Israel, Palestine and the ICC -- Territory Uncharted but not Unknown

Abstract

This article is a response to Eugene Kontorovich’s ‘Israel/Palestine — The ICC’s Uncharted “Territory”’. Kontorovich states that in order to exercise jurisdiction over Israeli settlements in the West Bank, the International Criminal Court (ICC) would need to determine that the Israeli settlements are indeed situated within the territory of Palestine, and proceeds to deftly present various procedural and substantive hurdles to the ICC making such a determination. His argument rests primarily on the (undisputed) fact that Palestine's borders are undefined. This article shares many of Kontorovich's premises and assertions, but disputes Kontorovich's analysis of the consequences of these premises and assertions; principally, it takes issue with the view that the absence of agreed borders for Palestine precludes the ICC from exercising jurisdiction with respect to the Israeli settlements. If one accepts as a point of departure that there is a state of Palestine, holding that the settlements are within its territory (internationally recognized as comprising the West Bank and Gaza Strip), is not difficult. Israel’s effective control over the settlements does not detract from the international recognition of Palestinian sovereignty, both because that claim is not based on actual Palestinian control in the first place but on a legal entitlement; and because there is no competing assertion of sovereignty. At the same time, there is no doubt that the analysis in which this article and Kontorovich’s article both engage is based on an event which has generated far reaching legal consequences despite a weak factual basis: Palestine has apparently been recognized as a state capable of acceding to the ICC Statute, despite the fact that the effectiveness of its conduct is by its own admission significantly hindered by Israel.