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Forthcoming ICC Order on the Jurisdiction in the Palestinian Territories – a Beginning of the Court’s End?

The International Criminal Court (ICC) created by the Rome Statute purports to be the world’s first permanent international criminal court. Under Article 51 of the Rome Statute the ICC has jurisdiction to try crimes of genocide, crimes against humanity, war crimes and the crimes of aggression. Currently 123 countries are State Parties of the ICC. The US, China and Russia are not its members.

The International Criminal Court convening for a case on 14 July 2020 © ICC-CPI

The Pre-trial Chamber of the ICC is currently seized with a request lodged by the Office of the Prosecutor of the ICC for a ruling on the ICC’s territorial jurisdiction in Palestine.

The order, which is expected any time soon, will essentially deal with one question: can an entity claiming statehood (in this case Palestine) cause the ICC to investigate and prosecute alleged crimes in the territory claimed and controlled by a state rejecting the ICC jurisdiction?

Predicting court decisions has never been a safe bet, but most commentators believe the ICC will agree in part with the Prosecutor’s request and confirm the ICC jurisdiction either in relation to some of the territories claimed by Palestine or in relation for actions committed starting from certain date. Accordingly, public discussion is mostly focused on which tactics Israel should and will take in future litigation and how the proceedings will affect the reputation of the ICC itself.

What the commentators overlook, however, is that assuming jurisdiction over the territories claimed by Palestine may be the beginning of the ICC’s end. Called by Ambassador Bolton simultaneously dangerous and weak, the ICC would create a precedent where the ICC’s jurisdiction is extended to the disputed territories, effectively creating new states. This may drive the Great Powers to try to undermine or dissolve the ICC.

Although territorial disputes are outside of the scope of the Rome Statute, certain actions of the state actors may offer an effective backdoor. In its referral to the ICC Palestine specifically referred to the issue of Israeli settlements citing Advisory Opinion on the Wall by the International Court of Justice (ICJ) and invoking the Forth Geneva Convention. Article 49, sixth paragraph, of the Fourth Geneva Convention sets forth that the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

The Israeli settlements are villages or city districts exclusively populated by Israeli citizens in the areas east of the Israel–Jordan Armistice line of 1949, which were seized by Israel in 1967 war. Most settlements were built anew after Israel had seized the territories in 1967, while some were re-populated, after the Jews had been expelled from there during either the 1929 Arab Riot or the war in 1948.

The Prosecutor stated that the settlements in the West Bank and East Jerusalem would be the focus of her examination.

If the ICC decides it has jurisdiction over the Israeli settlements, the Prosecutor may well invoke a transfer of population grievance. Transfer of population includes actions of transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies. Transfer of population is a war crime. Israel disputes that it is the occupying power and that the West Bank and East Jerusalem are occupied. For these reasons Israel denies that the settlements violate international law.

Israel is not unique in the situation, when an entity claiming statehood or an actually existing state lodges a territorial claim against it. Two Great Powers, Russia and China, who have not acceded to the ICC’s convention, the “Rome Statute”, have the same issue. Russia claims Crimea as its own sovereign territory over which it de facto exercises full control. Ukraine contends that Crimea is a Ukrainian territory illegally occupied by Russia in 2014. Ukraine vehemently maintains its claim. Furthermore, Russia claims as its sovereign territory, over which it also has full control, borderline areas with Estonia and Latvia, merged with Russia in 1944-1945 following occupation of these countries by the Soviet Union. Yet, Estonia and Latvia have largely abandoned their claims. In contrast to Estonia and Latvia, Ukraine is not currently a party to the Rome Statute.

China has a number of territorial disputes with the neighbouring countries. Most importantly, China claims as its sovereign territory and actually controls Tibet and East Turkistan. Both Tibet and East Turkistan claim to be occupied by China and retain claims for independence. On 6 July 2020 the East Turkistan Government in Exile lodged a complaint to the Prosecutor of the ICC seeking to open an investigation.

Both Russia and China allow resettlement of population from the non-disputed into disputed areas, though there is no credible evidence on how much effort these countries invest in organising or promoting the resettlement. It may be argued that population migration and population transfer are two different concepts, the first being spontaneous and the second being organised. However, it is doubtful such differentiation will ever be recognised by the ICC, since even spontaneous migration requires facilitation from the alleged occupying power. This may well mean that both Russia and China can find themselves in the same legal situation as Israel.

Would the ICC Pre-trial Chamber confirm the ICC jurisdiction over the territories claimed by Palestine, this will turn out to be a test case, inviting the countries, whose territories they believe are occupied, as well as unrepresented peoples seeking statehood, to follow suit by becoming members of the ICC and lodging similar claims against transfer of population into the allegedly occupied territories.

In this hypothetical scenario, should Ukraine, Tibet or East Turkistan follow the Palestinian test case, a question of transfer of population as a war crime committed by Russian and Chinese officials may arise. It is however highly implausible either Russia or China will ever comply with any international court ruling prosecuting their officials for facilitating settlement of their citizens in the territories the ICC will consider occupied.

Non-compliance with decisions of international courts is nothing new. Most prominent cases of non-compliance are perhaps the US ignoring WTO Dispute Settlement rulings and the Russia defying a judgement of the European Court of Human Rights in Yukos case. However, the WTO Dispute Settlement Body and the European Court of Human Rights do not reach the standing of the ICC. Under the Negotiated Relationship Agreement the ICC has been not only granted a status of observer at the UN General Assembly with the right to propose items for consideration by the UN, but the UN has even assumed a legal obligation to co-operate with the ICC. The ICC has been intended to become one of the world most important courts.

Article 13 of the Rome Statute allows the Security Council to refer cases to the ICC, in addition to the cases brought by the ICC Prosecutor. The Security Council referred cases to the ICC on two occasions, the first being Libya, and the second Darfur, extending the ICC jurisdiction beyond the parties to the Rome Statute.

It could be difficult from a political and diplomatic point of view for the Security Council, or States Parties of the ICC, to refer cases to the ICC against non-member states, if the permanent members of the Security Council blatantly ignore the ICC rulings. Faced with political and diplomatic damage caused by non-compliance with the ICC rulings, Russia and China may well prefer to start working with the US to effectively dissolve the ICC in one way or another.

It appears that Russia has already started to realise this problem as it is increasing its efforts to undermine the ICC. The Russian position on the UN 75th General Assembly, published on 23 July 2020, contends that the authority of the ICC has decreased, its political bias has increased and it failed to prove its usefulness.

Perhaps the ICC would achieve more, if it confines its jurisdiction strictly to the “consent of states” principle. Being a “runaway court”, by asserting jurisdiction over non-members of the Rome Statute may mean its end.

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Maksim Greinoman

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