54 No. 76 JUSTICE the Statute, the ICC can then assert two bases for jurisdiction: first, the ICC has personal jurisdiction over nationals of acceding states for crimes defined in the Rome Statute committed anywhere in the world, including on the territory of non-acceding/non-party states. Second, the ICC has territorial jurisdiction over crimes defined in the Rome Statute committed on the acceding state’s territory by anyone in the world, whether or not the accused person is a national of an acceding/party state. Israel is not a party to the Rome Statute and has not acceded to the court’s jurisdiction. On December 31, 2014, seven and a half years after Gazan Palestine had seceded from West Bank Palestine and become a separate political entity, Palestinian Authority President Mahmoud Abbas sent a “Declaration Accepting the Jurisdiction of the International Criminal Court” to the ICC in The Hague. The Declaration said that pursuant to Article 12(3) of the Rome Statute, the “Government of the State of Palestine” recognized the court’s jurisdiction for crimes committed “in the occupied Palestinian territory, including East Jerusalem.”11 On January 2, 2015, Palestine deposited its instrument of accession to the Statute with the Secretary-General of the United Nations pursuant to article 125(2) of the Statute.12 The ICC Registrar responded to Abbas’s letter on January 7, 2015, stating that “ Pursuant to Rule 44(2) of the Rules of Procedure and Evidence, a declaration under article 12(3) of the Rome Statute has the effect of the acceptance of jurisdiction with respect to the crimes referred to in article 5 of the Statute of relevance to the situation, as well as the application of the provisions of Part 9 of the Statute and any rules thereunder concerning to States Parties.”13 On May 22, 2018, Palestine referred the Situation in the State of Palestine to the ICC Prosecutor pursuant to articles 13(a) and 14 of the Statute. On January 22, 2020, former ICC Prosecutor Fatou Bensouda asked the court to issue a ruling concerning the court’s territorial jurisdiction in Palestine. The Prosecutor argued the court’s jurisdiction covered the entire “State of Palestine,” including the West Bank, Gaza, and East Jerusalem. Regarding Gaza, the Prosecutor admitted the PA had lost control of the Strip to Hamas in June 2007, but argued that “[d]espite the loss of control, the Palestinian Authority has not recognized a permanent split between Gaza and the West Bank.”14 This was the sole basis for the Prosecutor’s claim that Gaza had remained part of Palestine following the June 2007 coup. But as Crawford notes, a former sovereign which has lost part of its territory via secession cannot reclaim or prolong its sovereignty “by a mere paper assertion of right.”15 Thus, even if the PA did not recognize the permanent split between Gaza and the West Bank, that did not negate the validity of Gaza’s June 2007 secession from the West Bank and the PA in the wake of the June 2007 coup d’etat. It would be ironic indeed for the ICC to agree that a state can assert control over seceded territory by “not recogniz[ing] a permanent split.” This would mean the court would also have to accept Russia’s assertion of sovereignty over Ukraine, and China’s assertions of sovereignty over Taiwan and Tibet. Take the situation is Kosovo, for example. In 2008, Kosovo declared independence from Serbia, which, unlike Palestine in this case, by that time had been a member of the ICC for seven years. Kosovo’s independence is recognized by over 100 countries, but is not recognized by the United Nations or Serbia. Nonetheless, the ICC has never asserted jurisdiction over Kosovo by virtue of Serbia’s status as a member state, notwithstanding that Serbia has “not recognized a permanent split,” and it would be inconceivable for the ICC to do so. In any event, on February 5, 2021, the Pre-Trial Chamber controversially ruled that Palestine qualified as a “state” pursuant to the Rome Statute. The Pre-Trial Chamber held that “the Court’s territorial jurisdiction in 11. Declaration, Mahmoud Abbas, Abbas Accepts the Jurisdiction of the International Criminal Court (Dec. 31, 2014), available at https://www.icc-cpi.int/sites/ default/files/Palestine_A_12-3.pdf 12. Rome Statute of the International Criminal Court Rome, Depository Notification, Palestine (Jan. 6, 2015), available at https://treaties.un.org/doc/Publication/ CN/2015/CN.13.2015-Eng.pdf 13. Letter from Herman von Hebel, Office of the Registrar of the International Criminal Court, to Mahmoud Abbas, President of the State of Palestine (Jan. 7, 2015), available at https://www.icc-cpi.int/sites/default/files/ iccdocs/PIDS/press/150107-Registrar-Letter-to-HEPresident-Abbas-regarding-Palestine-Art-12-3-- Declaration.pdf 14. Situation in the State of Palestine, No. ICC-01/18, Prosecution Request Pursuant to Article 19(3), ¶ 80 (Jan. 22, 2020). 15. Crawford, supra note 9, at 256, quoting W. Harcourt, LETTERS BY HISTORICUS ON SOME QUESTIONS OF INTERNATIONAL LAW 9 (Macmillan and Company 1863).
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