On August 6, the United States submitted “written observations” to the International Criminal Court (ICC) concerning the Prosecutor’s investigation of the “Situation in the State of Palestine.” In that submission, the United States made two principal arguments. First, the United States argued that it is premature for the Pre-Trial Chamber to issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant because ICC Prosecutor Karim A.A. Khan, QC has not provided Israel with sufficient notice of evidence supporting his extraordinary allegations that those officials joined a common plan to implement a state policy of starving the civilian population of Gaza and of attacking civilians and aid workers in order to achieve that starvation. Second, the United States made a more fundamental objection that the ICC lacks jurisdiction to try Israeli nationals for conduct in the Gaza Strip because Palestine is not a State that itself has the power to exercise prescriptive, adjudicative, or enforcement jurisdiction over such persons.
On August 23, Prosecutor Khan filed a submission in response to the dozens of briefs filed by other parties, including that of the United States.
Almost one month later, on September 20, Israel filed two briefs with the ICC. On September 23, it refiled those briefs with modified titles, to conform to the official nomenclature the ICC is using (“Situation in the State of Palestine”). (Many other parties had to make similar corrections upon refiling.) In one of those filings by Israel, the government argues, similarly to the United States, that the Prosecutor must provide further notice to Israel of the nature of the alleged offenses before the Court can issue the requested arrest warrants. In the other filing, Israel argues that the Court lacks jurisdiction to investigate and try Netanyahu and Gallant for the alleged offenses. In other words, Israel has now raised the same two principal arguments made by the United States (although Israel’s arguments differ slightly in some respects, as I discuss below). Prosecutor Khan filed a response on September 27 in which he argues that Israel’s objections are premature and that Israel doesn’t have standing to raise the jurisdictional objection.[1] Khan did not address the merits of Israel’s jurisdictional arguments, noting only that “[t]he Prosecution stands ready to provide further submissions should the Chamber require it.”
In Part I of this two-part series, I analyzed the U.S. objection that arrest warrants would be premature. (I’ve recently updated Part I to account for Israel’s submission on that question.) In this Part II, I discuss the United States’s and Israel’s jurisdictional objections.
I should make a couple of things clear at the start.
First, I’m not focusing on these arguments merely because the United States and Israel have offered them. After all, those two States (unlike, say, Germany) aren’t even parties to the Rome Statute that created the ICC. Rather, I’m addressing these two arguments because they raise the most formidable issues confronting the Pre-Trial Chamber, and because the jurisdictional argument, in particular, is one the ICC will almost certainly need to address eventually if it issues arrest warrants against Netanyahu and/or Gallant. The discussion will also inform U.S. readers who haven’t followed the ICC proceedings closely to become familiar with just what their government is, and is not, arguing with respect to ICC jurisdiction.
Second, it’s not my intent to opine on how the Court should or must resolve the relevant jurisdictional questions. Indeed, I am not certain about what the correct or wisest course of action for the Court is and, in any event, I concede that I don’t have any particular expertise when it comes to these questions. (I have, however, learned a great deal in recent months from several scholars who are much more learned in such matters than I am, and I’m grateful for their insights.) My principal objectives are, instead, to try to explicate for non-expert readers what the jurisdictional arguments are—and what they are not; to make some modest predictions that the Pre-Trial Chamber is not likely to adopt certain arguments; and to offer readers a sense of why the Court’s ultimate resolution of the jurisdictional objections will be so difficult.
As I explain in greater detail in the body of this essay:
(i) It is possible (perhaps likely) that the Pre-Trial Chamber will agree with Prosecutor Khan that it should not address the jurisdictional issues at this stage of the proceedings. There are, however, several reasons why the panel might instead conclude that the better course is to address the arguments now, before or at the time the court issues any warrants for the arrest of Israeli officials.
(ii) The jurisdictional objections in question do not include certain arguments that many readers might be most familiar with—namely, the previously held (but now abandoned) U.S. view that the ICC categorically lacks jurisdiction to try nationals of States that are not parties to the Rome Statute, or the argument that the ICC is stripped of jurisdiction merely because a territorial state does not exercise such jurisdiction (e.g., if its domestic law or bilateral treaty commitments preclude it from doing so). The (narrower) arguments the United States and Israel are now making are, instead, that the ICC does not have jurisdiction (i) because Palestine is not a State at all as a matter of international law (an argument that Israel, but not the United States, offers in its brief) and (ii) because, at a minimum, Palestine is not, and has never been, a State entitled under international law to prescribe, adjudicate, or enforce criminal law against Israeli nationals.
(iii) The “best,” or correct, answers to those controversial questions are anything but obvious—which likely explains why two of the three judges on a differently constituted panel of the Pre-Trial Chamber chose not to answer them back in February 2021, even after they had been exhaustively briefed. (The third judge on the 2021 panel, Judge Péter Kovács, is the only ICC judge who has opined on the the merits of these jurisdictional arguments. He concluded that as a matter of international law Palestine is not a State with the authority to prescribe law for the conduct of Israeli nationals, and that therefore the ICC lacks jurisdiction over those individuals.)
(iv) Whatever the merits of the jurisdictional arguments might be, it is nevertheless difficult to imagine the ICC will conclude that Palestine is not a State, primarily because such a holding would effectively disregard the decisions of 143 nations, including well over half of the States-Parties to the Rome Statute, to recognize Palestinian statehood. It is much more difficult, however, to predict how the Court will address the United States’ and Israel’s somewhat narrower argument that, whether or not it is now a State, Palestine has never had the legal authority to prescribe, adjudicate, or enforce law in Gaza with respect to Israeli nationals—in which case, according to the United States and Israel, the ICC likewise lacks jurisdiction to try Netanyahu and Gallant for the starvation-related alleged crimes under the Rome Statute. The Court will likely, and understandably, be uneasy about either answer to that question, and it is guesswork for anyone to predict how the Court will resolve it.
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In the current circumstances (i.e., in the absence of Israeli consent or a U.N. Security Council referral), the ICC can have jurisdiction to try Netanyahu and Gallant only pursuant to Article 12(2)(a) of the Rome Statute, which provides that “the Court may exercise its jurisdiction” if “[t]he State on the territory of which the conduct in question occurred” is a “[P]art[y] to this Statute.”
As explained in further detail below, Israel argues that this condition is not satisfied because Palestine is not a “State” and that therefore Gaza is not a territory within a State (and, more broadly, that Palestine therefore cannot become a “Party” to the Rome Statute). The United States agrees with Israel that Palestine is not a State under international law, but the United States has not pressed that argument in its submission to the Pre-Trial Chamber.
The United States’s argument, instead (¶ 12)—which Israel also makes in the alternative to its more fundamental “Palestine is not a State” argument—is that even assuming arguendo that Palestine is a State “capable of acceding to the Rome Statute,” the ICC still would not have jurisdiction because “the Palestinian Authority (PA) could not delegate to the Court criminal jurisdiction over Israeli nationals that the PA never had.” As that quotation from the U.S. submission suggests, this argument depends upon two subsidiary propositions that benefit from a bit of unpacking.
1. The Proposition that the ICC May Exercise Only Derivative, or “Delegated” Authority that the Territorial State Itself Has Authority to Exercise
The first essential predicate of the U.S. argument (and Israel’s back-up argument) is that Article 12(2)(a) empowers the ICC to exercise jurisdiction over crimes within the territory of a qualifying State Party only if the State Party itself has authority to (at a minimum) prohibit that conduct. In other words, the ICC’s jurisdiction in such cases is merely derivative of authority that the territorial State could itself have exercised. The way this idea is commonly characterized is that the ICC can exercise jurisdiction under Article 12(2)(a) only where the territorial State Party has “delegated” or “transferred” it to the Court, and “no one can give what they do not have” (“nemo dat quod non habet”).
Several parties that have submitted observations to the Pre-Trial Chamber, including Spain (see ¶¶ 8-9) and Ireland (see ¶¶ 18-22), have taken issue with this first U.S. proposition. They insist that the ICC’s authority in this sort of case is not a “delegated” power and therefore the Court is not limited to the jurisdiction Palestine itself could have exercised. See also, for example, the submissions of the Centre for European Legal Studies on Macro-Crime (¶¶ 4-8), the Open Society Justice Initiative, et al. (¶ 15), the Palestine Independent Commission for Human Rights (¶¶ 7 and 9), and Adil Haque (¶¶ 13-18).
In a recent article, Professor Leila Sadat offers the most comprehensive defense of this view rejecting the “delegation” theory of the ICC’s jurisdiction, which she summarized in a very helpful post on Just Security last year. I commend both the article and the post to readers.
Professor Sadat might be correct that States can establish an international court with jurisdiction to hear cases that international law would prohibit the States themselves from adjudicating. The more difficult question here, however, is whether that describes what the negotiators of the Rome Statute and/or the ratifying States Parties intended with respect to the ICC. And the answer to that question depends, in large measure, on how best to understand the effect of a key South Korea proposal on June 18, 1998 that resolved a disagreement among the parties about the Court’s jurisdiction. Professor Sadat reads that June 18 compromise as having established the possibility of “non-delegated” ICC jurisdiction. Many others, by contrast, understand that same proposal to have precluded such jurisdiction. As U.S. retired ambassadors Todd Buchwald and Stephen Rapp explained in their 2020 filing with another panel of the Pre-Trial Chamber in the Palestine matter, the more commonly held view is that “[t]he decision that the ICC would operate on the basis of delegated jurisdiction was a fundamental element of the package of compromises that led to the conclusion of the negotiations of the Rome Statute in 1998.” See also the many sources cited in footnote 82 of Israel’s submission. For what it’s worth, I do not think the published account of the Korea “compromise” in the travaux préparatoires offers a clear answer one way or the other.
I suppose it is possible the ICC might ultimately reject the “derivative jurisdiction” argument that the ICC can exercise Article 12(2)(a) jurisdiction only if the territorial State had an analogous prescriptive authority.[2] Such a ruling, however, might undermine the Court’s perceived legitimacy in many quarters. As Buchwald and Rapp wrote to the Pre-Trial Chamber in 2020:
Court supporters have for years relied on this principle [that the entity acting under Article 12 must actually be a State, and that it must actually possess the jurisdiction that it purports to delegate to the ICC] to counter assertions—including assertions from various audiences in the United States—that the exercise of ICC jurisdiction over nationals of States that are not parties to the Rome Statute would violate international law. … If the fact that an entity is referred to as a State is deemed sufficient, without regard to whether it actually possesses the requisite legal competencies, it will belie that the ICC is exercising in a collective way only the territorial jurisdiction that States could exercise themselves. The legs will be cut out from the arguments—long used by United States supporters of the Court—to counter contentions that jurisdiction over nationals of States that are not Rome Statute parties is unlawful.
Not surprisingly, then—and most significantly for present purposes—Khan himself, in his response brief, appears to concur with the majority (and U.S./Israeli) view that “the Court’s jurisdiction under article 12 of the Statute is defined by the territorial jurisdiction of its States Parties as it exists under international law” (see ¶¶ 75, 81). Likewise, in a proceeding concerning the Rohingya in Myanmar, Prosecutor Fatou Bensouda (Khan’s predecessor) asserted in 2018 that “article 12(2)(a) itself functions to delegate to the Court the States Parties’ own ‘sovereign ability to prosecute’ article 5 crimes” (quoting an essay written by William Schabas and Giulia Pecorella). In light of these concessions and the considerations noted above, I think it is unlikely, albeit not inconceivable, that the Pre-Trial Chamber will take issue with the first, “delegation” predicate of the United States’s jurisdictional argument, if and when it adjudicates that argument.
2. The Argument that Palestine is not a State Authorized to Prescribe Unlawful Conduct of Israeli Nationals in Gaza
The second key predicate of the U.S. argument, as stated in paragraph 15 of the United States’s submission, is that the Palestinian Authority itself—the governing entity that represented Palestine when it purported to accept ICC jurisdiction in 2015 for crimes allegedly committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”—“has never had the ‘sovereign ability to prosecute’ any crimes committed by Israeli nationals within the territory described.” The U.S. elaborates upon this point in paragraph 12 (emphasis added):
Even putting aside other issues, such as whether the “State of Palestine” is capable of acceding to the Rome Statute, the Palestinian Authority (PA) could not delegate to the Court criminal jurisdiction over Israeli nationals that the PA never had. The Palestinians have only ever exercised those powers transferred to the institutions of the PA by agreement with Israel, which at the time of the [Oslo] Accords had been continuously administering the territory since 1967. Jurisdiction with respect to Israeli nationals for alleged criminal acts has never been obtained by any Palestinian governance authority. The United States respectfully submits that the Chamber must take this fact into account in considering whether it is “exercis[ing] its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within the confines imposed by international law and the Statute.” (quoting Bangladesh/Myanmar, PTC Decision on Jurisdiction, ICC-RoC46(3)-01/18-37, ¶ 70).
Before I explain the basis for this argument (and describe the Prosecutor’s responses to it), it is important to distinguish this argument from several related or similar jurisdictional arguments the United States is not making to the Pre-Trial Chamber:
(i) The United States is not arguing that the ICC categorically lacks jurisdiction over the nationals of a non-State Party such as Israel (or the United States itself, or Russia). To be sure, the United States did make something akin to that much broader argument in the past, but it was never very tenable, and it is no longer the U.S. Government’s view. That explains why the United States now agrees, for example, that the ICC has jurisdiction to try Russian nationals for Rome Statute crimes, despite the fact that Russia is not a party to the treaty. See, e.g., Secretary of State Blinken QFR for Senate Appropriations Committee (Mar. 22, 2023 hearing); Remarks of Beth Van Schaack, U.S. Ambassador-at-Large for Global Criminal Justice, at 22d Session of the Assembly of States Parties of the ICC (Dec. 8. 2023) (commending the Court for its arrest warrants for Vladimir Putin and Maria Lvova-Belova); see also Press Briefing of Department of State Spokesperson Matthew Miller (May 20, 2024) (distinguishing the Court’s jurisdiction in the case of Russia from its lack of jurisdiction with respect to allegations against Israeli officials in Gaza).
Unfortunately, some in Washington continue to adhere to the groundless, broader argument. Indeed, it is the legal predicate for H.R. 8282, the indefensible ICC sanctions legislation the House of Representatives approved on June 4. Section 2(1) of the bill provides that “[t]he United States and Israel are not parties to the Rome Statute or members of the International Criminal Court (ICC), and therefore the ICC has no legitimacy or jurisdiction over the United States or Israel.” That’s simply wrong. It is not the Biden Administration’s view (nor the congressional view expressed in recent legislation supporting the ICC prosecution of Russian war crimes in Ukraine) and, more to the present point, it’s not the argument the United States is making to the ICC in relation to the Palestine investigation.
(ii) Nor is the United States arguing that the ICC lacks jurisdiction merely because Palestine does not have “adjudicative” or “enforcement” jurisdiction with respect to Israeli nationals in Gaza. As I understand the United States’s position, if Palestine were a State with “prescriptive” authority to establish the governing criminal law that applies to Israeli nationals in Gaza, that would be sufficient to establish ICC jurisdiction over the same. The United States’s view, however, is that there is no Palestinian State with even such prescriptive authority, as a matter of international law or otherwise, to establish law in Gaza that regulates the conduct of Israeli nationals.
(iii) Most importantly, the United States is not arguing that the ICC lacks jurisdiction merely because Palestine has refrained from exercising jurisdiction it otherwise has over Israeli nationals in Gaza or because Palestine has in some manner ceded such authority to Israel pursuant to a bilateral agreement (i.e., the Oslo Accords). The U.S. view here, in other words, is not akin to the argument it made at one time about the ICC’s alleged lack of jurisdiction to try U.S. forces in Afghanistan. That earlier U.S. argument was predicated on the idea that because Afghanistan itself could not try U.S. military personnel by virtue of Status of Forces Agreements (SOFAs) between the U.S. and Afghanistan, such self-imposed limitations carry over to the ICC, as well.
The United States is not making such an argument here—and, if it did, it would almost certainly be unsuccessful. Prosecutor Khan is right that the ICC’s jurisdiction is not cabined by any limitations a State Party may undertake with respect to the exercise of authority that it has by virtue of its sovereignty. A State may, for example, agree in a treaty to refrain from prosecuting a particular category of persons without affecting the fact that it has properly delegated that same authority to the ICC to adjudicate criminal cases occurring in its territory. In such a case, the ICC has greater authority than what the State itself has the capacity to exercise at that particular time. As Roger O’Keefe elaborates:
While a state may undertake by treaty to refrain from exercising one or more of these rights, it still retains them and is competent to confer them in their plenitude on the ICC. True, the state will be obliged to the extent of its other treaty undertaking to refrain from the exercise of these rights through the medium of the [ICC]. But Article 98 of the Rome Statute provides a purpose-built mechanism to prevent the Court from obliging a State Party to act in breach of a treaty undertaking not to exercise one or more of its jurisdictional rights. In short, the Court may not ride roughshod over a variety of other treaty-based jurisdictional arrangements agreed by States Parties. The Court remains competent, however, to entertain proceedings in such cases, whatever this may mean for breach by the state of its other treaties.
To similar effect, in 2018, Beth Van Schaack wrote this about the ICC’s jurisdiction to try U.S. forces in Afghanistan: “Afghanistan retained all its jurisdictional competencies; it simply agreed [in SOFAs] to refrain from exercising one or more of them in connection with a discrete class of potential defendants. … Because Afghanistan retained these competencies, it could still delegate them all to the Court upon ratifying the Rome Statute.”
The United States does not argue otherwise in its submission to the Pre-Trial Chamber in the Palestine matter. The issue raised by the United States is not whether Palestine has undertaken competing obligations, but instead whether Palestine ever had the jurisdiction it has now asked the ICC to exercise.
Accordingly, and as elaborated further below, the United States is not arguing that when Palestine agreed to the Oslo Accords it thereby relinquished or waived a sovereign power to prescribe and enforce the law in Gaza that it previously had (which it could then delegate to the ICC). The United States’s view is, instead (see ¶¶ 11-15), that there was no State of Palestine with sovereign authority to prescribe law for Israeli nationals even before the Oslo Accords and that neither the Accords nor any other later developments have changed that pre-existing state of play.
The United States’s jurisdictional argument thus crucially depends upon its assertion that there has never been a State of Palestine that has had “prescriptive, adjudicative, or enforcement” authority with respect to the conduct of Israeli nationals in Gaza. That is Israel’s view, as well—perhaps best articulated in a memorandum the Israel Office of the Attorney General issued in December 2019:
[T]he Palestinians did not have any jurisdiction—prescriptive, adjudicative or enforcement—prior to entering into the bilateral agreements with Israel. Jurisdiction over Israeli nationals … is thus not something the Palestinian entity previously possessed and then subsequently agreed to limit the exercise thereof: it never had it to begin with, and certainly does not have it now, either in law or in fact. Even an expansive approach to delegation that emphasizes the possession of prescriptive jurisdiction where the exercise of adjudicative and enforcement jurisdiction is curtailed … would thus still run up against the criminal jurisdictional capacity held by the Palestinian entity. … As the Palestinian entity has no criminal jurisdiction over … Israeli nationals …, it is therefore legally impossible for it to delegate any such jurisdiction to the Court: nemo plus iuris transferre potest quam ipse habet (no one can transfer a greater right than he himself has). [Therefore,] the fundamental precondition to the Court’s jurisdiction cannot be met.
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Although the United States and Israel both make this argument, they offer slightly different factual predicates for it. Israel’s broader assertion is that Palestine is not a State at all for purposes of international law—and therefore that it cannot be a “State on the territory of which the conduct in question occurred” for purposes of ICC jurisdiction under Article 12(2)(a). The narrower proposition offered by the United States (and by Israel, in the alternative) is that even assuming arguendo that Palestine is a State, its government has never had authority to prescribe conduct for Israeli nationals, even in a territory, such as Gaza, over which it has been afforded some degree of control. I’ll address these two assertions in turn.
a. Israel’s Argument that Palestine is Not a State
As noted above, Israel’s lead jurisdictional argument is that Palestine is not a State at all under international law and that therefore it cannot be a “State on the territory of which the conduct in question occurred” for purposes of ICC jurisdiction under Article 12(2)(a). If this argument were correct, it would mean that—absent a U.N. Security Council referral—the ICC lacks jurisdiction to try virtually any individuals for conduct in Gaza, whether they are Israeli nationals or, for example, members of Hamas.
As many readers know, the question whether Palestine has in recent years become a State as a matter of international law is complicated and deeply contested. A detailed version of the argument against Palestinian statehood can be found in the brief Professor Malcolm Shaw filed with the ICC Pre-Trial Chamber in March 2020. If you are interested in understanding the argument, I strongly recommend that you read that submission. James Crawford reached a similar conclusion at pages 442-448 of his landmark treatise The Creation of States in International Law. Although that was published back in 2007 and so does not account for more recent developments, it, too, is well worth reading.
The United States’ official view has long been that Palestine is not yet a State, though the Palestinian people have a right to establish one. Notably, however, the United States does not offer that broad argument in its recent submission—it relies, instead, on the more circumscribed argument discussed below that, at a minimum, there is no Palestinian State with the sovereign authority to prescribe law with respect to Israeli nationals.
On the other hand, Israel’s jurisdictional submission to the Pre-Trial Chamber on September 21 does assert the broader claim (¶ 63). That submission does not itself try to defend the assertion that Palestine is not a State—instead, Israel’s recent brief refers to Part D (pp. 16-32) of the 2019 memorandum of the Office of the Israel Attorney General, which sets forth the argument at greater length. If and when the Pre-Trial Chamber issues arrest warrants against Netanyahu and Gallant, they, too are likely to make that argument.
b. The U.S. and Israel Argument that Even If Palestine is a State, It Lacks “Competence” to Prescribe the Law Governing the Conduct of Israeli Nationals in Gaza
As noted above, the United States’s argument to the Pre-Trial Chamber is that whether or not Palestine is treated as a State that includes Gaza for other international law purposes, no government of that State has ever had sovereign authority to prescribe conduct for Israeli nationals. In paragraph 12 of its submission, the United States notes in summary fashion that there wasn’t a Palestinian state before 1967; that Israel exercised prescriptive lawmaking authority in Gaza between 1967 and the Oslo Accords; and that although the Oslo Accords conferred a great deal of authority upon the Palestinian Authority, that conferral expressly did not include any power to prescribe criminal law with respect to Israeli nationals in Gaza (or anywhere else). Therefore, Palestine (or the Palestinian Authority) has never had prescriptive authority with respect to such persons that it could have delegated to the ICC.
To fill in the United States’s very summary account just a bit (and even this is quite oversimplified): The Ottoman Empire was the last State to have clear sovereign authority over the territory, which it relinquished by (at the latest) 1923, in the Treaty of Lausanne. From 1917 to 1948, Great Britain administered the territory; Egypt controlled it from 1948 to 1967; and during the period from 1967 until the implementation of the Oslo Accords in the 1990s, Israel effectively controlled the Strip as an occupying power. None of these other States, however, governed Gaza as a sovereign. As Israel puts it (¶ 83 of its submission), sovereignty over the territory remained “in abeyance.”
It is undisputed that no Palestinian authority governed the Gaza Strip until the Oslo Accords themselves—a series of agreements between Israel and the PLO—created the Palestinian Authority (PA) and conferred upon it certain governmental authorities in Gaza (and in parts of the West Bank), purportedly on an “interim” basis. Most importantly for purposes of the U.S. and Israeli arguments, Article I of the second of the Oslo Accords, the 1995 “Interim Agreement, provided that “Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military government and its Civil Administration” to the PA but that “Israel shall continue to exercise powers and responsibilities not so transferred.” Article XVII, in turn, provided that the “territorial jurisdiction” of the Palestinian Authority “shall encompass Gaza Strip territory” (except for certain settlements and military installations that are no longer present), and that in the covered Gaza areas the “territorial and functional jurisdiction of the [PA] will apply to all persons, except for Israelis, unless otherwise provided in this Agreement” (emphasis added). Of particular importance here, Annex IV, the “Protocol concerning Legal Affairs,” specified that “the criminal jurisdiction” of the PA “covers all offenses committed by Palestinians and/or non-Israelis in the Territory.” It further provided that “Israel has sole criminal jurisdiction over … offenses committed in the Territory by Israelis.” And the 1995 Agreement further provided that the PA may not exercise any functions involving external relations. See Omar M. Dajani, Stalled Between Seasons: The International Legal Status of Palestine during the Interim Period, 26 Denv. J. Int’l L. & Pol’y 27, 68 (1997).
Thus, as Omar Dajani wrote in 1997, id. at 69, the Interim Agreement “ultimately has more to do with local governance of the Palestinian population than with the development of Palestinian territorial autonomy,” id. at 69, and although the Palestinian Authority had “significant municipal authority over areas of the [West Bank and Gaza], it does not possess sovereignty over them in any practical sense,” id. at 84. Accordingly, “it would be difficult to characterize the PA as an independent entity.” Id.; see also id. (“Thus, the government of the population and territory of Palestine, the PA, lacks the independence necessary to consolidate Palestine’s legal status as a State.”).
Prosecutor Khan is right (see ¶ 74) that the Oslo Accords “cannot be understood as abandoning any aspect of the State of Palestine’s jurisdictional entitlements” that might have existed before the Accords (emphasis added). But neither the United States nor Israel (nor, as far as I know, any other party that submitted views to the Pre-Trial Chamber) is arguing that the Oslo Accords did anything to limit any existing sovereign authority of the Palestinian Authority (or the Palestinian people) to prescribe or enforce the law as to Israeli nationals in Gaza. Instead, the crucial premise of the U.S. and Israeli argument is that there was no Palestinian State that had any such sovereign “jurisdictional entitlements” before the Accords went into effect. Instead, the Accords both created the governing entity (the Palestinian Authority) and gave it certain substantial but circumscribed authorities to govern Gaza.
The importance of the Oslo Accords to the U.S./Israeli argument, then, is not that they required Palestine to relinquish any sovereign authority over Gaza, but, rather, that the authorities they created were not sufficient to satisfy the predicates for a Palestinian State under international law (Israel’s argument) and, in particular, that they did not confer upon the PA, or any other Palestinian entity, any power to prescribe (or enforce) the law governing Israelis, even as to conduct in or affecting Gaza (an argument made by Israel and the U.S.). See, e.g., ¶¶ 94-99 of Israel’s submission (“The Agreements cannot be seen simply as placing limitation on the Palestinians’ ability to exercise jurisdiction, but rather they are those which created and defined the existence of jurisdiction to begin with. … The Oslo Accords are the origin of criminal jurisdiction held by the Palestinians, and the nature of the jurisdictional provisions in the Agreements make clear that the scope of authority vested in the Palestinian authorities is not plenary.”).
The gist of this U.S./Israel argument, then, is this: Even if one assumes for the sake of argument that Palestine has, at some point since 1995, become a State that encompasses Gaza, it is the rare or special State in which prescriptive authority is circumscribed and does not extend to all persons acting in its territory. Therefore (or so the argument runs), even if Palestine may delegate some authority to the ICC to adjudicate crimes occurring in Gaza, Palestine does not have, and has never had, any prescriptive or enforcement authority to delegate to the international court with respect to crimes alleged to have been committed by Israeli nationals.
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The Prosecutor’s Responses
1. The “Res Judicata” Argument that the Court Already Has Resolved the Jurisdictional Question
In his brief responding to the dozens of parties who filed submissions with the Pre-Trial Chamber (filed before Israel submitted its memoranda but after the United States submitted its brief), Prosecutor Khan’s principal argument in response to the jurisdictional objection is that the Pre-Trial Chamber should treat the ICC’s jurisdiction as the “settled” “law of the case,” at least for purposes of his application for arrest warrants against Netanyahu and Gallant.
This argument is predicated upon an interlocutory jurisdictional decision the Pre-Trial Chamber issued on February 5, 2021. The occasion for that 2021 decision was a January 2020 request by Khan’s predecessor, Fatou Bensouda, for a jurisdictional ruling from the court. See Article 19(3) of the Rome Statute (“The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction ….”). Bensouda asked the court to issue such a preliminary ruling before she took any substantial steps in her investigation because “[t]he Prosecutor needs certainty as to the legal foundation of her (and the Court’s) activities in this situation” and so that “States Parties that receive requests for cooperation could comply with confidence and thereby avert the need to seek rulings on the legality of cooperation.” “[I]t would be ineffective and inefficient,” argued Bensouda, “to require States to cooperate and only later determine the legality of those requests.”
After receiving submissions from dozens of parties on the jurisdictional question, the Pre-Trial Chamber agreed (¶ 86) that it was appropriate to issue a jurisdictional ruling at such a preliminary stage in order “to place the present proceedings on a sound jurisdictional footing as early as possible,” particularly given that the Prosecutor’s “evolving investigation … is likely to be protracted and resource-intensive.” (The court was unanimous on this point of timing—see ¶ 1 of Judge Kovács’ separate opinion.)
On the merits, the court split 2-1, with Judges Marc Perrin de Brichambaut and Reine Alapini-Gansou in the majority and Judge Péter Kovács dissenting. The two-judge majority held that it had no choice but to treat Palestine as a “State Party” for purposes of Article 12 of the Rome Statute, and that the “territory” of Palestine for purposes of ICC jurisdiction under Article 12(2)(a) includes Gaza. The majority’s holding was not, however, based upon the Pre-Trial Chamber’s determination that Palestine is a State for purposes of general international law—the majority expressly and repeatedly declined to rule on the merits of that question (see ¶¶ 93, 102, 111)—nor upon any independent determination by the Pre-Trial Chamber that Palestine was otherwise legally eligible to be a “State Party” for Article 12 purposes, let alone that Palestine has prescriptive jurisdiction over Israeli nationals that it could delegate to the ICC.
Instead, the majority reasoned:
(i) that between January 2, 2015, when the United Nations Secretary-General “circulated Palestine’s instrument of accession among the States Parties,” and January 6, 2015, when the Secretary-General accepted that instrument, “no State Party except for Canada, manifested any opposition” (¶ 100[3]); see also ¶ 101 (noting that although seven States-Parties argued in 2020 that Palestine is not eligible to be a State Party, those States “remained silent during the accession process” and none of them challenged Palestine’s accession at that time or later);
(ii) that “following its accession, Palestine developed an active role in the work of the Assembly of State Parties,” without any objection from the States-Parties (¶ 100); see also ¶ 112 (noting that the Assembly of States Parties “has acted in accordance with Palestine’s accession”); and
(iii) that the Pre-Trial Chamber in 2021 had “no jurisdiction to review” the 2015 accession procedure and therefore could not “pronounce itself on the validity of the accession of a particular State Party” (¶ 102).
In other words, the majority in 2021 concluded that the question of the ICC’s jurisdiction, whatever its merits, had effectively already been answered—i.e., the jurisdiction had been established—by virtue of the inaction of the Assembly of States-Parties after Palestine submitted its instrument of accession in 2015, and that the Pre-Trial Chamber was precluded from revisiting that question in 2021.
Judge Kovács dissented. He did not take issue with the majority’s conclusion that Palestine had become a “State Party to the statute,” for purposes of Article 12(1), by virtue of its (accepted) accession—or, in any event, he saw “no reason or legal procedure in the Rome Statute to nullify ex post facto the Palestinian accession” (¶ 267). According to Judge Kovács, however, it did not follow that Palestine is an actual “State on the territory of which the conduct in question occurred” for purposes of Article 12(2)(a) (which is the condition for ICC jurisdiction here). That question, he insisted, depends upon whether Palestine is as a matter of international law a State with sovereignty over the territory in question—and Judge Kovács concluded that Palestine is not such a State. Judge Kovács is thus the only ICC jurist who has already opined on the key jurisdictional question raised by the United States—and he answered it in accord with the U.S. view.
Prosecutor Khan now argues (¶ 45) that the Pre-Trial Chamber’s February 2021 ruling itself “is functionally equivalent to res judicata and does not need to be revisited” in “the present ex parte context” (i.e., where the Prosecutor is the only party before the court).
The Pre-Trial Chamber might accept Khan’s argument and thus decline to address the United States’s and Israel’s jurisdictional arguments on the ground that its 2021 decision is controlling at least for now (i.e., for purposes of deciding whether to issue arrest warrants). One of the three judges on the Chamber panel, Judge Alapini-Gansou, was also one of the two judges in the Pre-Trial Chamber majority in 2021. She might be inclined to adhere to the temporary resolution she approved in 2021 at this stage of the proceedings, too. So might the two other judges on the Pre-Trial Chamber (Judges Motoc and Guillou), who are confronting the jurisdictional question for the first time.
On the other hand, one or more of the judges might conclude that there are several good reasons for the panel to reach the merits of the jurisdictional question now.
First (but likely of least significance), Judges Iulia Motoc and Nicolas Guillou might conclude that the 2021 majority decision was unconvincing even on its own terms, for reasons elaborated by, for example, Professor Kai Ambos. In particular, those judges might conclude (I assume Judge Alapini-Gansou would not) that two of the 2021 majority’s key assumptions are mistaken, or at least dubious: (i) that an entity can be “[a] State which becomes a Party to this Statute” pursuant to Article 12(1) regardless of whether it is a State with prescriptive jurisdiction as a matter of international law, and (ii) that an accession to the Statute of a Party that is not a State under international law can afford the court Article 12(2)(a) jurisdiction over “territory” the party does not control, and has no sovereign authority to control.
Second, the 2021 panel “emphasise[d]” (¶ 131) that even its circumscribed conclusion about Article 12 pertained only “to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor.” Specifically, the court noted that when “the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute,” “or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.” (Emphasis added.) (See also Judge de Brichambaut’s separate opinion, in which he wrote (¶ 15) that although the Prosecutor was “bound to follow the Chamber’s determination at this stage of the proceedings,” that determination was “subject to further determinations concerning the jurisdiction of the Court when the Prosecutor presents concrete cases to a pre-trial chamber” (emphasis added).) In light of this admonition, it may be difficult for the Pre-Trial Chamber to persuasively assert that the 2021 determination is binding now that the Court must decide whether to issue arrest warrants.
Third, the 2021 decision by its terms did not reach the question the United States and Israel have now teed up—namely, whether the ICC lacks jurisdiction to try Israeli nationals for conduct in Gaza because no State Party to the Rome Statute is a State with competence to prescribe law governing the conduct of such persons and therefore no State Party has the relevant authority it could delegate or transfer to the ICC.
Fourth, the Prosecutor has requested the Pre-Trial Chamber to issue arrest warrants against Netanyahu and Gallant that would be based, in part, on their alleged criminal responsibility for the deliberate, planned “starvation of civilians as a method of warfare as a war crime contrary to article 8(2)(b)(xxv) of the [Rome] Statute.” The Rome Statute crime of starvation of civilians, however, applies only when committed in an international armed conflict, i.e., a conflict between States. Therefore, in order to issue warrants covering that alleged charge, the Pre-Trial Chamber would first have to determine that Palestine is a State as a matter of international law—because, if it is not, then the conduct in question did not occur as part of an international armed conflict.[4]
Finally, if the court issues one or both arrest warrants it will almost certainly have to confront the jurisdictional question anyway, because Netanyahu and/or Gallant can be expected to make the jurisdictional challenge, which they would be entitled to do under Article 19(2). The Pre-Trial Chamber in 2021 specifically acknowledged (¶ 77) that its “ruling pursuant to article 19(3) of the Statute does not impair the right of a suspect or accused … to subsequently challenge the jurisdiction of the Court under article 19(2) of the Statute.”
Khan argues that the Pre-Trial Chamber should wait until those individuals assert such a challenge. Perhaps the Court will do so (even though it has the Government of Israel’s arguments in hand). It might instead decide, however, that it is more appropriate to resolve the jurisdictional question before issuing any arrest warrants. Either way, if the Pre-Trial Chamber is inclined to issue arrest warrants for Netanyahu or Gallant, it is more likely than not that one or more ICC panels will have to confront the merits of the jurisdictional question eventually.
2. The Prosecutor’s Argument on the Merits of the Jurisdictional Question that Palestine is a State with Prescriptive Authority Over Israeli Nationals in the Gaza Strip
In paragraph 73 of his recent submission to the Pre-Trial Chamber, Prosecutor Khan writes the following about the merits of the international law questions concerning Palestinian statehood and the Court’s authority with respect to the charges against Netanyahu and Gallant:
Plenary jurisdictional competence—as an aspect of sovereignty—rested in the Palestinian people as a group entitled by international law to exercise the right of self-determination. For present purposes, it rests in the State of Palestine as a State Party to the Rome Statute. As the League of Arab States puts it, the right of the Palestinian people to self-determination and the related entitlements of the State of Palestine “includes plenary criminal jurisdiction over all individuals, regardless of nationality” throughout the Palestinian territory.
Khan is right that if there is a State of Palestine with “plenary jurisdictional competence—as an aspect of sovereignty” to prescribe criminal law applicable to Israelis in Gaza, then the ICC would have jurisdiction over the starvation-related crimes in Gaza that Netanyahu and Gallant allegedly committed. The questions raised by the United States and Israel, however, are whether there is a State of Palestine and, if so, whether it has “plenary jurisdictional competence” to prescribe the law governing the conduct of Israelis in Gaza.
a. Statehood. As to the question Israel raises concerning whether there is a Palestinian State as a matter of international law, paragraph 73 of the Prosecutor’s brief does no more than suggest that there is such a State because “the Palestinian people as a group [are] entitled by international law to exercise the right of self-determination.”
If that were the sum total of Khan’s argument, it would clearly be inadequate to establish that Palestine is a State under international law. It is true that the Palestinian people have a right to self-determination. That alone, however, doesn’t establish statehood. See Israel’s submission ¶ 109 (“the right to self-determination, in and of itself, does not entail the existence of sovereignty and as a corollary, plenary jurisdiction over territory”). The Office of the Prosecutor has acknowledged as much: “The Prosecution agrees that it is not necessarily the same to say that a people enjoy such a right and to say that they have already achieved a sovereign State.” See also Crawford at 446 (“[I]t misrepresents the reality of the situation to claim that one party already has that for which it is striving. It may also be counterproductive.”).[5]
I therefore assume that if and when he has occasion to brief the question more fully, Khan will not rely exclusively on the Palestinian right of self-determination in order to establish statehood, but that he will, instead, make a more elaborate argument for Palestinian statehood, similar to the one his predecessor offered to the Pre-Trial Chamber in paragraphs 40-60 of her brief in April 2020.
In that brief, Prosecutor Bensouda argued that Palestinian statehood had become established as of 2020 by virtue of a “multi-layered assessment” (¶¶ 40, 46) that depends upon (i) the right of self-determination along with four other “factors”: (ii) the “consequences” of certain breaches of international law by Israel “in the Occupied Palestinian Territory”; (iii) the “significant number of recognitions” of other States “regarding Palestine”; (iv) the fact that no other State has sovereignty over the territory; and (v) the object and purpose of the Rome Statute. Although Bensouda did not argue that any of these five factors standing alone was sufficient to establish statehood, she did insist that identifying statehood via a cumulative, “multi-layered” assessment of all of the factors together was “consistent with the evolution of international law” (¶ 44).
If Netanyahu and Gallant—or Israel or the United States—ever have the opportunity to respond to this argument, it’s fair to assume they will insist that whether or not international law ought to develop to recognize statehood on the basis of such a “multi-layered,” multi-factor assessment, it has not yet done so—that, in Professor Shaw’s terms (¶ 26), the Bensouda analysis is a “reinterpretation” of the criteria for statehood that is, at least for now, “unjustified and unsustainable.”
I will not do a deep dive here on this notoriously knotty question of international law. I will, however, hazard to predict that the ICC is unlikely to pronounce that Palestine is not a State entitled to recognition under international law (or that it its territory does not include the Gaza Strip). Three considerations inform that prediction.
First, although ordinarily the fact that a putative State government’s exercise of authority over a territory is subject to another State’s control or approval—as was true of the Palestinian Authority in Gaza under the Oslo Accords as originally implemented—would preclude the sort of independence of government required for statehood,[6] the example of Monaco illustrates that that is not invariably the case. See Crawford at 292-294; Frederick Tse-shyang Chen, The Meaning of “States” in the Membership Provisions of the United Nations Charter, 12 Ind. Int’l & Comp. L. Rev. 25, 32-33 (2001).
Second, the Court might conclude that although Palestine has not attained the traditional characteristics required for statehood, that failure is, in part, a function of actions by Israel itself to improperly thwart the right of the Palestinian people to self-determination. As James Crawford observed (pp. 447-48):
There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications, and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts.
Third, and perhaps of greatest importance, on May 10, 2024, 143 members of the United Nations General Assembly voted to adopt a resolution that “[d]etermined” that “the State of Palestine is qualified for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations and should therefore be admitted to membership in the United Nations.” And at least 146 States currently recognize Palestine as a sovereign State—including more than 80 States that are Parties to the Rome Statute (i.e., more than two-thirds of the Assembly). To be sure, such an overwhelming view of States does not in and of itself establish Palestinian statehood. As Crawford wrote: “An entity is not a state because it is recognized; it is recognized because it is a state.” Accordingly, Prosecutor Bensouda acknowledged in 2020 (¶ 52) that Palestine’s bilateral recognition by (then) 138 other States was not “a determinative criterion” but was only a “relevant” consideration; and Prosecutor Khan himself has not argued that Statehood follows from the fact that there are now more than 140 States that have recognized Palestinian statehood. Nonetheless, Professor Douglas Guilfoyle is probably right (listen to this podcast beginning at 40:00) that, “confronted” with the fact of recognition by more than 140 States, and the fact that, but for the United States’ veto in the Security Council, Palestine would today be a member of the United Nations, which would almost certainly establish its statehood as a matter of international law, “no court in the world is going to rule against Palestine on statehood.” Therefore, it is unlikely that the ICC will pronounce that Palestine is not a State.
On the other hand, not only do the United States and Israel not yet recognize Palestine as a State, but neither do approximately 45 other States, including Canada, Mexico, Australia, New Zealand, Japan, South Korea, and most European nations (including the UK, Germany, France, the Netherlands, Italy, Switzerland, Belgium, Demark, Austria and Portugal). Moreover, as for Gaza, in particular, the Palestinian Authority—the governmental entity that has represented Palestine in its international relations, including within the ICC, and the entity that referred this very “situation” to the Prosecutor—has not governed Gaza, or had the capacity to do so, for 17 years; and the bilateral agreement that afforded that entity some governmental authority in Gaza before that period (the 1995 “Oslo II” Interim Agreement) expressly provided (in Article XXXI) that “[n]either side shall initiate or take any step that will change the status of … the Gaza Strip pending the outcome of the permanent status negotiations.” In light of these considerations, and the fact that the traditional criteria for statehood under general international law have not been satisfied, it would also be very challenging for the Pre-Trial Chamber to credibly explain how Gaza has become part of a Palestinian State, notwithstanding Hamas’s decades-long control of that territory. (I’m not aware of any apt analogy where statehood has been established under similar conditions, although I could be overlooking something.)
All of which is simply to state the obvious—namely, that there is no wholly satisfactory answer the Pre-Trial Chamber might offer to the question of whether Palestine is a State that includes the Gaza Strip as a matter of general international law.
b. Prescriptive Jurisdiction to Regulate the Conduct of Israeli Nationals. Even if the Court were to hold that Palestine is a State, however, that would not fully respond to the United States’s argument that Palestine is not a State with the authority to exercise prescriptive, adjudicatory, or enforcement jurisdiction with respect to the conduct of Israeli nationals. The United States’s reasoning, explained above, is that no Palestinian government had such a sovereign authority before the Gaza accords, and that the Accords themselves expressly withheld such authority from the Palestinian Authority even though they afforded the PA such prescriptive authority over Palestinians in Gaza.
As I read his submission, Prosecutor Khan offers three responses to this argument.
First, and as discussed above, he notes (¶ 68) that the ICC’s jurisdiction “is not limited by, and cannot be limited by, bilateral or other agreements undertaken by States Parties.” That is correct as far as it goes, but it is nonresponsive to the U.S./Israeli argument. That argument, recall, is not that the Oslo Accords “limited” Palestine’s ability to exercise sovereign powers it otherwise would have had authority to exercise, or that the arrangements set out in the Accords “abandoned” aspects “of the State of Palestine’s jurisdictional entitlements” (id. ¶ 74). The argument is, instead, that there was no such State, and no such “jurisdictional entitlements” of sovereignty, before the Oslo Accords, and that the Accords did nothing to affect that status quo when it came to the conduct of Israelis, even within territories (including Gaza) that the Palestinian Authority was otherwise afforded authority to govern.
Second, Khan suggests (¶ 80) that the Oslo Accords “concern” only “the exercise of the Palestinian Authority’s enforcement jurisdiction, in relation to the exercise of adjudicative authority and in relation to other aspects of the exercise of enforcement powers.” As Yuval Shany and Amichai Cohen explain in Part V of their submission, however, that is incorrect: The 1995 Interim Agreement conferred prescriptive authority for Gaza on the Palestinian Authority, but expressly provided that it was not giving the PA any such prescriptive authority over Israeli nationals. See also ¶¶ 8-15 of Dennis Ross’ 2020 submission.
Finally, and most significantly, in paragraph 73 of his submission, Khan takes issue with the fundamental factual predicate of the U.S./Israel argument: He argues that even before the Oslo Accords, the “Palestinian people as a group” did have “[p]lenary jurisdictional competence” to prescribe the law for Gaza “as an aspect of sovereignty.” Khan further asserts (id.) that Israel’s occupation of that territory before Oslo did not and cannot “transfer title of sovereignty to the occupying power,” and (¶ 81) that “Palestine’s territorial jurisdiction was not and is not for the occupying power, Israel, to give.”
The latter propositions, about Israel’s lack of pre-Oslo sovereignty over Gaza, are correct: Occupation of Gaza did not afford Israel itself any sovereign authority to establish the law governing that territory (nor does Israel argue otherwise). Israel’s authority to prescribe law in Gaza between 1967 and 1995—and before that, the authority of Egypt to do so—was not grounded in any claims of sovereignty. But it’s not evident to me what the basis might be for Khan’s further assertion that the Palestinian people were sovereign over Gaza—and thus had “[p]lenary jurisdictional competence” to prescribe the law for that territory by virtue of such sovereignty—before the Oslo Accords.
In her submission to the Pre-Trial Chamber in April 2020, Prosecutor Bensouda similarly wrote, a bit more expansively (¶ 70), that during Israel’s occupation, “[s]overeignty remained with the ‘reversionary’ sovereign—held by the Palestinian people until such time as a State could exercise it—and plenary prescriptive jurisdiction with their representatives.” See also id. ¶ 73 (“the Oslo Accords are better characterised as a transfer or delegation of enforcement jurisdiction which does not displace the plenary jurisdiction of the representatives of the Palestinian people”).
The right of self-representation, however—which the Palestinian people did have in the 1990s—does not itself establish the right to exercise sovereign powers. And it’s not clear (not to me, anyway) what precisely Bensouda might have been referring to when she wrote of a “‘reversionary’ sovereign.” There was no pre-Oslo Palestinian sovereign to which sovereignty could “revert” after the Israeli occupation ended. (The most recent sovereign over Gaza was, instead, the Ottoman Empire more than a century ago.) See also Israel’s submission ¶ 116 (“There is no previous or original sovereign which held plenary jurisdictional competence and to whom the territory is to be returned.”).
For these reasons, I think that even if (and likely, when) the Pre-Trial Chamber holds that Gaza is part of a current Palestinian State, it would be much more difficult for the ICC to explain why that State has sovereign authority to prescribe the law governing Israelis in Gaza.
On the other hand, if the Court were to hold (as I predict above it might do) that Palestine has become a State in the period after the Oslo Accords, then it would be exceedingly difficult for the Court to explain in the next breath why the State of Palestine does not have the sovereign authority under international law to prescribe the law to govern Israelis in Gaza. After all (as I understand it), not only is the exercise of prescriptive jurisdiction—the power to establish rules for conduct in the pertinent territory—ordinarily a precondition for the establishment of a State under international law, but it is also (perhaps paradoxically) an “inherent aspect of sovereignty” that international law entitles a State to exercise within its territory. See Crawford, The Concept of Statehood at 62-63 (“independence” of the government—the right to exercise the functions of a state “to the exclusion of any other State”—is not only a usual “criterion for statehood” but also “a right of States”). The notion that Palestine is some sort of hybrid case—a sovereign State for all purposes under international law except that it lacks the sovereign authority to prescribe the law governing particular foreign nationals on its territory—would, as far as I know, be unprecedented.
For all of these reasons, the Pre-Trial Chamber will likely find it very difficult and challenging to decide the jurisdictional questions raised by the United States and Israel, if and when the panel (or another panel of the ICC) is compelled to answer those questions.
[1] Israel devoted more than six pages of its jurisdictional submission (¶¶ 38-57) to these two questions. As for its standing, Israel argues, inter alia, that if it is correct that Palestine is not a State for purposes of Article 12 of the Statute, then Israel’s consent to ICC jurisdiction would be required—in which case Article 19(2)(c) would authorize the filing of its objections. This argument is concededly circular—i.e., it depends on whether Israel is right on the merits—but Israel contends (¶ 45) that “[i]t would be problematic … to deny standing on the basis that a State needs to establish the merits of a jurisdictional challenge as a prerequisite to its standing to make it” and that therefore “all that should be required is that the claim is prima facie tenable.” Khan disagrees.
From a practical perspective, I’m not sure what, if anything, turns on this procedural dispute. The ICC will likely have to assure itself as to its jurisdiction eventually, and therefore the Pre-Trial Chamber might think it prudent to consider Israel’s arguments and any responses Khan might offer, whether or not Article 19 authorized Israel to submit its memoranda at this time.
[2] Arguably, the Appellate Chamber already took a step in the direction of Professor Sadat’s view when it held in its 2019 al-Bashir ruling that the Court can require a State-Party to arrest a sitting head of state even where customary international law would otherwise prohibit the State from doing likewise. The issue in that case, however, was limited to an enforcement authority (the power to arrest); there was no dispute that the ICC had jurisdiction to try al-Bashir in a case referred to the Court by the United Nations Security Council. Even so, the al-Bashir decision was sharply criticized, including by many strong supporters of the ICC who feared that such rulings will undermine the Court’s legitimacy. Dapo Akande, for example, characterized the rationale of the al-Bashir decision as “deeply misguided,” “dangerous,” “unwise,” and “extremely disappointing.” It is “dangerous,” wrote Akande, because assertions by the ICC “that parties to the Rome Statute, have, by creating the Court, taken away the rights of non-party states under international law” is “likely to stiffen opposition to the Court by non-parties;” the “John Boltons of this world and many people far more reasonable will point to [such a] ruling to set out precisely why it is important to oppose this court and other international criminal courts.” See also, e.g., the Swiss Advisory Committee on Public International Law (2022) (Question 4) (questioning the ICC’s al-Bashir decision on the merits).
[3] In fact, Canada filed its objection on January 23, 17 days after the Secretary-General accepted the instrument of accession.
[4] The expert panel convened by Khan also opined in the alternative that it might be an international armed conflict between Israel and Palestine by virtue of the fact that “[t]here is a belligerent occupation by Israel of at least some Palestinian territory,” even if Palestine is not a State. I am dubious about that theory and, in any event, I doubt the ICC will rely upon it, especially if Khan (in his confidential submission to the Pre-Trial Chamber) has not pressed that theory.
[5] This understanding is also reflected in the recent advisory opinion of the International Court of Justice regarding Israel’s occupation. That ICJ opinion reaffirms the right of Palestinians to self-determination and (if they so choose) to establish an independent, sovereign State, and it calls for removal of Israeli impediments that “obstruct the right of the Palestinian people freely to determine its political status” (¶¶ 241-242). The ICJ thus concluded (¶ 283) that “the realization of the right of the Palestinian people to self-determination, including its right to an independent and sovereign State, living side by side in peace with the State of Israel within secure and recognized borders for both States, as envisaged in resolutions of the Security Council and General Assembly, would contribute to regional stability and the security of all States in the Middle East” (emphasis added); see also ¶ 237 (“The Court considers that Israel, as the occupying Power, has the obligation not to impede the Palestinian people from exercising its right to self-determination, including its right to an independent and sovereign State, over the entirety of the Occupied Palestinian Territory.”). It appears, therefore, that a principal assumption of the ICJ opinion is that there is not yet an independent Palestinian State. (In Part I of his separate opinion, Judge Gómez Robledo lamented the passages of the majority opinion suggesting that statehood remains aspirational—he thought the majority should have expressly declared that a Palestinian State already exists.)
[6] The Oslo Accords established the Palestinian Authority as the lawful government in Gaza, and in January 2015, when Palestine submitted its instrument of accession to the Rome Statute, Gaza was nominally subject to control by a Palestinian Unity Government that had been formed in June 2014 pursuant to the April 2014 Fatah-Hamas Reconciliation Agreement. That Unity Government dissolved shortly thereafter, however (on June 17, 2015), when President Abbas acknowledged that it was unable to operate in the Gaza Strip. Accordingly, the Palestinian Authority has had no practical ability to govern in Gaza, notwithstanding the Oslo Agreements, since Hamas forcefully took control of the Gaza Strip in 2007. That fact—that the government of Palestine does not govern Gaza at all—makes it even more difficult to conclude that “Palestine,” as such, meets the traditional criteria for statehood with respect to that territory.