After the events following the seventh of October 2023, in May 2024, the International Criminal Court’s (ICC/Court) Prosecutor filed applications for arrest warrants for three Hamas Members, Israel’s prime minister, and the former Israeli minister of defense. Israel responded by challenging the Court’s jurisdiction. In November 2024, the ICC rebuffed Israel’s challenge as procedurally premature.
How to navigate this turbulent legal river without flowing into the ocean of political shenanigans? This article will explore the ICC’s jurisdiction in the Situation in the State of Palestine, addressing Israel’s challenge and the Office of the Prosecutor’s (OTP) response.
PRE-CONDITIONS TO THE COURT’S JURISDICTION
According to Art 12 of the Rome Statute 2002 (Statute), State parties can accept the jurisdiction of the ICC over crimes outlined in Art 5. Specifically, the Court may intervene if one of these crimes occurred on the territory of a State Party (ratione loci), or if the perpetrator is a State Party national (ratione personae). Under Art 12(3), a State not Party to the Statute can accept the Court’s jurisdiction by submitting a declaration to the Registrar. Since Palestine is not a signatory of the Statute, the Court can exercise its jurisdiction only if Palestine accepted the ICC jurisdiction under these provisions. Palestine met these requirements when it acceded to the Statute accepting the jurisdiction of the Court from the 13th of June 2014 onwards.
ISRAEL’S CHALLENGE
In September 2024, Israel challenged the ICC’s jurisdiction under Art 19(2)(c), which outlines that a State can advance jurisdictional challenges if it needs to accept the Court’s jurisdiction under Art 12. Israel argued that Palestine could not deliver jurisdiction to the Court, since, not being a State within the meaning of the Statute, it did not have criminal jurisdiction over the West Bank and the Gaza Strip (ratione loci). It further claimed that the crimes concerned were committed by Israeli nationals, over which Palestine could not exercise its jurisdiction due to the Oslo Accords (ratione personae). Therefore, according to Israel, since the applications for arrest warrants concerned conduct outside of the Court’s jurisdiction, Israel (not being a Party to the Statute) had to to accept the ICC’s jurisdiction.
If this argument is legally valid, since the ICC is complementary to national criminal jurisdictions under Art 1, the Court would be unable to interfere unless Israel is found to be unwilling or unable to investigate under Art 17.
However, is Israel’s argument legally valid?
Two matters need to be analysed:
- Whether the pre-conditions to the Court’s jurisdiction can be fulfilled, pursuant to Palestine’s sovereignty over the territory concerned.
- Whether the Oslo Accords impact the Court’s jurisdiction over Israeli nationals.
1. The ICC jurisdiction ratione loci
Art 125(3) outlines that “all States” can accede the Statute. Simultaneously, under Art 6 of the Vienna Convention on the Law of Treaties 1969, only States have capacity to conclude a treaty. The statehood of Palestine is disputed in the political sphere. However, in a 2021 decision, the Court claimed that, since its scope is limited to international crimes, its focus is to determine if it has jurisdiction over territories and natural persons to prosecute a criminal conduct. In other words, the Court uses the State as a method to delimit its jurisdiction ratione loci and personae. Therefore, the Court is concerned with the ability of Palestine to be a State part of the Statute, rather than being recognised under international law.
The Statute’s accession procedure helps us clarify this. According to Art 125(3), the UN Secretary-General is the depositary of instruments of accession of all States. The practice of the Secretary-General as a depositary is summed up in a UN Office of Legal Affairs’ document, which interprets the “all States” formula. It highlights that the Secretary-General follows the directives of the General Assembly (GA) when States do not fall within Art 6 of the Vienna Convention. After the GA published a Resolution reaffirming the independence of Palestinian territories, an Interoffice Memorandum regarding the same GA Resolution clarified that Palestine can become Party to treaties that use the “all States” formula. From these directions, Palestine is a State within the meaning of the Statute.
2. The ICC jurisdiction ratione personae
Even if the Court has jurisdiction over the territory of Palestine, what about its jurisdiction ratione personae?
Provisions of the Oslo Accords foresee that the Palestinian criminal jurisdiction covers offenses committed by Palestinians and/or non-Israelis in Palestinian territory. Does this mean that criminal jurisdiction cannot be transferred to the Court by the Palestinian authority?
The mechanism of cooperation between the Court and national jurisdictions solves this dilemma. In the Situation in the Islamic Republic of Afghanistan, the Court found that international agreements between the US and Afghanistan did not affect an investigation’s authorisation. Art 53 and 54 of the Statute help us to understand this reasoning. Art 53 puts on the Prosecutor the burden of initiating an investigation if information is available to reasonably believe that there is a crime within the jurisdiction of the Court. Art 54 enables the Prosecutor to extend the investigation considering all relevant facts to assess criminal responsibility. It follows that if the Court has jurisdiction over a certain territory, and if the Prosecutor believes that there is a crime within the jurisdiction of the Court, an investigation needs to be initiated. Therefore, given that the Prosecutor reasonably believes that crimes are happening in Palestinian territory, that the Court has jurisdiction in the territory of Palestine ratione loci, and that the ICC has jurisdiction over natural persons, the Court has jurisdiction to investigate Israeli nationals’ conduct amounting to crimes within its competencies. In other words, the Court has jurisdiction over Israeli nationals in light of its territorial jurisdiction over Palestine.
THE OTP RESPONSE
In November 2024, the OTP responded to Israel, arguing that its challenge was “incorrect” and “premature.”
The first argument develops from the law on complementarity regarding the Court’s jurisdiction ratione loci analysed above.
The second argument highlights that Israel challenged the jurisdiction of the Court before a Pre-Trial Chamber’s decision on the arrest warrants’ application. Specifically, since Art 19(2) of the Statute refers to the admissibility of a “case,” Israel could not challenge before a “case” had arisen. Israel had to wait until the Pre-Trial Chamber decided on the Prosecutor’s applications for arrest warrants.
The admissibility of a case to the Court’s jurisdiction helps us understand the ICC’s reasoning. In Lubanga, the Court highlighted sufficient gravity as a fundamental criterion to ascertain its jurisdiction. By filling an application for arrest warrants before the Pre-Trial Chamber, the Prosecutor aims to evaluate whether there are grounds to believe that a person has committed crimes of such gravity that can fall within the jurisdiction of the Court. Therefore, challenging the Court’s jurisdiction before a Pre-Trial Chamber’s decision is premature as the gravity of the case has not been assessed yet. Consequently, no case under the jurisdiction of the Court can be found.
Arguably, Art 53 appears to offer a compromise between the authority of the Prosecutor and the Pre-Trial Chamber when initiating an investigation. Under Art 53, the Prosecutor decides to initiate an investigation, considering INTER ALIA the gravity of the alleged crime. The Prosecutor needs to then inform the Pre-Trial Chamber of its decision, which MAY review the Prosecutor’s conclusions. Consequently, it could be argued that an assessment on the admissibility of a crime has already been done by the Prosecutor.
However, given the gravity of the crimes concerned, it is hard to think that the Court’s jurisdiction depends on one person’s discretion. As claimed in the Muthaura Judgment OA, the objective criteria of complementarity and cooperation enable jurisdictional challenges based on objective evidence sparked from an ongoing investigation. No investigation means no evidence, which means no crime under the Court’s jurisdiction and, therefore, no possibility of a jurisdictional challenge.
CONCLUSION
This article sought to provide legal clarity over a “squabble,” which resulted in Israel’s position being found jurisdictionally incorrect and procedurally premature. Under the ICC’s law of jurisdiction, Palestine is a State within the meaning of the Rome Statute and the Court has jurisdiction to initiate an investigation over the conduct of Israeli nationals in Palestinian territory. Furthermore, Israel challenged the application for arrest warrants before an actual investigation had started.
On the 21st of November 2024, the OTP issued arrest warrants for Netanyahu, Gallant and Hamas leaders, which Netanyahu rejected and considered an antisemitic step. Will this spark another “squabble”? And will this be legal or political?
Virginia Sala is an Italian soul exploring a potential career in legal/investigative journalism and international correspondence. She completed her university studies in the UK, earning a Law with International Relations degree from Canterbury and currently pursuing a master’s in international law at the University of Nottingham. Having lived in three different continents, she is passionate about investigating issues related to international criminal law, humanitarian crises, and social issues on a global scale. In her limited free time, she dances and cooks authentic Italian food for her friends, annoying the neighbour with her “deafening laugh.”
