State of Israel, Attorney General, ICC's Lack of Jurisdiction Over Palestine (2019) PDF

State of Israel, Attorney General, The ICC’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...

State of Israel, Attorney General, The ICC’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 IsraeliPalestinian 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. 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 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 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 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 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. 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 “nonmember 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 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. 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 twoState 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 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 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 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 [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)].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 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 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 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. [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).] 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 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 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 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 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 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 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. 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 self-determination 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 self-determination 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 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 self-determination was forcibly prevented, including in the colonial context.102 This is certainly not the situation in the IsraeliPalestinian case, in which Israel has not only recognized the Palestinian right to selfdetermination 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 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 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 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 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 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 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 TO CONFER JURISDICTION UPON THE COURT, THE PALESTINIANS DO NOT HAVE JURISDICTION OVER AREA C AND JERUSALEM AS WELL AS OVER ISRAELI NATIONALS, AND THUS CANNOT VALIDLY DELEGATE IT TO THE COURT 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 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.