[Dr Letizia Lo Giacco is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies of Leiden University]
A default mode to understand and
reflect on the activity of the International Criminal Court (ICC, ‘the Court’) is
from the standpoint of international criminal law. This comes of course quite
natural, being the Court a permanent pivot in the international criminal
justice system. However, the ICC has always been concerned with questions that
reach beyond international criminal law and can well be grasped from the
vantage point of international institutional law. The aim of this blogpost is
to recast the current debate on the authority of the ICC to exercise
jurisdiction in the Situation of Palestine with regard to Israeli nationals (for
more background, see here) in terms of
international institutional law, rather than to draw from the most immediate
canons of international criminal law. As I will explain, the question before
the Court raises important questions on the nature and function of the ICC within
the international community, which bear on the foundational idea of what
international organizations are and what motivates their creation in the first
place.
The Question Before the ICC
On 20 May 2024, the Prosecutor of the International
Criminal Court (ICC) requested the Pre-Trial
Chamber to issue arrest warrants against top leaders of Hamas as well as of the
State of Israel for alleged international crimes committed on the territory of
Palestine. Pursuant to the Rome Statute, the Court may exercise its
jurisdiction based on the territoriality principle – namely, in case the
alleged crimes were committed on the territory of a State Party to the Statute
– or on the active personality principle – that is, if the alleged perpetrator
of the crime is a national of a State Party (Article 12 ICC St). It is not
required that these pre-conditions be met cumulatively for the Court to
exercise jurisdiction. Only one pre-condition suffices to that end. Therefore, based
on the provisions of the Statute, the ICC may exercise jurisdiction over
Israeli nationals, provided that the crimes for which they are allegedly
responsible took place on the territory of Palestine – which is a State Party
to the Rome Statute as of 1 April 2015.
Nevertheless, arguments have been recently advanced in
the context of the Situation of Palestine to the effect of denying the Court’s
jurisdiction with respect to Israeli nationals allegedly responsible for crimes
committed on the territory of Palestine (see Request
by the United Kingdom for Leave to Submit Written Observations pursuant to Rule
103, 10 June 2024, para 18 – then withdrawn under
Starmer’s newly elected government; Zipperstein). These
arguments assume as axiomatic that an international institution such as the ICC
would operate on the basis of a perfect symmetry between powers
possessed by state parties domestically and powers conferred to the ICC to
exert its functions at the international level. This is misleading and unsound.
For the purposes of this intervention, the crux of the
issue before the ICC revolves around whether or not the ICC may exercise its
powers to investigate and prosecute international crimes committed on the
territory of Palestine by Israeli nationals, notably Prime Minister Netanyahu
and Defence Minister Gallant, in the event one grants that Palestine renounced
its criminal jurisdiction over Israeli nationals by bilateral agreement with
Israel (the so-called ‘Oslo
Accords issue’). To be sure, this is all but uncontroversial and
several sound and compelling legal arguments can be made to render the
invocation of the Oslo Accords issue moot (see eg Quigley; Haque).
On the one hand, some proponents advocate that the 1995
Oslo Accords (‘Oslo II’) affect the Court’s jurisdiction in relation to Israeli
nationals, for they interpret the Accords as preventing Palestine from exerting
jurisdiction upon them. Thus, by implication, Palestine would not confer such criminal
jurisdiction to the Court, because it does not possess it in principle. This
position falls squarely with the model commonly referred to as ‘delegation
theory’ or ‘theory of conferral’. It also finds expression in the nemo dat
quod non habet doctrine invoked by several participants in the Court’s
proceedings under scrutiny (see eg Bachman, Mayersen, Rose and
Rubenstein,
para.7; Centre for Israel and Jewish
Affairs,
para. 12).
Conversely, on the opposite side of the spectrum, other
proponents argue that the activity and functioning of the Court do not rest on
a delegation of powers by national states but on the fulfilment of a jus
puniendi function at the international level. Importantly, within the ICC
system informed by the principle of complementarity, such function shall not be
read as securing a ‘primary right’ to punish to states, but as making clear
that it is their ‘primary responsibility’ to make ‘sovereignty answerable’ (Stahn, p.447). This
is fully in line with public law conceptions of the modern state where
sovereignty understood as a ‘system of rights is supplanted by one of duties’ (Loughlin, p.371). What
is more, the idea of the Court exerting jurisdiction based on conferral of
powers that states would normally exercise at the domestic level is simply
misplaced, given that states recognise or accept the jurisdiction
of the Court, created to perform certain functions and fulfil certain purposes within
the international community. This position echoes the so-called ‘functionalist
theory’ or ‘functionalism’, which is a shared mode of thinking in both public
law (see Loughlin) and public
international law (Klabbers;
Schermers and Blokker, pp.10-11).
Still, while functionalism in public law normatively aspires to public
institutions serving the common good, in public international law, functionalism
arguably postulates that international organizations are a necessity to the
realization of the common good in the international community, thus assuming as
axiomatic that community interests are better fulfilled by international
organizations than by individual states alone (Klabbers, p. 647).
As anticipated, instead of indulging into the merits
of the jurisdictional challenge in the specific situation – distinguished amici
curiae already eminently tackled this issue (see, among others, Schabas, Haque, Pinzauti
and Heinsch, Lynk
and Falk) – I intend to recast the question before the Court in
the register of international institutional law, by looking at the Court as a public
institution performing public functions within the international community.
In fact, whether or not the Court may exercise jurisdiction over Israeli
nationals for acts committed on the territory of Palestine foregrounds
prominent and long-standing issues of international institutional law, going to
the heart of what an international organization is and how its relationship
with member states in to be governed. In other words, the issue in front of the
Court is not just one of jurisdictional powers but it is, most fundamentally,
one involving a choice of paradigm which runs across the law of international
organizations and reflects on how international legal thought conceives of
them.
Two Outlooks at the ICC qua an International
Organization
The ICC is not only an international organization, but
it is also a public one. First, the ICC uncontroversially qualifies as an
international organization (ILC, Article 2(a) DARIO), insofar
it was established by a treaty governed by international law (ie the Rome
Statute) and possesses its own legal personality (Article 4 Rome Statute).
Secondly, its public character can be arguably derived from formal as well as
substantive features. From a formal point of view, States created the Court by
an act of public international law. The constitutive document is a public
international law instrument and the creation of such institution is determined
by States, that is, the public institutions par excellence. From a substantive
point of view, the Court makes a public institution for the character of the
purposes and functions entrusted with it. Not only are they regarded as
promoting community interests, ‘but actually as embodying the community
interest’ (Klabbers). In a
nutshell, the Court is there to perform functions that are in the general
interest of the international community, and to exercise powers that have a
public lineage, being these typically exercised by states vis-à-vis their
constituencies.
1.A Private Lens for Public Functions: the Pitfall of “Perfect Symmetry”
In public international law, there are
at least two rationales that explain the creation of international
organizations, or at least two ways in which one can conceive of them. One way
is to look at international organizations as subjects operating on the basis of
delegated functions or conferred powers which are perfectly symmetrical with
those possessed at the domestic level. To be sure, the issue here does not
rest so much with the doctrine of conferral of powers, but rather with the
perfect symmetry that seems to be presupposed and required by the advocates of
the nemo dat quod non habet doctrine in order for an international
organization to perform its functions. According to this view, sovereign states
‘contract out’ to international organizations functions that they would be able
to juridically exercise at the domestic level. This paradigm would sit well
with the nemo dat quod non habet doctrine, recently invoked before the
ICC, in that a State would only be able to confer powers that it would posses in the first place, in
an optic of perfect symmetry.
Nevertheless, it is worth stressing
that this doctrine draws from property law (see Sheehan, The Principles of Personal Property
Law,
p.55 and ff), that is, a field of private law concerned with sales, transfer of
property and ownership titles. While in the context of commercial transactions,
the nemo dat quod non habet doctrine appears fit for purpose, in the
context of international justice it seems grossly unfit. In fact, the Court does
not operate in a private law dimension, nor is it concerned with ownership
titles or commercial transactions. It is rather a public institution created
with functions that are in the general interest of the international community.
Despite the multiple critiques that can certainly be raised as to the actual
fulfilment of its purposes, international criminal law is a tool to tackle
common concerns in the international community, designed as part and parcel of public
international law. It is geared towards community interests, not with private
ones. What is more, in no instance to the knowledge of this writer was the
doctrine ever applied by international criminal courts and tribunals to date.
Why would now be time to import or transplant this private law doctrine into public
international law?
2. A Public Lens for Public Functions: Opportunities to Reaffirm Community Interests Functions
Conversely, another way to look at international
organizations is to conceive of them as created precisely to perform functions
or tackle challenges that single states alone could not or would not
effectively carry out (on the point, see eg Schermers
and Blokker,
pp.20-24). This paradigm is at home with the idea of international
organizations serving community interests that states per se or states alone
would not be able (sometimes not even willing) to perform. It is precisely at
this juncture that the tension between state sovereignty and the common good,
or between atomistic interests and community ones, materializes most
prominently. In this optic, the nemo dat quod non habet doctrine
appears not only misleading, but also hard to reconcile with the idea that
international organizations serve community interests and fulfill purposes that
are in the general interest, not necessarily in the individual one. In fact, it
is not unusual for international organizations to become ‘competitors of their
own creators’ rather than bending to instrumentalist or principal-agent
dynamics (Klabbers, p.666).
The nemo dat quod non habet doctrine
is even less compelling in the case of international organizations created on
the basis of multilateral agreements with virtually universal reach and
foundational vocation as the Rome Statute. In fact, particularly in the ambit
of international justice, it is hard to see how functions such as the peaceful
settlement of disputes could be ‘contracted out’ by single sovereign states to
the Court as a reflection of their own jurisdiction (literally, the authority
to pronounce the law, from the Latin juris dicere). Instead, states have
create international institutions precisely because of the nature of purposes
and functions entrusted in international judicial institutions. It would hence
be more adequate to say that the international community has entrusted an
international court with functions designed to tackle global challenges and
international concerns, for which cooperation between international and
national authorities is deemed desirable. No doubt, by ratifying or acceding
the Rome Statute or accepting the jurisdiction of the Court by declaration
lodged under Article 12(3), individual states can bring the Rome Statute into
operation or ‘activate’ the power of the Court (see Stahn, 448) to investigate
and prosecute crimes committed on their territory or by their nationals. Still,
such functions do not come into being by single acts of ratification or
accession, but are entrusted in the Court from its very creation, as part of an
international justice system crafted by multilateral negotiations. Unlike the
delegation theory, this doctrine can explain, among other things, why
sovereign immunities of high-ranking officials do not bar prosecution before
international courts and tribunals while they do before foreign domestic
courts, as confirmed by the International Court of Justice in the Arrest
Warrant case (DRC v. Belgium), ICJ Reports 2002, p. 3, at para 61.
The Court and its Public Function
The Court is up to pronounce on a
jurisdictional challenge that has wider implications, reaching beyond the
situation at hand, and bearing on the idea and functions of international
organizations within the international legal order.
While the vocabulary of conferral
of powers is present in several international law instruments as a reflection
of states’ power to create international organizations (see e.g. Art 24 UN
Charter), the paradigm of perfect symmetry between powers possessed by a
State at a national level and powers conferred to an international institutions
is unfounded. As such the application of concepts of delegation/conferral of
powers based on the property law-derived nemo dat quod non habet principle
are smoke and mirrors for the Court and sit uncomfortably with the system of
international criminal justice born out of the Rome Statute. For one, the Court
is not a blueprint of domestic jurisdictions transposed to the international
level. Furthermore, the Statute makes crystal clear that the Court is
established as a legal subject in its own rights, distinguished from its member
states, and which ‘may exercise its functions powers, as provided in [the]
Statute, on the territory of any State Party…’ (Article 4 Rome Statute).
If there is any legally founded question that may arise in relation to the requested
arrest warrants against Israeli Prime Minister Netanyahu and Defense Minister
Gallant, this is one that concerns their enforcement with the possible
infringement of sovereign immunities of states not party to the ICC, as per
Article 98 Rome Statute (Part IX on Cooperation).
The compass of the Court shall be the
Rome Statute (Article 21(1) ICC Statute) interpreted from the standpoint of public
international law. This means that the Court shall not lose sight of the overarching
public function it performs to secure accountability for international
crimes. To follow the Statute-based methodology employed by the Permanent Cout
of International Justice in Competence of the ILO in Regard to
International Regulation of the Conditions of the Labour of Persons Employed in
Agriculture (Advisory Opinion) [1922]
PCIJ (ser B) No 2,
it would legally unjustifiable, let alone absurd, to uphold a Statute-based
interpretation that would grant impunity to Israeli nationals allegedly
responsible for international crimes committed on the territory of a State Party
to the ICC.
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