Published: 22 September 2021 Author: Stefan Talmon
On 2 January 2015, the State of Palestine deposited its instrument of accession to the Rome Statute of the International Criminal Court (ICC) 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 that the Prosecutor investigate crimes within the Court’s jurisdiction which were “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.”
On 10 December 2019, the Prosecutor issued a statement on the conclusion of the preliminary examination of the Situation in Palestine, recording that she was “satisfied that (i) war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip (‘Gaza’).” She continued:
“However, given the unique and highly contested legal and factual issues attaching to this situation, namely, the territory within which the investigation may be conducted, I deemed it necessary to rely on article 19(3) of the Statute to resolve this specific issue.
Earlier today, I therefore requested from Pre-Trial Chamber I a jurisdictional ruling on the scope of the territorial jurisdiction of the International Criminal Court (‘ICC’ or the ‘Court’) under article 12(2)(a) of the Rome Statute in Palestine.
Specifically, I have sought confirmation that the ‘territory’ over which the Court may exercise its jurisdiction, and which I may subject to investigation, comprises the West Bank, including East Jerusalem, and Gaza. Such determination is made strictly for the purposes of determining the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction under the Statute.”
During the regular government press conference on 23 December 2019, the spokesperson for the Federal Foreign Office commented on the Prosecutor’s statement as follows:
“We have taken note of the Chief Prosecutor’s statement on the conclusion of the preliminary investigation of the situation in Palestine.
We trust in the independence of the International Criminal Court and rely on the Court to resolve the issues raised. These will also include questions of admissibility with regard to which there might be doubts but which will now be the subject of judicial review.
We as the Federal Government cannot comment on specific details of ongoing proceedings. But, as I said, we trust in all arguments being heard fairly in the further proceedings. Of course, we also rely on the Court strictly adhering to the Rome Statute.
As a matter of principle, we are, of course, opposed to any case before the Court being used for politicization. We rely on the Court examining the question of admissibility and doing so strictly on the basis of the Rome Statute.”
For procedural reasons, the Prosecutor’s request pursuant to Article 19(3) of the Rome Statute for a ruling on the Court’s territorial jurisdiction in Palestine had to be refiled on 22 January 2020. By an order of 28 January 2020, Pre-Trial Chamber I, considering the complexity and novelty of the Prosecutor’s request, invited States wishing to provide written observations on the Prosecutor’s request to submit applications for leave to file such observations. On 13 February 2020, Germany submitted such an application, indicating that, in its view, “the Court’s territorial jurisdiction pursuant to Article 12 of the Rome Statute does not extend to the occupied Palestinian territories.” Germany adopted the position that the “existence of a State that fulfils all the criteria [of statehood] under general international law is a prerequisite for the Court to exercise its jurisdiction under Article 12 of the Rome Statute.” During the regular government press conference on 17 February 2020, a spokesperson for the Federal Foreign Office commented on the proceedings as follows:
“By a decision of 28 January 2020, the Pre-Trial Chamber invited the States Parties of the Rome Statute to participate in the proceedings as so-called amicus curiae. As a good friend and supporter of the Court, the Federal Government is happy to accept this invitation and has initially submitted an application for permission to submit a written statement.
You know our long-standing and consistent position of support for a negotiated two-State solution and thus the goal of an independent, democratic and viable State of Palestine. […] A Palestinian State and the determination of territorial borders can only be achieved through direct negotiations between Israelis and Palestinians. Palestine currently does not meet the criteria of statehood, which would, however, be a prerequisite for the jurisdiction of the International Criminal Court. We will present this legal opinion at the invitation of the Court. We are also interested in opposing the politicization of the Court. […]
The problem is that, from the perspective of the Federal Government, Palestine is not a State and therefore there is no basis for the jurisdiction of the International Criminal Court.”
By a decision of 20 February 2020, the Pre-Trial Chamber granted Germany and numerous other States, non-governmental organisations and individuals leave to submit observations as summarised in their applications.
Germany filed its observations on 16 March 2020, arguing that “the Palestinian Territories are currently lacking statehood and therefore the Court does not have jurisdiction in the specific situation.” Germany took the view that only States in terms of international law were eligible to become a “Party” to the Rome Statute in terms of its Article 12(1) and, as Palestine was not a State, it could not become a Party. Germany, for example, did not include “Palestine” on the list of State Parties published in the Federal Law Gazette. In addition, Germany argued that Palestinian statehood was a prerequisite for the ICC’s exercise of jurisdiction under Article 12(2)(a) of the Rome Statute. Under that article, the Court could exercise jurisdiction only if the State on the territory of which the conduct in question occurred was a Party to the Statute.
In its observations, Germany first argued that the question of whether Palestine was a “State” in terms of Article 12(1) or a “State Party” in terms of Article 12(2)(a) of the Rome Statute was not determined by actions of the depositary of the Rome Statute or the Assembly of States Parties. Under the Statute, the Court was the competent treaty organ to determine these questions. Germany therefore set out why Palestine did not meet the criteria of statehood under international law and thus could not delegate the exercise of jurisdiction to the Court.
The circulation of Palestine’s instrument of accession
According to Article 125(3) of the Rome Statute, the “Statute shall be open to accession by all States” and instruments of accession are to be deposited with the UN Secretary-General. On 6 January 2015, the UN Secretary-General notified UN member States of the “accession” of the “State of Palestine” to the Rome Statute, noting that “The Statute will enter into force for the State of Palestine on 1 April 2015 in accordance with its article 126(2)” of the Rome Statute. The Secretary-General thereby followed an internal Memorandum of the UN Legal Counsel concerning the status of Palestine in the United Nations following the decision of the Assembly to “accord to Palestine non-member State observer status in the United Nations”. With regard to Palestinian treaty participation, the Memorandum provided:
“Since the General Assembly has accepted Palestine as a non-Member observer State in the United Nations, the Secretary-Generalwill be guided by this determination in discharging his functions as depositary of treaties containing an ‘all States’ clause. Therefore, Palestine would be able to become a party to any treaties open to ‘any State’ or ‘all States’ (‘all States’ formula treaties) deposited with the Secretary-General.”
Germany commented on the relevance of the accession notification for the question of Palestine’s status as a State and State Party to the Rome Statute as follows:
“10. The function of a treaty depositary as set forth in article 77 of the Vienna Convention on the Law of Treaties is of limited scope and is administrative in nature. The actions of a treaty depositary do not provide answers to material legal questions. The commentary by the International Law Commission to its draft article on the subject states that the depositary ‘is not invested with competence to make a final determination’ on issues of substance.
In particular, article 77(2) of the Vienna Convention stipulates that, in the case of an international organization, the resolution of any legal or factual question is reserved for the competent organ of the international organization concerned.
11. The Secretary-General did not rule that Palestine was a State nor that it had become a party to the Rome Statute within the meaning of articles 12 and 125(3) of the Statute, nor did he make any other determination with respect to any legal issues raised by the instrument.
12. In his depositary notification, the Secretary-General merely communicated the ‘accession’ of Palestine to the Statute. By acting in this way, the Secretary-General remained within the customary international law ambit of his mandate, as neutral custodian of the Statute, as codified in article 77(1)(e) of the Vienna Convention on the Law of Treaties. This communication neither pre-empted nor obviated the need. for a competent body within the framework of the Statute to take a decision on the status of Palestine, or on any other legal issues raised by the notification circulated by the depositary. In fact, the Secretary-General himself made clear, immediately following his depositary notification, that ‘it is for States to make their own determination with respect to any legal issues raised by instruments circulated by the Secretary-General’. […]
15. […] The technical act of circulating an instrument of accession cannot determine the status of the entity submitting the instrument.”
Palestine’s participation in the work of the Assembly of States Parties to the Rome Statute
Following its accession to the Rome Statute, Palestine participated in the Assembly of States Parties. For Germany, this was also not determinative of Palestine’s status as a “State Party” to the Rome Statute. In its amicus curiae brief, the Federal Government stated:
“13. […] the Assembly of States Parties, in following the lead of the General Assembly and allowing Palestine to participate in its activities did so as a political body and not as an organ of the Court as clarified in article 34 of the Statute. The President of the Assembly recalled ‘that the Assembly takes such decisions in accordance with the Rules of Procedure of the Assembly, independently of and without prejudice to decisions taken for any other purpose, including decisions of any other organization or organs of the Court regarding any legal issues that may come before them.’
14. Germany has made its position clear with regard to Palestine’s participation in the work of the Assembly of States Parties. In a statement made in the Bureau of the Assembly of States Parties on 8 November 2016, Germany stated: ‘’Consistent with our reiterated positions in other international fora we hold the view that the designation “State of Palestine” as used in some of these reports shall not be construed as recognition of a State of Palestine and is without prejudice to individual positions of States Parties on this issue.”
Statehood under international law
In resolution 67/19 of 29 November 2012, the UN General Assembly had “decided to accord to Palestine non-member observer State status in the United Nations”. For Germany, the question of statehood could not be determined by a General Assembly resolution. The Federal Government stated:
“21. The United Nations General Assembly in its resolution 67/19 of 29 November 2012 did not and could not determine whether Palestine is a State under international law. Resolution 67/19 effected no more than a procedural upgrade of the Palestinian representation to non-member observer State status in the United Nations alone as set out in operative paragraph 2 thereof. The UN Secretary-General emphasized this point when he stated that the status accorded to the Palestinians by resolution 67/19 ‘’does not apply to organizations or bodies outside the United Nations’. Furthermore, resolution 67/19 did not contain a decision on the issue of statehood.
22. The status of an entity under international law is not to be confounded with the status attributed to that entity by bodies such as the UN General Assembly or the Assembly of States Parties to the Rome Statute. In these bodies, States may vote not only on the basis of· the relevant rules of international law, but can also take into account political arguments and considerations. This is true in particular with regard to resolution 67/19. Many States, including some voting in favour of the resolution, took care to explain that their vote was without prejudice to the question of Palestinian statehood under international law. For a number of States that voted in favour of the resolution, their vote was a sign of political support for the Palestinian aspirations of statehood. Germany, which abstained in the vote, stated that ‘’it must be clear to everybody that a Palestinian State can be achieved only through direct negotiations between Israelis and Palestinians’.”
The question of Palestinian statehood was to be determined on the basis of “the normative criteria of statehood under international law” and, in Germany’s view, Palestine did not meet these criteria. The Federal Government stated:
“23. […] As far as statehood is concerned, the law is pretty clear: article 1 of the Montevideo Convention on the Rights and Duties of States sets out four constituent criteria of statehood that have been generally recognized as customary international law. These criteria are a permanent population, a defined territory, a government in control of the territory and the capacity to enter into relations with other States.
24. Whether Palestine fulfils all the above criteria of statehood under international law remains open to doubt. Indeed, the relevant Committee of the United Nations Security Council, after examining whether Palestine met the criteria of the Montevideo Convention, was unable to make a unanimous recommendation on the application of Palestine for admission to membership in the United Nations. The Oslo Accords, in particular, did not create a Palestinian State, but created the Palestinian Authority tasked with limited self-governance of parts of the West Bank and the Gaza Strip as a basis for the build-up of political institutions and economic structures from which a future independent, sovereign Palestinian State could emerge. They acknowledged the Palestine Liberation Organization· as partner in permanent-status negotiations on remaining questions which most importantly relate to the borders of Israel and Palestine, Israeli settlements, the status of Jerusalem, Israeli military presence in and control over remaining territories after Israel’s recognition of Palestinian autonomy as well as the Palestinian right of return. On the basis of the Oslo Accords, the Palestinian Authority is not yet bestowed with full jurisdiction. The bestowal of full jurisdiction has been deferred until there is a negotiated two state solution. Germany has reiterated this assessment consistently on several occasions and has not recognized Palestine as a State in bilateral relations.”
Germany identified the lack of “effective authority in the occupied Palestinian territories” as the major obstacle to Palestine’s statehood under the traditional criteria of statehood. It also rejected “a case-specific” application of the traditional criteria in relation to Palestine in order that the most serious crimes not go unpunished. The Federal Government declared: “While Germany is a fervent advocate of the fight against impunity, the object and purpose of the Rome Statute is to promote the fight against impunity within the jurisdictional framework of the Statute.”
Ability to delegate the exercise of jurisdiction to the International Criminal Court
The ICC exercises jurisdiction delegated by the States Parties. Germany took the position that Palestine was not capable of delegating jurisdiction to the Court due to its lack of statehood. The Federal Government stated:
“26. Article 12 of the Statute presupposes that there is a ‘’State’’ that has the ability under international law to delegate its own existent jurisdiction to the Court with respect to the relevant cases, in addition to having the legal capacity to meet the requirements for cooperation by States that are specified in the Statute. It is generally accepted and indeed taken as fundamental that the Court operates on the basis of jurisdiction that – in the absence of a Security Council referral – can only be delegated by States. As the Court has recently held in the Myanmar/Bangladesh case, ‘’the drafters of the Statute intended to allow the Court to exercise its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems’.
27. The Palestinian Authority does not possess, nor has it ever possessed, the requisite jurisdiction and therefore cannot delegate it to the Court in order for the Court to exercise its jurisdiction.
28. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 1995 explicitly stipulates that the Palestinians have no criminal jurisdiction over Israeli nationals. The Protocol Concerning Legal Affairs appended to the Interim Agreement further specifies that the criminal jurisdiction of the Palestinian Authority ‘covers all offences committed by Palestinians and/or non-Israelis in the Territory, subject to the provisions of this Article. For the purposes of this Annex, “Territory” means West Bank territory except for Area C, and Gaza Strip territory except for the Settlements and the Military Installation Area’. Furthermore, according to the Interim Agreement, any jurisdiction of the Palestinian Authority within the West Bank and the Gaza Strip does not extend to Jerusalem.
29. Finally, the scope of the ‘territory’ over which the Court’s [sic] may exercise criminal jurisdiction under article 12(2)(a) of the Statute remains unclear. While the term ‘’occupied Palestinian Territory’’ including the scope of this territory delineated by the pre-1967 borders is generally accepted including in the jurisprudence of the International Court of Justice, this is not to be equated with a clearly delimitated Palestinian territory over which Palestine would exercise sovereignty and jurisdiction. As previously recalled, the determination of territorial boundaries and bestowing full jurisdiction upon the Palestinian Authority remains one of the outstanding issues to be negotiated between Palestinians and Israelis with borders among the outstanding core issues to be left to a comprehensive peace settlement.”
Central to Germany’s argument was that Palestine was not a “State Party” within the meaning of Article 12 of the Rome Statute because it was not a “State” in terms of international law. While Germany did not recognise Palestine as a State in bilateral relations, it never formally objected to Palestine’s accession to the Rome Statue – a treaty open to accession only by “States”. This may be contrasted with Canada’s reaction to the accession of Palestine to the Rome Statute. On 23 January 2015, Canada sent the following communication to the UN Secretary-General:
“In that context, the Permanent Mission of Canada notes that ‘Palestine’ does not meet the criteria of a state under international law and is not recognized by Canada as a state. Therefore, in order to avoid confusion, the Permanent Mission of Canada wishes to note its position that in the context of the purported Palestinian accession to the Rome Statute of the International Criminal Court, ‘Palestine’ is not able to accede to this convention, and that the Rome Statute of the International Criminal Court does not enter into force, or have an effect on Canada’s treaty relations, with respect to the ‘State of Palestine’.”
Not only did Germany remain silent during the accession process, it also never challenged Palestine’s accession before the Assembly of States Parties (ASP). It limited its observations in the ASP to stating that “the designation ‘State of Palestine’ as used in some of these reports [presented to the fifteenth session of the ASP] shall not be construed as recognition of a State of Palestine and is without prejudice to individual positions of States Parties on this issue.” Germany did not vote against any ASP resolutions or reports referring to the “State of Palestine” or raise any objection when the “State of Palestine” was elected to the ASP’s Bureau, its Credentials Committee, or the Advisory Committee on the Nomination of ICC judges. There was also no reaction by Germany when the President of the ASP on 1 April 2015 congratulated and warmly welcomed the “State of Palestine” to the ever-growing ICC family “on behalf of the Assembly of States Parties. Similarly, Germany remained silent when the State of Palestine’s ratification of the Kampala amendments to the Rome Statute on 26 June 2016 were treated as the thirtieth ratification in accordance with Article 15bis(2) of the Rome Statute.
Outside the context of the International Criminal Court, Germany also never took a firm stand on the question of Palestine being treated as a “State”. When the UN General Assembly decided in November 2012 to accord to Palestine “non-member observer State status” in the United Nations, Germany did not vote against the resolution but abstained. Again, Canada and others took a more principled stand and voted against. Within the United Nations and other international organisations, Germany generally voted for resolutions referring to the “State of Palestine”, sometimes adding the proviso that “Germany’s support for the […] resolution should not be construed as recognition of a ‘State of Palestine’ by Germany.” It was only after Palestine’s accession to the Rome Statute became an issue in the context of the ICC’s jurisdiction over the Palestinian territories occupied by Israel that Germany modified the wording of its statements. While Germany continued to vote in favour of resolutions “taking note of the accession of Palestine to several human rights treaties and the core humanitarian law conventions as well as other international treaties”, it now added the following reservation:
“[T]he use of the term ‘Palestine’ could not be construed as recognition of a State of Palestine and was without prejudice […] to the question of the validity of the accession of Palestine to the international instruments referred to in the draft resolutions.”
Germany’s response to Palestine’s claims to statehood seems at best half-hearted, which may be explained by the fact that Germany generally shares the goal of establishing a Palestinian State and accepts the Palestinian aspirations for statehood as legitimate. However, the Palestinian entity at present does not meet the criteria for statehood under international law. If it does not clearly say so and if it does not formally object to Palestine being referred to or treated as a “State” in international fora or the purpose of international treaties, Germany must not be surprised if the ICC Trial Chamber will ultimately hold Palestine to be a “State Party” to the Rome Statute and assume jurisdiction over the territories of the West-Bank, East-Jerusalem and the Gaza strip with all the legal and political consequences that entails.
Category:Category: Statehood and recognition