The Conundrum of Jurisdiction over War Crimes in Occupied Palestinian Territory

On 3 March 2021, the International Criminal Court (ICC) launched an investigation into the war crimes committed in the Gaza Strip and West Bank regions of the Occupied Palestinian Territory (OPT). Fatou Bensouda, the Chief Prosecutor has averred in a statement that the probe would majorly cover the events of the crimes that have been allegedly committed since 13 June 2014, shortly before the 50-days Gaza War.

This historic, groundbreaking decision by the ICC has flared up age-old feelings of animosity between the state parties. Palestine and human rights organisations have hailed this breakthrough in the redressal of the decades of injustice and atrocities through the international legal system. On the other hand, Israeli leaders have been cross with the decision and accused the ICC of acting out of political motivations and without legal basis. Prime Minister Netanyahu has condemned the “absurd” decision as “undiluted anti-Semitism and the height of hypocrisy.” The USA has continued to vindicate the actions of Israel by denouncing the decision of the ICC.

In this blog post, the author ventures to provide an insight into the issue of whether the ICC has the jurisdiction to formally investigate the alleged war crimes. This article will also delve into addressing the question of Palestine’s statehood under international law.

Background

The conflict between Israel and Palestine dates back to the year 1947, when the division of the two nations was proposed by the United Nations General Assembly. In the following year of 1948, Israel became an independent state. However, since then there has been no peace between the two nations regarding the question of their homeland and both nations remain in turmoil in the wake of the hostilities.

In July 2014, Israel had launched an air-ground military operation known as Operation Protective Edge which led to a deadly 50-day war.  The war saw casualties in the thousands, believed to be the highest since the Six Day War in 1967.

Palestine lodged a declaration on 1 January 2015, acceding to the Rome Statute under Article 12(3) to the jurisdiction of ICC over the alleged crimes committed in the “occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. Thereafter, on 16 January 2015, in a statement issued by the ICC Prosecutor Fatou Bensouda, a preliminary examination into the situation in Palestine was opened up.

There was vehement opposition from Israel and the USA to Palestine being granted the status of a non-member observer state by the United Nations General Assembly. Israel accordingly challenged the jurisdiction of ICC in the present matter.

Role of the Prosecutor on the Question of Jurisdiction

Article 12 of the Rome Statute provides that the Court shall have jurisdiction in case of a referral by a State Party or by the Prosecutor’s initiative proprio motu. However, under Article 19(3) the Prosecutor holds the power to seek a ruling from the Court regarding a question of jurisdiction or admissibility even before a case exists. In the present scenario, the Prosecutor had requested a ruling from the Trial Chamber on the question of jurisdiction, indicating that she “-is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine, pursuant to Article 53(1) of the Statute.” The Appeals Chamber in the Situation in the Islamic Republic of Afghanistan had laid down in para 28 that under Article 53(1) (a) the Prosecutor has an obligation to initiate an investigation when s/he has “reasonable basis to proceed under this Statute.”

The Trial Chamber determined the applicability of Article 19(3) in the affirmative and turned to the Prosecutor’s Request to rule on the question of its jurisdiction.

The Indeterminate Conundrum of Statehood of Palestine and Jurisdiction of ICC

The question of the statehood of Palestine under international law remains effectively unresolved. However, the ICC Pre-Trial Chamber on 5 February 2021, seems to have partially answered the question. Article 19(1) of the Rome Statute states that the Court has to “satisfy itself” that it has jurisdiction even before an investigation can commence.

Palestine had gained the status of a state party since 2 January 2015 following the deposit of its instruments of accession with the Secretary-General of the United Nations under Article 125(3). Article 125(3) grants membership to all states that have deposited instruments of accession to the United Nations Secretary-General.

Article 12 of the Rome Statute provides for the preconditions for the exercise of the ICC’s jurisdiction. The exercise of jurisdiction finds its basis on the commission of the offence on the territory of a State (Article 12(2) (a)) or the commission of the offence by a national of such state (Article 12(2) (b)).

Article 12(1) affirms that “a State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.” The ICC does not have the authority to deliberate on political questions under international law. Rather, this task falls on the United Nations Secretary-General, given his depository functions. Thus, the question is decided by the Secretary-General on behalf of the Court by accepting the instruments of accession. However, the Secretary-General accepts the instrument with the “unequivocal indications from the Assembly that it considers a particular entity to be a State.” Thus the question is left at the hands of the international community to deliberate upon. Therefore, once a state becomes a state party, it is subject to the jurisdiction of ICC with immediate effect and no further consent or separate assessment is required.

Consequently, it can be made out that the Court’s statutory scheme reflects that after a State has acceded to the Statute pursuant to Article 125(3), the Court may automatically be entitled to exercise its jurisdiction over its territory in accordance with Article 12(1).

Furthermore, Article 12(2) provides for the preconditions for the Court to exercise its jurisdiction as a consequence of a State becoming a state party to the Statute under article 12(1) or having lodged a declaration under article 12(3). Therefore Article 12(2) should be interpreted consistently with Article 12(1) and Article 125(3).

In the light of the above arguments, the Pre-Trial Chamber has adjudged that Palestine is a state party to the statute and, as a consequence, Palestine qualifies as ‘the State on the territory of which the conduct in question occurred’ for the purposes of Article 12(2) (a) of the Statute.

Conclusion

One of the biggest hurdles in the matter of the ICC having jurisdiction in the investigation of war crimes in the OPT has now been resolved by the Pre-Trial Chamber. Although the issue of statehood of Palestine still remains unresolved under international law, its recognition as a State under the Rome Statute brings for the people a new ray of hope. The decision of the ICC sets a foreshadowing for the advent of justice and peace in the war-torn regions of the Gaza Strip and the West Bank.

 

Apurva Ambasth is a penultimate-year Student at the National University of Study and Research in Law, Ranchi, India.

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