International international criminal law review Criminal Law 18 (2018) 178-196 Review brill.com/icla The Investigative Scope of Article 8(2)(b)(viii) of the Rome Statute before the icc within the Palestine Situation Geert-Jan Alexander Knoops Professor of Politics of International Law, University of Amsterdam, Amsterdam, The Netherlands; Visiting Professor of International Criminal Law, Shandong University, Jinan, China; lawyer, international criminal law, Knoops’ International Lawyers, Amsterdam, The Netherlands Ine van Giessen Legal assistant and researcher, Knoops’ International Lawyers, Amsterdam, The Netherlands Abstract This article aims to analyse the pitfalls and prospects of the preliminary examinations Prosecutor’s Office of the International Criminal Court (otp) into the situation in Pal- estine. The otp opened the preliminary examination into the situation in Palestine on 16 January 2015 covering the timeframe as of 13 June 2014, the start of Israel’s military operation – ‘Protective Edge’ – into Gaza. The request of Palestine to investigate aims also at alleged crimes committed on ‘occupied territories’ by Israel. One of the most pertinent questions will be the basis upon which the otp is to determine this quali- fication of occupied territories. The authors introduce legal rights to the territories, through a teleological interpretation of Art. 21(1)(b). Rome Statute, within the prosecutorial test of Art. 53(1) Rome Statute, i.e. the exis- tence of ‘a reasonable basis to proceed’ to initiate an investigation. * The authors are indebted to Mr. Pepijn van der Vegt, research assistant at Knoops’ Interna- tional Lawyers, for his remarkable research assistance. © Geert-Jan Alexander Knoops and Ine van Giessen, 2018 | doi 10.1163/15718123-01706002 This is an open access article distributed under the terms of the prevailing CC-BY-NC License at the time of publication. Downloaded from Brill.com09/29/2021 02:01:52AM via free access <UN> The Investigative Scope of Article 8(2)(b)(viii) 179 Keywords international criminal law (icl) – preliminary examination – Palestine – Israel – San Remo – occupied territories – International Criminal Court (icc) – Balfour Declaration Introduction Probably one of the most legally and politically sensitive preliminary exami- nations currently pending before the International Criminal Court (icc), is that of Palestine. In 2015, the Office of the Prosecutor (otp) announced they would open a preliminary examination into the situation in Palestine.1 The preliminary examination aims at a potential investigation of alleged crimes committed in Gaza and the West Bank in order to discern whether a reasonable basis to proceed with a formal investigation exists.2 According to the Report on Preliminary Examinations Activities of 2016 of the otp (hereafter: the Report), the subject-matter of said examination also entails crimes committed in the ‘occupied territories’.3 The land and settlement issues that lie at the heart of the Palestine/Israeli conflict may play a substantial role in the examination. The claim of both Palestine and Israel to the same territory goes back decades, with both parties leaning on historical contexts to validate their territorial claims. A substantial part of the conflict pertains to the settlement activities by the Is- raeli government on supposed Palestinian territory. A number of alleged crimes that could potentially qualify as war crimes under Article 8 Rome Statute as set forth in the Report, were allegedly committed in the ‘occupied territories’.4 One of the most pertinent questions relates to the legal and factual basis upon which the otp is to determine whether the West bank is to be consid- ered ‘occupied territory’. It will be interesting to observe whether the otp is willing and able to balance the historical context regarding the territories with its legal considerations. In particular, one pivotal question pertains to whether the test of Article 53(1) Rome Statute is (also) to be determined on the basis of Article 21(1)(b) Rome Statute, i.e., the reference to ‘applicable treaties’. This 1 International Criminal Court, ‘The Prosecutor of the International Criminal Court Fatou Bensouda, opens a Preliminary Examination of the Situation in Palestine’, press release, 16 January 2015, <www.icc-cpi.int//Pages/item.aspx?name=pr1083>, 23 August 2017. 2 Article 53 Rome Statute. 3 International Criminal Court, The Office of the Prosecutor, Report on Preliminary Exami- nation Activities 2016 (14 November 2016), <www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE _ENG.pdf>, 18 August 2017. 4 Ibid., para. 130. international criminal law review 18 (2018) 178-196Downloaded from Brill.com09/29/2021 02:01:52AM via free access <UN> 180 Knoops and van Giessen question merits thought now that the discussion regarding the West Bank re- volves around several treaties that were adopted in 1920 and 1922. Doctrinal research reveals the potential relevance of such treaties triggered by or based on historical findings for the legal qualification to be transposed onto the situ- ation in the West Bank. One book in which these historical data and subsequent treaties were unravelled was published in 2007 by the Canadian scholar, Dr. Jacques Paul Gauthier. At the outset of his dissertation on the sovereignty over the old city of Jerusalem, Gautier observes that ‘[t]he refusal or reluctance to take into con- sideration these facts (i.e. the historical facts of the case of Jerusalem and its Old City; gjk) has contributed to the repeated failures of the different phases of the Middle East peace process’.5 This conclusion by Gauthier expresses the potential relevance of the inclusion of historical data for the examinations by the otp. It goes without saying that a successful outcome of the Middle East peace process depending on historical context falls outside the ambit of the law, yet these historical data may justify the application of Article 21(1)(b) Rome Statute. Other authors, such as Ilan Dunsky who Gauthier cites, share Gauthier’s view on this matter. Dunsky avers that to examine ‘only one part of the claim, or of one historical period, to the exclusion of another, ignores aspects which are essential to a true understanding of the conflict’.6 If one accepts that historical context can play a substantive role when ascer- taining the territorial claims that have culminated in treaty law, the question arises whether the otp, within the context of Article 53(1) Rome Statute, can and should rely on such historical context. As a result, this article will delve into the main research question as to whether the Article 53(1) Rome Statute test should give due regard to the historical boundaries of the disputed territories in the West Bank as evidenced by treaties of 1920 and 1922. If these treaties are still to be considered as primary sources of international law within the mean- ing of Article 21 Rome Statute, the question arises whether the otp is bound to apply them within the context of Article 53(1) Rome Statute. The relevance of this question is that the otp currently examines a possible infraction of Article 8(2)(b)(viii) Rome Statute in this regard. The starting point of this ar- ticle is the discretionary power of the otp to examine the Palestine situation. Yet these powers can be confined by the sources as enumerated by Article 21(1) Rome Statute. However, it is to be determined whether Article 21(1) Rome Statute 5 Jacques Paul Gauthier, Sovereignty over the Old City of Jerusalem: A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City (Université de Geneve, Geneva, 2007), p. 9. 6 Ilan Dunsky, ‘Israel, the Arabs, and international law: Whose Palestine is it, anyway?’, 2 Dal- housie Journal of Legal Studies (1992) 163–200, at p. 164 as cited in: ibid., p. 10. international criminal lawDownloaded review from 18 Brill.com09/29/2021 (2018) 178-196 02:01:52AM via free access <UN> The Investigative Scope of Article 8(2)(b)(viii) 181 transgresses into Article 53(1) Rome Statute. In order to assess these boundar- ies, in Section 1 we will address the (legal) events of potential importance to the territorial claims that underline the potential crimes the otp has listed in its preliminary examination report. Section 2 delves into legal analysis of the (historical) treaties of 1920 and 1922 to assess whether legal standing can still be accrued to them within the ambit of the icc’s preliminary examination. It touches upon the interrelationship between historical context and legal con- clusions. The third section examines the legal ambit of Article 8(2)(b)(viii) Rome Statute, which provision is potentially applied by the otp when assess- ing the situation in the ‘occupied territories’. This, of course, presupposes the legal acceptance of ‘occupation’ in the West Bank. The extent to which Article 8(2)(b)(viii) is interpreted in the traveaux preparatoires, illustrates the impor- tance of the primary question, i.e. whether a situation of ‘occupation’ occurs. 1 The Proliferation of Historical Data Within icc Proceedings So long as there are men, there will be wars albert einstein In order to understand the potential relevance and transposition of the men- tioned treaties onto Article 53(1) Rome Statute, this section will at first address the events that underlie these treaties. In the course of the First World War, the Ottoman Empire joined Germany in their alliance against France, Russia, the British Empire and their allies.7 On 11 December 1917, the British forces, under command of General Edmund Allenby, entered the City of Jerusalem after its abandonment by the Turks on 9 December 1917.8 With the defeat of Germany and the Ottoman Empire, the Ottomans lost their land, and the Middle East simultaneously lost its ruler. The fall of the Ottoman Empire cleared room for two groups to fulfil their aspirations, as they had previously been deprived of their independence; the Arab and Jewish peoples.