The Chamber notes that Palestine acceded to the Statute in accordance with the procedure defined in article 125(3) of the Statute. On 2 January 2015, Palestine submitted its instrument of accession to the Statute, and became a State Party to the ICC on 1 April 2015, following the entry into force of the Statute in its territory. The United Nations Secretary-General circulated Palestine’s instrument of accession among the States Parties before accepting it and no State Party, except for Canada, manifested any opposition at the time. Palestine’s accession was subsequently accepted by the United Nations Secretary-General on 6 January 2015 and, on 1 April 2015, the then President of the Assembly of States Parties to the Rome Statute (the ‘Assembly of State Parties’) greeted Palestine in a welcoming ceremony, which ‘marked the entry into force of the Rome Statute for the State of Palestine […] thereby becoming the 123rd State Party’…. Moreover, since its accession, Palestine has contributed to the Court’s budget and has participated in the adoption of resolutions by the Assembly of State Parties.1
Stripped from the politics, the lobbying, the bellicose threats, and the doomsday rhetoric surrounding the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine, the ruling by Pre-Trial Chamber I should not have come as a surprise. If considered pragmatically.
Anyone interested in the nitty-gritty of the Pre-Trial Chamber’s ruling should carefully pour over the majority and minority views spanning over 230 pages. There are also hundreds of pages of submissions and amici curiae briefs for anyone wishing to chase this ruling down the rabbit hole. As for further elucidation of this ruling and its significance, there are plenty of press releases, cautionary statements, and outright threats by the former Trump Administration in the US (as well as the Biden Administration’s objection to the ruling), easily found by surfing the internet.
Broadly speaking, the rub is about whether the territory of Palestine as reflected by the 1967 borders falls under the ICC’s jurisdiction for investigating and prosecuting crimes under the Rome Statute by virtue of Palestine’s membership in the Assembly of States Parties (“ASP”) – even though Palestine remains unrecognized as a state consistent with the UN Charter.
There are a host of geopolitical issues intrinsic in the Situation in the State of Palestine. The mere inclusion of the noun “state” in the title of the submissions, and now the Decision, evokes glee and hope for some (most notably the Palestinians) and provokes gloom and annoyance in others (most notably Israel). Whether Palestine is a state – or a pretend “state” for the sake of meeting the criteria for signing the Rome Statute and submitting its jurisdiction to the ICC over the territories it currently controls and those it claims to be rightfully its own despite being not under its control (occupied, as it is referred to by the UN and other international organizations, though not universally accepted) – is very much a legal question. But it is also a political question with wide-ranging implications of domestic and international dimensions, inextricably linked to the Israeli-Palestinian peace process and aspirations to a two-state solution.
Considering the complexities involved in determining the overarching issue before the Pre-Trial Chamber in the Situation in the State of Palestine, it is tempting to suggest that the law is seemingly playing second or even third fiddle to the motives and agendas of the various interested players in whether the ICC has jurisdiction to investigate and prosecute anyone in Israel or Palestine (however you define it geographically) for alleged crimes committed in the “State of Palestine” (as defined by the ICC). It is not just about the crimes alleged to have been committed, but of future conduct such as settlement building in Palestine that could give rise to Article 5 allegations of crimes. Simply, Palestine’s accession to the Rome Statute, its referral to the Prosecutor under Articles 13(a) and 14 of the Statute, and now the Decision by the Pre-Trial Chamber, magnify the political nature of the ICC – which, if candid, exists at all international(ized) criminal tribunals to one degree or another.
Draw your own conclusions on the soundness of the majority or the minority views. Draw your own conclusions as to whether Palestine is a state with all the attributes of a state, or whether it is a state-in-the becoming but sufficiently established to become a State Party to the Rome Statute. And draw your own conclusions as to whether, even if a state for purposes of relinquishing jurisdiction to the ICC, the Oslo Accords prevent Palestine from ceding jurisdiction to the ICC in the territory it now holds. Relevant as these questions may be, especially for legal hair-splitting, I leave it to others to opine on. My focus is on the pragmatic – realizing that to some this may seem superficial and simplistic.
As a practitioner – not as an erudite theoretician or as an astute diplomat – I tend to focus on what I think are the pragmatic aspects of a case or an issue. I presume certain factors must have or should have been considered when deciding on whether Palestine met the criteria for membership when it sought to become a State Party. In other words, I start by giving deference to the ASP that in considering Palestine’s application for membership, all known and predictable legal and practical questions related to Palestine’s membership must have logically been scrutinized before a decision was taken.
This rebuttable presumption being my point of departure, I ask: is or is not Palestine a full-fledged member of the ASP? If no, then what role does it play, if any, within the ICC? If yes, is there anything that shows either de jure or de facto that Palestine is to enjoy fewer privileges and have fewer obligations than other States Parties, such as Germany, Australia, Uganda, to name a few?
If, as found by the Majority, Palestine is a full member with no restrictions or qualifications, should it not have every right to make a referral to the Prosecutor with every expectation that a preliminary examination be conducted, and, if deemed appropriate, for an investigation to proceed? Put differently, if States Parties had concerns of Palestine’s qualifications to merit the sobriquet “State Party” as defined by the Rome Statute, the time to have denied or circumscribed Palestine’s membership to the ICC club would have been before 1 January 2015, when, under Article 12(3) of the Rome Statute, it accepted the ICC’s jurisdiction over alleged crimes “committed in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.”2 To claim now that Palestine, incumbered with the obligations of a State Party is ineligible to be treated as a State Party when seeking redress under the Rome Statute, is facilely inequitable.
Again, looking at things pragmatically, whether an investigation or a prosecution should proceed, as a matter of practicality, is more of an administrative and/or political decision. It may be legally appropriate to launch an investigation, but motives aside, is it feasible? Should not the Prosecutor see the forest for the trees? Administrative and political considerations, like it or not, are intertwined in most situations that come before the ICC. Indeed, there are instances where it may be wiser to defer proceedings, rather than obdurately going forward with no thought or concern of long-term consequences which might outweigh any short-term gains by rigidly adhering to policies and procedures. Here is where the drafters of the Rome Statute, recognizing the political or realpolitik reasons for eschewing pure procedural and substantive justice for, in the utilitarian sense, greater good (such as not sacrificing at the altar of justice the consummation of a peace agreement with and by those who should otherwise be prosecuted), astutely provided the Prosecution the discretional authority to decline going forward with an investigation or prosecution when deemed in the interests of justice.
Not a terribly nuanced analysis, I agree. But I dare say, as things progress, don’t expect any dramatic moves. The next Prosecutor is likely to take a pragmatic approach by going after low-hanging fruit, while letting the Situation in the State of Palestine hang on the vine, giving peace-making more time.
- Situation in the State of Palestine, ICC-01/18-143, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,’ 5 February 2021, para. 100 (footnotes omitted).
- Situation in the State of Palestine, ICC-01/18-1-AnxI, Decision assigning the situation in the State of Palestine to Pre-Trial Chamber I, Annex I, 24 May 2018, p. 2. On 2 January 2015, pursuant to Article 125(2) of the Rome Statute, Palestine deposited its instrument of accession to the Statute with the Secretary-General of the United Nations; see Secretary-General of the United Nations, ‘Rome Statute of the International Criminal Court, Rome, 17 July 1998, State of Palestine: Accession’, 6 January 2015, C.N.13.2015. Treaties XVIII.10.