An article by our senior fellow, Prof. Eugene Kontrovich, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state.
In the wake of the United Nations General Assembly’s recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could, in principle, challenge the legality of Israeli settlements in the West Bank.
This article explores a significant jurisdictional hurdle for such a case. (To focus on jurisdictional issues, the article assumes for the sake of argument the validity of the merits of legal claims against the settlements.) The ICC can only consider situations ‘on the territory’ of Palestine. Yet the scope of that territory remains undefined. The norm against settlements arises in situations of occupation. However, in the majority view an ‘occupation’ can arise even in an area that is not the territory of any state. In this respect, ICC jurisdiction is narrower than the corresponding Geneva Convention norm, as it only extends to sovereign state territory. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs ‘on the territory’ of Palestine.
Moreover, both the General Assembly resolution and the International Court of Justice’s Wall Advisoryopinion make clear that the borders of Palestine remain undefined. The ICC lacks the power to determine boundaries of states, and certainly of non-member states. Given that Israel is a non-member state, determining the borders of Palestine, even for jurisdictional purposes, would violate theMonetary Gold principle, as it would also determine Israel’s borders. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.