By Ali Imtinan
[Ali Imtinan completed his LL.B. from University of London (International Programme) and is currently practicing law in Lahore, Pakistan]
“To both Palestinian and Israeli victims and affected communities, we urge patience. The ICC is not a panacea, but only seeks to discharge the responsibility that the international community has entrusted to it, which is to promote accountability for Rome Statute crimes, regardless of the perpetrator, in an effort to deter such crimes.”Fatou Bensouda
On the 3rd of March this year, the International Criminal Court (‘ICC’) Prosecutor Fatou Bensouda announced the initiation of an investigation into alleged war crimes committed in the occupied Palestinian territory. The announcement came after the Pre-Trial Chamber’s (‘Chamber’) decision in February, ruling that the ICC’s jurisdiction extended to territories occupied by Israel during the 1967 Six-Day War — Gaza, the West Bank, and East Jerusalem. In January 2015, Palestine acceded to the Rome Statute, and along with it lodged a declaration under Article 12(3) of the Statute, thereby initiating the case.
The Chamber gave the jurisdictional requirement of the Rome Statute a liberal construction, which could have far-reaching effects for the extension of the ICC’s protection to the people living under occupation. This writing will critically examine the Chamber’s ruling regarding the jurisdiction of the ICC, analyse the nature of crimes being investigated, with a specific focus on the Israeli settlements in the West Bank, and deliberate upon whether the investigation can — by promoting accountability — contribute to the resolution of one of the more long-standing conflicts in recent history.
Jurisdiction of the ICC
Under Article 12(2) of the Rome Statute, the Court can investigate crimes committed on the territory or by nationals of a State Party, or in a State that has accepted the jurisdiction of the ICC. Since Israel is not a party to the Rome Statute, the Chamber had to determine whether Palestine could be considered a State for the purpose of the Statute. Palestine’s case is unique insofar that its status as a sovereign state is a subject of dispute, as it ostensibly does not meet the criteria for statehood under international law, including effective control.
Although there is no established definition of a state under international law, the most accepted formulation of the basic criteria for statehood is provided by the 1933 Montevideo Convention (Crawford, 2006), which requires states to possess a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. Sovereignty under international law, on the other hand, is best understood as the exclusive right to exercise supreme authority/control over a defined territory.
The issue in Palestine’s case is that the Israeli occupation of East Jerusalem and more than half of the West Bank — either through military control or through the settlement activities — prevents the Palestinian government from exercising effective control over its territory and as a result, negates the satisfaction of the Montevideo criteria. A strict adherence to the Montevideo criteria, therefore, entails that occupied territories are incapable of claiming statehood as people living under occupation are, by definition, unable to exercise effective control over their territory. Furthermore, the non-member observer status granted to Palestine through the UN General Assembly Resolution 67/19 did not conclusively establish Palestinian statehood either. The said resolution was limited in its effect to the UN, as evident from the Report of the Secretary-General, which states that the change in Palestine’s status “does not apply to organizations and bodies outside of the United Nations” (para 1 of the report), an argument adopted by the Attorney General of Israel as well.
In deciding whether Palestine could then be considered a State for the purpose of the Statute, the Chamber distinguished between a ‘State’ under international law and a ‘State Party’ to the Rome Statute. The Chamber held that ‘State’ under Article 12(2)(a) of the Statute, is in fact a reference to a ‘State Party to statute’; whether such state party met the requirements of statehood under international law was immaterial (para 93 of the decision). Palestine’s accession to the Statute meant that it was now a State Party to the Rome Statute and consequently a ‘State’ for the purposes of Article 12(2)(a). Its status as that of a state under international law was irrelevant.
This distinction is of importance as by adopting such liberal approach, the Chamber remedied the inherent wrong with the restrictive interpretation of a ‘State’, which perpetuated “a colonial premise under which only those accorded the status of statehood can be actors who count in the international legal arena” (Gross, 2021, para 2).
The problem with the restrictive interpretation — that ICC’s jurisdiction extends only to states that satisfy the normative criteria of statehood under international law — is that this recognises sovereignty as the sole determinant of statehood. This, in turn, only benefits the Occupying Power which can circumvent the investigation of its nationals by simply opting to not be a party to the Rome Statute. On the other hand, the people living under occupation are denied the protection of the ICC because of the very fact that they are occupied, i.e. they do not have effective control over their territory (Gross, 2021). Thus, such a view would only legitimise colonialism.
A practical example of this can be seen in Israel voting against the adoption of the Rome Statute due to its apprehension of being prosecuted under Article 8(2)(b)(viii) for the settlement activities in the Palestinian territory. Article 8(2)(b)(viii) of the Statute criminalises the transfer of an Occupying Power’s civilian population into the occupied territory. In 2004, The International Court of Justice, while exercising its advisory jurisdiction, had also concluded that Israeli settlements were in breach of Article 49(6) of the Fourth Geneva Convention. Despite the settlement project being illegal under international law, the responsible Israeli authorities had thus far evaded accountability because of the ICC not having jurisdiction over Israel, on account of it not being a party to the Rome Statute. Neither did the ICC have jurisdiction over occupied Palestinian territory as it did not meet the criteria for a sovereign state capable of being a party to the Rome Statute.
Thus, had the Chamber adopted the view that ‘State’ for the purpose of the Rome Statute, meant the same as a state defined under international law, a strict application of the Montevideo criteria would have led to the conclusion that Palestine did not meet the conditions for statehood and consequently the ICC did not have territorial jurisdiction; thereby further granting impunity to the concerned Israeli authorities.
By distinguishing between a state for the purpose of the Rome Statute and a state under international law, the Chamber’s decision affirmed the ICC’s jurisdiction over the occupied Palestinian territory without having to determine Palestine’s status as a sovereign state in accordance with the Montevideo criteria — a far more contentious and political consideration. In doing so, the decision sets a precedent for the extension of international legal protection to the people living under occupation, who are for the time being unable to claim statehood.
Crimes being investigated
As discussed earlier, besides investigating the alleged war crimes committed by members of Israel Defense Forces, Hamas, and Palestinian armed groups, the ICC can now probe into the Israeli authorities’ promotion of settlements in the West Bank pursuant to Article 8(2)(b)(viii) of the Statute.
In prosecuting the officials responsible, the ICC may treat the crime of transfer of civilians into occupied Palestinian territory as a continuing crime, i.e. a crime that continues even after an initial illegal act is consummated. Continuing crimes can be further understood by distinguishing them from instantaneous crimes. The former refers to a crime that has been committed and then maintained. Conversely, the latter relates to a crime that is completed through a single act. The instantaneous crime of murder, for instance, is concluded with the death of the victim. Whereas, the crime of enforced disappearance of persons is committed when the victim is abducted, but the crime continues for as long as the abductee remains unaccounted for (Nissel, 2004).
In Palestine’s context, the crime of transfer of civilians does not cease with the initial illegal act of dispossessing the Palestinian people of their land and settling therein; instead, it continues until the illegal settlements are maintained. The Court’s current jurisdiction in the Situation in Palestine is limited to crimes committed after June 2014. Adjudging the crime of transfer of civilians as a continuing crime would extend the ICC’s jurisdiction to those crimes of transfer as well which commenced prior to June 2014, provided that these were maintained until June 2014 (Kearney, 2017).
In Prosecutor v Thomas Lubanga Dyilo, the Chamber recognised the rationale of treating certain war crimes as continuing crimes by ruling that the crime of enlisting and conscripting of child soldiers was an offence of a continuing nature; the offence is committed when a child under the age of fifteen is enrolled into the armed forces and continues until the child reaches fifteen years of age. The ICC can then rely on its decision in Lubanga, and draw a parallel between the crimes of enlistment and conscription of children and the crime of transfer of civilians into occupied territory (Kearney, 2017).
In addition, it is of significance to state that Article 8(2)(b)(viii) of the Statute criminalises the conduct of the ‘Occupying Power’ which has transferred its population into the occupied territory (Poissonnier et al., 2019). Hence, it must be proven that the Israeli government sanctioned and supported the settlements in the West Bank. While there is evidence of this — as acknowledged by the ICC Prosecutor in para 68 of the Report on Preliminary Examination Activities (2015) — it is important to remember that the ICC can only prosecute individuals, not governments or States. Therefore, the ICC will aim for investigating government officials responsible for the implementation of the settlement project.
Furthermore, whilst the Chamber’s decision did not explicitly reflect on the refusal of the Palestinians’ right of return, such refusal is a potential crime against humanity (‘CAH’). In its 2018 decision on the Situation in Bangladesh/Myanmar, the Pre-Trial Chamber held that preventing people from returning to their country causes them “great suffering, or serious injury […] to mental […] health’’ (para 77 of the decision), and thus constitutes a CAH under Article 7(1)(k) and 7(2)(g) of the Statute (Kearney, 2020). On that account, the ICC may consider prosecuting responsible members of Israeli authorities for denying Palestinians their right of return, as it certainly has reasonable grounds to do so.
What to expect?
In response to the ICC investigation in Afghanistan, the US imposed financial sanctions and a travel ban on the ICC Prosecutor. It would be reasonable to assume that Israel, having already refused to cooperate, will adopt similar tactics against the ICC officials. An illustration of this was seen when the erstwhile Israeli Prime Minister, Benjamin Netanyahu derided the Chamber’s decision affirming the ICC’s jurisdiction in occupied Palestinian territory as “pure anti-Semitism”. It is pertinent to note that the Court relies on the cooperation of the State Parties for enforcement of its decisions; the accused Israeli officials could therefore avoid trial simply by not leaving the country or restricting travel to countries that do not cooperate with the ICC.
Moreover, if one is to go by the outcome of the previous investigative commissions established to probe potential commission of crimes in the occupied Palestinian territory, there is little to hope for. Consider the example of the 2009 UN Goldstone Mission, which found that “some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed” (para 75 of the report), yet its recommendations were never implemented (Allen, 2021). Notwithstanding the outcome of past commissions, the ICC investigation may prove to be an anomaly as the Court has certain enforcement mechanisms at its disposal and has also tried and convicted perpetrators of war crimes in the past.
Despite the criticism that the ICC investigates ‘easy targets’, and regarding its controversial culture; there has apparently been a change of attitude. This is evidenced by the Chamber — in the past three years alone — authorising investigations into alleged crimes committed in Afghanistan, Bangladesh/Myanmar, and Palestine. The ICC now, besides being seemingly more willing to investigate contentious cases which involve powerful states, is also not deterred by the political nature of these issues, as long as there is ‘a reasonable basis’ to believe that crimes falling within its jurisdiction have been committed.
However, taking into account the prolonged nature of the ICC investigations, the non-cooperation of Israel and its allies, the ICC’s limited resources, and the highly political nature of the situation, one can readily conclude that it may be a fair few years before we see any notable accountability. Nevertheless, the ICC investigation holds significance as it challenges the status quo and the impunity of perpetrators of crimes, even if only theoretically.