The notion that “Palestine” is a full-fledged state that can grant jurisdiction to the International Criminal Court was dealt a serious blow over the past week, as seven countries and many scholars of international law argued that the issue was not as simple as the Palestinians and their supporters would like to make it seem.
Even some countries that have formally recognized the “State of Palestine” along the pre-1967 lines argued that Palestine cannot necessarily be considered to have validly granted the ICC jurisdiction to probe war crimes allegedly committed on its territory.
Germany, Australia, Austria, Brazil, the Czech Republic, Hungary and Uganda last week submitted written documents to The Hague, each asking to become an amicus curiae — a “friend of the court” that is not a party to the case but wants to offer its views. They all posited that Palestine cannot transfer criminal jurisdiction over its territory to The Hague.
Not a single country filed a request to argue the opposite.
“I have spoken with several leaders from these countries and, along with international organizations and leading experts in the world, they have expressed a clear stand that the international court has no authority to discuss the conflict between the State of Israel and the Palestinians,” Prime Minister Benjamin Netanyahu said Sunday.
“The fact that many countries have lined up alongside us… is a fact that certainly needs to encourage every friend of Israel around the world and every citizen of Israel.”
“Issues like the fact that recognition can be symbolic [but] not legal, that the territory of the Palestinian entity is undetermined and subject to negotiation, and just the exceptional degree of controversy and uncertainty surrounding this entire question, all make the case for ICC jurisdiction highly doubtful even for recognizing states,” he said.
Israel has long argued that the ICC lacks jurisdiction over the case not least because there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.
While not a single country filed such a request arguing in favor of jurisdiction, the Arab League and the Organization of Islamic Cooperation did submit amicus curiae observations saying that Palestine is of course a sovereign nation and that the ICC can proceed with launching an investigation into the Israeli-Palestinian conflict.
“The [Arab] League would submit that, as a matter of international law, the State of Palestine is the sole sovereign over this territory. The status of occupation over the territory of Palestine has been universally recognized,” the Cairo-based organization said in its application.
The Organisation of Islamic Cooperation, which is headquartered in Jedda, Saudi Arabia, said it would highlight the “historical aspects of the Question of Palestine and the injustices the Palestinian people have been subject to,” including the 1917 Balfour Declaration and 1947 UN Partition Plan, “which determined the historical founding contours of the State of Palestine and Palestinian sovereignty rights.”
But these umbrella groups mainly represent themselves and not their member states, very few of which are members of the court, and can be expected to influence the three judges of the pre-trial chamber much less than the powerful and democratic Western nations that spoke out against the court’s jurisdiction.
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