly, the Court lacks jurisdiction with respect to the so-called “Situation in Palestine”.
I. The Article 12 Preconditions To The Exercise of ICC Jurisdiction are Not Met Because There Is No “State of Palestine”
- Article 12 of the Rome Statute prescribes preconditions to the exercise of ICC jurisdiction. These preconditions are predicated on the existence of a State. 1 Specifically, in situations which are referred to the Office of the Prosecutor (“OTP”) by a State pursuant to Article 13(a) or (c), or where the OTP has initiated an investigation propio motu, the existence of a State Party is a necessary precondition for the exercise of jurisdiction.2
- There is no definition of the word “State” in the Rome Statute. Therefore, the term “State” is to have the same meaning as it has in general (customary) international law.3 The customary test of statehood holds that a state must consist of four elements: a defined territory, a permanent population, a government in total control of the territory, and the capacity to engage in foreign relations. These elements are commonly referred to as the Montevideo Criteria.4
- Under the customary meaning of the term in international law, “Palestine” is not a State.5 Its existence, and the status and extent of the territory, is not fixed, and is dependent on a negotiated settlement between Israel and the Palestine Liberation Organization (“PLO”).6 Neither is there a permanent population, given the express understanding between the parties that borders are to be determined in final status negotiations. Similarly, “Palestine” lacks a government in total control of the territory.7 On the one hand, its purported government shares with Israel control over some territory it clams for itself. On the other hand, there is currently no functioning, unified government that actually exerts control over the entirety of the territory the Prosecutor purports to include in the so-called “State of Palestine.”8 Finally, “Palestine” lacks the capacity to engage in foreign relations, as it lacks all other elements of statehood that would allow it to do so.9
- The Montevideo Convention provides a restatement of customary international law.10 This restatement was reinforced by the Arbitration Commission of the Conference on Yugoslavia (the “Badinter Commission”), set up by the Council of Ministers of the European Economic Community in August 1991 to provide the Conference with legal advice. According to the Badinter Commission, “the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”.11 The Badinter Commission’s definition of a state is largely a re-phrasing of the Montevideo Criteria.12
- The Montevideo Criteria remains the prevailing interpretation of customary international law, as shown by the practices of states during the dissolution of Yugoslavia,13 the former Soviet Union and Czechoslovakia. As the International Criminal Tribunal for the Former Yugoslavia stated, “These four criteria…have been used time and again on questions relating to the creation and formation of states. In fact, reliance on them is so widespread that in some quarters they are seen as reflecting customary international law”.14
- The word ‘State’ in Article 12 is, prima facie, to be interpreted in accordance with its ordinary meaning. Article 31(1) of the Vienna Convention on the Law of Treatises, Vienna (the “VCLT”), 23 May 1969, United Nations, UN Treaty Series, Vol 1155, p. 331. The VCLT applies to this analysis pursuant to Article 21(1)(b).
- Sovereign legal title to territory on which alleged crimes occur is a precondition to the Court’s exercise of jurisdiction for purposes of Article 12(2)(a); the objective existence of a State is a necessary precondition to the Court’s exercise of jurisdiction for purposes of Article 12(3) and Article 12(2).
- See fn. 1, supra.
- Convention on Rights and Duties of States, adopted by the Seventh International Conference of American States, 26 December 1934, 165 LNTS 19 (the “Montevideo Convention”), Art I
- 5 Although beyond the scope of this Observation, amicus curiae note that since “Palestine” is not a State, its purported accession to the Rome Statute under Article 125 is invalid. To the extent accession was erroneously permitted in light of U.N. General Assembly resolution 67/19 of 29 Nov. 2012, according “Palestine” the status of “non-member observer State” in the UN, it must be noted that this resolution did not purport to make a legal determination as to whether “Palestine” qualifies as a state, and was explicitly limited to the UN in its effect. Moreover, the powers granted to the General Assembly by the UN Charter are generally recommendatory and advisory, such that according a status on an entity does not have preclusive or binding legal effect (see Section II below). See, e.g., Voting Procedure on Questions relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion, 1955 I.L.J. Rep. 67, 115 (June 7, 1955)(General Assembly resolutions generally “are not legally binding upon the Members of the United Nations…and are in the nature of recommendations”.).
- Apart from territorial issues, including border demarcation, other final status issues to be resolved include, but are not limited to, security, water and settlements. This was agreed to by the PLO during the course of negotiating the Oslo Accords. The “Oslo Accords” refers to the series of agreements signed between the State of Israel and the Palestine Liberation Organization as part of a peace process. These agreements include the Declaration of Principles on Interim Self-Government (“DOP”), signed 13 Sept. 1993, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20principles.aspx; The Agreement on the Gaza Strip and the Jericho Area, signed 4 May 1994, available at:
https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/agreement%20on%20gaza%20strip%20and%20jericho%20area.aspx; and the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (the “Interim Agreement”, also known as “Oslo II”), signed 28 Sept. 1995, available at: https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx
- Effective government is central to a claim of statehood. This criterion has two aspects: the actual exercise of authority, and the right or title to exercise that authority. To be a state, an entity must possess a government in general (and exclusive) control of its territory.
- Since June 2007, there have been two competing governments in the so-called Palestinian territories: one in what is colloquially referred to as the “West Bank”, and one in the “Gaza Strip”. The West Bank has been governed by what is generally recognized to be the Palestinian Authority, which has been dominated by the Fatah faction since its creation. In the Gaza Strip, Hamas took over governance by force and has remained in power since June 2007. In brief, there is no single government that exerts control over “Palestine”.
- In Article IX (5)(a) of the Interim Agreement, the PLO expressly agreed to limit its conduct of foreign relations: “In accordance with the DOP, the Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions”. https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement.aspx
- Apart from the criteria for statehood set forth in Article I, the Montevideo Convention explicitly states in Article III that “[t]he political existence of the state is independent of recognition by the other states.” Recognition is not determinative of statehood (and neither is statehood determinative of recognition). This reinforces the view that U.N. General Assembly resolution 67/19 is an aspirational and recommendatory statement that conveys no preclusive or binding legal effect.
- Opinion No. 1, 29 Nov. 1991.
- Notably, the Badinter Commission – like the Montevideo Convention – identified “the effects of recognition
by other states as purely declaratory”. Opinion No. 1, supra. This further reinforces the view that U.N. General Resolution 67/19 is an aspiration, and recommendatory purely declaratory statement that lacks preclusive or binding effect. Therefore, the recognition of a “State of Palestine” for the limited purpose of according it a nonmember status within the United Nations does not provide a sound legal basis for accession to the Rome Statute under Article 125 or as a basis for the exercise of jurisdiction under Article 12.
- See Badinter Commission opinions.
- Prosecutor v. Slobondan Milosevic, Case No. IT-02-54-T, Decision on Motion for Judgement of Acquittal, ¶86 (Int’l Crim. Trib. for the Former Yugoslavia, 16 June 2004).