Israel/Palestinec-The ICC's Uncharted Territory

Eugene Kontorovich*

*Corresponding author for this work

Research output: Contribution to journalComment/debate

12 Citations (Scopus)

Abstract

In the wake of the United Nations General Assembly's recognition of Palestinia statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could, in principle, challenge the legality of Israeli settlements in the West Bank. This article explores a significant jurisdictional hurdle for such a case. (To focus on jurisdictional issues, the article assumes for the sake of argument the validity of the merits of legal claims against the settlements.) The ICC can only consider situations 'on the territory'of Palestine.Yet the scope of that territory remains undefined. The norm against settlements arises in situations of occupation. However, in the majority view an 'occupation' can arise even in an area that is not the territory of any state. In this respect, ICC jurisdiction is narrower than the corresponding Geneva Convention norm, as it only extends to sovereign state territory. Thus even if Israel is an occupying power throughout theWest Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs 'on the territory' of Palestine. Moreover, both the General Assembly resolution and the International Court of Justice's Wall Advisory opinion make clear that the borders of Palestine remain undefined. The ICC lacks the power to determine boundaries of states, and certainly of non-member states. Given that Israel is a non-member state, determining the borders of Palestine, even for jurisdictional purposes, would violate the Monetary Gold principle, as it would also determine Israel's borders. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in theWest Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Original languageEnglish (US)
Pages (from-to)979-999
Number of pages21
JournalJournal of International Criminal Justice
Volume11
Issue number5
DOIs
StatePublished - Dec 1 2013

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International Criminal Court
Palestine
Israel
jurisdiction
bank
Israeli
occupying power
occupation
legal claim
Geneva Convention
International Court of Justice
statehood
legality
gold
UNO
Law
lack

ASJC Scopus subject areas

  • Sociology and Political Science
  • Law

Cite this

Kontorovich, Eugene. / Israel/Palestinec-The ICC's Uncharted Territory. In: Journal of International Criminal Justice. 2013 ; Vol. 11, No. 5. pp. 979-999.
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Israel/Palestinec-The ICC's Uncharted Territory. / Kontorovich, Eugene.

In: Journal of International Criminal Justice, Vol. 11, No. 5, 01.12.2013, p. 979-999.

Research output: Contribution to journalComment/debate

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