The Lawfare Project
Lawyers from top-tier London international criminal chambers 9 Bedford Row have submitted a communication to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC), with support from The Lawfare Project, regarding the effect of issues around Palestinian statehood and Palestine’s territorial claim on the jurisdiction of the Court.
The submission, by Steven Kay QC and Joshua Kern, with assistance from UK Lawyers for Israel (UKLFI), highlights the challenges for the ICC that would result from treating Palestine as a state, when Palestine’s legal status, capabilities, and territorial claims remain ambiguous and as yet undefined.
Inherent in Palestine’s claim to statehood is its claim to functional capacities that include the rights to accept ICC jurisdiction, to accede to the Rome Statute on which the ICC is founded, and to refer a situation to the Court. Yet, the submission argues, Palestine’s objective legal status as a non-State entity under international law restricts its capacity to make a valid declaration needed to refer a situation to the Court.
This is further complicated by the fact that Palestine claims title to territory upon which criminal conduct has allegedly occurred, but these territorial claims are disputed, not fully defined, and subject to negotiations.
The Rome Statute, which is the ICC’s constitutional document, does not include a definition of a state but, the submission points out, the customary test of statehood within international law, known as the Montevideo Criteria, holds that a state must consist of four elements: a defined territory, a permanent population, a government in total control of the territory, and the capacity to engage in foreign relations. Although Palestine satisfies the criterion of a permanent population, it does not fullfil the criterion of government with respect to issues that will be negotiated in the permanent status negotiations, namely Jerusalem, settlements, specified military locations, borders, foreign relations, Israelis, and refugees.
Palestine neither exercises authority with respect to these issues nor has an uncontested right or sovereign title to exercise such authority. This intrinsically affects whether the ICC can exercise jurisdiction with respect to territory—such as in Jerusalem or over settlements—which cannot be said with a degree of certainty to be Palestinian. As Palestine does not possess exclusive competence to govern in this territory, objectively, such territory does not comprise the territory of a Palestinian State.
So, the submission argues, the scope of Palestinian sovereign title to territory cannot be determined with certainty. The question of sovereign legal title to the disputed territories is a matter that can only be resolved by agreement between the relevant parties, including Israel. Indeed, the PLO expressly disclaimed sovereignty over the West Bank and Gaza in 1964 while, in the Oslo Accords, Israel and the PLO specifically reserved their rights, claims, and positions regarding the territories pending the outcome of the permanent status negotiations.
The exercise of ICC jurisdiction would therefore necessarily require the OTP to demarcate a border for jurisdictional purposes. Politically, this would place the Prosecutor into the midst of one of the world’s most flammable disputes. The submission therefore urges the OTP to “tread with caution” on matters involving territory over which Israel maintains a legitimate but disputed claim to avoid interference in the internal affairs of a non-State Party absent a UN Security Council mandate.
If the ICC were to exercise jurisdiction unlawfully it could result in a backlash against it and turn the Court itself into a violator of the rules-based international order. It would also risk undermining the Court by legitimizing existing criticisms that the ICC is a “renegade” court exercising an exorbitant jurisdiction, used as a tool by the PLO.
Lawyers from 9 Bedford Row have made previous submissions to the ICC Prosecutor, on behalf of The Lawfare Project and UK Lawyers for Israel, regarding the unreliability of human rights reports as evidence in criminal cases and questioning the ICC’s jurisdiction in settlement cases.
A blog post by Steven Kay QC and Joshua Kern of 9 Bedford Row summarizing the content of the submission can be read here.
Brooke Goldstein, Executive Director of The Lawfare Project, which supported the submission, said:
“There is a crisis in international law that can only be averted if the international legal system plays by its own rules. This communication makes clear that the ICC can either uphold the rules-based international order or risk becoming a violator of it, undermining faith in international law.”
Jonathan Turner, Chief Executive of UK Lawyers for Israel, said:
“This submission demonstrates fundamental bars to the International Criminal Court exercising jurisdiction over territory claimed by the Palestinians and especially over Israeli settlements, whose final status must be determined by negotiations under the Oslo II Accord. These bars have not been addressed in the reports to date of the Prosecutor’s preliminary examination. The Prosecutor should not waste further resources examining matters over which the Court has no jurisdiction.”