On 16 March 2020, the Palestinian human rights organisations Palestinian Centre for Human Rights (PCHR), Al-Haq Law in the Service of Man (Al-Haq), Al Mezan Center for Human Rights (Al Mezan), and Al-Dameer Association for Human Rights (Al-Dameer) submitted their joint observations to the Pre-Trial Chamber of the International Criminal Court (ICC).[i]
In December 2019, the Office of the Prosecutor of the ICC published a document announcing that it had concluded its Preliminary Investigation stage in the Situation in Palestine. The announcement came in the form of a Request from the Prosecutor, that the Pre-Trial Chamber provide confirmation of the position that ‘the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel’ since June 1967, ‘namely the West Bank, including East Jerusalem, and Gaza.’[ii]
As international crimes have clearly been committed in the occupied State of Palestine comprising the West Bank, including East Jerusalem and the Gaza Strip, our organisations believe it would have been appropriate for the Prosecutor to proceed directly to a formal investigation, and that the current process was not a necessary one. Once a State becomes party to the Rome Statute, ‘the ICC is automatically entitled to exercise jurisdiction over article 5 crimes committed on its territory. No additional consent or separate assessment is needed.’
Critically, in affirming Palestine’s status as a state, the Palestinian human rights organsiations provide that Palestine existed as a State prior to the British Mandate and that Palestine’s full exercise of sovereignty over the territory of mandatory Palestine has, since 1917, been in abeyance as a result of successive military occupations. Our analysis drew on Palestine’s categorisation as a Class A Mandate within the League of Nations framework, as well as on the consequences of the 1923 Treaty of Lausanne which recognised Palestine as one of the successor states of the Ottoman Empire (Paras 7-12). Having briefly considered the nature of the Jordanian and Egyptian administration of Palestinian territory until the 1967 war, and explained Israel’s lack of any title over the territory it has occupied since that war, we recall that ‘the State of Palestine has been recognised by 139 States, and is only circumvented politically by a small but powerful cohort of States aligned to the colonialist objectives of the State of Israel.’ (Paras 13-16)
On the question as to the scope of the territory of Palestine, we recall that the State of Palestine has been categorical in maintaining that its territory is that within the recognised boundaries demarcated by the 1949 Armistice Line known as the Green Line. Together, the territory of the State of Palestine comprises the West Bank, including East Jerusalem, and the Gaza Strip, forming ‘a single territorial unit.’
Such a conclusion is consistent with the longstanding international position. In November 1967 UN Security Council Resolution 242 called for the ‘withdrawal of Israel armed forces from territories occupied in the recent conflict’ and for an ‘acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area’. Additonally, in 2016 the UN Security Council adopted Resolution 2334 calling on all States in the international community to ‘distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967’ with reference to the ‘achievement of the two State solution’. This leaves no doubt, as to the position of the international community that the territories of Israel and Palestine are clearly differentiated on the basis of the territories occupied since 1967.
Noting that the Palestinian acknowledgement of its territorial jurisdiction as a sovereign State on the 1967 borders has cross party support within Palestine we recall that the State of Palestine has been admitted as a Member State of international organisations such as the UN Educational, Scientific and Cultural Organization (UNESCO)[iii] and has become a State party to over a hundred international treaties. By Resolution 67/19 of 29 November 2012 the UN General Assembly in according Palestine non-member observer State status in the UN provided a clear statement of the status of Palestine.[iv] (Paras 18, 22-3)
Our observation further stressed that Israel’s purported annexation of occupied East Jerusalem is illegal. (Paras 24-7) Recalling that the primary applicable law is that of the Geneva Conventions and broader humanitarian law, the submission turned to the nature of the Palestinian right to self-determination and the imperative that when considering the scope of the territorial jurisdiction of Palestine that such a right must be instrumental. In particular we drew attention to the 2006 finding of the International Criminal Courts’ Appeals Chamber that ‘[h]uman rights underpin the [Rome] Statute; every aspect of it, including the exercise of the jurisdiction of the Court.’[v] (Paras 32)
We welcomed the attention the Office of the Prosecutor’s Request gave to the Palestinian right to self-determination: ‘[s]ignificantly, in Resolution 67/19 which accorded Palestine ‘non-member observer State’ status at the UN, the General Assembly ‘reaffirm[ed] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967’. We also drew attention to the affirmation by the International Court of Justice, in its 2019 Advisory Opinion on decolonization and the Chagos Islands, of the right to self-determination and territorial integrity in the context of decolonisation. Notably, the International Criminal Court asserted that self-determination is a fundamental human right: ‘The Court is conscious that the right to self-determination, as a fundamental human right, has a broad scope of application.’[vi]
The Court also affirmed that ‘any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.’ On this basis, and as was put in our submission: ‘to deny, fragment, or reduce ‘the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) from that unit of the West Bank, including East Jerusalem, and Gaza,’ would be to disregard, undermine, and violate the right of the Palestinian people to self-determination.’ (Paras 36-8)
The submission highlighted how the monitoring bodies of the Convention on the Elimination of Discrimination Against Women (CEDAW), the Convention on the Elimination of Racial Discrimination (CERD), and the Convention on the Rights of the Child (CRC) have affirmed the need for the State of Palestine to, ‘Fully incorporate the provisions of the Convention into its national law and ensure its implementation in the Gaza Strip and the West Bank, including in East Jerusalem’.[vii] With respect to applicable humanitarian law we reiterated that belligerent occupation is temporary. In clarifying that the Oslo Process, and the Interim Agreements of the 1990s have no effect on either the territory of the State of Palestine nor on its territorial jurisdiction, we again noted the 2019 Advisory Opinion of the International Court of Justice: ‘it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter.’ (Para 50)
Having considered the exercise of national sovereignty during belligerent occupation, and the precedents of governments in exile, we note that ‘foreign occupation of territory of a State party was found to be no bar to the exercise and application of the Court’s territorial jurisdiction’ by a Pre-Trial Chamber of the ICC in the Situation in Georgia. (Para 57) On the territorial jurisdiction which the State of Palestine has transferred to the Court, we draw on the jurisprudence of the Pre-Trial Chamber in the Situation in Bangladesh/Myanmar to show that ‘since the States Parties did not explicitly restrict their delegation of the territoriality principle, they must be presumed to have transferred to the Court the same territorial jurisdiction as they have under international law’, and the Chamber’s conclusion that ‘provided that part of the actus reus takes place within the territory of a State Party, the Court may thus exercise territorial jurisdiction within the limits prescribed by customary international law.’[viii] (Para 64)
Our submission concludes with an observation as to the scope of the Court’s jurisdiction over Palestine’s maritime zones, noting how contrary to an earlier expressed opinion of the Office of the Prosecutor, the terms of the UN Convention on the Law of the Sea do not of necessity preclude the application of either the State or the International Criminal Court’s jurisdiction in a state’s Exclusive Economic Zone or in its Continental Shelf areas. (Paras 67-72)
In conclusion the Palestinian human rights organisations reiterate that there is a compelling and urgent need for the opening of a formal investigation into the Situation in Palestine. Should the Pre-Trial Chamber find it appropriate to provide an answer to the Prosecutor’s question then we would conclude that the answer to the questions be 1) that the territory of the State of Palestine is that delimited by the Green Line, and 2) that the scope of the Court’s territorial jurisdiction over the Situation in Palestine is interpreted in line with international practice such as the human rights treaty bodies, to recognise the State of Palestine’s territorial jurisdiction over the West Bank, including East Jerusalem and the Gaza Strip.
[i] Palestinian Centre for Human Rights, Al-Haq, Al Mezan Center for Human Rights, Al-Dameer Association for Human Rights, Submission Pursuant to Rule103, ICC-01/18-96, 16 March 2020 | Amicus Curiae: https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/18-96
[ii] Prosecution request pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine ICC01/18 (22 January 2020) para 3 available at: https://www.icc-cpi.int/CourtRecords/CR2020_00161.PDF
[iii] United Nations News Center, UNESCO votes to admit Palestine as full member (31 October 2011) http://www.un.org/apps/news/story.asp?NewsID=40253#.VRsnZNzSZLo
[iv] General Assembly, Status of Palestine in the United Nations, A/67/L.28 (26 November 2012).
[v] Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Article 19 (2) (a) of the Statute of 3 October 2006, ICC-01/04-01/06 (OA4), 14 December 2006, para 37.
[vi] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ (Advisory Opinion) 2019, para 144.
[vii] CEDAW/C/PSE/CO/1, Concluding observations on the initial report of the State of Palestine (25 July 2018), para. 9, available at: https://www.un.org/unispal/wp-content/uploads/2018/09/CEDAW.C.PSE_.CO_.1.pdf
[viii] Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19 (14 November 2019) paras 60-1.