The ICC and the Territory of Palestine

The General Assembly’s recognition of Palestine as a state (which I’ve discussed previously) is widely regard as having the central upshot of facilitating a case against Israeli officials in the International Criminal Court. Indeed, Prime Minister Abbas has already threatened such action in regard to Israeli settlements – which are said to constitute an unlawful “deportation or transfer” of Israeli civilians into occupied territory.

Yet the GA’s recognition of Palestine’s statehood does not establish that the Israeli civilian population centers are “on its territory,” a basic requirement for ICC jurisdiction, as I explain today in a post an the European Journal of International Law’s blog. Here is part of it:

The mere fact of Israeli occupation does not make the territory part of Palestinian sovereign borders… the dominant interpretation of the Geneva Conventions is that an “occupation” can arise even in an area that is not the territory of any state. Yet 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 the Palestinian state.

To put it differently, even if violating the Geneva-based norm of transfer need not take place in the territory of a state, it still must be “on the territory” of a state for the ICC to have jurisdiction, as the ICC exercises delegated territorial jurisdiction. This is consistent with the respective roles of the Geneva Conventions and the ICC. The Conventions, which have near universal adherence, are interpreted broadly because of a desire to not have gaps in coverage. With the ICC, which has a limited and particular jurisdiction, gaps in jurisdictional coverage are inherent.

I am working on a longer article on the jurisdictional issues that would be raised by a Palestinian referall of the settlements issues, which will discuss the question of gravity, and the implications of such case for other potential ICC situations, like Cyprus/Turkey, or Georgia/Russia.

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