Germany publicly objects to the International Criminal Court’s ruling on jurisdiction in Palestine

Published: 11 February 2021 Author: Stefan Talmon

Under Article 12(2)(a) of the Rome Statute of the International Criminal Court (Rome Statute), the International Criminal Court (ICC) may exercise its jurisdiction if the “State on the territory of which the conduct in question occurred” is a State Party to the Rome Statute. On 2 January 2015, the State of Palestine deposited its instrument of accession to the Rome Statute with the Secretary-General of the United Nations pursuant to Article 125(2) of the Statute. On 22 May 2018, Palestine referred the “Situation in the State of Palestine” to the Prosecutor pursuant to Articles 13(a) and 14 of the Statute. Palestine requested the Prosecutor to investigate crimes within the Court’s jurisdiction, “committed in all parts of the territory of the State of Palestine” since 13 June 2014. In its referral the State of Palestine specified that its territory comprises “the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, and includes the West Bank, including East Jerusalem, and the Gaza Strip.” As both the accession of the State of Palestine to the Rome Statute and the referral of the situation to the Prosecutor were controversial, on 22 January 2020 the Prosecutor sought a ruling from the Court under Article 19(3) of the Rome Statute on the Court’s territorial jurisdiction in Palestine.

During the proceedings, Germany – like several other States, non-governmental organisations, and international law experts – submitted written observations on the Prosecutor’s request. Germany submitted that “the Palestinian Territories are currently lacking statehood and therefore the Court does not have jurisdiction in the specific situation.” In particular, Germany argued that “Palestinian statehood is a prerequisite for the Court’s exercise of jurisdiction under article 12(2)(a) of the Statute”. As Palestine was not a State, it did not possess its own jurisdiction which it could delegate to the ICC in order for the Court to exercise its own jurisdiction. In any case, the scope of the territory over which the Court could exercise criminal jurisdiction under Article 12(2)(a) remained unclear, as there was no “clearly delimitated Palestinian territory over which Palestine would exercise sovereignty and jurisdiction.”

On 5 February 2021, the ICC’s three-member Pre-Trial Chamber I ruled on the Prosecutor’s request, finding unanimously that Palestine was “a State Party to the Rome Statute” and, by majority, that as such it qualified as the “State on the territory of which the conduct in question occurred for the purposes of Article 12(2)(a) of the Statute” and that “the Court’s territorial jurisdiction extended to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” The dissenting judge agreed that the geographical scope of the ICC’s jurisdiction covered “the territories of the West-Bank, East-Jerusalem and the Gaza strip”, but held that the Court could exercise jurisdiction there only to extent that Palestine as a State Party was allowed to assert jurisdiction under the various Israeli-Palestinian agreements dividing the exercise of jurisdiction between the parties. In practice, this would have meant that the Court could not exercise jurisdiction in the Palestinian territories with respect to Israelis or with respect to crimes committed in Area C of the West Bank, as defined in the 1995 Oslo II Accord, and East Jerusalem. Any exercise of jurisdiction by the Court in these cases would have required the consent of Israel pursuant to Article 12 (3) of the Statute. In contrast, the Court’s majority decision opened the way for the Prosecutor to open an investigation into war crimes that have been committed since 13 June 2014 in the West Bank, including East Jerusalem, and the Gaza Strip by all persons, including Israeli nationals.

Contrary to Germany’s observations, Pre-Trial Chamber I did not consider the question of Palestinian statehood determinative of the Court’s territorial jurisdiction in Palestine. For the Chamber’s majority the Court’s jurisdiction was a question of treaty interpretation rather than statehood. The term “State” in Article 12(2)(a) of the Statute was to be interpreted in conformity with the chapeau of Article 12(2) of the Statute as referring to a “State Party to the Statute” and not to a “State fulfilling the criteria for statehood under general international law.” The Court thus was not called upon to determine whether Palestine fulfilled the prerequisites of statehood under general international law. On the contrary, the Court stated that:

“given the complexity and political nature of statehood under general international law, the Rome Statute insulates the Court from making such a determination, relying instead on the accession procedure and the determination made by the United Nations General Assembly. The Court is not constitutionally competent to determine matters of statehood that would bind the international community.”

As Palestine’s accession to the Statute followed the correct and ordinary procedure, as provided under Article 125(3) of the Statute, the Chamber found unanimously that Palestine was a “State Party to the Statute”. It consequently qualified as a “State on the territory of which the conduct in question occurred” for the purposes of Article 12(2)(a) of the Statute. The Chamber noted in this context that while Germany argued that Palestine could not be considered a State for the purposes Article 12(2)(a) it had remained silent during the accession process and had not challenged Palestine’s accession before the Assembly of State Parties under Article 119(2) of the Statute at that time or later. Contrary to Germany’s observations, the Chamber’s majority also found that there was a clearly delimitated Palestinian territory over which the Court could criminal jurisdiction under Article 12(2)(a) of the Statute. Based on relevant UN General Assembly and Security Council resolutions, the majority found that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.”

Israel, which is not a party to the Rome Statute, strongly rejected the decision, accusing the ICC, inter alia, of politicisation, intervention, and antisemitism. The Palestinian Authority, on the other hand, welcomed the ruling. At the regular government press conference on 8 February 2021, the question was asked whether the Federal Government sided with the Israeli Government or the Palestinian leadership in its assessment of the ICC decision. A spokesperson for the Federal Foreign Office replied:

“We have taken note of the decision of the Pre-Trial Chamber of the International Criminal Court last Friday. The case concerned a question of jurisdiction. The decision of the International Criminal Court relates to the territorial scope of formal investigations by the Office of the Prosecutor and expressly does not concern the statehood of the Palestinian territories. It means that the Office of the Prosecutor of the International Criminal Court may initiate investigations of possible international crimes in the Palestinian territories occupied by Israel. It is now up to the Office of the Prosecutor of the International Criminal Court to decide whether investigation will actually be initiated.

In the proceedings, the Federal Government presented its legal position in a so-called amicus curiae brief; that is, in written submissions of so-called friends of the court, which we wrote at the invitation of the Court at the beginning of last year and in which we set out our legal position. The majority of the judges of the Pre-Trial Chamber have now followed a different line of argument.

Our position on this case is unchanged. According to our legal position, the International Criminal Court and its Office of the Prosecutor do not have jurisdiction because of Palestine’s lack of statehood in international law. A Palestinian State and the determination of its territorial borders can […] only be achieved through direct negotiations between Israelis and Palestinians.”

The view was echoed the next day by Federal Foreign Minister Heiko Maas, who wrote in a Tweet:

“Our legal view on jurisdiction of the International Criminal Court regarding alleged crimes committed in the Palestine territories remains unchanged: the court has no jurisdiction because of the absence of the element of Palestinian statehood required by international law.”

The Tweet was widely shared by Israel’s diplomatic missions abroad. For example, the Head of Public Diplomacy of Israel’s Embassy in Berlin expressly thanked Foreign Minister Maas for “expressing a clear message against the politicization of the International Criminal Court”.

It was reported that Israel’s Foreign Ministry had instructed its ambassadors to reach out to heads of government and foreign ministers in their host countries to issue public statements of opposition to the ICC’s decision and to deliver a “discreet message” to the ICC’s Prosecutor. It was further reported that the Israeli Foreign Minister had phoned his German counterpart on 8 February 2021 to discuss the ICC’s decision on jurisdiction.

For Germany, which considers itself to be “one of the ICC’s strongest supporters”, these were remarkable statements. In particular, Federal Foreign Minister Maas’ statement was interpreted as Germany having “denounced” or “criticised” the ICC’s ruling, and was even described as a “condemnation” of the ruling. Declaring that “the court has no jurisdiction”, when it just ruled that it had, undermines the authority of the ICC and the international criminal justice system. By its statement, Germany in effect denied the Court the competence to authoritatively rule on its own competence. This is even more startling considering that in its observations to the Court, Germany expressly declared:

“Under the Statute, the Court is the competent treaty organ to make the above determinations. This is spelled out explicitly in article 119 (1) of the Statute which clarifies that ‘any dispute concerning the judicial functions of the Court shall be settled by [the] decision of the Court’. With regard to the scope of the Court’s jurisdiction, it is article 19 (1) of the Statute which formulates the need for a competent treaty organ to make its assessment and requires the Court to ‘satisfy itself that it has jurisdiction in any case brought before it’.”

Germany does not accept the ICC’s interpretation of Article 12(2)(a) of the Statute, insisting that the Court does not have territorial jurisdiction “because of Palestine’s lack of statehood in international law”. This contradicts the Court’s clear finding that its jurisdiction did not depend on the question of Palestine’s statehood in general international law. The statements display an attitude that Germany knows best – or, at least, better than the ICC which in Germany’s own words is “the competent treaty organ”. Germany joins a growing number of States which keep on insisting on their legal position despite contrary rulings by international courts and tribunals. One can only speculate what this will mean for Germany’s obligation to cooperate with the ICC if the Court, for example, requested the arrest and surrender of a person sought for war crimes committed in Gaza and the West Bank, including East Jerusalem.

Germany’s public objection to the ruling will not go unnoticed by the ICC, especially considering that Germany is the Court’s second-largest contributor. Statements like the above contradict Germany’s stated position in support of the ICC’s judicial independence and against any interference and pressure on the Court. It was only on 2 November 2020 that Germany, in the face of U.S. sanctions against the Court, boastfully declared:

“We will continue to respect our cooperation obligations under the Rome Statute and encourage all States to fully support the Court for it to carry out its important mandate of ensuring justice for the victims of the most serious crimes under international law. […]. Any attempt to undermine the independence of the Court should not be tolerated.”

Germany’s objection to the ICC’s ruling comes too late and undermines its credibility as a strong supporter of the international rule of law. The original sin in terms of international law was to let an entity which does not meet the criteria of statehood accede to a treaty which is open for accession only by “States”. Once an entity has become a “State Party”, there is no basis in the Rome Statute to deny to it the full application of the Statute. In particular, there is no foundation for a two-tier system of State Parties – those which can transfer their criminal jurisdiction to the Court and those that cannot. The purpose of Article 12 (2)(a) of the Statute is to set out the preconditions for the exercise of jurisdiction by the Court, not to limit the exercise of jurisdiction to those State Parties that are States in terms of general international law.

DOI: 10.17176/20220627-173023-0