Israel & the International Criminal Court

"...B. The Legal Basis...67. In these circumstances, the Chamber considers it appropriate to determine whether article 19(3) of the Statute is applicable. Specifically, the Chamber must determine whether, in relation to an investigation that has, in principle, already been initiated by the Prosecutor, a ruling on a question of jurisdiction may be sought and issued on the basis of article 19(3) of the Statute either in the situation or once a case arises from that situation. In this regard, the Chamber recalls that the legal texts of the Court draw the following distinction between a situation and a case: Situations, which are generally defined in terms of temporal, territorial and in some cases personal parameters, [...] entail the proceedings envisaged in the Statute to determine whether a particular situation should give rise to a criminal investigation as well as the investigation as such. Cases, which comprise specific incidents during which one or more crimes within the jurisdiction of the Court seem to have been committed by one or more identified suspects, entail proceedings that take place after the issuance of a warrant of arrest or a summons to appear.[242]
68. The Chamber considers that a ruling on a question of jurisdiction pursuant to article 19(3) of the Statute may be sought and issued before a case emanates from a situation. As specified below, it has arrived at this conclusion on the basis of an interpretation of this provision in accordance with the ordinary meaning to be given to its terms in their context and in the light of the Statute's object and purpose.
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C. The Merits
87. Having determined that article 19(3) of the Rome Statute is applicable in the present proceedings, the Chamber will now turn to the merits of the Prosecutor's Request. More specifically, the Chamber will first determine whether Palestine can be considered '[t]he State on the territory of which the conduct in question occurred' within the meaning of article 12(2)(a) of the Statute (the 'First Issue'). Thereafter, the Chamber will delineate the territorial jurisdiction of the Court in the present Situation (the 'Second Issue').
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1. The First Issue
89. With regard to the First Issue arising from the Prosecutor's Request, the Prosecutor's primary position is that 'Palestine is a "State" for the purpose of article 12(2)(a) because of its status as an ICC State Party'.[FN. 262] The Prosecutor further indicates that, '[a]gainst this position, it has been argued that the term "State" should be defined in the Rome Statute in accordance with its ordinary meaning and general rules of international law governing Statehood'.[FN.263]
90. Article 12 of the Statute contains the alternative preconditions under which the Court may exercise jurisdiction: the Court's ratione loci jurisdiction under article 12(2)(a) or its ratione personae jurisdiction under article 12(2)(b). Regarding the former, the Court may exercise its jurisdiction in relation to '[t]he State on the territory of which the conduct in question occurred'.
91. The Chamber must therefore assess whether Palestine can be considered 'the State on the territory of which the conduct in question occurred' within the meaning of article 12(2)(a) of the Statute. To answer this question, the Chamber shall, pursuant to article 31(1) of the Vienna Convention,[FN. 264] interpret article 12(2)(a) in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the object and purpose of the Statute.
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109. In light of the foregoing, the Chamber finds that, in accordance with the ordinary meaning given to its terms in their context and in the light of the object and purpose of the Statute, the reference to '[t]he State on the territory of which the conduct in question occurred' in article 12(2)(a) of the Statute must be interpreted as a reference to a State Party to the Statute.
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112. Accordingly, in the view of the Chamber, Palestine acceded to the Statute in accordance with the procedure defined by the Statute and, in addition, the Assembly of States Parties has acted in accordance with Palestine's accession.[FN. 295] In view of its accession, Palestine shall thus have the right to exercise its prerogatives under the Statute and be treated as any other State Party would. Moreover, Palestine's accession has not been challenged under article 119(2) of the Statute.[FN. 296] Palestine is therefore a State Party to the Statute, and, as a result, a 'State' for the purposes of article 12(2)(a) of the Statute. These issues have been settled by Palestine's accession to the Statute.

113. In order to avoid any misunderstanding, the Chamber wishes to underline that these findings are without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court's jurisdiction. In particular, by ruling on the territorial scope of its jurisdiction, the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.
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2. The Second Issue
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123. The Chamber considers that, in light of the broad remit of the Appeals Chamber's determination, it must also ensure that its interpretation of article 12(2)(a) of the Statute, in conjunction with articles 125(3) and 126(2) of the Statute, is consistent with internationally recognised human rights. More specifically, the Chamber is of the view that the aforementioned territorial parameters of the Prosecutor's investigation pursuant to articles 13(a), 14 and 53(1) of the Statute implicate the right to self-determination. Accordingly, it is the view of the Chamber that the above conclusion – namely that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967 on the basis of the relevant indications arising from Palestine's accession to the Statute – is consistent with the right to self-determination.

3. The Oslo Accords
124. For the sake of completeness, the Chamber will briefly address the issue of thein conjunction with articles 125(3) and 126(2) of the Statute, is consistent with internationally recognised human rights. More specifically, the Chamber is of the view that the aforementioned territorial parameters of the Prosecutor's investigation pursuant to articles 13(a), 14 and 53(1) of the Statute implicate the right to self-determination. Accordingly, it is the view of the Chamber that the above conclusion – namely that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967 on the basis of the relevant indications arising from Palestine's accession to the Statute – is consistent with the right to self-determination.
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129... the Chamber finds that the arguments regarding the Oslo Agreements in the context of the present proceedings are not pertinent to the resolution of the issue under consideration, namely the scope of the Court's territorial jurisdiction in Palestine. The Chamber considers that these issues may be raised by interested States based on article 19 of the Statute, rather than in relation to a question of jurisdiction in connection with the initiation of an investigation by the Prosecutor arising from the referral of a situation by a State under articles 13(a) and 14 of the Statute. As a consequence, the Chamber will not address these arguments.

4. Final Considerations
130. As a final matter, the Chamber finds it appropriate to underline that its conclusions in this decision are limited to defining the territorial parameters of the Prosecutor's investigation in accordance with the Statute. The Court's ruling is, as noted above,[FN. 329] without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court's jurisdiction. In particular, by ruling on the territorial scope of its jurisdiction, the Court is neither adjudicating a border dispute under international law nor prejudging the question of any future borders. ... FOR THESE REASONS, THE CHAMBER HEREBY FINDS that Palestine is a State Party to the Statute; FINDS, by majority, Judge Kovács dissenting, that, as a consequence, Palestine qualifies as '[t]he State on the territory of which the conduct in question occurred' for the purposes of article 12(2)(a) of the Statute; and FINDS, by majority, Judge Kovács dissenting, that the Court's territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem."

->International Criminal Court "Judge Peter Kovacs' Partly Dissenting Opinion", February 5, 2021:

"...372. ... the answer to the Prosecutor's Request is, in my view, as follows:
The geographical scope of application of the Prosecutor's competence to investigate covers the territories of the West-Bank, East-Jerusalem and the Gaza strip but – under the actual legal coordinates and with the exception of the hypothesis of article 13(b) of the Rome Statute – subject to due consideration of the different legal regimes applied in areas A, B, C and East Jerusalem according to the Interim agreement (and in particular according to its article XVII), Annex IV attached thereto (and in particular according to the dispositions under rules 1(a), [FN. 600]1(c), [FN. 601] (2), [FN. 602] (4)[FN. 603] et (7)[FN. 604] of Article I) and other subsequent Israeli-Palestinian agreements adopted on this basis, which could eventually imply the duty to follow the rules of article 12(3) of the Rome Statute and the utility of profiting from the possibility stipulated in article 87(5) of the Rome Statute.
373. Such a formula is certainly not easy to understand or to apply and admittedly, it could have several practical interpretations.
374. From a practical point of view, I may give the following additional explanations. When there is no Security Council referral in conformity with article 13(b) of the Rome Statute, the geographical scope of the ICC jurisdiction, according to the applicable legal provisions, is as follows:
i. As to areas A and B, and taking into account rule 1(a) of article I of Annex IV to the Interim Agreement, [FN. 605] the Prosecutor may proceed to investigate. However, it would be useful to conclude in advance an agreement with Israel under article 87(5)(a) of the Statute in order to secure the optimal conditions for the missions and investigations. If and when the Prosecutor concludes that her investigations have been successful and she has identified specific individuals as alleged perpetrators who are not covered by the Israeli-Palestinian competence transfer pursuant to the Oslo Accords, the Prosecutor cannot pursue the investigations against these individuals until the conditions of article 12(3) of the Statute are met, as outlined above, in paragraph 371;
ii. For cases falling under the scope of rules 1(c), [FN. 606] (2), [FN. 607] (4)[FN. 608] and (7)[FN. 609] of article I of Annex IV to the Interim Agreement, the following rules should be observed: if the agreement contracted under article 87(5) of the Statute does not provide a clear resolution to an actual dispute, the solution should be looked for in the application of conditions settled in article 12(3) of the Statute;
iii. As far as area C and East-Jerusalem are concerned, and taking into account the Oslo Accords, the Prosecutor may proceed to investigate only if the conditions of article 12(3) of the Statute are met, except under the circumstances described in rule 1(b) of article of Annex IV to the Interim Agreement; [FN. 610]
iv. All of the above references to the Interim Agreement should be understood in conformity with the subsequent Israeli-Palestinian agreements adopted on this basis.
375. I am convinced that this is the solution that can be drawn from the applicable legal provisions and that can be matched with the principles of nemo plus iuris transferre potest quam ipse habet and pacta tertiis nec nocent, nec prosunt, both of which are elementary rules of international law and at the same time form part of the general principles of law on which the complementary principle of article 21(1)(c) of the Statute is based.
376. If the famous and so often discussed Monetary Gold principle[FN. 611] is at all applicable to the present issue[FN. 612] – depending, for example, on the interpretation of what is the 'very subjectmatter' in the current proceedings and on the future relevance of exceptions recognized by international jurisprudence [FN. 613] – it would be compatible with the above answer. I do not consider, however, that a detailed analysis of the applicability of the Monetary Gold principle would be a sine qua non condition of issuing this ruling.
377. This also conforms to the dicta of Pre-Trial Chamber I (with the same composition) in the First Rohingya Decision on the objective legal personality of the Court,[FN. 614] which also noted that 'the objective legal personality of the Court does not imply either automatic or unconditional erga omnes jurisdiction. The conditions for the exercise of the Court's jurisdiction are set out, first and foremost, in articles 11, 12, 13, 14 and 15 of the Statute.'[FN. 615]
378. I am convinced that without the cooperation of the directly interested States in the present and truly complicated, over-politicized situation, the Prosecutor will have no real chance of preparing a trial-ready case or cases. This should go hand in hand with national prosecutions when needed and according to the rule on complementarity.
379. All this should be understood within the framework of the famous Lac Lanoux arbitration[FN. 616] rule: 'there is a general and well-established principle of law according to which bad faith is not presumed' or 'il est un principe général de droit bien établi selon lequel la mauvaise foi ne se présume pas.'..."

->International Criminal Court "Partly Separate Opinion of Judge Perrin De Brichambaut", February 5, 2021

"...IS THIS DECISION OF A POLITICAL NATURE ?
No. The issues raised by the Prosecutor in its Request clearly raised legal questions on the Court's jurisdiction which required a legal answer by the Chamber.
The Prosecutor addressed a legal issue to the Chamber, namely whether 'the "territory" over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank including East Jerusalem, and Gaza'. The Chamber provided a legal answer based on the strict interpretation of the Rome Statute. It emphasised that the issue of the territorial jurisdiction of the Court would have to be further examined when the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear. The Chamber declined to address the arguments regarding the Oslo Accords in the context of the present proceedings and indicated that these issues may be raised at a later stage of the proceedings...
WHY WAS THERE A DISSENTING OPINION AND HOW DOES THIS IMPACT THE DECISION?
In the absence of consensus, a Chamber may adopt its decision by majority. A judge who does not agree with the majority can attach a dissenting, or partially dissenting, opinion. A dissenting opinion lays out the position of the dissenting judge, but has no legal authority as such. In the current situation, the decision was adopted by 2 of the 3 Pre-Trial judges. Judge Péter Kovács appended a partly dissenting opinion, in which he disagrees on the fact that Palestine qualifies as '[t]he State on the territory of which the conduct in question occurred' for the purposes of article 12(2)(a) of the Rome Statute, and that the Court's territorial jurisdiction in the Situation in Palestine extends – in a quasi-automatic manner and without any restrictions – to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem...
HOW DOES THE ICC ANSWER THE COMMENTS OF PRIME MINISTER BENJAMIN NETANYAHU AND OTHER STATES?
The Court is an independent and impartial judicial institution crucial for ensuring accountability for the gravest crimes under international law. The Court acts strictly within the legal framework and the jurisdictional competence bestowed upon it by the Rome Statute. The ICC, as a court of law, will continue to do its independent work, in accordance with its mandate and the overarching principle of the rule of law."

"Today, I confirm the initiation by the Office of the Prosecutor ('Office') of the International Criminal Court ('ICC' or the 'Court') of an investigation respecting the Situation in Palestine. The investigation will cover crimes within the jurisdiction of the Court that are alleged to have been committed in the Situation since 13 June 2014, the date to which reference is made in the Referral of the Situation to my Office.

How the Office will set priorities concerning the investigation will be determined in due time, in light of the operational challenges we confront from the pandemic, the limited resources we have available to us, and our current heavy workload. Such challenges, however, as daunting and complex as they are, cannot divert us from ultimately discharging the responsibilities that the Rome Statute places upon the Office.

Under the Rome Statute, where a State Party has referred a situation to the Office of the Prosecutor and it is determined that a reasonable basis exists to commence an investigation, the Office is obliged to act. As a first step, the Office is required to notify all States Parties and those States which would normally exercise jurisdiction over the crimes concerned about its investigation. This permits any such State to request the Office to defer to the State's relevant investigation of its own nationals or others within its jurisdiction in relation to Rome Statute crimes referred to in the notification (subject to possible Pre-Trial Chamber review).
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In the current Situation, however, there is a reasonable basis to proceed and there are admissible potential cases. Our assessment will remain ongoing in the context of the investigation to allow for a continuing assessment of actions being taken at the domestic level in accordance with the principle of complementarity.

To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes. In meeting this responsibility, the Office focuses its attention on the most notorious alleged offenders or those alleged to be the most responsible for the commission of the crimes...."