In December 2019 the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) announced that it had concluded its preliminary examination into the Situation in Palestine, and was satisfied that it had competence to open a formal investigation. The announcement, however, came in the form of a Request to the Pre-Trial Chamber for confirmation that the OTP’s understanding of the scope of the Court’s jurisdiction over Palestine was correct.
Among the reasons the OTP gave for making the request was that “while the Prosecution wishes to obtain a ruling expeditiously, it would provide an opportunity for legal representatives of victims and the referring State to participate in the proceedings, if they wish. In addition, other States and interested parties or entities may also seek to participate”.
Between December and March 2020 there was significant activity around the case. In addition to victims’ submissions, and those of the Office of Public Counsel for Defence, some 43 amicus briefs were submitted to the Pre-Trial Chamber by the deadline of 16 March 2020. These included the opinions of international organisations, individuals, NGOs, Bar Associations, and states.
Seven states refute the jurisdiction of the Court
This analysis focuses on the substance of the briefs submitted by states, specifically those that opposed the move by the OTP to open an investigation. Seven states – Austria, Australia, Brazil, Czech Republic, Germany, Hungary, and Uganda – submitted briefs advocating that the Chamber refute the Prosecutor’s contention that the Court has jurisdiction over Palestine, while Palestine, the Arab League, and the Organisation of the Islamic Conference submitted amicus briefs supporting the Prosecutor’s position. This represents an unprecedented engagement by states with the Court’s operations through the amicus process.
In seeking to condition the end of Israel’s occupation on negotiations rather than by reference to the legal imperative for Israel to withdraw from occupied territory, states advocating against the ICC exercising its jurisdiction over the situation in Palestine are working to extinguish the legal rights of Palestinians. Moreover, to the core of the effort to convince the Pre-Trial Chamber that it cannot entertain Palestinian jurisdiction, their rationale is based on what is best a flimsy argument that what constitutes a ‘state’, is regulated by the 1933 Montevideo Convention.
While reiterating their commitment to the Court and to the broader role of international law, the states’ amici implicate that Palestine represents an exceptional scenario and as such, any recourse to law will only serve to aggravate and preclude any political solution.
This follows the approach of the Trump/Kushner ‘Peace Plan’ which totally negates international law. This document, published in January 2020, proposes a set of criteria which Palestine must satisfy during future negotiations with Israel. Overall, the thrust of the Vision is to ensure Palestinians remain subject to Israeli political and military dominance, but of direct relevance to the ongoing ICC process is the requirement that during negotiations Palestine “take no action, and shall dismiss all pending actions, against the State of Israel, the United States and any of their citizens before the International Criminal Court, the International Court of Justice, and all other tribunals”. The Plan further affirms that should the U.S. decide to recognise the state of Palestine, it “may not join any international organization if such membership would contradict commitments of the State of Palestine to demilitarization and cessation of political and judicial warfare against the State of Israel”.
Statehood, a matter where politics, rights, and law overlap
In attempting to find a legal method by which to justify this policy, the states’ amici rely heavily on Article 1 of the 1933 Montevideo Convention, which they suggest demonstrates that Palestine is not a state and as such cannot be in a position to transfer its jurisdiction to the Court. Article 1 of the 1933 Montevideo Convention provides that “the state as a person of international law should possess the following qualifications: a) permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states”.
There is no evidence that these criteria, however useful or reasonable they might be in helping identify statehood, constitute binding international law. International law does not define, nor provide definitive criteria for measuring, whether a body is a state or not. It is, irrefutably, a matter where politics, rights, and law overlap such that none take any definitive authority over the other. Probably the only definitive proof that one is a state is membership of the United Nations, a possibility denied to Palestine by the U.S. veto power at the U.N. Security Council.
The amicus briefs acknowledge as much in their reference to the Montevideo criteria as the “traditional criteria” of statehood rather than as the “legally binding criteria” of statehood. While relying upon the criteria to evidence Palestine’s failure to pass the test, the briefs serve up quite disparate understandings of what the various of the “classical criteria” are, and fail to provide any compelling evidence which might show that they constitute customary international law.
Austria refers to the “classical criteria for statehood” which it considers to be “permanent population”, “defined territory”, and “an independent and effective government”. Austria excludes the final criterion of the Montevideo Convention, the ”capacity to enter into relations with the other states”, but does not explain why. Nor does it explain on what basis the government criterion has been read as to require such to be “independent and effective”.
The interminable circularity of the debate
The Czech Amicus asserts that “it is generally accepted that, under customary international law, the existence of statehood presupposes fulfilment of” the qualifications set by the Montevideo Convention. In support of this claim it cites a 1998 textbook and draws on the authority of the Badinter Commission established by the European Community in 1991. In the context of the disintegration of the former Yugoslavia into separate states, the Commission’s opinion “based on the principles of public international law”, did not refer explicitly to Montevideo, and indeed departed from the Montevideo criteria. Although not an international tribunal itself, the Commission suggested in its consideration “that the state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a state is characterized by sovereignty”. By way of a footnote, the Czech Amicus identifies an additional element that is “particularly missing” namely “a sovereign government”.
The position of Hungary, citing two textbooks, is that “the right to self-determination does not prevail over the generally accepted requirements of statehood” and that “it is generally accepted that Article 1 of Montevideo is the governing rule for the evaluation of statehood” and is “considered as customary international law”. The interminable circularity of ‘debate’ around declaratory and constitutive theories of international law – which is to say the whether a state exists exclusively by having satisfied some set of criteria, or whether a state exists when other states recognise it as such – is evident in Hungary’s assertion that “the existence of a state under international law is a factual question, which to some extent requires an act of recognition. However recognition is not a constitutive element of statehood.”
The German view is that “as far as statehood is concerned the law is pretty clear”, and that the four constituent criteria of the Montevideo Convention “have been generally recognized as customary international law”. Germany submits that whether Palestine meets all of these criteria “remains open to doubt”, but does not elaborate with any specificity as to why there is any doubt.
Germany also notes that the UN Committee on the Admission of New Members, in the report of its 2011 discussions on Palestine, examined “whether Palestine met the criteria of the Montevideo Convention”. The Report does summarise a range of differing views as to whether Palestine met the Montevideo Criteria, but the Report doesn’t suggest that the criteria constitute binding law. The Report also reveals discussions around Palestine’s right to self-determination, including the expression of the view as to “the need to ensure that recognition of Palestinian statehood could not be subject to the outcome of negotiations between Israelis and Palestinians”, in which case “Palestinian statehood would be made dependent on the approval of Israel, which would grant the occupying power a right of veto over the right to self-determination of the Palestinian people”.
Statehood as a gift
Uganda expresses its concern about the OTP “relaxing the accepted traditional criteria” of statehood but does not set out what it believes these to be. Uganda further claims that the Oslo “interim agreements regulate everyday life in the Israeli-Palestinian context”. Such a claim constitutes a striking omission of the fact that it is international humanitarian law and human rights law which are applicable, a fact of which Uganda is fully aware given that in 2005 the International Court of Justice found that Uganda, as an occupying power in Ituri in the Democratic Republic of Congo, had violated its obligations under customary law and its treaty obligations including under the Fourth Geneva Convention and the International Covenant on Civil and Political Rights. Also absent from consideration, as is the case with the other amici, is any reference to the need for Israel, as an occupying power, to defer to general international law and to end the occupation.
Each of these Amici align along the view, as expressed by Australia, that “the question of Palestinian statehood cannot be resolved prior to a negotiated peace settlement”. Germany states that “[a] Palestinian state can only be achieved through direct negotiations between Israelis and Palestinians, aimed at determining territorial boundaries, and bestowing full jurisdiction on the Palestinian Authority”. While this is not a novel policy position, but rather one in which too many states have acquiesced, the language of ‘bestowing’ is revealing as to the consequence and method of this policy. Bestow means to give as an honour or gift, a sentiment which reveals an attitude towards Palestine which is directly opposed to the supposedly scientific and legal objectivity of the Montevideo Criteria.
An insight into state solidarity with Israel and the U.S.
In a timely book which considers the function and significance of amici in international criminal law up to May 2019 Williams et al wrote that “the amicus curiae mechanism is important for building and maintaining the legitimacy of any international criminal tribunal, but especially for a permanent tribunal such as the ICC”. A point they flag up early on is that in international criminal litigation “the primary actors – the parties to the proceedings – are the prosecution and the defence. States, normally the primary actors in international adjudication are, to an extent, excluded as participants.” In the Palestine situation, states proved eager to be part of debate before the ICC. In several instances this has led to manifestly incoherent or contradictory positions, where states such as Uganda and Brazil which had bilaterally recognised the state of Palestine in 1988 and 2010 respectively, or states such as Austria which in 2011 had voted in favour of the state of Palestine joining UNESCO, are now seeking to disregard the consequence of such acts. As observed in the amicus submitted by William Schabas: ‘A handful of States Parties are attempting to exploit the Prosecutor’s application in order to pursue indirectly what they cannot do directly, and what they do not dare to do in the Assembly of States Parties because they apprehend what the result might be.’
While we cannot yet know whether the Pre-Trial Chamber will respond to the Request, or how it might respond should it decide to do so, the states amici provide a clear insight into the level of state solidarity with Israel and the U.S.. There is little authority among the amici to suggest that the Montevideo Criteria constitute binding law, even if they are a commonly used – and useful – reference point for having such a conversation. What is clear is that in the present instance they are being instrumentalised as a legalistic basis for securing the perpetual denial of Palestinian self-determination, including the ability to access the rule of law in order to seek accountability for and to deter ongoing international crimes.
Dr Michael Kearney is a legal researcher at Al-Haq. He previously held the posts of Lecturer in Law at the University of Sussex and of an LSE Fellow in the Law Department of the London School of Economics, and has written extensively on Palestine and the International Criminal Court, including "Why statehood now: a reflection on the ICC’s impact on Palestine’s engagement with international law", in Meloni, Chantal and Tognoni, Gianni (eds.) Is there a court for Gaza?: a test bench for international justice, for T.M.C. Asser Press by Springer, The Hague, 2012.