On February 5, 2021, the Pre-Trial Chamber of the International Criminal Court issued a 2-1 decision, finding that the ICC’s Prosecutor had jurisdiction to commence an investigation into possible war crimes by Israel and Hamas in (per the Prosecutor’s request) “the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza.” ICC Majority Opinion, ¶ 22. In the few days since that ruling, public officials and pundits from around the world have opined on the meaning of that ruling, both vigorously negative and positive.
But few commentators have actually addressed the legal merits of the actual opinion. Having now read both the 60-page majority opinion and the 163-page dissent, it is apparent that the Majority Opinion is tragically flawed and entirely inconsistent with proper jurisprudence.
In some sense, it was inevitable that the ICC would make such a ruling, given its consistently political decision-making. Indeed, it is notable that the Chamber waited until only a couple of weeks after the change in U.S. administrations (even though the matter was fully briefed and ripe for ruling in June 2020), evidently hoping that the professed intent towards multilateralism by the new Biden Administration would result in fewer consequences for the ICC and its staff following sanctions against them by the Trump Administration. And, since the flawed logic of the ruling potentially impacts claims against U.S. soldiers and citizens around the world as well, the Biden Administration is faced with an early test regarding how to react to it and whether to keep the Trump sanctions against the ICC in place.
The Starting Point is Flawed
As noted, the Prosecutor’s request for a ruling begged the question, and demonstrates both her bias and that of the Chamber. Referring to it as “Palestinian territory occupied by Israel during the Six-Day War in June 1967,” and consistently referring throughout the Majority Opinion to “Occupied Palestinian Territory,” pre-judges the issue. The Chamber (and the Prosecutor) begin with the improper assumption that the land at issue is “Palestinian” territory and “occupied by Israel” – which also prejudges the result of the Prosecutor’s not-yet-begun “investigation.” But, as discussed in my prior articles, under international law, the territory is neither “Palestinian” nor “occupied” – rather, international law firmly (and uncontrovertibly) establishes that Israel has legal sovereignty over the territory. https://blogs.timesofisrael.com/language-matters-israel-and-the-language-of-the-international-community/; https://blogs.timesofisrael.com/we-must-fault-those-who-refer-to-occupation-a-response-to-steve-sheffey/.
The entire Majority Opinion, then, is infected by the improper assumption.
Palestine’s “Statehood” is Turned on its Head
The vast bulk of the Majority Opinion is based on Palestine’s status as a non-member observer State of the United Nations, and, as such, Palestine’s “accession” to the Rome Statute (the international treaty that created the ICC). Majority Opinion, ¶ 98-103. The crux appears in ¶ 102 (emphasis added), where the majority notes:
By becoming a State Party, Palestine has agreed to subject itself to the terms of the Statute and, as such, all the provisions therein shall be applied to it in the same manner than to any other State Party. Based on the principle of the effectiveness, it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute’s inherent effects over it.
I’ve added emphasis in boldface to make an important point – one never discussed at all in the entire Majority Opinion, or, for that matter, in the Dissent: it is one thing for Palestine to accede to jurisdiction over Palestine and Palestinians (and thereby permitting jurisdiction under Article 12(2)(a)), but nothing in the Rome Statute nor the Majority Opinion gives Palestine the right to accede to jurisdiction over Israel or Israelis. Yet the Majority Opinion simply ignores this discrepancy, and assumes that because Palestine joined the Rome Statute, it allows ICC jurisdiction (for investigation purposes – more on that distinction below) for acts by anyone in Palestine’s self-declared borders.
Well, not entirely self-declared, because the next logical and legal flaw of the Majority Opinion is its reliance on non-binding declarations of the United Nations as support for its geographic jurisdiction ruling. Indeed, the Majority Opinion goes out of its way to repeatedly confirm that its ruling is NOT a finding that Palestine is a State under international law – that the ICC is not competent or empowered to make such a determination. See, e.g., Majority Opinion, ¶ 106 (the ruling “cannot be taken to mean a State fulfilling the criteria for statehood under general international law.”); ¶ 108 (“The Court is not constitutionally competent to determine matters of statehood that would bind the international community. In addition, such a determination is not required for the specific purposes of the present proceedings or the general exercise of the Court’s mandate.”); ¶ 113 (“. . . the Chamber is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.”).
Nonetheless, the Majority Opinion relies heavily on non-binding General Assembly resolutions and resolutions of UN Committees that support the statehood of Palestine and which at the same time, as always given the automatic anti-Israel majority in the General Assembly and such committees as the UN Human Rights Committee, repeatedly and wrongly refer to “Occupied Palestinian Territories.” See, e.g., Majority Opinion, ¶ 121. It further relies Security Council Resolution 2334, which (while also non-binding because it was issued pursuant to Article VI rather than Article VII of the UN Charter) refers to: “. . . the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law.”
Thus, we see that the Obama Administration’s ultimate betrayal of Israel in failing to veto the one-sided and legally incorrect Security Council Resolution has real world dangerous consequences for Israel and its citizens.
The Dissent highlights the majority’s faulty reasoning on this point. Noting that “[t]he Prosecutor’s primary position and the Majority Decision attribute a decisive effect to the interplay of Resolution 67/19 and the Palestine ICC accession” (Dissent, ¶ 238), the Dissent correctly states (at ¶ 270):
It should first and foremost be emphasised that references to UN resolutions are ab ovo weakened by the limited legal value of resolutions adopted by the General Assembly, as well as those adopted by the Security Council when it is not “acting under Chapter VII” but under Chapter VI. It cannot be denied that the Security Council resolutions related to Palestine do not contain the well-known “acting under Chapter VII” formula. Consequently, they do not have binding force. According to the Charter of the United Nations, General Assembly resolutions are only recommendations.
The Majority Opinion’s reliance – especially as its main point – on non-binding resolutions and committee rulings that do not have the force of international law reinforces its flawed starting assumption that the Palestinians are sovereign over the West Bank, Gaza, and East Jerusalem, and therefore able to accede to the ICC’s jurisdiction. Since none of these are correct statements of international law, the legal logic of the Majority Opinion is unsupportable.
The Majority Opinion Gives Short Shrift to Limitations of the Oslo Accords
The entity that submitted the matter to the ICC is referred to in the Majority Opinion as the “State of Palestine” (Majority Opinion, ¶ 1), allegedly pursuant to Article 12 and 13 of the Rome Statute. It was the Oslo Accords that created the Palestinian Authority (https://en.wikipedia.org/wiki/Palestinian_National_Authority), so one would think that the terms of that agreement would govern the scope of State of Palestine’s authority to delegate jurisdiction to the ICC for acts allegedly occurring within that the borders of that “State.” Neither Palestine nor the ICC should be able to cherry-pick among the portions of the Oslo Accords for those that allow actions, but disregard those that prohibit actions.
The Majority Opinion (at ¶ 125) concedes that the Oslo Accords explicitly exclude the Palestinian Authority from having criminal jurisdiction over Israelis, which ought to be sufficient under Article 21(1)(b) of the Rome Statute (providing that the Court should consider applicable treaties), and further concedes (Majority Opinion, ¶ 127) that Article 98 of the Rome Statute provides that the Court “may not proceed” with actions that are contrary to obligations in international agreements. Yet the Majority Opinion, without explanation, declines to consider Article 21(1)(b) (¶ 88). And the sole reason that it does not follow Article 98 is that – get this – these principles do not apply to the “investigation” stage, but rather only at the “case” stage, when an objection to jurisdiction can be made by the accused person pursuant to Article 19 of the Rome Statute.
The intellectual paucity of this “reasoning” is breathtaking. The very instrument that creates the entity that “accedes” to ICC jurisdiction expressly says that no such jurisdiction exists. It is a common legal principle: one cannot transfer authority that one does not have. Yet the Majority Opinion ignores this fundamental concept – and further argues that an Israeli targeted for investigation must wait until a warrant of arrest or a summons to appear has been issued, and then can make the same objection to jurisdiction that the Majority Opinion just refused to recognize.
The Dissent calls the majority on this. Noting that the Prosecutor’s request – which, after all, was the reason for this proceeding in the first place – had expressly asked the Chamber to avoid putting off the question to another day (Dissent, ¶ 91), the Dissent (¶ 93) asks:
Why postpone the in depth assessment? What is supposed to happen in the meantime? Which important legal provisions will be different from those that are already identified and were abundantly analysed by the Prosecutor, the amici curiae and the victims’ representatives? One cannot reasonably expect resolutions of the General Assembly – the main legal basis of the Request – to become binding.
There is no legitimate excuse – and none is suggested by the Majority Opinion – for ignoring the Oslo Accords in this way, nor for putting every Israeli citizen at risk of the ICC’s investigatory procedures in direct violation of the provisions of those Accords. To those who believe that the ICC is acting primarily as a political body rather than as a court, this “logic” provides further support.
Even for lawyers, neither the Majority Opinion nor the Dissent present an easy read. The language is stilted. Nonetheless, lawyers and non-lawyers alike have a right to expect that bodies charged with interpreting international law will do so without preconceived positions on the merits, will not cherry-pick only those portions of the law that support a pre-determined position, and will not put nations and individuals at risk by delaying a true decision on the merits. Because the Chamber’s Majority Opinion does none of these things, it creates true grounds for considerable skepticism about the fairness of the tribunal and of the outcome of any investigation begun under such an unsound basis.