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25. Far from ruling only on relations between states, “the Statute deals with the collective reaction of its State Parties to the breach by an individual of its obligations erga omnes”

[36]. This puts into perspective not the importance that a consent should be granted by the holder of a territorial or personal title but that of the legal qualification of this entity: whether one is dealing with a State – which is what most countries in the world that have recognized Palestine as[37] – or not – as considered by a minority of other  States, the fact is that only the Palestinian Authority possesses, by virtue of international law, an exclusive territorial title to the Palestinian territory and the population that is established there.

26. Besides, it is indeed as territorial sovereign that Palestine made the Declaration of Article 12, Paragraph 3 on 21 January 2009: “The Government of Palestine hereby recognizes the jurisdiction of the Court for the (…) acts committed on the territory of Palestine since 1 July 2002”[38].

27. There is no doubt that the West Bank and Gaza are occupied territories and are internationally recognized as such. As the I.C.J. noted in its Advisory Opinion of 9 July 2004:
“The territories situated between the Green Line (see paragraph 72 above) and the formereastern boundary of Palestine under the Mandate were occupied by Israel in 1967 during the armed conflict between Israel and Jordan. Under customary international law, these were therefore occupied territories in which Israel had the status of occupying Power. Subsequent events in these territories, as described in paragraphs 75 to 77 above, have done nothing to alter this situation. All these territories (including East Jerusalem) remain occupied territories and Israel has continued to have the status of occupying Power.[39]

28. The present paper does not constitute the appropriate framework to draw all the consequences of this hard-to-challenge position. It suffices to note that: – In no way does occupation of a territory confer upon the occupying power sovereignty over it: “Whatever the effects of occupation upon a territory caused by the adversary before peace is restored, it is certain that on its own, such an occupation could not effect the transfer of sovereignty”[40].
– On the contrary, the de facto annexation of Palestinian territories infringes territorial sovereignty and the rights of Palestinians to self-determination[41].
– Besides Israel does not claim the exercise of territorial sovereignty upon occupied territories[42]: thus for example, in its report to the Committee on Economic and Social Rights of 19 October 2001, it argued that “Israel has consistently maintained that the Covenant does not apply to areas that are not subject to its sovereign territory and jurisdiction”[43] (i.e. the West Bank and Gaza)[44].
– On very many occasions, the General Assembly[45] and the Security Council[46] have affirmed the applicability throughout the occupied territories of the jus in bello regarding occupation and, in particular, of the Fourth Geneva Convention of 1949, as the I.C.J. noted in its Opinion on the Wall in 2004[47].
– By the Cairo Agreement on Jericho and the Gaza strip of 4 May 1994, and the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip signed in Washington on 25 September 1995, Israel recognizes[48] Palestinian jurisdiction in legal (including penal)[49] and human-rights[50] matters; by accepting the jurisdiction of the I.C.C. with regard to crimes anticipated in Article 5 of the Rome Statute, Palestine partly discharges this responsibility[51].

29. Furthermore, it is not uninteresting to note that, in its Advisory of 2004, the World Court stressed that Section III of the Regulations annexed to the Fourth Hague Convention of 1907, “which concerns military authority over the territory of the hostile State, is particularly pertinent in the present case”[52]; thus, the I.C.J. clearly considers Palestine as a State for the purposes of the application of the Regulations. Besides, mutatis mutandis, the reasoning followed by the World Court to decide that the Fourth Geneva Convention of 1949 “is applicable in the Palestinian territories which before the conflict lay to the east of the Green Line and which, during that conflict, were occupied by Israel, there being no need for any enquiry into the precise prior status of those territories”[53] can be transposed to the present case:
– The I.C.J. applies to the interpretation of Article 2 of the Convention of 1949“customary international law as expressed in Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969”[54]; It then notes “that, according to the first paragraph of Article 2 of the Fourth Geneva Convention, that Convention is applicable when two conditions are fulfilled: that there exists an armed conflict (whether or not a state of war has been recognized); and that the conflict has arisen between two contracting parties. If those two conditions are satisfied, the Convention applies, in particular, in any territory occupied in the course of the conflict by one of the contracting parties (…). This interpretation reflects the intention of the drafters of the Fourth Geneva Convention to protect civilians who find themselves, in whatever way, in the hands of the occupying Power. Whilst the drafters of the Hague Regulations of 1907 were as much concerned with protecting the rights of a State whose territory is occupied, as with protecting the inhabitants of that territory, the drafters of the Fourth Geneva Convention sought to guarantee the protection of civilians in time of war, regardless of the status of the occupied territories, as is shown by Article 47 of the Convention”[55].
– Finally to reach the conclusion noted above.

30. The same reasoning can be transposed to the present case:
– It is appropriate to apply the general rule of interpretation reflected in Article 31 of the Vienna Convention of 1969 to Article 12 of the Rome Statute[56];
– This provision is applicable so long as a State (in possession of a territorial or personal title) lodges the declaration planned in Paragraph 3[57];
– It reflects the intention of the authors of the Statute not to permit a State to block unilaterally the exercise of its jurisdiction by the I.C.C. and to render as effective as possible challenges to impunity for the crimes enumerated in Article 5, which is the fundamental role of the Treaty[58].
– It can be deduced that one or more contracting Parties would not be able toprevent the Palestinian Declaration of 21 January 2009 from being effective on the Palestinian territory; For, by depriving it of an effect, the Court would give its blessing to a zone of impunity in the territories occupied by Israel, which is contrary to the intentions of the authors of the Rome Statute, and to its aim and purpose, since, in this hypothesis, no State could confer upon it jurisdiction within these territories.

31. The situation that would ensue from a refusal by the I.C.C. to give effect to the Palestinian declaration of 2009 accepting its jurisdiction, would be infinitely more shocking and would have consequences far more serious than that resulting from the position – moreover quite open to criticism[59] – of Switzerland following the request for accession by Palestine to the Fourth Red Cross Convention, formulated in 1989. For, as the I.C.J. explained:
“Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it “[was] not — as a depositary — in a position to decide whether” “the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the ‘State of Palestine’ to accede” inter alia to the Fourth Geneva Convention “can be considered as an instrument of accession”[60].
In other words, the unilateral undertaking of Palestine – which certainly binds it[61] – mitigated in great part[62] the inconvenience resulting from the –undeniable – breach of its obligations by Switzerland as depositary[63]: by its declaration of 1982, Palestine was (and is) obliged to respect the rules of the Fourth Convention of 1949. On the other hand, implementation of the Rome Statute is not for Palestine, but for the Court[64]: if the latter declares the Palestinian Declaration invalid, it will (barring an intervention by the Security Council) remain an irreparable dead letter with regard to the occupied Palestinian territories.

32. This situation would be all the more intolerable since [by] its very nature the Statute aims to safeguard fundamental interests of the International Community as a whole and indeed recalls the Convention on Genocide of 1948, of which the I.C.J. observed that: “In such a convention the contracting States do not have any interests of their own ; theymerely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties”[65]. And, as the World Court later stated in the same Advisory (which is equally true in the present case): “The object and purpose of the Genocide Convention imply that it was the intention of the General Assembly and of the States which adopted it that as many States as possible should participate. The complete exclusion from the Convention of one or more States would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis”[66].

33. Consequently, at the end of this examination, I am led to conclude that the Palestinian Declaration of 21 January 2009 accepting the jurisdiction of the I.C.C. for thepurposes of identifying, prosecuting and judging the authors, and their accomplices, of crimes listed in Article 5 of the Rome Statute, that have been committed on the territory of Palestine since 1 July 2002, can be effective according to the provisions of Article 12 of the Statute and, in particular, that all conditions for the Court to exercise its jurisdiction in application of Article 13 have been met:
– Ratione materiae, the Goldstone Report – to mention only this document – allowsone to consider reasonably that crimes that could fall under the jurisdiction of the Court may have committed by both sides[67] during Operation “Cast Lead[68]”; – Ratione temporis, by its retroactive recognition of the jurisdiction of the I.C.C. for events posterior to 1 July 2002 (Date on which the Rome Statute came into force), the Declaration respects the terms of Article 11[69]; – Ratione loci (and in consequence ratione personae), it extends the jurisdiction of the Court to crimes committed on Palestinian territory, within which only the Palestinian Authority benefits from territorial sovereignty[70] (and to persons having committed them), in conformity with the provisions of Article 12, paragraph 2.b), which envisages the jurisdiction of the Court with regard to a State “on the territory of which the conduct in question occurred” and – These mechanisms can be set into motion, ratione conventionis so to speak, by virtue of the declaration made by a competent Palestinian authority[71] on 21 January 2009.

34. On this last point, which is at the core of the questions raised in the present paper, it seems to me that the Court has, for the reasons outlined above, no need to pronounce in abstracto on whether ‘in the absolute’ Palestine is or is not a State – which would lead to the need for it to decide between the sovereign assessments of the States that constitute the international community (and which benefit from powers of assessment for this purpose) while they are deeply divided. It suffices, rather, to note that, whatever the situation may be under other hypotheses, for the objectives of the Rome Statute this declaration could be formulated in conformity with the provisions of Article 12 and it could put in place the effects envisaged by Article 13.

35. Besides I remain no less convinced that Palestine exhibits all the attributes of a sovereign State (even if its territory is entirely occupied[72]) and that it would suffice for it to proclaim itself as such for the State quality of this entity not to be doubted. I also believe that one could consider that, by formulating the declaration under review, Palestine has indeed behaved as a State in the eyes of General International Law[73] in reason of the absence of State animus of the Palestinian Authority since the conclusions of the Oslo Accords of 1993, and of those of Cairo in 1994[74]. But, once again, I do not believe that it would be useful to ponder these legally difficult and politically controversial questions; in any event, for the purposes of the application of the Rome Statute, Palestine can – and must – be considered a State.

Done at Garches, 14 February 2010

* This paper was written with the able assistance of Alina Miron, temporary teaching and research assistant at Paris Ouest Nanterre/La Défense University (CEDIN).

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Click here to download Prof. Alain Pellet Academic Paper:
Academic Paper: Effects of Palestinian Recognition of The Jurisdiction of The I.C.C. (18 page, 194 KB )

* Alain Pellet Professor at Paris Ouest Nanterre/La Défense University Member and former President of the United nations International Law Commission ;Associate of the Institute of International Law.

* This paper was originally presented at al-Zaytouna conference “Israel & the International Law” in 2009. We, in al-Zaytouna Centre, found this paper is still of importance and interest to researchers and scholars, who are following the situation in Gaza Strip.

Al-Zaytouna Centre for Studies and Consultations, 16/8/2014