Pearce Clancy joins JiC for this guest post on the International Criminal Court and the question of Palestinian statehood. Peace is a Legal Researcher for Al-Haq, a Palestinian human rights organisation, and holds an LL.M in international law from the Irish Centre for Human Rights.

(Photo: BBC / Reuters)

On 16 March 2020, amicus curiae briefs were submitted to the International Criminal Court (ICC) arguing whether the ICC’s jurisdiction in Palestine encompasses the West Bank, including East Jerusalem, and Gaza. According to Article 12(2) of the Rome Statute, which sets out the scope of the Court’s territorial jurisdiction, statehood is established as a prerequisite:

“… the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute …:

The State on the territory of which the conduct in question occurred …”

Having acceded to the Rome Statute, Article 12(2)(a) should therefore allow for the Court to be conferred by Palestine, with the necessary jurisdiction satisfied for the Prosecutor to open an investigation into international crimes committed within Palestinian territory. But some do not consider Palestine to be a State, and thus object to the applicability of Article 12(2)(a) in the first place. While a number of amici were submitted to this effect, the brief submitted by Professor Malcolm N Shaw provides perhaps the most concise and striking representation of this position, and thus serves as a useful reference point for efforts to thwart an ICC investigation in Palestine.

Recognition and the Right of Self-Determination

Shaw contends that “[t]he determination of statehood is one of the key functions of international law.” So much so, he asserts, that a lack of “precision and certainty in this critical task” may not be excused (para 6). Seemingly in recognition of the impossibility of determining statehood in the context of Palestine with the precision of a box-ticking exercise, however, Shaw further notes that the so-called normative criteria of statehood found in Article 1 of the Montevideo Convention may be supplemented by recognition and the principle of self-determination (para 17).

In essence, Shaw argues that only two types of recognition are sufficient to supplement a lack of effective territorial control as the determining factor of statehood: United Nations (UN) membership (para 18-19), and the “widespread recognition of leading states representative of the international community” (para 18). Moreover, the right of self-determination has been recognised by the International Court of Justice (ICJ) as a fundamental norm of the international legal system, which creates obligations on all States to bring the illegal situation to an end. Shaw is aware of this, and notes that this right creates a choice as to how a subjugated people may organise politically (paras 21, 33). What is not appreciated is that this choice has been made by the Palestinian people, who have decided to organise in the form of a State of Palestine.

It is not the possibility of statehood as a result of self-determination which is contested; instead, Shaw links the attainment of statehood to recognition, either by what he deems to be “important” States, or through UN membership. This is best illustrated through his use of the examples of Bangladesh (para 19) and Guinea-Bissau (para 22), the statehood of which were only conclusively affirmed following their admission into the UN (i.e. recognition by the Security Council), and that of Kosovo, which “remains controversial” due to not attaining UN membership, nor recognition by “important States” such as Serbia, Russia, China and India (para 19). For Palestine, however, Shaw goes further, mirroring the official Israeli position, and suggests that the journey towards statehood is of a somewhat sui generis character which must be concluded through an agreement with Israel (para 34).

This, in effect, seals statehood behind the approval of a cohort of powerful States, the membership of which remains unclear and fluid. Relegating the legitimacy of Palestinian external self-determination behind recognition by the unsympathetic Security Council would, in effect, frustrate the universal obligation to respect the self-determination of colonised peoples, as recently reaffirmed in the ICJ’s Chagos Archipelago Opinion (para 180), which dealt with a denial of self-determination at the hands of the United Kingdom, a permanent member of the Security Council. It is thus unclear why, in a legal system which increasingly aims to curtail the arbitrary authority of Great Powers, the quantitative (as opposed to qualitative) recognition of Palestine by at least 138 states is insufficient, and we must instead wring our hands over the contrarian views of so-called “important” and largely former-colonial States, such as the United Kingdom, the United States, France, et al.

The Oslo Accords

Further arguments put forward relate to the Oslo Accords – constitutive of “Oslo I” and “Oslo II” – negotiated between Israel and the Palestine Liberation Organization in 1993 and 1995. According to Shaw:

“Palestine cannot maintain the consensual division of jurisdictional competence and the consequential acknowledged limits of its effective control, both in law and in fact, and at the very same time argue that it should benefit from a weakening of the internationally accepted criteria of statehood so as to circumvent the terms of the agreement to which it remains a party” (para 32).

Implicit here is the notion that Israel has continued to uphold the Accords in good faith and has respected the collective rights of the Palestinian people upon which the Accords were purported to be based. This is manifestly, and demonstrably, untrue, as evidenced by the universal recognition that the construction of settlements and Annexation Wall is contrary to international law, as affirmed by the ICJ in its Wall Opinion, and the Security Council in Resolution 2334.

Indeed, Israel itself does not appear to consider itself bound by the terms of the Oslo Accords, as illustrated by the publication of the “Deal of the Century,” through which it intends to proceed in annexing large portions of the occupied West Bank. Tellingly, Israel has long since done the same, to widespread international condemnation, in East Jerusalemand the occupied Syrian Golan.

Further, the suggestion that the Wall and settlements “cannot be seen as foreclosing any solution that may be agreed upon by the parties” (para 37) fails to appreciate relevant principles of international humanitarian law and the legal framework within which a future solution must be negotiated. The assertion that Oslo legitimised illegal Israeli settlements, and that such settlements are outside the authority of Palestine, blatantly disregards the status of Oslo as a “special agreement” for the purposes of the Fourth Geneva Convention. As set out in Article 7, “[n]o special agreement shall adversely affect the situation of protected persons … nor restrict the rights which it confers upon them.” Thus, no agreement may legitimise, or render as lawful, breaches of the Fourth Geneva Convention, including the Article 49(6) prohibition on population transfer, deemed to be inherent to Israel’s settlement enterprise, as recognised in the Wall Opinion. Further, no solution may override the Article 146 obligation on Israel and third-party States to bring to justice those responsible for grave breaches of the Convention.

These issues are not to be resolved in a future negotiated settlement; under international law, the construction and maintenance of the Wall and settlements are antithetical to any resolution and should be a matter for international criminal justice. Nor may the Palestinian right to self-determination be locked behind the consent of Israel and a cabal of powerful States. Were the ICC to adopt this questionable position, it would essentially proclaim that, in Palestine, it has no interest in pursuing its goal, and the object and purpose of the Rome Statute: to vindicate the rights of victims and to end impunity.