When the Prosecutor of the International Criminal Court announced his request for arrest warrants against three Hamas leaders and two Israeli leaders, he twice emphasized that the war crimes and crimes against humanity alleged “continue to this day.” That day was May 20. It is now September 9. In the intervening period, the Israel Defence Forces reportedly killed 6,316 Palestinians and reportedly wounded another 14,892 (compare here and here). Hamas’s military wing continues to hold scores of civilians hostage and killed several more. Two of the Hamas leaders named have reportedly been killed, and the proceedings against one of them terminated. The Court has yet to issue any warrants.
Instead, the Court is reviewing dozens of amicus curiae observations from States, international organizations, United Nations mandate holders, victim representatives, human rights groups, and academics (including myself) among others. Most of these observations concern whether the Court has and may exercise jurisdiction over crimes committed by Israeli nationals in Gaza. The United Kingdom, which originally raised the issue, elected not to submit observations following a recent change in government.
The Submissions
Thirteen States Parties argued that the Court has and may exercise jurisdiction over any person who commits international crimes in Gaza: Brazil; Chile and Mexico (jointly); Colombia; Ireland; Norway; Palestine; South Africa, Bangladesh, Bolivia, Comoros, and Djibouti (jointly); and Spain. They were joined by the League of Arab States and the Organization of Islamic Cooperation, which represent another 22 States Parties (and 30 other States). Call this “the majority group.”
Four States Parties argued that the Court lacks or may not exercise jurisdiction over Israeli nationals who commit international crimes in Gaza: Argentina, Congo, Czechia, and Hungary. They were joined by the United States, which is not a State Party. Call this “the minority group.” (Germany, which is a State Party, did not contest the Court’s jurisdiction, but raised admissibility concerns addressed elsewhere).
The Prosecutor’s Response
On August 23, the Prosecutor submitted his consolidated reply. The Prosecutor emphasized that “[t]he situation in the oPt, including Gaza, is catastrophic, owing in large part to the ongoing criminality described in the Applications,” and requested the Court to act “with the utmost urgency.” The world now waits for the Court’s decision.
The Prosecutor’s primary argument is that the Court’s 2021 decision on territorial jurisdiction already established that it has jurisdiction over all international crimes committed on the territory of Palestine, including in Gaza. The text of the ICC Statute does not permit exemptions from the Court’s territorial jurisdiction based on the nationality of the accused. It follows that the Court has and may exercise jurisdiction over international crimes committed by Israeli nationals in Gaza.
The Prosecutor’s secondary argument is that the Court’s jurisdiction is defined by the jurisdiction a State Party has, not the jurisdiction it exercises. The State of Palestine has plenary jurisdiction over all persons and all conduct in its territory, even if it does not exercise jurisdiction over Israeli nationals. Furthermore, any constraints on Palestine’s exercise of jurisdiction do not constrain the Court. It follows that the Court has and may exercise jurisdiction over crimes committed by Israeli nationals in Gaza.
The Arguments
The majority group basically agrees with the Prosecutor’s claims, with one qualification. While they all agree that Palestine has jurisdiction over crimes committed on its territory, Brazil argues that Palestine has delegated its territorial jurisdiction to the Court. In contrast, Bangladesh, Bolivia, Chile, Comoros, Djibouti, Ireland, Mexico, Norway, South Africa, and Spain argue that Palestine has accepted the territorial jurisdiction of the Court. The difference is subtle but important. On the latter approach, the Court’s jurisdiction does not derive from Palestine’s jurisdiction; it is simply activated by Palestine’s accession to the Statute, which the Court confirmed in 2021. In my view, the latter approach reflects the text of the Statute and should be adopted by the Court.
The minority group is also somewhat divided. Argentina argues that the 1995 Oslo Accords transferred Palestine’s jurisdiction over Israeli nationals to Israel; Palestine cannot give the Court jurisdiction over Israeli nationals because it already gave it away. This argument assumes that an occupying power can acquire sovereign rights, including part of the occupied State’s jurisdiction. It cannot. The law of occupation confers some temporary powers, including the power to make and enforce “penal provisions.” But the jurisdiction inherent in sovereignty cannot be acquired by an occupying power.
In contrast, Congo and Hungary (and the United States) argue that the Oslo Accords transferred some of Israel’s jurisdiction to the Palestinian Authority, but not jurisdiction over Israeli nationals; the Palestinian Authority cannot give the Court jurisdiction over Israeli nationals because it never received it. This argument has several obvious problems.
First, the argument assumes that States Parties delegate their jurisdiction to the Court. As we have seen, many States Parties reject this view. The Court should not deviate from the text of the Statute and its prior decisions based on a controversial legal theory that many States Parties reject.
Second, the argument conflates the Palestinian Authority with the State of Palestine. The two are clearly distinct. The State of Palestine is a Party to the ICC Statute and many other treaties, a member of many international organizations, and a non-member observer State at the United Nations. It would remain so if the Palestinian Authority dissolved tomorrow. The Palestinian Authority is widely viewed as needing reform, and its total replacement would surprise no one. The State of Palestine would persist either way, maintaining its treaty relations and organizational memberships. This shows that the State of Palestine and the Palestinian Authority are not the same thing. Even if the Palestinian Authority only had the legal powers conferred on it by the Oslo Accords, nothing would follow regarding the legal powers of the State of Palestine.
Third, the argument posits that the State of Palestine has only those legal powers conferred on the Palestinian Authority by the Oslo Accords. These include limited powers to sign certain agreements (economic, financial, cultural, scientific, and educational), but not to accede to multilateral treaties like the ICC Statute or to join international organizations. Yet the State of Palestine has done exactly that. It has thereby asserted legal powers of its own, independent of the Oslo Accords, and that assertion has been widely accepted by the international community and by the Court itself.
Finally, the argument posits that the Oslo Accords are the ultimate source of law in Palestine. According to the United States, the Oslo Accords “create and define Palestinian governance.” In contrast, in its many reports to the United Nations, the State of Palestine has explained that its legal powers derive from the right of the Palestinian people to self-determination (“the people are the source of authority”), the Palestinian National Charter and the Palestine Liberation Organization Statutes (“the two supreme constitutional documents underpinning the Palestinian people’s exercise of their right to self-determination”), the 1988 Declaration of Independence (“the highest-ranking constitutional document of the State of Palestine,” and “the supreme constitutional document in the domestic legal system”), and the Basic Law (“a transitional document guaranteeing the fundamental rights and principles that enable the Palestinian people to exercise their right to self-determination and that enable the political process to achieve that end, until the adoption of an official constitution for the State of Palestine”). The Palestinian Authority is rarely mentioned by name, and the Oslo Accords are not mentioned at all.
It was on these terms that the State of Palestine was accepted by the General Assembly as a non-member observer State at the United Nations, with the Executive Committee of the PLO acting as its provisional government. And it was on these terms that the General Assembly recently determined that the State of Palestine is qualified for membership in the United Nations and should be admitted as a member State. The General Assembly’s decisions enabled Palestine’s accession to the ICC Statute, and the Court should follow the General Assembly’s understanding of Palestine’s legal powers. The more basic point, perhaps, is simply that the Court should not tell a State Party that its ultimate source of law is not what it says it is, but rather what an occupying power and its allies say it is.
One final point. The Prosecutor argues that Palestine has both prescriptive and enforcement jurisdiction over all persons on its territory, and that the Oslo Accords at most constitute an agreement not to exercise enforcement jurisdiction over Israeli nationals. Indeed, Palestine’s substantive criminal law derives from many sources, including the Palestinian Penal Law of 1936 and the Jordanian Penal Law of 1960, amended and supplemented by later legislation and presidential decrees. Many of these laws predate the Oslo Accords and those enacted afterwards do not refer to the Oslo Accords. Notably, presidential decrees are issued by the President of the State of Palestine under the Basic Law, and by the Chairman of the PLO Executive Committee, not by the President of the Palestinian Authority under the Oslo Accords, even though the same person holds all three offices. These laws do not specifically exempt Israeli nationals from their scope. When Palestinian authorities detain an Israeli national, they transfer that individual to Israeli authorities. This confirms that the Oslo Accords do not limit Palestine’s prescriptive jurisdiction over Israeli nationals, but only constrain the exercise of its enforcement jurisdiction.
Conclusion
For better or worse, the Court decided to allow amicus curiae observations as part of its effort to satisfy itself that it has jurisdiction over the crimes alleged by the Prosecutor. The arguments are now complete. The Court must now decide. In my view, the legal question before the Court is a simple one. The Court has jurisdiction over any person who commits war crimes or crimes against humanity on the territory of any State Party, including Israeli nationals who commit such crimes in Palestine. The Court also has jurisdiction over any national of any State Party who commits war crimes or crimes against humanity, including Palestinian nationals who commit such crimes in Israel. The Court should issue arrest warrants based on the evidence before it with utmost urgency. The crimes alleged continue to this day.