STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL

THE INTERNATIONAL CRIMINAL COURT’S LACK OF JURISDICTION OVER THE SOCALLED “SITUATION IN PALESTINE”
20 December, 2019

EXECUTIVE SUMMARY
1. The State of Israel has been committed to the cause of international criminal justice from the
outset. Established in the aftermath of the catastrophic events of the twentieth century, including
the Holocaust perpetrated against the Jewish people, Israel was an early and passionate advocate
for the establishment of an international criminal court that would hold accountable the
perpetrators of heinous crimes that deeply shock the conscience of humanity. It took an active
part in the negotiations leading up to the adoption of the Rome Statute in 1998, and continues to
consider that a diligent permanent international criminal tribunal can serve a constructive role in
deterring and punishing for mass atrocities.
2. While extending its support to the values that motivated the establishment of the International
Criminal Court (ICC), Israel has early on expressed deep concerns, also shared by other States,
that the Court could be exposed to political manipulation that might lead it to stray from its
mandate. Israel thus decided not to become a party to the Rome Statute at this stage, but has
continued to play an active role in various international efforts to put an end to impunity for the
gravest international crimes.
3. The Palestinian attempts to draw the ICC into core political aspects of the Israeli-Palestinian
conflict have brought into a sharp focus precisely the risk that the Court might be exploited for
illegitimate political gain. This is chiefly because – as the following memorandum establishes –
the Court manifestly lacks jurisdiction over the so-called “situation in Palestine”. Jurisdiction is,
of course, not a mere formality: it plays a critical role in defining judicial competence in order to
prevent abuse of the judicial process, guarantee that courts do not stray from the mandates
carefully entrusted to them, and insulate the law from both power and populism. Any court
departing from such essential rules guiding its activity would be unfaithful to the requirements
of its judicial character, and would gravely undermine its judicial integrity.
4. In the case of the “situation in Palestine”, the fundamental precondition to jurisdiction enshrined
in the Rome Statute – namely, that a State having criminal jurisdiction over its territory and
nationals has delegated such jurisdiction to the Court – is clearly not met. As demonstrated in
the memorandum, a substantive legal inquiry into this matter cannot be sidestepped; and any
such inquiry must lead to the conclusion that the precondition is indeed not satisfied.
5. A substantive legal inquiry into the precondition of the Court’s jurisdiction cannot be averted
primarily because the events surrounding the purported accession of “Palestine” to the Rome
Statute in 2015 did not settle the highly controversial question of Palestinian statehood. In fact,
the administrative act of circulating the Palestinian purported instrument of accession was
accompanied by an explicit clarification that it was carried out without prejudice to the legal
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question of whether a Palestinian State existed. UN General Assembly resolution 67/19, on
which the circulation of the Palestinian instrument of accession relied, had concerned a
procedural matter of Palestinian representation within the UN alone, and had anyhow referred to
Palestinian statehood as a future aspiration. By the same token, the subsequent participation of
“Palestine” in the ICC Assembly of States Parties was facilitated on the understanding that the
legal question as to whether a Palestinian State existed would be left for others. Against this
background, the ICC Prosecutor’s decision of January 2015 to open a preliminary examination
into what she termed the “situation in Palestine” was said to be without prejudice to the question
of the Court’s jurisdiction, which still remains pending.
6. If a sound assessment of the legal and factual record is undertaken, its inevitable conclusion
must be that a sovereign Palestinian State does not exist, and that the precondition to the Court’s
jurisdiction thus cannot be fulfilled. This is because sovereignty over the West Bank and the
Gaza Strip remains in abeyance, and the Palestinian entity manifestly fails to meet the criteria
for statehood under general international law. In particular, the Palestinian Authority lacks
effective control over the territory concerned (and in claiming that the territory is occupied by
Israel, essentially concedes that that is so). The alleged recognition of “Palestine” by some
States cannot compensate for the absence of the established criteria for statehood; and the right
of the Palestinians to self-determination must not be conflated with any claim to statehood. The
Palestinian claim to existing statehood is indeed fraught with significant contradictions, as
senior Palestinian officials themselves acknowledge by continuing to refer to a Palestinian State
in future terms.
7. The absence of a sovereign Palestinian State further means that there is clearly no sovereign
ability to prosecute that could be delegated to the Court, and that there is no “territory of” a
State (within the meaning of the Rome Statute) over which the Court may exercise its
jurisdiction. Any delimitation by the Court of the territory concerned would anyhow require it to
act in contravention of binding Israeli-Palestinian agreements that expressly leave such matters
to direct negotiation between the parties, and to make determinations that are wholly unsuitable
for an international criminal tribunal. No reliance can be made in this context on such strictly
political terms as “the occupied Palestinian territories”, reference to which is consistently made
without prejudice to the fundamentally legal question of sovereign title.
8. Finally, even if the Rome Statute were to be misinterpreted so as to allow non-sovereign entities
to confer jurisdiction upon the Court, existing Israeli-Palestinian agreements make it clear that
the Palestinians have no criminal jurisdiction either in law or in fact over Area C, Jerusalem and
Israeli nationals – and thus cannot validly delegate such jurisdiction to the Court. Here, too, any
conclusion that the precondition to the Court’s jurisdiction is fulfilled would not withstand any
serious legal and factual scrutiny, and would inevitably run up against the terms of the Rome
Statute itself as well as the rules of general international law more broadly.
9. Israel acknowledges that the lack of jurisdiction on the part of international tribunals in respect
of any particular disputes does not relieve States of their duty to fulfil their international legal
obligations. In the present context, Israel remains willing and able to address any Palestinian
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grievance through various remedial avenues (including multi-layered review mechanisms
already in place), and by direct bilateral negotiations. Cynical attempts to manipulate the ICC
into acting where its jurisdiction is manifestly lacking threaten to undermine not only the
Court’s legitimacy and credibility, but also the prospects for achieving the just and lasting
settlement long awaited by Israelis and Palestinians alike.

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A. INTRODUCTION
1. On 16 January 2015 the Office of the Prosecutor (“OTP”) of the International Criminal Court
(“ICC”) opened a preliminary examination into what it termed the “situation in Palestine”
concerning “alleged crimes committed in the occupied Palestinian territory, including East
Jerusalem, since 13 June 2014”.1 This followed a submission by the Palestinians of an ad hoc
declaration purporting to accept the ICC’s jurisdiction under Article 12(3) of the Rome Statute
(the Court’s founding treaty2) as well as a purported instrument of accession thereto. The OTP
acknowledged that the decision to open a preliminary examination was without prejudice to the
question of the Court’s jurisdiction (which remains pending to this day), and has moreover
recognized that this question is not free from difficulties.3
2. As will be explained in the present memorandum, the ICC lacks jurisdiction over the “situation
in Palestine”. This is because the fundamental precondition to the exercise of the Court’s
jurisdiction – that a State having criminal jurisdiction over its territory and nationals had
delegated such jurisdiction to the Court – is clearly not met. As the Prosecutor has herself
observed, for the ICC to intervene “where clear jurisdictional parameters have not been met …
is neither good law nor makes for responsible judicial action”.4
3. Israel, among other States, objected from the outset to the Palestinian purported accession to the
Rome Statute, for the principled reason that only States may accede to the Statute and confer
jurisdiction upon the ICC.5 Yet the OTP took a different position considering that determining
1

Office of the Prosecutor, The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary
examination of the situation in Palestine, ICC-OTP-20150116-PR1083, 16 Jan. 2015, available at https://www.icccpi.int//Pages/item.aspx?name=pr1083 (last accessed: 19 Dec. 2019).
2
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 U.N.T.S. 3 (hereinafter:
“Rome Statute”).
3
Office of the Prosecutor, Report on Preliminary Examination Activities 2015, 12 Nov. 2015, para. 54, available at
https://www.icc-cpi.int/iccdocs/otp/OTP-PE-rep-2015-Eng.pdf (last accessed: 19 Dec. 2019); Office of the Prosecutor,
Report on Preliminary Examination Activities 2016, 12 Nov. 2016, para. 119, available at https://www.icccpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf (last accessed: 19 Dec. 2019); Office of the Prosecutor, Report on
Preliminary Examination Activities 2017, 4 Dec. 2017, paras. 58, 67-68, available at https://www.icccpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf (last accessed: 19 Dec. 2019); Office of the
Prosecutor, Report on Preliminary Examination Activities 2018, 5 Dec. 2018, para. 268, available at https://www.icccpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf (last accessed: 19 Dec. 2019).
4
Office of the Prosecutor, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda: ‘The
Public Deserves to know the Truth about the ICC’s Jurisdiction over Palestine’, 2 Sep. 2014, available at
https://www.icc-cpi.int//Pages/item.aspx?name=otp-st-14-09-02 (last accessed: 19 Dec. 2019).
5
Depositary notification C.N.63.2015.TREATIES-XVIII.10 (Israel: Communication) (23 Jan. 2015): “‘Palestine’ does
not satisfy the criteria for statehood under international law and lacks the legal capacity to join the aforesaid Statute
under general international law, as well as under the terms of the Rome Statute and of bilateral Israeli-Palestinian
agreements”. See also, for example, Depositary notification C.N.64.2015.TREATIES-XVIII.10 (United States of
America: Communication) (23 Jan. 2015) (“Accession to the Rome Statute is limited to sovereign States. Therefore, the
Government of the United States of America believes that the ‘State of Palestine’ is not qualified to accede to the Rome
Statute”); Depositary notification C.N.57.2015.TREATIES-XVIII.10 (Canada: Communication) (23 Jan. 2015)
(“‘Palestine’ does not meet the criteria of a state under international law and is not recognized by Canada as a state.
Therefore, in order to avoid confusion, the Permanent Mission of Canada wishes to note its position that … ‘Palestine’
is not able to accede to this convention, and that the Rome Statute of the International Criminal Court does not enter
into force, or have an effect on Canada’s treaty relations, with respect to the ‘State of Palestine’”). Australia has

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the validity of an act of accession did not require an inquiry into the highly controversial
question of Palestinian statehood when it opened the preliminary examination into the “situation
in Palestine”, having considered instead that since “Palestine” was granted by the United
Nations General Assembly the status of “non-member observer State” in the United Nations, it
should be viewed as a “State” solely for the purposes of acceding to the Rome Statute and
lodging an Article 12(3) declaration.6 The OTP therefore took the view that accession could not
be equated with substantive statehood and distinguished the “status” needed to accede to the
Statute, and statehood per se under international law – an issue unresolved in the OTP’s view by
the act of accession.
4. In light of the position taken by the OTP with respect to accession, when considering the
Court’s jurisdiction concerning the “situation in Palestine” and given the jurisdictional
requirements prescribed by the Rome Statute, a substantive determination as to the contentious
question of Palestinian statehood cannot be averted: jurisdiction is not a mere formal or
procedural matter, but lies at the heart of international law and any exercise of judicial
competence so as to prevent abuse of the judicial process and insulate the law from both power
and populism. More specifically, the question whether there is a State that has criminal
jurisdiction over its territory and nationals that may be (and indeed has been) delegated to the
Court, must be addressed. As this memorandum will establish, any credible legal analysis will
inevitably lead to the conclusion that the reply to this question in the present case must be in the
negative.
5. Additional conditions for the exercise of the Court’s jurisdiction, including complementarity,
gravity and interests of justice,7 are not met either. These significant issues fall outside the scope
of the present memorandum, which similarly does not address temporal and subject-matter

similarly written to the Secretary-General of the United Nations to express its concern over the Palestinian Authority’s
lodgment of the purported instrument of accession to the Rome Statute, stressing that “]t]he Australian Government
does not recognize the ‘State of Palestine’. As such, Australia does not recognize the right of the Palestinian Authority
to lodge instruments of accession under the entry into force provisions of [a range of multilateral treaties, particularly
the Rome Statute of the International Criminal Court]. … Australia’s long-standing position is that a negotiated
settlement is the only way to ensure the creation of a future Palestinian state …”: Letter from Permanent Representative
of Australia to the United Nations dated 6 Feb. 2015, enclosed with a letter from the Australian Ambassador to Israel to
Israel’s National Security Advisor, 11 Feb. 2015 (on file with the Israeli Government). The Dutch Minister of Foreign
Affairs has likewise stated before the Dutch parliament in August 2014, with reference to Palestinian intentions to
accede to the Rome Statute, that “… only States can accept the jurisdiction of the ICC by becoming parties to the Rome
Statute or by making a statement to that effect in accordance with the provisions of the Rome Statute. The Netherlands
does not recognize the Palestinian state”: TWEEDE KAMER [Dutch Parliament Website] (22 Aug. 2014), available at
https://www.tweedekamer.nl/kamerstukken/kamervragen/detail?id=2014Z13910&did=2014D28652 (translated from
Dutch) (last accessed: 19 Dec. 2019). The lack of such explicit statements on behalf of any other State should not be
taken to imply that they consider the accession as valid: see also infra note 109.
6
Report on Preliminary Examination Activities 2015, supra note 3, at para. 53. See also para. 18 below.
7
Rome Statute, supra note 2, art. 53.

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jurisdiction, the question whether the Court may exercise jurisdiction over nationals of States
not parties to the Rome Statute,8 and any other questions that might be implicated.
6. The memorandum proceeds as follows. Following this introduction, Section B explains that the
ICC’s jurisdiction under Article 12 of the Rome Statute is based on the delegation of criminal
jurisdiction over territory and nationals by sovereign States. Section C explains that nothing in
the events surrounding the purported accession of “Palestine” to the Rome Statute (much like
the purported Palestinian acceptance of the Court’s jurisdiction under Article 12(3)) satisfies
this essential precondition. Section D then demonstrates that “Palestine” does not meet this
precondition for the reasons that no sovereign Palestinian State exists as a matter of
international law, and the scope of the territory concerned is anyway undefined. Finally, section
E explains that even if the Rome Statute is misinterpreted to allow for non-sovereign entities to
confer jurisdiction upon the Court, the Palestinians lack the capacity to validly delegate any
jurisdiction over Area C and Jerusalem as well as over Israeli nationals.

B. THE COURT’S

JURISDICTION IS BASED ON THE DELEGATION BY SOVEREIGN

STATES

OF

CRIMINAL JURISDICTION OVER THEIR TERRITORY AND NATIONALS

7. It is widely accepted that the jurisdiction of the ICC “is not based on the principle of universal
jurisdiction: it requires [under the Rome Statute] that the United Nations Security Council
(article 13(b)) or a ‘State’ (article 12) provide jurisdiction”.9 Article 12, in particular, is indeed
the expression of a hard-fought compromise reached among those States who participated in the
negotiations leading up to the adoption of the Rome Statute, and who ultimately rejected
proposals for all-encompassing jurisdiction in favor of a more limited jurisdictional regime.10
Article 12(2) provides that:
“… the Court may exercise its jurisdiction if one or more of the following States
are Parties to this Statute or have accepted the jurisdiction of the Court in
accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of that
vessel or aircraft;
(b) The State of which the person accused of the crime is a national.”11
8. Article 12(2) thus enshrines a jurisdictional regime expressly founded on the traditional
jurisdictional bases of territoriality and nationality, which establish, in turn, that the jurisdiction
of the Court relies on sovereign States delegating to it their criminal jurisdiction over their
8

Israel is not a party to the Rome Statute. On 31 December 2000, Israel signed the Rome Statute as an expression of
moral support for the basic idea underlying the establishment of the Court, while expressing its concerns over the risk of
politicization and rejecting any attempt to interpret provisions of the Statute in a politically motivated manner against
Israel and its citizens. On 28 August 2002, Israel informed the UN Secretary-General that “Israel does not intend to
become a party to the treaty. Accordingly, Israel has no legal obligations arising from its signature on 31 December
2000”: Depositary notification C.N.894.2002.TREATIES-35 (Israel: Communication) (28 Aug. 2002).

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territory and nationals. There are, therefore, three key requirements: first, that the entity
constitutes a State under general international law; second, that such a State possesses the
jurisdiction that is in the circumstances intended to be delegated; and, third, that such delegation
has in fact taken place. These requirements serve to guarantee that the Court would only operate
on a firm jurisdictional basis.
9. While the term “State” is not defined in the Rome Statute, there can be no doubt that its
meaning is indeed the one commonly accepted and recognized in general international law: a
sovereign State.12 This becomes readily clear when interpreting Article 12(2) in accordance with
the customary rules of treaty interpretation reflected in the Vienna Convention on the Law of
Treaties, which require that “a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in light of its object
and purpose”.13

9

Office of the Prosecutor, Situation in Palestine, 3 Apr. 2012, para. 4, available at https://www.icccpi.int/nr/rdonlyres/c6162bbf-feb9-4faf-afa9-836106d2694a/284387/situationinpalestine030412eng.pdf (last accessed:
19 Dec. 2019).
10
The regime that was ultimately incorporated into Article 12 of the Rome Statute was based on a proposal put forward
by the Republic of Korea to break an impasse that had developed in the course of the negotiations. That proposal was
important for two reasons. First, the Koreans were explicit that their proposal was based on the principle of delegation
and said that, under their proposal, “jurisdiction is conferred upon the Court based on State consent”. Second, the
Korean proposal shows that the jurisdiction to be delegated to the Court is limited to territorial jurisdiction and active
personality jurisdiction. To be sure, as originally submitted, the Korean proposal included language that would have
also delegated passive personality jurisdiction (jurisdiction in cases where the victim was a national of the delegating
State), or custodial jurisdiction (jurisdiction on the basis that the delegating State had custody of the defendant), but this
additional language was deleted and, as a result, the jurisdiction that States delegate under the Rome Statute is limited to
territorial and active personality jurisdiction: see Proposal submitted by the Republic of Korea for articles 6 [9],* 7 [6]
and 8 [7], A/CONF.183/C.1/L.6 (18 Jun. 1998), available at https://legal-tools.org/doc/2fba4e (last accessed: 19 Dec.
2019)). This is depicted in several commentaries on the Rome Statute: see Elizabeth Wilmshurst, Jurisdiction of the
Court, in THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE – ISSUES, NEGOTIATIONS,
RESULTS 127, 127 (Roy S. Lee ed., 1999); Philippe Kirsch and Darryl Robinson, Reaching Agreement at the Rome
Conference, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 67, 83 (Antonio
Cassese et al. eds., 2009) (hereinafter: “Cassese et al. Commentary”); Olympia Bekou and Robert Cryer, The
International Criminal Court and Universal Jurisdiction: A Close Encounter?, 56 INT’L & COMP. L.Q. 49, 50 (2007);
WILLIAM A. SCHABAS, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE 345-350 (2nd
ed., 2016).
11
Article 12 further establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome
Statute (art. 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (art. 12(3)).
12
That the meaning assigned to the terms used in art. 12(2)(a) of the Rome Statute should be consistent with
international law has recently been acknowledged by the OTP: see Office of the Prosecutor, Report on Preliminary
Examination Activities 2019, 5 Dec. 2019, para. 47, available at https://www.icc-cpi.int/itemsDocuments/191205-repotp-PE.pdf (last accessed: 19 Dec. 2019). See also Harmen van der Wilt, The Rome Statute: Only States are Invited to
Tune In, 20 QUEST. INT’L L. 5, 7-8 (2015) (observing that Article 12 of the Rome Statute alludes to the criteria of
statehood accepted under international law).
13
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 31(1). The Court has had occasion
to state that “[t]he interpretation of treaties, and the Rome Statute is no exception, is governed by the Vienna
Convention on the Law of Treaties (23 May 1969)”: Situation in the Democratic Republic of the Congo, ICC-01/04168, Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber I’s 31 Mar. 2006
Decision Denying Leave to Appeal, para. 33 (13 July 2006). See also The Prosecutor v. Jean-Pierre Bemba Gombo et
al., ICC-01/05-01/13, Judgment pursuant to Article 74 of the Statute, para. 17 (19 Oct. 2016).

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10. International law attaches great importance to distinguishing between States and other entities.
It consistently reserves the fundamental legal status of statehood only to those entities that meet
certain objective criteria prescribed by it and thus attain sovereignty, which is indeed a
consequence of statehood. States are, therefore, sovereign by definition. Sovereignty in its turn
means that “the State has over it no other authority than that of international law”.14
11. There is no evidence that the drafters of the Rome Statute intended to give the term “State” any
other, special, meaning,15 as was done, for example, in the case of the Rules of Procedure and
Evidence of the International Criminal Tribunal for the Former Yugoslavia.16 On the contrary,
non-States or sub-State entities were not contemplated by the drafters of the Rome Statute in the
negotiation of Article 12.
12. The reference in Article 12(2) of the Statute to “territory of” a State further reinforces that the
term “State” means a sovereign State, as it is widely accepted that “territory of [a State]”
comprises, under international law, all the land, internal waters and territorial sea, and the
airspace above them, over which a State has sovereignty.17 In the same vein, “… sovereignty in
relation to a portion of the surface of the globe is the legal condition necessary for the inclusion
of such portion in the territory of any particular State”.18 The OTP has itself acknowledged as
recently as in 2019 that the term “territory” of a State, “as used in article 12(2)(a), includes
those areas under the sovereignty of the State”.19

14

Customs Regime between Germany and Austria, Advisory Opinion, 1931 P.C.I.J. (Ser. A/B) No. 41, at 55, 57 (5 Sep.
1931) (Individual Opinion by M. Anzilotti).
15
See also Vienna Convention on the Law of Treaties, supra note 13, art. 31(4).
16
The Rules of Procedure and Evidence of the International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991
took care to define the term “State” more expansively in order to bring entities other than sovereign States within the
scope of the Tribunal’s activity: Rules of Procedure and Evidence of the International Criminal Tribunal for the former
Yugoslavia, IT/32/Rev.50, 8 Jul. 2015, Rule 2. Other international instruments likewise make an explicit reference to
such entities where their participation in the treaty regime is sought: see, for example, United Nations Convention on
the Law of the Sea, 1982, 1833 U.N.T.S. 397, arts. 305(1) and 307.
17
ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 178 (3rd ed., 2013). Other provisions in multilateral treaties
referring to “territory of [a State]”, such as Article 29 of the Vienna Convention on the Law of Treaties and Article 2 of
the International Covenant on Civil and Political Rights (ICCPR), attach this meaning to the term as well: see,
respectively, Anthony Aust, Treaties, Territorial Application, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW, para. 2 (Rüdiger Wolfrum ed., 2006); MANFRED NOWAK, U.N. COVENANT ON CIVIL AND
POLITICAL RIGHTS: CCPR COMMENTARY 43 (2nd ed., 2005). Needless to add, the debate concerning the ICCPR’s
extraterritorial application turns on the interpretation of the phrase “and subject to its jurisdiction”, not the phrase
“within its territory”.
18
Island of Palmas (Netherlands v. U.S.A), R.I.A.A. Vol II 829, 838 (Perm. Ct. Arb. 1928). The Grand Chamber of the
European Court of Justice similarly determined that the term “territory of the Kingdom of Morocco” means “the
geographical space over which [the Kingdom of Morocco] exercises the fullness of the powers granted to sovereign
entities by international law”: Case C-104/16 P, Council v. Front Polisario, 2016 EU:C:2016:973, paras. 16 and 95 (21
Dec. 2016).
19
Report on Preliminary Examination Activities 2019, supra note 12 (adding that “[s]uch interpretation of the notion of
territory is consistent with the meaning of the term under international law”). See also William A. Schabas and Giulia
Pecorella, Article 12: Preconditions to the exercise of jurisdiction, in THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT – A COMMENTARY 672, 681-682 (Otto Triffterer and Kai Ambos eds., 3 rd ed., 2016) (observing, in

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13. Parts 9 and 10 of the Rome Statute, which deal respectively with international cooperation and
judicial assistance and with enforcement, similarly assume (if not require) the existence of
sovereign competence.20 So do other provisions of the Statute,21 including those referring to the
complementarity of the Court to national criminal jurisdiction, which mandates that “the
primary jurisdiction belongs to the State with the closest sovereign connection to the locus of
the crime or the alleged suspect”.22 The reference to national criminal jurisdiction once again
indicates that it is only sovereign States that those drafting the Rome Statute had in mind.

reference to art. 12(2)(a), that “territorial jurisdiction is a manifestation of State sovereignty”). Reference in Article
12(2)(b) of the Rome Statute to the term “nationality”, too, indicates that the term “State” means a sovereign State.
20
The decision by the ICC’s Pre-Trial Chamber I with respect to the proceedings against Saif Al-Islam Gaddafi is
instructive in this regard, as the Court ordered the Registrar to communicate with the Libyan Government, and not with
the militia holding Mr. Gaddaffi, for purposes of addressing a request for surrender to that militia: The Prosecutor v.
Saif Al-Islam Gaddafi, ICC-01/11-01/11, Order to the Registrar with respect to the “Request for an order directing the
Registrar to transmit the request for arrest and surrender to Mr al-‘Ajami Al-‘Atiri, Commander of the Abu-bakr alSiddiq Battalion in Zintan, Libya”, paras. 8-9 (2 Jun. 2016). See also Jackson N. Maogoto, A Giant without Limbs: The
International Criminal Court’s State-Centric Cooperation Regime, 23 U QUEENSLAND LJ 102, 109, 115 (2004) (“The
extent to which states, by becoming parties to the Rome Statute, take on obligations to assist the ICC in activities on
their own territory is very much an issue of sovereignty. As with other areas defining the relationship between the ICC
and states, the Rome Statute’s final text balances the states’ willingness to make commitments necessary for the ICC to
function, with a recognition that the ICC will operate in a world of sovereign states. … Criminal prosecution is
inherently linked to notions of national sovereignty and control over persons and territory”); van der Wilt, supra note
12, at pp. 6, 12 (“the acceptance of non-State entities is difficult to reconcile with the system of international criminal
law enforcement as envisaged in the Rome Statute. That conclusion is reached on the basis of a teleological
interpretation of the concept of ‘state’, in the light of the objectives of the Rome Statute. In view of the principle of
complementarity, the International Criminal Court is meant as default option, an instance of last resort, whenever states
are unwilling or unable to genuinely investigate or prosecute a case. It is highly questionable whether quasi-states
would ever be capable to undertake these commitments. In a similar vein, it is doubtful whether non-state entities would
be able to cooperate with the Court, an obligation that is expressly stipulated in Article 12(3) Rome Statute. …
According to Part 9 of the Rome Statute, the duty to cooperate … requires an institutional and legal framework that is
hardly less demanding than the one that would be necessary to conduct a full criminal trial. It is hardly imaginable that a
non-state entity that does not exercise ‘effective control’ would be capable of rendering the level of assistance required.
For the assessment of the question whether an entity would be qualified to lodge a declaration ex Article 12(3), I would
therefore argue that it should meet all the criteria, mentioned in the Montevideo Convention”).
21
See, for example, Article 8(3), which refers to “the responsibility of a Government to maintain or re-establish law and
order in the State or to defend the unity and territorial integrity of the State”; and Article 21, which allows the Court to
apply, under certain circumstances, the “national laws of States”.
22
Chile Eboe-Osuji, President of the International Criminal Court, Keynote Address at the Annual Meeting of the
American Society of International Law (29 Mar. 2019), available at https://www.icc-cpi.int/itemsDocuments/190329stat-pres.pdf (emphasis added) (last accessed: 19 Dec. 2019). In the Situation in Georgia, the OTP (when examining the
issue of complementarity as part of its request to open an investigation) thus considered that because South Ossetia was
part of the territory of Georgia and not a State within the meaning of the Statute, the South Ossetian de facto authorities
did not have standing before the Court to lodge an admissibility challenge: Office of the Prosecutor, Situation in
Georgia - Corrected Version of “Request for authorisation of an investigation pursuant to article 15”, ICC-01/15-4-Corr,
para. 322 (16 Oct. 2015). Pre-Trial Chamber I agreed that “any proceedings undertaken by the de facto authorities of
South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a
recognized State”: Situation in Georgia, ICC-01/15-12, Decision on the Prosecutor’s Request for Authorization of an
Investigation, para. 40 (27 Jan. 2016).

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14. The OTP has recognized that the Court’s jurisdiction is indeed derived from the existence of a
“sovereign ability to prosecute”;23 and the President of the Court has recently confirmed that
“[t]he nature of the ICC’s jurisdiction … actually prides and underscores national
sovereignty”.24 A commentary to the Rome Statute similarly observes that “Article 12 of the
Rome Statute is a manifestation of the principle of state sovereignty, one of the most important
principles of public international law governing the international community and the relations
between States”.25 For purposes of the ICC’s jurisdiction, therefore, the term ‘State’ must be
read to mean a sovereign State according to general international law. Attaching to it any other
meaning would be incompatible with the generally accepted rules of treaty interpretation, and
would do violence to the terms of the Rome Statute altogether.
15. As noted above, Article 12(2) further reflects the foundational principle that the Court operates
on the basis of delegated jurisdiction: it does not have unfettered jurisdiction, but rather
“exercises its jurisdiction on the basis of competence delegated to it by States Parties” and is
only competent to do so “in the same way that the State Party’s own domestic courts could”.26
23

Office of the Prosecutor, Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICCRoC46(3)-01/18-1, para. 49 (9 Apr. 2018) (emphasis added, citing Schabas and Pecorella).
24
Eboe-Osuji, supra note 22.
25
Stephane Bourgon, Jurisdiction Ratione Loci, in Cassese et al. Commentary, supra note 10, at pp. 559, 562. See also
Marko Milanovic, Is the Rome Statute Binding on Individuals (And Why We Should Care), 9 J. INT’L CRIM. JUST. 25,
47-48 (2011): “In true international law spirit, the Statute’s main concern are sovereign states, who must voluntarily
accept the Court’s jurisdiction …”; Yaël Ronen, ICC Jurisdiction over Acts Committed in the Gaza Strip: Art. 12(3) of
the ICC Statute and Non-state Entities, 8 J. INT’L CRIM. JUST. 3, 26-27 (2010): “Interpreting Article 12(3) more widely
to include entities effectively governing non-sovereign territory also seems unwarranted, as such interpretation flies in
the face of the ICC Statute’s wording and the intention of its drafters. Any involvement in issues of recognition risks
exposing the Prosecutor and the Court to accusations of politicization and subjectivity. The ICC’s goal of ending
impunity is channeled through a state-centred mechanism”.
26
Rod Rastan, Jurisdiction, in THE LAW AND PRACTICE OF THE INTERNATIONAL CRIMINAL COURT 141, 155 (Carsten
Stahn ed., 2015) (referring to delegation in the context of personal jurisdiction; on delegation in the context of territorial
jurisdiction, see pp. 163-164). See also Mahmoud Cherif Bassiouni, The Permanent International Criminal Court, in
JUSTICE FOR CRIMES AGAINST HUMANITY 173, 181 (Lattimer and Sands eds., 2003) (“[the ICC] is not a supra-national
body, but an international body similar to existing ones … The ICC does no more than what each and every state can do
under existing international law … The ICC is therefore an extension of national criminal jurisdiction …”); The Board
of Editors, The Rome Statute: A Tentative Assessment, in Cassese et al. Commentary, supra note 10, at pp. 1901, 1911
(“Territorial jurisdiction is the primary basis for jurisdiction under international law; indeed, it is an essential attribute
of State sovereignty. … if the State wishes to delegate this jurisdiction to an international criminal court … this is
something it is clearly entitled to do … The ICC is not premised on universal jurisdiction, but on conventional bases of
jurisdiction – territoriality and/or nationality”); Michael A. Newton, How the International Criminal Court Threatens
Treaty Norms, 49 VAND. J. TRANSNAT’L L. 371, 374-375 (2016) (“the Court’s authority is not independent or
omnipotent. Treaty-based ICC jurisdiction flows exclusively from the delegation of a State Party’s sovereign
jurisdictional power. Except for the overarching authority of the United Nations Security Council to convey jurisdiction
to the Court through binding resolutions under Chapter VII of the UN Charter, the jurisdiction of the ICC, as embodied
in Article 12 of the Rome Statute, is based only on derivative jurisdiction granted by states at the time they ratify the
multilateral treaty”); Roger O’Keefe, Response: “Quid” Not “Quantum”: A Comment on “How the International
Criminal Court Threatens Treaty Norms”, 49 VAND. J. TRANSNAT’L L. 433, 439 (2016) (“by way of Article 12(2)(a) of
the Rome Statute, a receiving State Party to the Statute delegates to the ICC the exercise of its customary right to
entertain criminal proceedings in respect of the crimes specified in Article 5 of the Statute when these crimes are
committed in its territory”); Kevin Jon Heller, What Is an International Crime? (A Revisionist History), 58 HARV. INT’L
L.J. 353, 375 (2017) (“the Court is based on the delegated jurisdiction of its member states”); Schabas and Pecorella,
supra note 19, at p. 682 (referring to the jurisdiction of the ICC as being delegated by a territorial State); Yuval Shany,

10

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In the words of the OTP, Article 12(2)(a) “functions to delegate to the Court the States Parties’
own ‘sovereign ability to prosecute’” the relevant crimes.27 Significantly, the act of delegating
criminal jurisdiction to the Court is itself an “exercise of national sovereignty”.28
16. The jurisdictional regime of the ICC is thus founded, by careful and deliberate design, upon the
basic notion that there exists a sovereign State that has delegated to the Court its criminal
jurisdiction on the basis of territoriality or nationality; and the Court must satisfy itself, in each
case, that this fundamental precondition is indeed met as a matter of law. Such an inquiry is no
mere formalism: it is essential in order to guarantee that the Court remains loyal both to the
terms of the Rome Statute and to basic principles of the broader international legal order within
which it operates. For a body seeking to actually assert the criminal jurisdiction of sovereign
States that has been delegated to it, a substantive legal inquiry as to whether there is such a
sovereign state is thus unavoidable. It cannot be sidestepped or grounded in artificial
constructions. Clearly, if the precondition is not satisfied, the Court must conclude that it does
not have jurisdiction.

“PALESTINE” TO THE ROME STATUTE (MUCH LIKE ITS
PURPORTED ACCEPTANCE OF THE COURT’S JURISDICTION UNDER ARTICLE 12(3)) DOES NOT
FULFILL THE SUBSTANTIVE REQUIREMENT FOR THE COURT’S JURISDICTION

C. THE

PURPORTED ACCESSION BY

17. The Palestinians first attempted to confer jurisdiction upon the ICC in January 2009, when the
“Palestinian National Authority” purported to submit a declaration under Article 12(3) of the
Rome Statute. The OTP initiated a preliminary examination, but ultimately closed it in April
2012 on the ground that the legal status of “Palestine” within the United Nations was not that of
a State.29
18. In opening the preliminary examination into the “situation in Palestine” in January 2015, the
OTP sidestepped any substantive inquiry into the logically preliminary question of whether a
sovereign Palestinian State exists by relying on UN General Assembly resolution 67/19 of 29
November 2012, which accorded “Palestine” the status of “non-member observer State” in the
United Nations. In so doing it adopted the position that “the focus of the inquiry into Palestine’s
ability to accede to the Rome Statute has consistently been the question of Palestine’s status in

In Defence of Functional Interpretation of Article 12)3( of the Rome Statute: A Response to Yaël Ronen, 8 J. INT’L
CRIM. JUST. 329, 331-333 (2010) (“Article 12 referrals, which are conditioned on membership in the Statute or ad hoc
consent to ICC jurisdiction by the ‘territorial’ state or the state whose nationality the alleged perpetrator holds, are
reflective of the delegation-based approach”).
27
Supra note 23. This Request by the Prosecution itself recognizes that only territorial- and nationality-based
jurisdiction, as opposed to universal jurisdiction, may be delegated to the Court.
28
MAHMOUD CHERIF BASSIOUNI, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT:
INTRODUCTION, ANALYSIS, AND INTEGRATED TEXT OF THE STATUTE, ELEMENTS OF CRIMES AND RULES OF PROCEDURE
AND EVIDENCE 136 (2005).
29
Supra note 9, at para. 7.

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the UN, given the UNSG’s role as treaty depositary of the Statute”.30 At the same time, the OTP
has made it known that “[t]he preliminary examination of the situation in Palestine raises
specific challenges relating to both factual and legal determinations. In the latter respect, the
Office has in particular to consider the possible challenges to the Court’s jurisdiction, and/or to
the scope of any such jurisdiction”.31 By that, the OTP has itself recognized that the purported
accession of “Palestine” to the Rome Statute is distinct from – and does not settle – the question
of the Court’s jurisdiction over the “situation in Palestine”. By the same token, the Court’s
registrar has emphasized, in a letter sent to Palestinian President Mahmoud Abbas following
receipt of the Palestinian declaration purportedly made under Article 12(3) of the Rome Statute,
that “[t]his acceptance is without prejudice to any prosecutorial or judicial determinations on
this matter”.32
19. The purported accession by “Palestine” cannot therefore itself provide a basis for the ICCs
jurisdiction as it did not settle the question of whether a sovereign Palestinian State exists. As
will be seen, this is so for at least three reasons: (1) General Assembly resolution 67/19 did not
purport to make a legal determination as to whether “Palestine” qualifies as a State, and was
explicitly limited in its effect to the UN; (2) the actions of the UN Secretary-General as
depositary of multilateral treaties, as he himself has made clear, are not determinative of a
“highly political and controversial” question such as that of Palestinian statehood;33 and (3) the
Palestinian participation in the Court’s Assembly of States Parties cannot be taken to constitute
or demonstrate such statehood either.
20. In these circumstances, even if the Palestinian entity is (erroneously) regarded as a State Party to
the Rome Statute by virtue of the technical act of accession under Article 125 thereof, this
cannot, of itself, satisfy the substantive precondition that underlies the Court’s jurisdictional
regime. This has been further acknowledged by the OTP itself when it recently determined that
in each case it must be confirmed that the “territory” concerned (within the meaning of art.
12(2)(a) of the Rome Statute) is an area under the sovereignty of a State.34 For the Prosecutor
herself, then, the test for the Court’s jurisdiction must not be based on mere accession or on the
status of “State Party” alone, but on the substantive test of whether the entity concerned is a
sovereign State.
Supra note 1 (emphasis in original). The Prosecutor has clarified that “… the issue of statehood has never been
something that my office was using as a determination to intervene or not. It’s not been the reason why we have decided
to open preliminary examination or not … we have been very consistent in saying that Palestine, the status of Palestine
at the United Nations, is what has determined, for us, whether we should open preliminary examination or not”, video
available at Fatou Bensouda: S Africa ‘had to arrest Omar al-Bashir’, ALJAZEERA, 27 Jan. 2015 12:45
GMT), http://www.aljazeera.com/programmes/talktojazeera/2015/06/fatou-bensouda-africa-arrest-omar-al-bashir150626132631885.html (minutes 4:39-5:20) (last accessed: 19 Dec. 2019).
31
Office of the Prosecutor, Report on Preliminary Examination Activities 2017, supra note 3, at para. 67.
32
Letter from the Registrar of the International Criminal Court to H.E. Mr. Mahmoud Abbas (7 Jan. 2015), available at
https://www.icc-cpi.int/iccdocs/PIDS/press/150107-Registrar-Letter-to-HE-President-Abbas-regarding-Palestine-Art12-3--Declaration.pdf (last accessed: 19 Dec. 2019).
33
UN Office of Legal Affairs – Treaty Section, Summary of Practice of the Secretary-General as Depositary of
Multilateral Treaties, U.N. Doc. ST/LEG/7/Rev.1 (1999), para. 81.
34
Report on Preliminary Examination Activities 2019, supra note 12.
30

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21. UN General Assembly resolution 67/19 did not determine the substantive legal question of
whether a sovereign Palestinian State exists under international law. By its own terms,
resolution 67/19 was limited to a procedural upgrade of the Palestinian representation within the
UN alone.35 The UN Secretary-General underscored precisely this point by stating that the
status accorded to the Palestinians by the resolution “does not apply to organizations or bodies
outside the United Nations”,36 the ICC clearly being such a body. Furthermore, the status of
“non-member observer State” (much like the name chosen for the entity concerned37) is anyway
not determinative of the question whether the relevant entity has the international legal status of
a State: inherently political organs are not equipped, nor are they competent, to render definitive
decisions on controversial questions of international law that lie outside their own
competence.38 In any case, resolution 67/19 itself refers to Palestinian statehood as a future
aspiration rather than a current legal reality, and calls for negotiations within the Middle East
peace process in order to advance a two-State solution.39 Many States, including those voting in
favor of the resolution, took care to explain that their vote was without prejudice to the question
of Palestinian statehood under international law.40 This is again consistent with the position
G.A. Res. 67/19, U.N. Doc. A/RES/67/19 (4 Dec. 2012). The wording “in the United Nations” appearing in the
second operative paragraph of the resolution (as well as in its title) was not part of the original text, but was added
precisely to highlight this distinction. It may be noted, moreover, that the status of “non-member observer State” is not
envisaged under the UN Charter, and has developed merely to facilitate greater participation in the work of the UN: see
also Ulrich Fastenrath, Membership, Article 4, in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 341, 355357 (Bruno Simma et al. eds., 3rd ed., 2012) (hereinafter: “Simma et al. Commentary”).
36
Status of Palestine in the United Nations: Report of the Secretary-General, A/67/738, para. 1 (8 Mar. 2013).
37
The name “State of Palestine” as used within the UN (and beyond) was chosen by the Palestinians themselves as a
procedural matter under UN protocol and thus does not – indeed cannot – of itself be determinative of statehood or
reflective of any such recognition.
38
See also Jure Vidmar, Palestine and the Conceptual Problem of Implicit Statehood, 12 CHINESE J. INT’L LAW 19, 37,
para. 60 (2013): “the label ‘non-member State’ in the General Assembly does not necessarily mean that an entity is a
State simply because the term ‘State’ is used”.
39
See G.A. Res. 67/19, supra note 35, at preambular para. 9 and operative paras. 4, 5, 6: “Reaffirming … the need
for… the realization of the inalienable rights of the Palestinian people, primarily the right to self-determination and the
right to their independent State”; “Affirms its determination to contribute to the achievement of the inalienable rights
of the Palestinian people and the attainment of a peaceful settlement in the Middle East that … fulfils the vision of two
States”; “Expresses the urgent need for the resumption and acceleration of negotiations within the Middle East peace
process based on … the Quartet road map to a permanent two-State solution to the Israeli-Palestinian conflict”; “Urges
all States and specialized agencies and organizations of the United Nations system to continue to support and assist the
Palestinian people in the early realization of their right to self-determination, independence and freedom” (emphasis
added).
40
See the statements recorded in U.N. GAOR, 67th Sess., 44th plen. mtg., U.N. Doc. A/67/PV.44 (29 Nov. 2012) and
U.N. GAOR, 67th Sess., 45th plen. mtg., U.N. Doc. A/67/PV.45 (29 Nov. 2012) (hereinafter: “Official Records of the
General Assembly”). New Zealand, for example, stated that “[t]his resolution is a political symbol of the commitment
of the United Nations to a two-State solution. New Zealand has cast its vote accordingly based on the assumption that
our vote is without prejudice to New Zealand’s position on its recognition of Palestine …” (A/67/PV.44, at p. 20,
emphasis added); Belgium stated that “the resolution adopted today by the General Assembly does not yet constitute
recognition of a State in the full sense” (ibid., at p. 16, emphasis added); Italy stated that “Italy stresses that today’s vote
in no way prejudges its commitment to a comprehensive negotiated peace settlement, which remains the only possible
path to Palestinian Statehood and full United Nations membership” (ibid., at p. 19, emphasis added); Norway stated
that “[o]ur support of an upgraded status for Palestine in the United Nations does not prejudge the question of
recognition. The national procedures to formally recognize the State of Palestine are still pending” (ibid., at p. 21,
emphasis added); Serbia stated that “we … have an interest in promoting such a solution, which would bring about
35

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under international law according to which General Assembly resolutions cannot have an effect
which is binding or constitutive or definitive, still less universally determinative, of statehood.41
22. As the UN Secretary-General himself made clear, his actions as depositary of the Rome
Statute are not determinative of “highly political and controversial” questions such as that of
Palestinian statehood. Under the law of treaties, the functions assigned to a treaty depositary
are purely administrative.42 Precisely in cases in which the question arises whether a certain
entity wishing to accede to a treaty is a State, the Secretary-General as depositary does not
purport to make a determination to that effect: as the UN Office of Legal Affairs has explained,
“[the Secretary-General] would not wish to determine, on his own initiative, the highly political
and controversial question of whether or not the areas whose status was unclear were States.
Such a determination, he believed, would fall outside his competence”.43
23. It was thus solely in an administrative capacity that, after receiving the Palestinian purported
instrument of accession to the Rome Statute, the Secretary-General circulated on 6 January 2015
a standard depositary notification to the Rome Statute signatories, soon clarifying that “[t]his is
an administrative function performed by the Secretariat” and emphasizing that “it is for States to
make their own determination with respect to any legal issues raised by instruments circulated
statehood for Palestine … a nation still in quest for its statehood” (ibid., at p.17, emphasis added); see also the positions
expressed by France (ibid., at p. 14); Greece (ibid., at p. 19); Denmark (ibid., at p. 18); Switzerland (ibid., at p. 16);
Finland (ibid., at p. 20); South Sudan (A/67/PV.45, at p. 2); Georgia (ibid., at pp. 4-5); Malaysia (ibid., at p. 21);
Mauritius (ibid., at p. 7); and Tunisia (ibid., at p. 24). Other States, which did not vote in favor of the resolution,
expressed similar positions, among them Germany (A/67/PV.44, at p. 15, stating that “it must be clear to everybody that
a Palestinian State can be achieved only through direct negotiations between Israelis and Palestinians”); Hungary (ibid.,
at p. 19); the Czech Republic (ibid., at pp. 19-20); Australia (ibid., at p. 20); the United Kingdom (ibid., at p. 15); the
United States (ibid., at p. 13); Bulgaria (ibid., at p. 16); the Netherlands (A/67/PV.45, at p. 2); and Romania (ibid., at p.
6).
41
Crawford has similarly remarked, with regard to the former “observer” status of “Palestine” within the United
Nations, that arguments according to which that status was indicative of statehood “… stop far short of the proposition
that the General Assembly can recognize Palestine as a state, and not merely for such ‘internal’ purposes of the United
Nations as observer status, with an effect which is ‘constitutive, definitive, and universally determinative’”: James
Crawford, The Creation of the State of Palestine: too much too soon?, 1 EJIL 307, 312 (1990). See also JAMES
CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 441 (2nd ed., 2006) (hereinafter: “Crawford 2006”).
Needless to add, the General Assembly does not have the power to adopt legally binding resolutions (except with
respect to the internal management and procedural matters relating to the function of the UN), and cannot create legal
obligations for UN Member States or for other international actors such as the Court: see, for example, Eckart Klein and
Stefanie Schmahl, The General Assembly, Functions and Powers, Article 10, in Simma et al. Commentary, supra note
35, at pp. 461, 463, 480; Yaël Ronen, Recognition of the State of Palestine: Still Too Much Too Soon?, in
SOVEREIGNTY, STATEHOOD AND STATE RESPONSIBILITY – ESSAYS IN HONOUR OF JAMES CRAWFORD 229, 231
(Christine Chinkin and Freya Baetens eds., 2015).
42
Vienna Convention on the Law of Treaties, supra note 13, art. 77. The commentary by the International Law
Commission to the corresponding draft article proposed by it states that the depositary “is not invested with competence
to make a final determination” on issues of substance: Yearbook of the International Law Commission 1966, Y.B. Int’l
L. Comm’n Vol. II, U.N. Doc. A/CN.4/SER. A/1966/Add, at p. 270. See also Fatsah Ouguergouz et al., Art. 77 1969
Vienna Convention, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 1715, 1720-1722
(Olivier Corten and Pierre Klein eds., 2011).
43
Supra note 33. It is noteworthy that in a report published in March 2019, the UN Secretary-General himself refers to
“a future Palestinian State”: Implementation of Security Council resolution 2334 (2016) – Report of the SecretaryGeneral, S/2019/251, para. 67 (20 Mar. 2019).

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by the Secretary-General”.44 In these circumstances, the circulation of the Palestinian purported
instrument of accession pursuant to a technical provision common to various international
agreements (and the derivative status of being a “State Party”), clearly cannot be relied on as a
determination that a sovereign Palestinian State is in existence.45 To regard such a technical act
as a valid test for the Court’s jurisdiction would be to subvert the intention of its founders and
gravely undermine the jurisdictional regime they carefully agreed on.
24. The Palestinian participation in the work of the ICC Assembly of States Parties does not, and
again cannot, constitute or evince statehood for the purpose of Article 12 of the Rome Statute.
For its part, the Assembly of States Parties (“ASP”) has been careful to avoid taking any legal
position on whether “Palestine” constitutes a sovereign State. Thus, as long ago as when the
Palestinians were first invited to participate in the Assembly’s annual meeting as an “Invited
State”, the President of the ASP explicitly clarified that “the Assembly takes such [procedural]
decisions in accordance with the Rules of Procedure of the Assembly, independently of and
without prejudice to decisions taken for any other purpose, including decisions of any other
organization or organs of the Court regarding any legal issues that may come before them”.46
This practice of the ASP is consistent with the provisions of the Rome Statute according to
which questions concerning judicial functions of the Court, including those that relate to
jurisdiction, are entrusted to the Court and not to the ASP.47 Accordingly, mere participation in
the work of a political body such as the ASP cannot by sleight of hand and, in disregard of the
Court’s own Statute, be interpreted as determining complex and controversial legal questions,
still less determine statehood.
25. Thus, to consider that the question of Palestinian statehood was determined by General
Assembly resolution 67/19 or the ensuing purported accession to the Rome Statute that relied on
it, or by the participation of “Palestine” in the work of the ASP, would be wholly unfounded. A
critical legal issue such as that of the Court’s jurisdiction must not be decided on the basis of a
vote on a resolution by a political organ; and State creation in international law surely cannot be
Note to correspondents – Accession of Palestine to multilateral treaties (7 Jan. 2015), available at
https://www.un.org/sg/en/content/sg/note-correspondents/2015-01-07/note-correspondents-accession-palestinemultilateral (last accessed: 19 Dec. 2019). Depositaries of other treaties have dealt with the issue similarly. For
example, after the “State of Palestine” submitted a purported instrument of accession to the Convention on the Physical
Protection of Nuclear Material, the Director General of the International Atomic Energy Agency clarified that “[t]he
designation employed [i.e. “State of Palestine”] does not imply the expression of any opinion whatsoever on the part of
the depositary concerning the legal status of any country or territory or of its authorities, or concerning the delimitation
of its frontiers”: Depositary notification 170-N5.92.21 Circ of 1 February 2018 (Convention on the Physical Protection
of Nuclear Material: Accession by the State of Palestine).
45
Nor does the fact that the word “State” in Article 125 of the Rome Statute was apparently interpreted to enable the
purported accession by an entity that is not a sovereign State, have an impact on the meaning of the term “State” in
other, substantive provisions of the Statute. The OTP itself has recently observed that a term used in the Rome Statute
does not necessarily have the same meaning in every provision of the Statute: Office of the Prosecutor, Situation in the
Islamic Republic of Afghanistan - Consolidated Prosecution Response to the Appeals Briefs of the Victims, ICC-02/17,
para. 40 (22 Oct. 2019) (citing RICHARD GARDINER, TREATY INTERPRETATION (2nd ed., 2015)).
46
Assembly of States Parties to the Rome Statute of the International Criminal Court, Thirteenth Session, Official
Records, Vol. 1, ICC-ASP/13/20, p. 5 (8-17 Dec. 2014). See also infra note 109.
47
Rome Statute, supra note 2, art. 119(1); see also art. 119(2).
44

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implicit or a mere side-effect of procedural provisions such as Article 125 of the Rome
Statute.48 Accession to the Rome Statute – even when valid – was never intended to serve such a
purpose or to carry such weight in a jurisdictional regime explicitly based on the delegation of
sovereign ability to prosecute. As noted above, the OTP itself, along with the UN SecretaryGeneral, the Court’s Registrar, and the President of the ASP, have indeed all recognized that
such normative shortcuts cannot suffice for purposes of the crucial exercise of establishing the
Court’s jurisdiction. The Court, much like the OTP,49 would thus be abdicating its duty to
resolve the legal question of establishing jurisdiction under Article 12 if it failed to conduct a
careful and independent assessment of the law and facts at issue.50 Any such assessment, as will
now be shown, cannot but lead to the conclusion that no sovereign Palestinian State – let alone
one that has title to territory over which it has the requisite criminal jurisdiction that may be
delegated to the Court – is in existence.

D. THE PALESTINIAN

ENTITY MANIFESTLY FAILS TO SATISFY THE SUBSTANTIVE REQUIREMENT

FOR JURISDICTION UNDER ARTICLE 12(2) OF THE ROME STATUTE

26. Having clarified that the purported accession of “Palestine” to the Rome Statute cannot of itself
satisfy the jurisdictional requirement under Article 12, it will now be demonstrated that a sound
substantive assessment of the legal and factual records would inevitably lead to the conclusion
that no jurisdiction exists. This is chiefly because sovereignty over the West Bank and the Gaza
Strip is currently in abeyance, and the Palestinian entity does not meet the established criteria
for statehood under general international law. The right of the Palestinians to self-determination,
or the alleged recognition of “Palestine” by some States, do not alter this reality, which finds
expression in the Palestinians’ own statements on the matter. In these circumstances, it is clear
that the precondition to the ICC’s jurisdiction, as enshrined in Article 12(2) of the Court’s
Statute, is once again not met.
27. No Palestinian State has ever been in existence, and sovereignty over the West Bank and the
Gaza Strip is in abeyance. The territory that in 1922 became known as “Mandatory Palestine”
had formed part of the Ottoman Empire until Turkey (as successor to the Ottoman Empire)
relinquished sovereignty over it when ceding various territories to the administration of the
See also Vidmar, supra note 38, at para. 72 (adding, at para. 60, with reference to international treaties, that “[t]he
object and purpose of these treaties is not State creation or clarification of legal status. It would be a misuse of
international treaty law if they were interpreted in this way and the legal status of an entity established by a reverse
reading of the term ‘State party’ in multi-lateral treaties”). Vidmar further explains that accession to treaties or
international organizations is not constitutive of statehood given the fact that “[b]ecause of the political nature of voting,
sometimes non-State entities are given a chance to participate in international forums that are intended to be reserved
for States. Yet this does not automatically make them States under international law” (at para. 69).
49
Rome Statute, supra note 2, art. 42.
50
See, in the same vein, the examination by the ICTY of Croatian statehood in Prosecutor v. Slobodan Milošević, Case
No. IT-02-54-T, Decision on Motion for Judgement of Acquittal, paras. 85-115 (Int’l Crim. Trib. for the Former
Yugoslavia 16 Jun. 2004), http://www.icty.org/x/cases/slobodan_milosevic/tdec/en/040616.htm (last accessed: 19 Dec.
2019).
48

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Allied Powers following its defeat in the First World War.51 This disposition, as the arbitral
tribunal in Eritrea v. Yemen put it, “created for the [territory in question] an objective legal
status of indeterminacy pending a further decision of the interested parties”.52 Between the years
1917 and 1948, Great Britain administered the territory, first through military control and later
as a mandatory power under the League of Nations system. Sovereignty over it remained in
abeyance during the British Mandate,53 which was endorsed by the League Council and
constituted a binding international instrument.54 Recognizing the “historical connection of the
Jewish people with Palestine”, the Mandate explicitly entrusted Great Britain with putting into
effect the 1917 Balfour Declaration that was made “in favour of the establishment in Palestine
of a national home for the Jewish people”.55 It further provided that “recognition has thereby
been given to the historical connection of the Jewish people with Palestine and to the grounds
for reconstituting their national home in that country”, thus acknowledging the indigenous rights
of the Jewish people to the land as predating the Mandate.56 The establishment of a Jewish
national home was to be done without prejudice to “the civil and religious rights of existing

51

This was incorporated in the 1920 Treaty of Sèvres, which was superseded by the 1923 Treaty of Lausanne, wherein
Turkey renounced all rights and title over its former territories situated outside its frontiers: Treaty of Peace with
Turkey Signed at Lausanne, art. 16, 24 July 1923, 28 L.N.T.S 11. The name “Palestine” was adopted in the 2nd century
AD by the Roman Empire ruler of the territory: see Encyclopaedia Britannica, Palestine (last updated: 3 October 2019),
available at https://www.britannica.com/place/Palestine (last accessed: 19 Dec. 2019). This was done “[i]n an effort to
wipe out all memory of the bond between the Jews and the land, Hadrian changed the name of the province from Iudaea
to Syria-Palestina …” (S. Safrai, The Era of the Mishnah and Talmud (70-640), in A HISTORY OF THE JEWISH PEOPLE
307, 334 (H.H. Ben-Sasson ed., 1976)).
52
Territorial Sovereignty and Scope of the Dispute (Eritrea v. Yemen), R.I.A.A. Vol XXII 209, para. 445 (Perm. Ct.
Arb. 1996) (referring to Article 16 of the Treaty of Lausanne and, more specifically, to territories similarly renounced
by Turkey).
53
See also Malcolm N. Shaw, The League of Nations Mandate System and the Palestine Mandate: What Did and Does
it Say About International Law and What Did and Does it Say About Palestine?, 49 ISR. L. REV. 287, 295 (2016). For
the observation that “[s]overeignty over a Mandated Territory is in abeyance”, see International Status of South-West
Africa, Advisory Opinion, 1950 I.C.J. 128, at 150 (11 Jul. 1950) (Separate Opinion of Judge McNair); JAMES
CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 235 (9th ed., 2019).
54
See also South West Africa (Liberia v. South Africa), Preliminary Objections, 1962 I.C.J. Rep. 319, p. 330 (21 Dec.
1962).
55
Mandate for Palestine, 3 League of Nations Official Journal 1007 (1922), preambular para. 2. The Balfour
Declaration of 1917 stated that “His Majesty’s Government [of the United Kingdom of Great Britain and Northern
Ireland] view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best
endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may
prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status
enjoyed by Jews in any other country”: Letter from Arthur James Balfour, Secretary of State for Foreign Affairs to Lord
Walter Rothschild (2 Nov. 1917). The incorporation of the Balfour Declaration into the Mandate for Palestine was
expressly agreed in a resolution of the Principal Allied Powers at the San Remo Conference of 24-25 April 1920.
Churchill, as Secretary of State for the Colonies, made it clear that British correspondence dating from 1915 that offered
to the Arabs independence in parts of the territories that belonged to the Ottoman Empire (“the McMahon pledge”), had
excluded “[t]he whole of Palestine west of the Jordan”: see the Report of the Palestine Royal Commission (the Peel
Commission), which was appointed in 1936 by the British government to investigate the causes of unrest among
Palestinian Arabs and Jews: PALESTINE ROYAL COMMISSION REPORT, PRESENTED BY THE SECRETARY OF STATE FOR
THE COLONIES TO PARLIAMENT BY COMMAND OF HIS MAJESTY, 1937, Cms. 5479 pp. 19-20 (Gr. Brit.).
56
Mandate for Palestine, ibid., at preambular para. 3.

17

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non-Jewish communities in Palestine”.57 Article 5 of the Mandate, which provided that no part
of the territory of Mandatory Palestine would be ceded or leased to any foreign power, and other
terms in the Mandate as well as its extensive travaux préparatoires, attest to the understanding
at the time that the right of the Jewish people to a national home extended to the entire territory
of Mandatory Palestine.58
28. The rights of the Jewish people under the Mandate were preserved by virtue of Article 80(1) of
the UN Charter, the inclusion of which was advanced precisely by those supporting the
establishment of a Jewish national home in Palestine59 – and under strong opposition from the
Arab States. On 29 November 1947, following the announcement of the British Government of
its intention to withdraw from Mandatory Palestine, the UN General Assembly adopted
resolution 181, recommending the partition of the land into a Jewish State and an Arab State.60
This resolution was reluctantly accepted by the representatives of the Jewish community in
Palestine, but was explicitly rejected by the Arab States and the Palestinian Arab representatives
and thus fell into desuetude.61 On 14 May 1948 the British Mandate was officially terminated
57

Ibid., preambular para. 2 (emphasis added). It is not without significance that the Mandate does not refer to any
political rights of those non-Jewish communities in Palestine.
58
Ibid., art. 5. This is also implicit in the resolution of the Council of the League of Nations approving the separation of
Transjordan from the territory of Mandatory Palestine (as envisaged in art. 25 of the Mandate), in which it was made
clear that the establishment of a national home for the Jewish people was “not applicable to the territory known as
Transjordan”: see Article 25 of the Mandate for Palestine, Eighth Meeting (Public), 3 League of Nations O. J. 1188-9
(1922). In the same vein, the obligation under art. 6 of the Mandate to facilitate Jewish immigration and to encourage
“close settlement by Jews on the land” applied to the entire Mandatory Palestine.
59
Article 80(1) provides that “Except as may be agreed upon in individual trusteeship agreements, made under Articles
77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded,
nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any
peoples or the terms of existing international instruments to which Members of the United Nations may respectively be
parties”. See also Dietrich Rauschning, Article 77, in Simma et al. Commentary, supra note 35, at pp. 1861-1862;
Huntington Gilchrist, Colonial Questions at the San Francisco Conference, 39(5) AMER. POL. SCI. REV. 982, 990-991
(1945) (referring to Article 80 in saying that “[t]his clause resulted from the fears of mandatory powers lest their legal
position in the mandated territories be taken away out of hand by the trusteeship system. There were also fears on the
part of minority groups (such as the supporters of the Jewish people in relation to Palestine) lest their privileges under
the League Covenant and the mandates should be taken away”); LELAND M. GOODRICH ET AL., CHARTER OF THE
UNITED NATIONS: COMMENTARY AND DOCUMENTS 495 (1969); Shaw, supra note 53, at p. 303; Eugene V. Rostow, The
Future of Palestine, in 24 MCNAIR PAPER, INSTITUTE FOR NATIONAL STRATEGIC STUDIES, NATIONAL DEFENSE
UNIVERSITY 10-11 (1993).
60
G.A. Res. 181 (II), U.N. Doc. A/RES/181(II) (29 Nov. 1947), designating the City of Jerusalem to be placed under a
special international regime. The United Nations Special Commission on Palestine had earlier concluded that the
“Arabs of Palestine … have not been in possession of it [Palestine Mandate territory] as a sovereign nation”, and that
there were “no grounds for questioning the validity of the Mandate for the reason advanced by the Arab States”:
U.N.S.C.O.P, Question of Palestine/Majority plan (Partition), Minority plan (Federal State), paras. 163, 179, U.N.
Doc. A/364 (3 Sep. 1947).
61
See also Crawford 2006, supra note 41, at pp. 424-425, 430-432. Needless to say, UN General Assembly resolutions
such as resolution 181 are, in any event, without binding effect. Recent claims that Israel had subsequently accepted the
territorial delimitation suggested by the UN partition plan through signing the 1949 Lausanne Protocol are misleading,
as Israel merely agreed therein to regard the plan as a basis for future discussions on borders. This political willingness
in no way indicated any waiver of legal rights or claims. For example, the Director General of the Israeli Ministry of
Foreign Affairs, representing Israel in Lausanne, made it there clear that accepting the November 29 th frontiers as a
“base de travail” did not mean acquiescence in them: Letter from W. Eytan (the Director General of the Israeli Ministry
of Foreign Affairs) to M. Sharett (Israel’s Minister for Foreign Affairs), 9 May 1949. That Israel did not waive any of

18

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and the State of Israel was established, only to be invaded on the following day by several Arab
States.62
29. The 1948 war, during which Jordan and Egypt took control over the West Bank and the Gaza
Strip respectively, ended in 1949 in a series of armistice agreements between Israel and its
neighbors. These laid down that the armistice lines (later to be referred to as the “Green Line”)
were to be temporary, do not construe “in any sense … a political or territorial boundary”, and
were delineated “without prejudice to rights, claims and positions of either Party hereto in the
ultimate peaceful settlement of the Palestine question”.63 Sovereignty over the West Bank and
the Gaza Strip thus remained in abeyance.64
30. In June 1967, acting in self-defense, Israel gained control of the West Bank and the Gaza Strip
and unified under its sovereignty the city of Jerusalem. Any argument that the West Bank and
the Gaza Strip are since then occupied affects neither Israel’s longstanding claim to that territory
nor the fact that sovereignty over it remains in abeyance, as belligerent occupation does not
invalidate any pre-existing claims to the territory concerned. On 22 November 1967, the UN
Security Council unanimously adopted resolution 242, affirming that the fulfillment of the
principles of the UN Charter in achieving peace in the Middle East “should include the
application of both the following principles”: Israel’s withdrawal from territories, and respect
for the right of every State in the area to exist within secure and recognized borders.65 This
its territorial rights or claims is further evident in, inter alia, the subsequent armistice agreements with Arab States and
the agreements concluded between Israel and the Palestinians.
62
UN Secretary-General Trygve Lie later described the Arab invasion as “the first armed aggression the world has seen
since the end of the [Second World] [W]ar”: TRYGVE LIE, IN THE CAUSE OF PEACE: SEVEN YEARS WITH THE UNITED
NATIONS 174 (1954).
63
General Armistice Agreement, Egypt-Isr., 24 Feb. 1949, 42 U.N.T.S. 251, arts. V(2), V(3) and XI; see also General
Armistice Agreement, Isr.-Jordan, 3 Apr. 1949, 42 U.N.T.S. 303, arts. II(2), IV(2) and VI(9).
64
Any argument that when Israel gained control over the West Bank in 1967, that territory had already belonged to a
State, is therefore without any merit. In particular, on 15 May 1950, the Arab League agreed that Jordan’s purported
annexation of the West Bank that year was illegal: see Jordan’s annexation in Palestine is called illegal by Arab
League, THE NEW YORK TIMES (16 May 1950); U.S. DEPARTMENT OF STATE – OFFICE OF INTELLIGENCE RESEARCH,
INTELLIGENCE REPORT, NO. 6565, DISUNITY AMONG THE ARAB STATES: THE HASHEMITE CONTROVERSY AND ARAB
PALESTINE,
p.
9
(1954), available
at https://www.cia.gov/library/readingroom/docs/HUSSEINI%2C%20AMIN%20EL%20%20%20VOL.5_0204.pdf
(last accessed: 19 Dec. 2019). Israel, for its part, maintained its claim to the territory, including through the 1949
armistice agreements and by asserting that it did not consider itself bound by the annexation unilaterally proclaimed by
the Jordanian Parliament. The official Israeli position was indeed that “[t]his is a unilateral act that is in no way binding
on Israel. We have concluded an armistice agreement with the Hashemite Jordan Kingdom and it is our firm intention
fully to abide by it. This agreement, however, entails no final political settlement, and no such final settlement is
possible without negotiations and the conclusion of a peace treaty between the two parties. It should therefore be clear
that the status of the Arab areas west of the Jordan remains an open question as far as Israel is concerned”: Two areas
united by vote in Jordan, THE NEW YORK TIMES (25 Apr. 1950); see also Letter from M. Sharett (Israel’s Minister for
Foreign Affairs) to Sir Alexander Knox Helm (the United Kingdom Minister to Israel), 2 May 1950.
65
S.C. Res. 242, U.N. Doc. S/RES/242, para. 1 (22 Nov. 1967). It is noteworthy that the text of the resolution
deliberately refers to a withdrawal of Israeli forces “from territories occupied in the recent conflict”, not from “all the
territories occupied”. Lord Caradon, who served as Permanent Representative of the United Kingdom to the United
Nations between 1964 and 1970 and was the architect of resolution 242, later explained that “[w]e could have said:
well, you go back to the 1967 line. But I know the 1967 line, and it’s a rotten line. You couldn’t have a worse line for a
permanent international boundary. It’s where the troops happened to be on a certain night in 1948. It’s got no relation to

19

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resolution was later accepted by Israel, Egypt, and Jordan, as well as the Palestine Liberation
Organization (PLO, as the representative of the Palestinian people), as the basis for permanent
settlement of their respective disputes.66 The 1979 Egypt-Israel Peace Treaty and the 1994
Jordan-Israel Peace Treaty were concluded without prejudice to the status of territories that
came under Israeli control in 1967,67 thus again leaving sovereignty over them in abeyance.
31. In 1993, Israel and the Palestinians agreed to settle their dispute – including their competing
claims to the West Bank and the Gaza Strip – through bilateral negotiations leading to a just and
lasting peace. The Interim Agreement concluded between the parties with the encouragement of
the international community in 1995 stipulates that no side may “change the status of the West
Bank and the Gaza Strip pending the outcome of permanent status negotiations”.68 The
Palestinians have systematically and repeatedly violated the agreements reached with Israel,
including by supporting terrorism and by the very attempt to unilaterally assert statehood before
the ICC, yet this does not absolve them from their obligations thereunder. Permanent status
negotiations have not yet been concluded,69 and sovereignty over the West Bank and the Gaza
Strip thus remains in abeyance to the present day.
32. In these circumstances, it is clear that the Palestinian entity does not now hold, nor has it ever
held, sovereign title over the West Bank and the Gaza Strip, a territory that in fact has always
been under the effective control of others. Recent revisionist attempts to argue otherwise simply
cannot be sustained by the legal and historical record, including the Palestinians’ own narrative
over the decades.70

the needs of the situation. … We meant that the occupied territories could not be held merely because they were
occupied, but we deliberately did not say that the old line, where the troops happened to be on that particular night
many years ago, was an ideal demarcation line”: An Interview with Lord Caradon, 5(3/4) J. Palestine Stud. 142, 144145 (1976). The resolution itself acknowledges that borders have yet to be determined, and that any such determination
ought to be made through “a peaceful and accepted settlement”.
66
Peace Treaty between Israel and Egypt, Egypt-Isr., art. II, 26 Mar. 1979, 1138 U.N.T.S. 59, preambular para. 1;
Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan, Isr.-Jordan, art. 3(1)-(2), 26 Oct.
1994, 2042 U.N.T.S 351, preambular para. 3; Israeli-Palestinian Interim Agreement on the West Bank and the Gaza
Strip, 28 Sep. 1995, at preambular paras. 5 and 6.
67
With the exception of the Sinai Peninsula. See Peace Treaty between Israel and Egypt, ibid., art. II; Treaty of Peace
between the State of Israel and the Hashemite Kingdom of Jordan, ibid., arts. 3(1) and (2).
68
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XXXI (7). Israel’s
disengagement from the Gaza Strip in 2005 did not mark a renunciation of its claim to the territory, nor did it alter the
legal situation by which sovereignty over the Gaza Strip remains in abeyance, and the Interim Agreement applies to it
(mutatis-mutandis). As was stated by the Israeli Government, “[t]he process set forth in the [disengagement] plan is
without prejudice to the relevant agreements between the State of Israel and the Palestinians. Relevant arrangements
shall continue to apply”: Israeli Cabinet Resolution regarding the Disengagement Plan, Government Decision No.
1996, Revised Disengagement Plan, Addendum A, para. 1(7) (6 Jun. 2004).
69
Israel’s willingness to resume permanent status negotiations without further delay has been repeatedly stated,
including in recent years and by the highest levels of Government. On the Palestinian approach, see, for example, BILL
CLINTON, MY LIFE 944-945 (2005) (“Arafat’s rejection of my proposal after Barak accepted it was an error of historic
proportions”); the Palestinians have similarly rejected or refused to respond to other compromise proposals, including
those made in the Proximity Talks process (May-September 2010); the Quartet’s 2011 proposal (September 2011); the
Amman rounds (January 2012); and the Kerry Framework negotiations (July 2013-April 2014).
70
See also infra note 106.

20

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33. The Palestinian entity does not meet the established criteria for statehood under
international law, including effective control. It is well established in international law that the
creation of a State requires, inter alia, a government with full governmental powers over the
territory that it claims.71 The Palestinian entity, however, has never possessed – and does not
now possess, either in law or in fact – key elements of such effective territorial control.
34. The Palestinian Authority (“PA”) is a legal entity created by the bilateral agreements entered
into by the PLO and Israel, and possesses only those powers specifically transferred to it under
these agreements. The agreements explicitly state that Israel maintains all residual powers and
responsibilities not transferred to the Palestinian Authority: “the jurisdiction of the [Palestinian
Authority] will cover West Bank and Gaza Strip territory … except for: … powers and
responsibilities not transferred to [it]”.72 Israel is thus “the fount of authority and the retainer of
residual powers”,73 which again indicates that the Palestinians do not have sovereignty.
35. More specifically, the bilateral Israeli-Palestinian agreements provide for the transfer to the
Palestinians of only limited powers, which do not come close to effective control: the
Palestinian Negotiations Support Unit has itself concluded that “[t]he administrative powers
accorded to the PA by the Interim Agreements are much more limited than the powers of a
government”.74 Significantly, Israel retains control over external security, as the Interim
71

See the rules of international law enshrined in the Montevideo Convention on Rights and Duties of States, art. 1, 26
Dec. 1933, 165 L.N.T.S. 19. This has also been the approach of the International Criminal Tribunal for the former
Yugoslavia in Prosecutor v. Slobodan Milošević, supra note 50, at para. 86: “These four criteria [enumerated in Article
1 of the Montevideo Convention] have been used time and again in questions relating to the creation and formation of
states. In fact, reliance on them is so widespread that in some quarters they are seen as reflecting customary
international law”. As Oppenheim’s International Law puts it, “[a] state proper is in existence when a people is settled
in a territory under its own sovereign government. … There must … be a sovereign government. Sovereignty is
supreme authority, which on the international plane means not legal authority over all other states but rather legal
authority which is not in law dependent on any other earthly authority. Sovereignty in the strict and narrowest sense of
the term implies, therefore, independence all round, within and without the borders of the country”: ROBERT JENNINGS
& ARTHUR WATTS, OPPENHEIM’S INTERNATIONAL LAW: PEACE, vol. 1, pp. 120, 122 (9th ed., 2008) (emphasis in
original). See also Crawford 2006, supra note 41, at p. 46 (“the right to be a State is dependent at least in the first
instance upon the exercise of full governmental powers with respect to some area of territory”); MALCOLM N. SHAW,
INTERNATIONAL LAW 157 (8th ed., 2017). Even if some suggest that a more flexible approach to this condition may be
adopted when considering the situation of an existing State, it has been applied strictly when considering the possible
creation of a new State: Crawford 2006, supra note 41, at p. 59; see also para. 41 below.
72
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII(1). See also art.
I(1) (“Israel shall transfer powers and responsibilities as specified in this Agreement from the Israeli military
government and its Civil Administration to the Council in accordance with this Agreement. Israel shall continue to
exercise powers and responsibilities not so transferred”); art. I(5) (“… The withdrawal of the military government shall
not prevent it from exercising the powers and responsibilities not transferred to the Council”); and art. XVII(4)(a)
(“Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the
Council, powers and responsibilities not transferred to the Council and Israelis”).
73
YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION 58 (2009). See also Joel Singer, The
Oslo Peace Process – A View from Within, in NEW POLITICAL ENTITIES IN PUBLIC AND PRIVATE INTERNATIONAL LAW
WITH SPECIAL REFERENCE TO THE PALESTINIAN ENTITY 17, 49 (A. Shapira and M. Tabory eds., 1999) (“It is noteworthy
that the possession of residual powers is normally an indicia of being the source of authority”).
74
Internal Memorandum from the Negotiations Support Unit to Dr. Saeb Erekat entitled “Implications of Change in de
facto
Control
in
Gaza”
(19
Jun.
2007),
available
at
http://www.ajtransparency.com/en/projects/thepalestinepapers/20121822587187346.html (last accessed: 19 Dec. 2019)

21

 STATE OF ISRAEL
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Agreement specifies that “Israel shall continue to carry the responsibility for defense against
external threats, including the responsibility for protecting the Egyptian and Jordanian borders,
and for defense against external threats from the sea and from the air, as well as the
responsibility for overall security of Israelis and Settlements, for the purpose of safeguarding
their internal security and public order, and will have all the powers to take the steps necessary
to meet this responsibility”.75 The Palestinians also lack any control over other key attributes of
sovereignty, such as airspace76 and major aspects of tax collection;77 and the Palestinian
Authority’s criminal jurisdiction is very much limited.78 Significantly, the exercise of some
powers, such as the use of the electromagnetic sphere and the establishment of
telecommunication networks, is subject to Israeli cooperation or consent.79 The provision of
certain monetary services is similarly dependent upon Israeli authorization.80 All of this is
certainly not “exclusive and complete authority”, which the OTP itself has found to be required
for purposes of exercising the Court’s jurisdiction.81 Moreover, any limited powers that the
Palestinian Authority does hold are anyway confined by the agreements both geographically (to
certain designated areas) and in personam (only to Palestinians and non-Israelis).82
36. Despite their repeated breaches by the Palestinians, the bilateral Israeli-Palestinian agreements
continue to form the applicable legal framework governing the conduct of the parties. This has
repeatedly been acknowledged by the parties, including most recently83 and in writing,84
(acknowledging also that “[t]he [Occupied Palestinian Territory] should not be treated as a state since it lacks the
attributes of statehood”).
75
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XII(1). Under the
Agreement, Israel transferred to the Palestinian Authority certain powers relating only to internal security (arts. XII-XIII
and arts. IV-VI of Annex I); it also transferred some powers pertaining to certain civil affairs such as education,
municipal matters, and health (for example, Annex III, Appendix I, arts. 9, 17, 20, 36, 37).
76
Ibid., Annex I, art. XIII (4): “All aviation activity or use of the airspace by any aerial vehicle in the West Bank and
the Gaza Strip shall require prior approval of Israel”.
77
See, for example, 1994 Agreement on the Gaza Strip and the Jericho Area, Annex IV: Protocol on Economic Relation
between the Government of the State of Israel and the P.L.O., representing the Palestinian people, art. III, VI, April 29,
1994.
78
See paras. 56-60 below.
79
Id., at Annex III, arts. 28 and 36(A)(2)(a).
80
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, at Annex III, art. 29.
81
Report on Preliminary Examination Activities 2019, supra note 12, at para. 48. The OTP quotes in this context the
well-known Award in the Island of Palmas case, in which it has also been stated, inter alia, that “[s]overeignty in the
relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State. … Territorial sovereignty, as has already been said,
involves the exclusive right to display the activities of a State”: Island of Palmas, supra note 18, at pp. 838-839
(emphasis added).
82
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII (2)(a) and
Annex III. Israel transferred to the Palestinian Authority certain legislative powers that in any event “shall not derogate
from Israel’s applicable legislation over Israelis in personam” (ibid., arts. XVIII (4) and XVII(4)).
83
See, for example, President Abbas meets Palestinian community in US on sidelines of 74th session of UN General
Assembly
in
New
York,
WAFA
(23
Sep.
2019),
available
at
http://english.wafa.ps/page.aspx?id=Crv2Xia113546988159aCrv2Xi (last accessed: 19 Dec. 2019); President Abbas:
All agreements with Israel will end once it annexes any part of the Palestinian territory, WAFA (9 Sep. 2019),
available at http://english.wafa.ps/page.aspx?id=hPcYhZa111508333233ahPcYhZ (last accessed: 19 Dec. 2019);
President Mahmoud Abbas’s address to foreign ministers of the Arab League on 21 April 2019, in which he said that

22

 STATE OF ISRAEL
OFFICE OF THE ATTORNEY GENERAL

despite isolated political statements to the contrary by some Palestinian officials.85 Current
ongoing engagement between Israeli and Palestinian officials is indeed based on the
agreements, with bilateral discussions underway in recent months within the framework of joint
committees established by the Interim Agreement to facilitate further implementation thereof in
various fields such as security, water, and sewage management. Moreover, several agreements
have been reached in these fields between the two sides in recent years, with explicit reliance
on the terms of the Interim Agreement. The international community, too, has reiterated on
numerous occasions its support for the existing bilateral agreements as an applicable legal
framework for settling the Israeli-Palestinian conflict and determining the sovereign status of
the territory in dispute.86
37. Also of note is that the Palestinian Authority does not exercise control over the Gaza Strip,87
where more than 40 percent of the Palestinian population resides.88 Nor does it exercise control
“we
[the
PA]
are
committed
to
all
the
agreements”
(video
recording
available
at
https://www.youtube.com/watch?v=NsW3gPt9Tio (minutes 7:45-8:30) (last accessed: 19 Dec. 2019)); President says
he is ready to sever all ties with Israel if it keeps ignoring agreements, WAFA (3 July 2019), available at
http://english.wafa.ps/page.aspx?id=YKo1zda110829733344aYKo1zd (last accessed: 19 Dec. 2019) (“If it continues in
not honoring them, we will cancel all the agreements between us no matter what will happen”); President Mahmoud
Abbas’s address to the UN Security Council: UN S.C, 8183 rd meeting, U.N. Doc. S/PV.8183, 9 (20 Feb. 2018)
(referring to existing obligations under the Oslo Accords of 1993). Palestinian statements from recent years, claiming
that Israel has violated the Agreements, similarly indicate the Palestinians’ view that the Israeli-Palestinian agreements
are indeed in force: see Palestinian cabinet condemns Israel’s decision to cut tax revenues, WAFA (19 Feb. 2019),
available at http://english.wafa.ps/page.aspx?id=c1pseca108483662199ac1psec (last accessed: 19 Dec. 2019); Abbas:
Liberman Violated Oslo Accords by Naming PNF a Terror Organization, THE JERUSALEM POST (17 Mar. 2017),
available at https://www.jpost.com/Arab-Israeli-Conflict/Abbas-Liberman-violated-Oslo-accords-by-naming-PNF-aterror-organization-484448 (last accessed: 19 Dec. 2019).
84
For example, several bilateral agreements signed in 2015, 2016 and 2017 in connection with electricity, water,
telecommunications, and postal issues, all refer in explicit terms to the Interim Agreement and are said to be concluded
pursuant to it. See also Adam Rasgon, Tovah Lazaroff and Sharon Udasin, Israel gives Pal. Authority limited water
autonomy in West Bank, THE JERUSALEM POST (17 Jan. 2017), available at http://www.jpost.com/Arab-IsraeliConflict/Israel-gives-Pal-Authority-limited-water-autonomy-in-West-Bank-478672 (last accessed: 19 Dec. 2019);
Israel, Palestinians sign 3G mobile network agreement, REUTERS (19 Nov. 2015), available at
https://www.reuters.com/article/us-israel-palestinians-3g-idUSKCN0T81MS20151119 (last accessed: 19 Dec. 2019);
Israel, PA sign deal on massive Palestinian electricity bill, THE TIMES OF ISRAEL (13 Sep. 2016), available at
https://www.timesofisrael.com/israel-pa-sign-deal-on-massive-palestinian-electricity-bill/ (last accessed: 19 Dec. 2019).
85
Such statements clearly do not amount to a notice of denunciation or withdrawal, and cannot have any such effect. In
any event, Israel has never received any such notice.
86
See, for example, G.A. Res. 73/19, U.N. Doc. A/RES/73/19, preambular para. 25 and operative paras. 16 and 19 (23
Jan. 2019); G.A. Res. 73/256, U.N. Doc. A/RES/73/256, preambular para. 2 (5 Dec. 2018); S.C. Res. 2334, U.N. Doc.
S/RES/2334, para 8 (23 Dec. 2016); G.A. Res. 67/19, supra note 35, at para. 5.
87
Despite several attempts at unity, the division between Hamas in the Gaza Strip and the Palestinian Authority in the
West Bank persists, with different authorities administering those territories. See, for example, the Palestinian position
recorded in the Report of the detailed findings of the independent commission of inquiry established pursuant to Human
Rights Council resolution S-21/1, U.N. Doc. A/HRC/29/CRP.4, para. 666 (24 Jun. 2015): “The Palestinian Authority
claims that its failure to open investigations results from insufficient means to carry out investigations in a territory over
which it has yet to re-establish unified control”.
88
See also UN Security Council, Report of the Committee on the Admission of New Members Concerning the
Application of Palestine for Admission to Membership in the United Nations, para. 12, U.N. Doc. S/2011/705 (11 Nov.
2011): “… it was stated that Hamas was in control of 40 per cent of the population of Palestine; therefore the
Palestinian Authority could not be considered to have effective government control over the claimed territory”.

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in as much as 60 percent of the West Bank area claimed by the Palestinians to be theirs. This is
quite apart from the fact that the Palestinians neither have nor exercise any powers over
Jerusalem.
38. The Palestinians themselves claim that Israel is occupying the Gaza Strip, the West Bank and
east Jerusalem,89 thus suggesting that Israel has effective control over these territories to the
exclusion of others.90 Under such circumstances, occurring since 1967, the essential criterion of
effective territorial control clearly cannot be met: if the territory is occupied, then the effective
control over it must by definition rest with Israel, not with the Palestinians. The Palestinians’
own Negotiations Support Unit has indeed recognized that “ending the occupation … is a basic
requirement for creation of a sovereign Palestinian state”.91 In a legal memorandum dealing
specifically with Palestinian strategy before the ICC, it thus concluded that the claim that Israel
is occupying the West Bank and the Gaza Strip creates an insurmountable obstacle in
establishing ICC jurisdiction over the “Situation in Palestine”, as “a state will only emerge upon
termination of Israeli occupation”.92
39. Needless to say, Israel’s presence in the West Bank is fully in accordance with international
law: Israel gained control over the territory in an act of lawful self-defense;93 it applies the
humanitarian provisions of the international law of occupation (despite its principled position
that they do not apply de jure);94 and it has repeatedly expressed its commitment to negotiate
with the Palestinians this state of affairs. As recognized in the agreements already concluded
between Israel and the Palestinians and Security Council resolution 242,95 the withdrawal of
Israeli armed forces and the determination of secure and recognized boundaries is a matter for
See, for example, the official statement entitled Borders, found at the Palestinian Liberation Organization –
Negotiation Affairs Department website, available at https://www.nad.ps/en/our-position/borders (last accessed: 19
Dec. 2019) .
90
That occupation of a territory requires the exercise of control to the exclusion of others is firmly established in
international law and practice. See, for example, Convention (IV) respecting the Laws and Customs of War on Land
and its annex: Regulations concerning the Laws and Customs of War on Land, art. 42, 18 Oct. 1907, 205 C.T.S. 277;
The Prosecutor v. Naletilic et al., IT-98-34-T, Judgement, para. 217 (31 Mar. 2003); The United Kingdom Ministry of
Defence, Joint Service Manual of the Law of Armed Conflict, JSP 383, [11.3] (10 Feb. 2004); United States
Department of Defense, Law of War Manual, [11.2.2.2] (June 2015). For the view of publicists, see, for example, Adam
Roberts, What is Military Occupation?, 55(1) BRIT. Y.B INT’L L. 249, 300-1 (1985); Dinstein, supra note 73, at pp. 4243.
91
Memorandum from the Negotiations Support Unit to Palestinian Leadership entitled “Legal approaches to be
advanced at the ICC in order to protect overall Palestinian strategy and realize rights and interests” (25 Mar. 2009),
available at http://www.ajtransparency.com/en/projects/thepalestinepapers/201218205613718519.html (last accessed:
19 Dec. 2019).
92
Ibid. The memorandum explains that arguing that the “State of Palestine” came into existence during the occupation
is “NOT RECOMMENDED” (emphasis in original), given that “[i]t will be very difficult to meet the Montevideo
criteria for statehood (i.e., permanent population, defined territory, effective government and capacity to enter into
foreign relations) under current circumstances. This is because a state of occupation arguably negates the effective
control required for the emergence of a state”.
93
See also YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 192 (4th ed., 2004).
94
See also Meir Shamgar, The Observance of International Law in the Administered Territories, 1 ISRAEL Y.B HUM.
RTS. 262 (1971), in which the Israeli Government’s position was first presented by the then Attorney General of Israel.
95
See para. 30 above.
89

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peace negotiations between the parties. The continued exercise of authority by Israel in this
territory, pending such negotiations, is thus consistent with applicable international law and
existing bilateral agreements. Any claim that Israel’s presence in the West Bank amounts to
“unlawful occupation” is thus without any merit.96
40. A right of self-determination must not be conflated with statehood. International law clearly
distinguishes between self-determination and the legal status of statehood: while the former
concerns the right of peoples to determine their political condition and to pursue freely their
economic, social and cultural development, the latter is merely one possible outcome of the
realization of such a right.97 Therefore, recognition of the right of the Palestinians to selfdetermination does not amount to recognition of an already existing sovereign Palestinian
State, and cannot of itself establish one. Statements made on the international plane in reference
to the right of the Palestinians to self-determination indeed describe Palestinian statehood as an
aspiration, and not as an existing legal fact.98 Cassese has thus opined, after indicating that
“there is no agreement … on the exact territory in which the [Palestinian] right to selfdetermination is to be exercised”, that “[t]he only indications that can be drawn from the
international legal rules and UN resolutions are to the effect that the right must be exercised
peacefully, that is, through negotiations between all the parties concerned and on the basis of
96

The Israeli presence in the West Bank is indeed markedly different from such situations where an occupation has
resulted from a breach of the jus ad bellum, as was the case, for example, with the Iraqi occupation of Kuwait, or
Uganda’s occupation of the DRC (see Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 116, paras. 259, 345, (19 Dec. 2005)). In these cases, as with the
occupation of Namibia by South Africa, the illegality of the occupation as a matter of international law was determined
by the Security Council, the International Court of Justice, or both. It is noteworthy that even the finding that Namibia
was unlawfully occupied did not – and indeed could not – of itself give rise to Namibian statehood: see infra note 98.
97
See also Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory
Opinion, 2019 I.C.J 169, paras. 156-157 (25 Feb. 2019); Crawford 2006, supra note 41, at p. 446 (“… international law
has distinguished between the right to self-determination and the actual achievement of statehood, and for good
reason”); DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION 444-445 (2002); Shaw, supra note 71, at p.
204; Christian Tomuschat, Secession and Self-Determination, in SECESSION: INTERNATIONAL LAW PERSPECTIVES 23,
24 (Marcelo G. Kohen ed., 2006). This distinction continues to be upheld in international practice: even in cases where
a right of self-determination had garnered considerable international support as a foundation for the establishment of a
State, that State only came into being once the legal requirements for statehood had been met. One important example is
that of Namibia, the statehood of which was attained only following the end of South Africa’s occupation. As may be
recalled, South Africa’s administration of the territory of South West Africa (that later became Namibia) was authorized
by a League of Nations Mandate, which was terminated by the United Nations in 1966. After South Africa’s subsequent
refusal to withdraw from the territory, its occupation thereof was determined by the UN Security Council to be illegal
and was met by international sanctions and by UN General Assembly support for the armed struggle of the Namibian
people for independence. Even under these extreme and unprecedented circumstances, Namibia was only established as
a State after the conclusion of an agreement between South Africa, Angola and Cuba, which provided that “[a]ll
military forces of the Republic of South Africa shall depart Namibia in accordance with UNSCR 435/78”, and that
South Africa shall “co-operate with the Secretary-General to ensure the independence of Namibia through free and fair
elections …” (Agreement among the People’s Republic of Angola, the Republic of Cuba, and the Republic of South
Africa, arts. 2, 3, 22 Dec., 1988, A/43/989, S/20346). On this particular matter see also Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, paras. 90-103, 108-116 (21 Jun. 1970); Crawford
2006, supra note 41, at pp. 439-440, 595-596.
98
See paras. 21 above and 43 below.

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the freely expressed wishes of the population of the territories”. 99 This is consistent with the
approach of the international community, which repeatedly calls for a negotiated solution for
purposes of realizing the Palestinian right to self-determination.
41. Any suggestion that the substantive requirement of effective government may be relaxed in
favor of State creation in pursuance of self-determination is of no avail. Those advocating this
controversial position refer to a handful of cases that do not sufficiently lend themselves to any
such generalization. What is more, such cases that have been referred to have no bearing on the
present circumstances, as they concern situations where the entity claiming statehood had, at
the relevant time, an exclusive claim to the relevant territory (with previous conflicting claims
having by then been withdrawn).100 In the present case, however, Israel has a longstanding
claim to the West Bank and the Gaza Strip, and Israel and the Palestinians have explicitly
agreed under existing agreements to settle their conflicting claims peacefully through
negotiation.101 Furthermore, the cases concerned were such in which the right to selfdetermination was forcibly prevented, including in the colonial context.102 This is certainly not
the situation in the Israeli-Palestinian case, in which Israel has not only recognized the
Palestinian right to self-determination and facilitated Palestinian self-governance through
bilateral agreements that established the Palestinian Authority, but has also agreed to further
promote Palestinian self-rule and has repeatedly engaged in negotiation efforts for this purpose,
to which it remains committed. To argue that Palestinian self-determination has not yet been
fully realized as a result of alleged Israeli wrongdoing, would be to ignore repeated
international and Israeli offers over the decades to enable the emergence of a Palestinian State
that were all rejected by the Palestinian side.103 Seeking to label Israel as arbitrarily denying
Palestinian self-determination would thus not only be fundamentally untrue, but would require
the adoption of a particular political and partisan narrative in a manner clearly inappropriate for
any court of law, let alone an international criminal court.
42. Palestinian claims regarding recognition are wholly misleading and, in any event, are not
constitutive of statehood. Under international law, recognition is not constitutive of statehood
and cannot supersede or replace the factual and legal requirements of statehood, nor indeed
compensate for their absence.104 A Palestinian claim to statehood based on alleged recognition
99

CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 240-241 (1995).
For example, both the Democratic Republic of Congo and Guinea-Bissau, and also Bangladesh, were only
established as States, and admitted to the UN, following the express agreement of the State formerly claiming the
territory. In the case of the Baltic States, the UN Security Council did not consider their applications for UN
membership until after the Soviet Union (that annexed their territories in 1940) agreed to recognize them as States. See
also Crawford 2006, supra note 41, at pp. 57-58, 140-142, 181, 394-395.
101
See also para. 31 above.
102
See, for example, the case of Namibia: supra note 97.
103
Supra note 71.
104
See, for example, Crawford 2006, supra note 41, at p. 93 (“[a]n entity is not a State because it is recognized; it is
recognized because it is a State”). The Badinter Arbitration Commission on Yugoslavia similarly noted that “a state’s
existence or non-existence had to be established on the basis of universally acknowledged principles of international
law concerning the constituent elements of a state”, and that “recognition of a state by other states has only declarative
100

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of “Palestine” by any number of States is thus of no legal significance in the present context.
What is more, the claim does not withstand any serious factual scrutiny.
43. First, over two-thirds of the alleged recognitions relied on by the Palestinians were made in
connection with the so-called Palestinian Declaration of Independence of 1988, yet the
Palestinians have themselves conceded that no Palestinian State had existed either then or
decades thereafter.105 Such recognitions cannot therefore be relied upon. Second, many States
that are alleged to have recognized “Palestine” continue to refer to a sovereign Palestinian State
as a future aspiration only, and others have made it clear that, in fact, they do not recognize a
Palestinian State to be in existence.106 Needless to say, this is also the position of a significant
number of additional States, as the Palestinians would surely acknowledge. 107 All things
value”: Opinion No. 8 of Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising From the
Dissolution of Yugoslavia, 31(6) I.L.M. 1488, 1522-1523 (Nov. 1992).
105
In 1998, for example, Yasser Arafat, Chairman of the Palestinian Authority, stated that “The Palestinian people were
determined to declare independence …”: Press Release, General Assembly, Chairman Arafat Says Palestinians Need
Worldwide Support More Than Ever to Make Independence a Reality, U.N. Press Release Ga/PAL/788 (30 Nov. 1998).
In the same vein, Mahmoud Abbas, then Secretary-General of the PLO Executive Committee, stated in 2000 that “[a]
declaration of an independent state is a right our people can execute at any time. In 1988, when we declared our state in
exile, more than 100 countries recognized that declaration. But recognition of a state on the ground is different tha[n]
that of a state in exile. And though many nations have said they are in favor of an independent state many hinted of the
necessity to declare once prepared on the ground and or after an agreement between the sides is reached. And so we
must now stop and think”: Abu Mazen’s Speech at the Meeting of the PLO’s Central Council, 9 September 2000, UN
press release, available at https://unispal.un.org/DPA/DPR/unispal.nsf/0/172D1A3302DC903B85256E37005BD90F
(last accessed: 19 Dec. 2019). In their submission to the International Court of Justice in 2004, in the course of the Wall
advisory proceedings, the Palestinians also explicitly acknowledged that a Palestinian State has yet to emerge: Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, Written
Statement submitted by Palestine, para. 375 (29 Jan. 2004) (“… the fact is that Israel remains in overall control of this
territory and Israeli forces remain in occupation of the West Bank, including East Jerusalem, and the Gaza Strip. These
areas are together referred to as the ‘Occupied Palestinian Territory’, because the territory is not part of the territory of
the State of Israel; it is territory of the Palestinian people, destined for a Palestinian State …” (emphasis added)).
106
See, for example, Official Records of the General Assembly, supra note 40. For more recent views, see, for example,
Narendra Modi, Prime Minister of India, Speech Delivered During a Joint Conference With President Mahmoud Abbas
(10 Feb. 2018), available at https://www.diplomaticsquare.com/india-hopes-that-palestine-will-soon-be-a-sovereigncountry-achieved-in-a-peaceful-manner/ (last accessed: 19 Dec. 2019) (“India hopes that soon Palestine will become a
sovereign and independent country in a peaceful manner”); President Xi’s Speech at Arab League Headquarters: Full
Text, CHINA DAILY (22 Jan. 2016), available at http://www.chinadaily.com.cn/world/2016xivisitmiddleeast/201601/22/content_23191229.htm (last accessed: 19 Dec. 2019) (“China firmly supports the Middle East peace process and
supports the establishment of a State of Palestine enjoying full sovereignty …”); Adam Withnall, Vladimir Putin says
Russia will fight for right of Palestinians to their own State, THE INDEPENDENT (29 Mar. 2015), available at
https://www.independent.co.uk/news/world/middle-east/vladimir-putin-says-russia-will-fight-for-the-right-ofpalestinians-to-their-own-state-10141902.html (last accessed: 19 Dec. 2019) (quoting the Russian President as saying
that “Palestinians have the right to establish an independent and habitable state …”).
107
States not recognizing “Palestine” as a State include Australia, Austria, Belgium, Canada, Cameroon, Denmark,
France, Germany, Japan, Mexico, Netherlands, New Zealand, Norway, Panama, Singapore, South Korea, Switzerland,
the United Kingdom, and the United States. Such positions have sometimes been put on record, inter alia, in
communications with the UN Secretary-General as depositary, and in the context of United Nations debates or
international statements and instruments: see, for example, Depositary Notification, C.N.363.2018.TREATIES-X.10
(Canada: Communication) (27 Jul. 2018) available at https://treaties.un.org/doc/Publication/CN/2018/CN.363.2018Eng.pdf (last accessed: 19 Dec. 2019); Depositary notification C.N.295.2018.TREATIES-XXVI.3 (United States of
America: Communication) (18 Jun. 2018), available at https://treaties.un.org/doc/Publication/CN/2018/CN.295.2018Eng.pdf (last accessed: 19 Dec. 2019); Diplomatic Note of the Federal Republic of Germany to the Implementation

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considered, it is clear that Palestinian statehood has not won even the quasi-unanimous support
(even among States Parties to the Rome Statute) that may arguably be said to be indicative of
the existence of a Palestinian State, and the claim concerning recognition of “Palestine” simply
cannot stand.
44. In the same vein, any participation of “Palestine” in multilateral treaties neither implies nor
constitutes recognition of Palestinian statehood by any or all of the other parties to those
treaties: “it is generally accepted that participation in the same multilateral treaty does not
signify mutual recognition, even implicit”.108 This is because being a nominal “State Party” by
virtue of a procedural or political act is not the same as being a State as a matter of international
law. The same may be said of participation in international fora, and States have indeed noted
expressly that Palestinian participation in the ASP is without prejudice to the question of
Palestinian statehood.109
45. The Palestinian claim to statehood is legally incoherent and often self-contradictory. The
Palestinian claim to statehood is routinely exposed as untenable by the Palestinians themselves.
Palestinian officials not only contradict themselves in claiming that the West Bank and the
Gaza Strip are occupied by Israel and at the same time are under Palestinian effective
control,110 but also frequently refer to Palestinian statehood as a future event. Three years after
“Palestine’s” purported accession to the Rome Statute, for example, President Abbas stated in
explicit terms that “[i]n due time there will be a Palestinian State but this will not happen soon.
We are building the Palestinian State one step at a time, and this takes time”.111 Palestinian
Support Unit for the Biological Weapons Convention within the Geneva Branch of the United Nations Office for
Disarmament Affairs, No. 27/2018 (11 Dec. 2018); Meeting of the States Parties to the Convention on the Prohibition
of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Explanation of
Position on the “State of Palestine” Submitted by Australia, Canada, Germany and Netherlands,
APLC/MSP.17/2018/MISC.2 (3 Dec. 2018), available at https://undocs.org/APLC/MSP.17/2018/MISC.2 (last
accessed: 19 Dec. 2019).
108
Report of the International Law Commission, Sixty-third session (26 April-3 June and 4 July-12 August 2011), U.N.
Doc. A/66/10/Add.1, pp. 95-96 (2011). See also ROBERT KOLB, THE LAW OF TREATIES: AN INTRODUCTION 34 (2016)
(“… with regard to multilateral treaties … ratification or accession does not imply a recognition of the other States
parties. … It is also possible to enter an understanding whereby the ratification or accession to that treaty does not imply
recognition of a particular State. … Even without the statement made in the understanding, recognition would not ensue
under international law. The statement is thus merely of a political nature. It is made either on account of ignorance of
the law or ex abundante cautela, or else to show political correctness”); Jean-François Marchi, Art.15: 1969 Vienna
Convention, in THE VIENNA CONVENTIONS ON THE LAW OF TREATIES: A COMMENTARY 308, 320-321 (Olivier Corten
and Pierre Klein eds., 2011) (“The principle is well established that the participation of a State in the treaty will not
therefore result in the formal recognition of the aforementioned party as a State”); para. 24 above.
109
See Statement by Canada, Germany, the Netherlands and the United Kingdom of Great Britain and Northern Ireland
in explanation of their position concerning the use of the term ‘State of Palestine’, Bureau of the Assembly of States
Parties, 7th meeting, Annex II (15 Nov. 2016), available at https://asp.icc-cpi.int/iccdocs/asp_docs/Bureau/ICC-ASP2016-Bureau-07-15Nov2016.pdf (last accessed: 19 Dec. 2019): “… Consistent with our reiterated positions in other
international fora we hold the view that the designation ‘State of Palestine’ as used in some of these reports shall not be
construed as recognition of a State of Palestine and is without prejudice to individual positions of States Parties on this
issue”.
110
See also para. 38 above.
111
President Mahmoud Abbas’s interview to the Egyptian Channel CBC (3 Oct. 2017), available at
https://www.youtube.com/watch?v=huJVJK5FUf0 (translated from Arabic) (last accessed: 19 Dec. 2019).

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Prime Minister Hamdallah (as he then was) similarly stated as recently as in January 2019 that
“the very inception of a sovereign Palestinian state” has yet to happen, and that “… the
Palestinians have already prepared the institutional and legislative infrastructure that could be
put in service as a basis for the future Palestinian State”.112 Numerous other statements have
been made to the same effect,113 with official Palestinian sources frequently referring to
“national aspirations for statehood” and to a “future Palestinian state”.114
46. Similarly, in the Application submitted by the Palestinians to the International Court of Justice
in September 2018 concerning the relocation of the United States Embassy to Jerusalem it is
argued – in complete contradiction to the position expressed by the Palestinians before the ICC
– that Jerusalem and certain parts of the West Bank are corpus separatum over which neither
Israel nor the Palestinians have sovereignty.115 The former Palestinian Minister for Jerusalem
Affairs, Mr. Ziad Abuzayyad, has similarly stated in June 2018 that “the status of Jerusalem
under the international law is still defined … as an area of non-sovereignty”.116
47. Such contradictory positions on the most basic aspects of statehood suggest more than legal
confusion. They suggest that the Palestinians are attempting to gain the ICC’s recognition of a
sovereign status that they themselves acknowledge cannot credibly be claimed, having turned to
112

AL-HAYAT AL-JADIDA (20 Jan. 2019), available at http://www.alhayat-j.com/arch_page.php?nid=331747 (translated
from Arabic) (last accessed: 19 Dec. 2019).
113
See, for example, the recent speech by Saeb Erakat, Secretary-General of the Palestine Liberation Organization
Executive Committee, at the J Street National Conference (28 Oct. 2019), video available at
https://www.youtube.com/watch?v=7U6Wmmtp9T4&feature=youtu.be (minutes 11:48-11:50) (last accessed: 19 Dec.
2019) (“… a Palestinian State will be created”); President Abbas Welcomes Britain’s Prince William to Palestine,
WAFA (27 Jun. 2018), available at http://english.wafa.ps/page.aspx?id=TXHJYSa98232330636aTXHJYS (last
accessed: 19 Dec. 2019) (“I hope this will not be the last visit ... and that your next visit will be in the state of Palestine
when we have our full independence”); President Mahmoud Abbas’s Statement Before the UN Human Rights Council
(UNHRC) at the 34th Session held in Geneva (27 Feb. 2017), available at https://www.nad.ps/en/mediaroom/speeches/he-president-mahmoud-abbas-statement-un-human-rights-council-unhrc-34th-session (last accessed: 19
Dec. 2019) (“The creation of the State of Palestine will undermine the driving force of terror and extremism …”); and
President Mahmoud Abbas’s Statement to the UN General Assembly 72nd Session (20 Sep. 2017), available at
https://www.nad.ps/en/media-room/speeches/he-president-mahmoud-abbas-statement-un-general-assembly-72ndsession-2017 (last accessed: 19 Dec. 2019) (“Our choice is the two-State solution on the 1967 borders, and we will
grant every chance for the efforts being undertaken by President Donald Trump and the Quartet and international
community as a whole to achieve an historic agreement that brings the two-State solution to reality …”).
114
See various webpages on the website of the Palestinian Liberation Organization – Negotiation Affairs Department:
Security, available at https://www.nad.ps/en/our-position/security (last accessed: 19 Dec. 2019) (referring to a
Palestinian interest “in establishing a Palestinian state that will be recognized, that acts as an independent state and is
able to exercise its full rights and responsibilities as a sovereign nation”); Refugees (position), available at
https://www.nad.ps/en/our-position/refugees (last accessed: 19 Dec. 2019) (“The options for our refugees should be:
return to Israel, return/resettlement to a future Palestinian state, integration in host states, or resettlement in third-party
states” (emphasis added)); Claims resolution, available at https://www.nad.ps/en/our-position/claims-resolution (last
accessed: 19 Dec. 2019) (referring to “our future state”).
115
Relocation of the United Stated Embassy to Jerusalem (Palestine v. United States of America), Application
Instituting Proceedings (28 Sep. 2018), available at https://www.icj-cij.org/files/case-related/176/176-20180928-APP01-00-EN.pdf (last accessed: 19 Dec. 2019).
116
“The Legal Status of Jerusalem Under International Law”, address delivered by Mr. Abuzayyad during an
international conference entitled “International Conference on Question of Jerusalem: the Question of Jerusalem after
50 years of Occupation and 25 years of the Oslo Accords” (27 Jun. 2018).

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the Court in a calculated attempt to put to it questions that were explicitly agreed to be resolved
through bilateral negotiations.
48. All of the above makes it abundantly clear that no Palestinian State has ever been in existence.
Any other finding would strain the bounds of credulity and cannot be sustained either in fact or
in law. Given that the Court’s jurisdiction under Article 12(2) of the Rome Statute requires there
to be a sovereign State, the unavoidable conclusion must be drawn that the Court manifestly
lacks jurisdiction over the “situation in Palestine”. Needless to say, if no sovereign State exists,
there is no “territory of” that State within the meaning of Article 12(2) of the Statute over which
the Court may exercise territorial jurisdiction; and there is anyhow no sovereign ability to
prosecute that may be delegated to the Court either.
49. In any case, the scope of the territory concerned is undefined. As has already been noted,117
sovereignty over the West Bank and the Gaza Strip is presently in abeyance, with current
Israeli-Palestinian agreements explicitly enumerating “borders” among those issues to be settled
through bilateral permanent status negotiations.118 With delimitation of the territory yet to be
agreed, any exercise of territorial jurisdiction by the Court would not only require it to make a
determination wholly unsuitable for an international criminal tribunal,119 but would also
contravene the agreements reached between the parties and jeopardize efforts towards
reconciliation. This can be neither lawful nor legitimate.
50. Nor can any reliance be made on such terms as “the occupied Palestinian territory”, reference to
which, even if frequent in international discourse, is made in strictly political terms and without
prejudice to the fundamentally legal question of sovereign title. Indeed, such references are
habitually accompanied by an explicit call for negotiations between the parties for purposes of
reaching an agreement on territorial issues;120 and the texts in which they are contained anyway
117

See above paras. 27-32.
Declaration of Principles on Interim Self-Government Arrangements, art. V(3) (13 Sep. 1993).
119
Clearly, the ICC is not the appropriate forum to resolve territorial disputes. For the more general principle that an
international court ought not to rule on the rights, obligations and legal interests of a State which is not party to the
proceedings in question, see Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment,
2012 I.C.J. Rep. 99, para. 127 (3 Feb. 2012); Monetary Gold Removed from Rome in 1943 (Italy v. France; United
Kingdom and United States of America), Preliminary Question, 1954 I.C.J. Rep. 19, p. 32 (15 Jun. 1954); East Timor
(Portugal v. Australia), Judgment, 1995 I.C.J. Rep. 90, para. 34 (30 Jun. 1995); M/V Norstar (Panama v. Italy), Case
No. 25, Preliminary Objections – Judgement of Nov. 4, 2016, para. 172, available at
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.25/Preliminary_Objections/Judgment/C25_Judgment_04
.11.16_orig.pdf (last accessed: 19 Dec. 2019); Larsen v. Hawaiian Kingdom, para. 11.22 (Perm. Ct. Arb. 2001)
available at https://pcacases.com/web/sendAttach/123 (last accessed: 19 Dec. 2019).
120
See, for example, S.C. Res. 2334, supra note 86, at preambular para 10. G.A. Res. 67/19 that specifically mentions
that the issue of borders remains an outstanding core issue pending a permanent agreement between the parties (supra
note 35, at operative para. 5). See also, for example, Letter Dated 7 May 2003 from the Secretary-General addressed to
the Security Council, Annex: A Performance-Based Road Map to a Permanent Two-State Solution to the IsraeliPalestinian Conflict, U.N. Doc. S/2003/529 (30 Apr. 2003), available at https://undocs.org/S/2003/529 (last accessed:
19 Dec. 2019) (later adopted by S.C. Res. 1515, U.N. Doc. S/RES/1515 (19 Nov. 2003)); S.C. Res. 1850, preambular
para. 4, U.N. Doc. S/RES/1850 (16 Dec. 2008); G.A. Res. 68/15, preambular paras. 21, 25, and operative para. 2, U.N.
Doc. A/RES/68/15 (26 Nov. 2013). Israel has consistently made it clear that the term “occupied Palestinian territory” is
without legal significance and cannot predetermine the outcome of a territorial dispute that the parties have agreed to
118

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lack any binding character. They cannot therefore be relied on for purposes of legal
determinations such as territorial delimitation or allocation of sovereignty.
51. The International Court of Justice, too, employed the term “Occupied Palestinian Territories” in
its Wall advisory opinion as it was included in the question put to the Court by the General
Assembly, and without making any legal determination as to sovereignty over the territory
concerned. Indeed, in briefly analyzing the status of the territory, the Court noted that the 1949
armistice demarcation lines between Israeli and Arab forces were explicitly agreed to be
“without prejudice to future territorial settlements or boundary lines or to claims of either Party
relating thereto” as well as to “an ultimate political settlement between the Parties”. 121 It then
observed that the boundary fixed in 1994 by the peace treaty between Israel and Jordan was
“without prejudice to the status of any territories that came under Israeli military government
control in 1967”122 (as has also been agreed in the 1979 peace treaty between Israel and
Egypt123). By focusing next on the international law applicable to territories situated between
the Green Line and the former eastern boundary of Mandatory Palestine, the Court was able to
refrain from making any determination as to sovereignty over them:124 Judge Higgins made it
clear that “[t]he Court, wisely and correctly, avoid[ed] what we may term ‘permanent status’
issues”.125 Instead, the Court drew attention to the need for achieving “a negotiated solution to
the outstanding problems and the establishment of a Palestinian State”.126
52. Again, it should not go unnoticed that the Palestinians themselves have recently conceded that
the term “occupied Palestinian territory” cannot legally be taken to refer to “Palestinian”
territory, by submitting before the International Court of Justice that Jerusalem and significant
parts of the West Bank rather have the status of corpus separatum under international law.127
53. It may also be recalled that the OTP has clarified that any territory over which the Court may
exercise territorial jurisdiction must be a geographic area “under the sovereign power of a State
– i.e, the areas over which a State exercises exclusive and complete authority”.128 In these
circumstances, for the Court to arrogate to itself the right to make a finding of territory when the

resolve by negotiation: see, for example, U.N. GAOR 56 th Sess., 87th plen. mtg., U.N. Doc A/56/PV.87 (14 Dec. 2001)
(Israel’s representative emphasizing “… once again that our having joined the consensus on draft resolution A/56/L.59
should not be interpreted as implicit evidence of any position with respect to the present or future status of occupied
Palestinian areas. We stress that a final decision on those areas will be reached through direct bilateral negotiations
between the parties”).
121
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004
I.C.J. 136, para. 72 (29 Jan. 2004).
122
Ibid., at para. 76.
123
Peace Treaty between Israel and Egypt, supra note 66, art. II.
124
Supra note 121, at para. 101.
125
Ibid., Separate opinion of Judge Higgins, at p. 211, para. 17.
126
Ibid., at p. 201, para. 162. Judge Owada referred in his Separate Opinion to “Palestine” as “an entity which is not
recognized as a State for the purpose of the Statute of the Court”: ibid., at p. 267, para. 19.
127
Application Instituting Proceedings, supra note 115.
128
See para. 35 above.

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parties themselves have not yet agreed on the matter, and have not consented to the Court
playing that role, is legally untenable.
54. Under these conditions, it is clear that the existence and scope of a territory for purposes of
Article 12(2) of the Rome Statute cannot be established, and thus a precondition to the exercise
of the Court’s jurisdiction once again cannot be met.

E. EVEN IF THE ROME STATUTE

IS MISINTERPRETED TO ALLOW FOR NON-SOVEREIGN ENTITIES

COURT, THE PALESTINIANS DO NOT HAVE JURISDICTION
WELL AS OVER ISRAELI NATIONALS, AND THUS CANNOT

TO CONFER JURISDICTION UPON THE

JERUSALEM AS
VALIDLY DELEGATE IT TO THE COURT
OVER

AREA C

AND

55. As has been demonstrated, the exercise of jurisdiction by the ICC requires that there be a
sovereign State that has delegated to the Court its criminal jurisdiction on the basis of
territoriality and nationality, a precondition that is clearly not met in the present case. To this it
may now be added that even if the Rome Statue were to be misinterpreted so as to allow for
non-sovereign entities to confer jurisdiction upon the Court, the latter would still be
constitutionally constrained by the limits of delegation and unable to exercise jurisdiction where
the delegating entity has no jurisdiction to the extent required. Thus, in the present case, the
Court would have to satisfy itself that the Palestinian entity has jurisdiction corresponding to the
“situation in Palestine”. As is readily clear, however, it does not.
56. The Israeli-Palestinian Interim Agreement of 1995 explicitly stipulates that the Palestinians
have no criminal jurisdiction over Israeli nationals. In the part entitled ‘Jurisdiction’, which
defines in specific terms the limited scope of jurisdiction to be held by the Palestinian Authority,
the Agreement provides that “The territorial and functional jurisdiction of the [Palestinian
Authority] will apply to all persons, except for Israelis, unless otherwise provided in this
Agreement”.129
57. The Protocol Concerning Legal Affairs appended to the Interim Agreement further lays down
that:
“The criminal jurisdiction of the [Palestinian Authority] covers all offenses committed by
Palestinians and/or non-Israelis in the Territory, subject to the provisions of this Article. For
the purposes of this Annex, ‘Territory’ means West Bank territory except for Area C ..., and
Gaza Strip territory except for the Settlements and the Military Installation Area”. 130

129

Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII(2)(c) (emphasis
added). The exception refers to some civil matters as specified in Appendix 4, art. 3(2).
130
Ibid., at Annex IV, art. I(1)(a). The Interim Agreement makes it explicitly clear (in art. XVII) that any jurisdiction of
the Palestinian Authority within the West Bank and the Gaza Strip does not extend to Jerusalem. It may also be recalled
that the Palestinian Authority has not been exercising any jurisdictional powers over the Gaza Strip since Hamas
violently took over the territory in 2007: see also supra note 87.

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58. As noted above, this and other agreements, which define comprehensively those powers
transferred to and vested in the Palestinian Authority, continue to govern the relationship
between Israel and the Palestinians to date.131 Any jurisdiction currently held by the Palestinians
derives from these bilateral agreements, under which Israel continues to hold all powers not
explicitly transferred to the Palestinians.132
59. To be clear, the Palestinians did not have any jurisdiction – prescriptive, adjudicative or
enforcement – prior to entering into the bilateral agreements with Israel. Jurisdiction over Israeli
nationals, Area C and Jerusalem is thus not something the Palestinian entity previously
possessed and then subsequently agreed to limit the exercise thereof: it never had it to begin
with, and certainly does not have it now, either in law or in fact. Even an expansive approach to
delegation that emphasizes the possession of prescriptive jurisdiction where the exercise of
adjudicative and enforcement jurisdiction is curtailed,133 would thus still run up against the
criminal jurisdictional capacity held by the Palestinian entity.
60. As the Palestinian entity has no criminal jurisdiction over either Israeli nationals or over Area C
and Jerusalem, it is therefore legally impossible for it to delegate any such jurisdiction to the
Court: nemo plus iuris transferre potest quam ipse habet (no one can transfer a greater right
than he himself has). Again, the fundamental precondition to the Court’s jurisdiction cannot be
met.

CONCLUSION
61. For the reasons specified above, the ICC manifestly lacks jurisdiction over the “situation in
Palestine”. As has been demonstrated, the necessary precondition to the Court’s jurisdiction
under Article 12(2) of the Rome Statute, which requires there to be a sovereign State that has
delegated to the Court criminal jurisdiction over its territory and nationals, cannot be met by
virtue of the simple fact that no sovereign Palestinian State is in existence. The events
surrounding the purely technical act of the purported accession of “Palestine” to the Rome
Statute, or the Palestinian purported Article 12(3) declaration, neither alter this conclusion nor
substitute for the substantive inquiry required for the establishment of the Court’s jurisdiction.
Moreover, even if a conclusion is erroneously reached that a sovereign Palestinian State exists,
the scope of the territory concerned is indeterminate and is clearly not for an international
criminal court to define; and if the Rome Statute is misinterpreted to allow for non-sovereign
entities to confer jurisdiction upon the Court, the latter would still lack jurisdiction over Area C
and Jerusalem as well as Israeli nationals.
131

See para. 36 above.
Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, supra note 66, art. XVII (4) (providing
that “(a) Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction
of the Council, powers and responsibilities not transferred to the Council and Israelis” (emphasis added)).
133
See Office of the Prosecutor, Situation in the Islamic Republic of Afghanistan - Public redacted version of “Request
for authorisation of an investigation pursuant to article 15”, ICC-02/17, p. 27, fn. 47 (20 Nov. 2017).
132

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62. Ultimately, any conclusion that the requirements of Article 12(2) are met in the case of the
“situation in Palestine” would indeed require not one, but a series of highly dubious and
untenable legal determinations. It would run counter not only to the jurisdictional regime
carefully prescribed by the Rome Statute, but also to international law more broadly, both of
which serve to ensure that the Court’s competence is not abused or exercised on the basis of
arbitrariness or political prejudice. The OTP and the other organs of the Court have repeatedly
made it clear that the legitimacy and future of the ICC depend on its commitment to legal
impartiality and judicial independence. If these are to be more than mere words, then they must
actually guide, and be seen to guide, the decisions of the OTP and the Court itself. If they are
more than mere words, then the conclusion regarding the lack of jurisdiction in the present case
is not controversial, it is unavoidable.
63. Even if a sound legal analysis unavoidably leading to the conclusion that jurisdiction is lacking
may be unpopular with some at a time when the Israeli-Palestinian conflict still awaits its
resolution, nothing could be more harmful to the credibility and legitimacy of a court of law
than compromising its judicial character and appearing to over-reach. This would especially be
the case where consent to jurisdiction has not been given (such as where the conduct of a State
not Party to the Rome Statute is concerned), and where matters that are inherently ill-suited to
international criminal adjudication are perversely brought before the Court. It is again worth
recalling that the ICC Prosecutor herself, in the face of “arguments of some legal scholars that
fundamental jurisdictional rules can be made subject to a liberal and selective interpretation”,
has unequivocally confirmed in 2014 that where clear jurisdictional parameters are not met, the
exercise of jurisdiction “is neither good law nor makes for responsible judicial action.” 134 That
remains ever as true today.

134

Statement of the Prosecutor of the International Criminal Court, supra note 4.

34