The “Situation in Palestine” | ASIL Task Force on Policy Options for U.S. Engagement with the ICC

The ICC Prosecutor has indicated that her investigation of the situation in Palestine would encompass allegations of war crimes by Hamas and other Palestinian armed groups (and potentially Israeli Defense Forces ) in connection with the 2014 conflict in the Gaza Strip but also allegations against senior Israeli officials related to Israel’s settlement policies in the West Bank, including East Jerusalem. This last set of allegations is the most contentious as it involves official Israeli policy, making it difficult to argue that the conduct has been or is being investigated within the Israeli judicial system.

The possibility of ICC involvement in this situation first arose in 2009 when the Palestinians submitted a declaration under Article 12(3) that purported to accept the Court’s jurisdiction. Then-Prosecutor Luis Moreno-Ocampo kept the matter under review for several years but eventually concluded in 2012 that the ICC lacked jurisdiction. This was based not on an independent assessment of whether Palestine was a state, but rather invoked the competence of the UN Secretary-General as the treaty depository for the Rome Statute, whose practice in case of doubt about whether to treat an entity as a state is to defer to the guidance of the General Assembly. Given that the General Assembly (and thus the Secretary-General) did not treat Palestine as a state at that point, the Prosecutor concluded that the Palestinians could not confer jurisdiction on the Court.

The situation changed later that year when the General Assembly decided in Resolution 67/19 to accord the Palestinians “non-member observer state status in the United Nations.” When the Palestinians then submitted another Article 12(3) declaration (as well as their instrument purportedly acceding to the treaty) in January 2015, the current Prosecutor took the position that, effective from the date of Resolution 67/19, the Palestinians were able to accept the Court’s jurisdiction, and she opened a preliminary examination on January 16, 2015. The Prosecutor eventually concluded that there was a reasonable basis to proceed and that (because the Palestinians had referred the situation in 2018) there was no need to secure authorization from a Pre-Trial Chamber in order to commence an investigation. Nevertheless, on December 20, 2019, the Prosecutor—citing “the unique history and circumstances of the Occupied Palestinian Territory” which means that any “determination of the Court’s jurisdiction may…touch on complex legal and factual issues”—requested a jurisdictional ruling to confirm “that the ‘territory’ over which the Court may exercise its jurisdiction…comprises…the West Bank, including East Jerusalem, and Gaza.”

Faced with this question, the Court solicited amicus briefs from states, organizations, and persons wishing to provide their views. Israel chose not to formally submit a brief, but its Attorney General made available a “white paper” setting out Israeli views in considerable detail, which the Prosecutor brought to the attention of the Court. For its part, the United States did not avail itself of the opportunity to participate as an amicus, but the two most recent former heads of the State Department’s Office of Global Criminal Justice submitted an extensive brief that supported Israel’s position and questioned the logic underlying the Prosecutor’s conclusion that Palestine qualified as a state.

On February 5, 2021, the Pre-Trial Chamber issued its decision by a vote of 2–1. Among other things, it concluded that Palestine was a “State Party to the Statute,” that the Palestinian accession provided a basis for the Court to exercise jurisdiction, and that the area over which the Court could exercise jurisdiction encompassed the “territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” The United States criticized the decision, including in a statement in which Secretary Blinken said that the Palestinians to do not qualify as a sovereign state and therefore the Palestinians “are not qualified to obtain membership as a state in, participate as a state in, or delegate jurisdiction to the ICC.” On March 3, 2021, the Prosecutor announced that she was opening an investigation.

For its part, over a number of years Congress has passed a number of restrictions in annual appropriations legislation related to these Palestinian efforts to involve the ICC, though in each case the target of the legislation has been the Palestinians rather than the Court itself. The version of the legislation for the current fiscal year contains restrictions on the eligibility of the Palestinian Authority for assistance under the Economic Support Fund, as well as restrictions on the Palestinians' ability to maintain the Palestine Liberation Organization (PLO) office in Washington unless the President certifies that the Palestinians have not “initiated or actively supported an ICC investigation against Israeli nationals for alleged crimes against Palestinians.” Indeed, it was in connection with this latter requirement that the previous Administration announced the closure of the PLO office in September 2018.

More recently, numerous members of Congress have expressed significant concern about, and opposition to, ICC action against Israeli personnel. Of particular note, a May 13, 2020, letter led by Senators Ben Cardin (D-MD) and Rob Portman (R-OH) “urge[d] [Secretary Pompeo] to continue [his] vigorous support of Israel as it faces the growing possibility of investigations and prosecutions by the International Criminal Court,” while also noting that the authors “support the ICC’s stated goal of ensuring accountability for the gravest crimes of concern to the international community.” Indeed, in his June 2020 remarks, Secretary Pompeo justified the threat of sanctions with the fact that he was “gravely concerned about the threat the court poses to Israel” and noted that “[m]ore than 300 members of Congress—Republicans and Democrats alike—recently sent me letters asking that the United States support Israel in the face of the ICC’s lawless, politicized attacks.” However, a number of members of Congress subsequently issued public statements criticizing the announcement of President Trump’s Executive Order and the sanctions under it, with one Senator who had signed the Cardin/Portman letter calling the sanctions “misguided and counterproductive,” and another describing the sanctions as “a slap in the face to victims of war crimes, crimes against humanity, and genocide the world over…[that] will surely be condemned by our law-abiding democratic allies…”

Although it is anticipated that any investigation by the Prosecutor into these matters will be on a slow trajectory, there is no question that the U.S. relationship with the ICC will be influenced by the degree to which members of Congress, and the U.S. public, are concerned about developments in this investigation.

Secretary of State Anthony J. Blinken, Press Statement, The United States Opposes the ICC Investigation into the Palestinian Situation (Mar. 3, 2021). For its part, the ICC Pre-Trial Chamber indicated that its decision did not entail a determination as to whether the Palestinians “fulfill[] the prerequisites of statehood under international law” (or that it was “adjudicating a border dispute under international law [or] prejudging the question of any future borders”). Situation in Palestine, Ruling on Territorial Jurisdiction, supra note 234, paras. 93, 113. Israel, to the contrary, has argued that the question of jurisdiction cannot be separated from the question of whether an entity actually qualifies as a state under international law because the ICC can exercise jurisdiction only to the extent it has been delegated from an entity that qualifies as a state with such a delegation authority. See, e.g., State of Israel, Office of the Attorney General, The International Criminal Court’s Lack of Jurisdiction Over the So-Called “Situation in Palestine,” supra note 232, para. 4.