On 5 February 2021, Pre-Trial Chamber I issued its decision regarding the ICC’s jurisdiction for possible war crimes committed in Palestine since 13 June 2014. This post addresses the Chamber’s human rights approach to determine the Court’s jurisdiction in this situation. On 2 January 2015, Palestine deposited its instrument of accession to the Court’s Statute pursuant to Article 125(2) of the Statute and on 22 May 2018, referred the Situation of Palestine to the Prosecutor pursuant to Articles 13(a) and 14 of the Statute (see here).
The ICC’s Prosecutor: Where are the Borders of Palestine?
Given that the territory of Palestine and its borders are disputed, the Prosecutor, on 22 January 2020, requested pursuant to Article 19(3) for a ruling on the Court’s territorial jurisdiction (ratione loci) in Palestine. In this situation, there is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip, and potential cases arising from this situation that would be admissible have been identified, and there are no substantial reasons to believe that an investigation would not serve the interests of justice (Article 53(1)). The Prosecutor stated that in view of the fact that the question of Palestine’s statehood under international law does not appear to have been definitively resolved, a ruling on the Court’s territorial jurisdiction facilitate and ensure a cost-effective and expeditious conduct of the investigations and would assist and guide the Prosecutor in the performance of its functions (see here, ¶¶ 5-6, 20). It is the view of Israel that the Palestinian entity does not now hold sovereign title over the West Bank, including East Jerusalem, and the Gaza Strip and these territories in fact have always been under the effective control of others; Israel adds that, as the Palestinian entity has no criminal jurisdiction over either Israeli nationals or these territories, it is therefore legally impossible for it to delegate any such jurisdiction to the Court (Israel Ministry of Foreign Affairs Memorandum, ¶¶ 23, 30).
Human Rights and the ICC
In response to the Prosecutor’s request, the Pre-Trial Chamber rejected Israel’s argument based on the “right to self-determination” of the Palestinian people as a human right, and found that the Court’s territorial jurisdiction in the situation of Palestine extends to the territories occupied by Israel since 1967 (hereinafter, ‘the territories’), namely Gaza and the West Bank, including East Jerusalem (¶118). In the decision of 5 February 2021, the ICC, in line with the ICJ’s advisory opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory and the ECJ’s preliminary ruling in Labeling Foodstuffs Originating in Territories Occupied by the State of Israel, declared that: “the Palestinian occupied territories after June 1967 are not territories of Israel.” The Chamber recalled several United Nations General Assembly resolutions including 67/19, 43/177, 58/292, and 66/146. These resolutions considered that the Palestinian people have the right to self-determination and to sovereignty over their territory and affirmed the need to enable the Palestinian people to exercise their sovereignty over the territories which its status remains one of military occupation. The Pre-Trial Chamber noted that the right to self-determination, which according to the ICJ is owed erga omnes (see here), but it is being breached by Israel in the territories. The Chamber is of the view that the extension of the Court’s territorial jurisdiction in the territories occupied by Israel since 1967 is consistent with the right to self-determination as a human right.
In this case, the Pre-Trial Chamber did not act beyond the powers conferred to it. According to Article 21(3) of the Statute, the application and interpretation of the applicable law in the Court must be consistent with internationally recognized human rights. The internationally recognized human rights are rights that are not disputed in the international community and are enshrined in most human rights instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Of course, these rights have an inherent basis and their mention in these documents is not a necessary condition. The Court’s Appeals Chamber has already emphasized the need to respect human rights in the Lubanga case, where it affirmed: “every aspect of statute including the exercise of jurisdiction of the Court and provisions of the statute must be interpreted and more importantly applied in accordance with internationally recognized human rights” (¶37). In its proceedings, the Court has even interpreted the principles of international criminal law with a human rights-based approach. For example, the Pre-Trial Chamber in the Saif al-Islam Gaddafi case did not accept that prosecuting the accused in the Tripoli court should be considered as a basis for applying ne bis in idem, because there is a strong, growing, universal tendency that grave and systematic human rights violations, which may amount to crimes against humanity, are not subject to amnesties or pardons under international law.
International Human Rights Law and More Favourable Protection
Of course, the need for the Court to comply with human rights is not absolute, and if human rights standards are weaker than those set out in the Rome Statute, the latter prevails. Some articles of the Statute, especially those related to the rights of the accused and the victims, address the human rights of individuals. The Appeals Chamber, which faced such a situation in the Katanga case, considered that, in this case, the standard applicable under the Statute (Article 67(1)(a),(f)) is higher than that applicable under human rights instruments. According to Article 67(1)(a),(f), the accused shall be entitled to be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks and to have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks. The Appeals Chamber noted that provisions of human rights instruments, including Article 6 of the European Convention on Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 8 of the American Convention on Human Rights, do not, in relevant part, include the word “fully” and, therefore, there seems to have been an intention to grant to the accused before the Court, rights of a higher degree than in other courts referred to (¶¶ 42-43, 49, 62).
The principle followed by the Court in this regard is the more favorable protection principle in international human rights law (see here). According to this principle, which is mentioned in some human rights instruments, the law providing the best protection of human rights always prevails. The gap in some treaties may cause ignorance of human rights. The more favorable protection principle tries to prevent this disregard and it sometimes ignores some principles in this way. For example, although implementation of international law generally prevails over internal law, the rights recognized in national legal systems for individuals, according to Article 5(2) of the Covenant on Civil and Political Rights, shall be respected by the State parties of the Covenant to these individuals even without mention in the Covenant.
This case might provoke further effects on the jurisprudence of the Court, since the ICC approach to determine its territorial jurisdiction in the situation of Palestine with reference to the right to self-determination as a human right could also be followed in other situations before the Court whose territorial boundaries are disputed, including Ukraine and Georgia.
Vahid Bazzar, Ph.D. graduate in international law, Allameh Tabataba’i University, Iran.
Image: A Day in the Life of Abed Salama by Nathan Thrall, Video (see here).
The JFIEL Conference 