By Issa Shiraishi
On 5 February 2021, pursuant to the article 19(3) under the Rome Statute, the Pre-Trial Chamber I (“the Chamber”) of the International Criminal Court (“the ICC”) made a ruling on the scope of the territorial jurisdiction which the ICC can exercise over the situations in Palestine including the so-called “Occupied Palestinian Territory (“the OPT”)”[1].
UN Photo/ Rick Bajornas: Permanent Premises of the International Criminal Court
Before the decision, the chamber heard the opinions of all the concerned parties from Palestine and Israel to victims, and amici curiae from more than 20 groups and states, which clearly shows how much attention has been paid to this case. Whereas the decision itself, which allowed the ICC to exercise its jurisdiction even over the OPT although Israel is not a party to the Statute, is noteworthy, the indication of non-applicability of the Monetary Gold Principle before the ICC[2] makes a sharp contrast with the implied acceptance of it by the International Tribunal for the Law of the Sea just one week before[3]. The critical difficulties in this matter are that the territorial scope of the OPT has not been determined and is still in an intensive dispute with Israel, which is not a state party to the ICC, whereas Palestine clearly declared to accept ICC jurisdiction by state party referral[4].
The Monetary Gold Principle is one of preliminary objections based on admissibility, and it allows courts and tribunals to stop proceeding to the merits of a case when the legal interest of a third party is concerned[5]. This principle was first applied in Monetary Gold Removed from Rome case[6] and although there are few cases where the principle was applied due to its high threshold[7], consideration of its application has frequently taken place. In the first case, the ICJ stated it could refuse to exercise its adjudicatory power when the legal interest of a third party “forms the very-subject matter” of the claim. While this first ICJ pronouncement was rather simple, the Court later elaborated the criterion in Nauru case, stating that what is crucial is whether the determination on a third party’s legal situations is a logical prerequisite for a decision[8], which was confirmed three years later in East Timor case. The Court has repeatedly considered this principle after clearly recognizing the existence of jurisdiction, and thus this principle is related to admissibility, the appropriateness of exercise of jurisdiction granted. Therefore, in this case, if Israeli legal rights form ‘the very subject-matter’ to determine the territorial scope of the ICC jurisdiction, then this principle will bar the ICC from making the decision. Although whether this principle can be applied with regard to legal rights of non-state entities is disputed[9], in this case, the Chamber clearly recognized Palestine as a state party, and thus we do not have to consider this aspect.
In the decision over Palestinian situations, the Chamber emphasized its unique nature of not involving any states as direct parties before it. Both the Prosecutor and the Chamber considered that the principle applies only in inter-state disputes[10]. There clearly lies the wrong assumption that the simple inverse reasoning, or the logic of “if courts or tribunals need state consent to adjudicate inter-state disputes, then without it, they cannot exercise their jurisdiction” can justify the principle. However, this is not the case. The simple justification of the principle linked to the consent principle does not hold water from the perspectives either of legal framework or of policy consideration[11]. It is true that even some ICJ judges in Monetary Gold case considered the principle the result of jurisdictional deficits[12]. However, as stated, this principle is not related to jurisdiction itself conferred by state consent, but to appropriate exercise of jurisdiction over each claim[13]. Nor is the justification by actual second effects of judgements on the third-party persuasive enough because the ICJ clearly averred that implied rulings on the third party’s legal interest alone does not necessarily allow the Court to apply the principle[14]. Furthermore, the ICJ has never refrained from issuing advisory opinions, which must have the same second effects over non-party states, even where a concerned state is opposed to it[15]. Therefore, although many including even ICJ judges have considered Monetary Gold Principle functions to protect third states from actual effects of ICJ judgements[16] not sufficiently blocked by art. 59 of ICJ Statute (‘The decision of the Court has no binding force except between the parties and in respect of that particular case’), this also cannot be a satisfactory explanation.
Rather, we must pay more attention to the fact that the ICJ has repeatedly emphasized that third party’s legal interest being a prerequisite for a decision is a decisive factor to apply the principle. What seems sound interpretation of this fact is that the Monetary Gold Principle is a shield which protects courts’ judicial function by allowing courts to avoid making hypothetical or moot judgements, which in turn can influence the legitimacy of courts. To elaborate upon that, if courts make judgements based on an assumed premise without determining the third party’s legal situations, then those judgements will inevitably be of hypothetical nature, which does not produce any practical consequences and cannot satisfy the “essentials of the judicial function”[17].
If we understand the principle in this way, the source of this principle seems to stem from the concept of judicial propriety[18], which allows courts to exercise their inherent powers to maintain judicial character[19]. As a principle concerned with admissibility, the principle offers a policy tool which allows Courts to “engage in case selection” and which gives more discretionary powers in considering multiple policy considerations including legitimacy, institutional agenda, and environmental conditions[20]. Therefore, by extracting the principle from inherent judicial powers, courts apply this principle with some discretion. This means nothing prevents the ICC from applying the principle. Logically thinking, since the Court can exercise its territorial jurisdiction only over its state parties’ territories pursuant to article 12(2)(a) of the Rome Statute in this Palestine case considering the trigger mechanism used in this case, the territorial spread of Palestine must form a logical prerequisite for the ICC to determine its jurisdictional scope. For example, in this case, if the OTP were to turn out to belong to Israel later, wouldn’t the ICC’s judgements over the area be, if not meaningless, hypothetical? In its decision, the Chamber repeatedly emphasized that the determination of its jurisdictional scope would by no means effect the territorial dispute between Israel and Palestine[21], but what matters here is not the implication or second effect of the decision, but what forms the logical premise for its decision, which may render it hypothetical. Therefore, I submit that the ICC could apply this principle by exerting its inherent powers lest its trials over the area be moot.
However, this does not mean the Chamber made a mistake in deciding not to apply the principle. Since admissibility is a policy tool for courts and no provision in the Rome Statute prescribes the Court to take up this principle, it is within the ICC’s discretion amidst multiple policy considerations to determine how to treat this principle and this decision merely reflects the ICC’s policy choice. Some have pointed out that this principle is in tension with judicial duty on courts to adjudicate[22]. Also, from a practical point of view, given that the ICC will never be able to make any determination on inter-state situations even the third party in question is willing to participate unlike other inter-state courts, which significantly increases the burden of the principle compared to other inter-state courts, it is fairly understandable that the purpose of eradication of impunity outweighs the risk of making judgments hypothetical to the extent the ICC rejects the very concept of this principle. Indeed, even the ICJ admitted that this principle cannot be applied against an entity which cannot be bound by ICJ judgements[23]. Yet, there might have been the better way. As the Prosecutor and some pointed out[24], considering numerous resolutions adopted in the UN fora, the premise that the OPT belongs to Palestine could be regarded as so given that the Chamber could decide based on it. If the premise can be regarded as well-established given based on circumstances, there will be no obstacle to courts to proceed without the third party’s participation[25]. Therefore, since the ICC can exercise jurisdiction even if the principle is applied, it may be the better path, in the future proceedings, for the ICC not to reject the applicability determinatively, and to reserve its discretion to abstain from exercising jurisdiction in the future.
As argued above, this principle will bring the Court some benefits of providing a tool to avoid causing political resistance and keep sound administration of justice. However, it is not that easy to conclude the Court can have this tool. Since I have already spilt a lot of ink on this matter, I only touch upon two remaining matters before I conclude this article. First, it is questionable whether the ICC has this type of inherent powers. Although in Tadic case, the Appeal Chamber of International Tribunal of Former Yugoslavia clearly asserted it has inherent powers to maintain its good administration of justice and that their content can be determined by reference to usual international law[26], the situation has changed when it comes to the ICC, where every detail was determined by intensive negotiations and crystalized in the Rome Statute. After all, the concept of inherent powers, which allow courts and tribunals to flexibly infer its powers is seemingly not compatible with the criminal law principle of legality, while the tension is relatively small since admissibility does not any additional burden on defendants. On the other hand, it is not that the Court is not equipped with any means to take state interests into consideration. First, the ICC is equipped with several procedures to hold hearings from concerned states[27]. Second, some consider that the Prosecutor has taken into consideration of case selection the probability of state cooperation under the label of ‘interest of justice’[28]. And this decision by the Prosecutor can proprio motu be reviewed by the Pre-Trial Chamber under art. 53(3)(b). Therefore, even if the ICC does not clearly apply Monetary Gold Principle, it can do the same operation in the consideration of interest of justice.
The second difficulty lies in the question of applicability of admissibility test in the phase of decision on jurisdiction. In this decision, the Chamber exercised jurisdiction to determine the scope of its jurisdiction to determine individual responsibility (‘jurisdiction for jurisdiction’). In other words, that jurisdiction was a kind of incidental jurisdiction, granted to the Court by the principle of compétence de la compétence. If we understand that admissibility test is a tool to maintain proper exercise of jurisdiction, since ‘jurisdiction for jurisdiction’ is also some type of jurisdiction, it is natural to think the Court can apply admissibility test even in this decision. On the other hand, it can make some tension with compétence de la compétence principle. When the Court makes some determinations on a hypothetical premise in the merits phase, then the decision will only be moot. However, in this case, if the Court makes determination on a hypothetical premise, that is, Palestinian territorial scope, then it is true that the decision over jurisdiction itself will be moot as well, but the decision in the merits made on the jurisdictional decision will not only be moot, but also can lack the essential jurisdiction. In other words, territorial dispute between Palestine and Israel will not only make exercise of ‘jurisdiction for jurisdiction’ moot, but also deprive the Court of principal jurisdiction for the merits, the determination of individual responsibility. It is well-established international law principle that the Court cannot adjudicate without firm jurisdiction as represented in compétence de la compétence principle. Therefore, it is arguable that this principle cannot be applied in this phase regardless of the unique nature of the ICC.
[1] Pre-Trial Chamber I, Situation in the State of Palestine, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, 5 February 2021, ICC-01/18-143. [2] Ibid, paras. 59-60. See also, Ibid, note 228. [3] ITLOS, Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean, Preliminary Objections, Judgement, 28 January 2021, paras. 97-100. [4] Pre-Trial Chamber I, supra n.1, para. 3. [5] Yuval Shany, ‘Jurisdiction and Admissibility’ in Cesare P.R. Romano, Karen J. Alter, and Chrisanthi Avgerou (eds), The Oxford Handbook of International Adjudication (OUP 2013), p. 787. [6] ICJ, Case of the Monetary Gold Removed from Rome in 1943 (Italy v France, UK, and US), Preliminary Question, Judgement, 1954, p. 17. [7] Ori Pomson, ‘Does the Monetary Gold Principle Apply to International Courts and Tribunals Generally?’, Journal of International Dispute Settlement vol. 10, 2019, p. 104. [8] ICJ, Case Concerning Certain Phosphate Lands in Nauru, Preliminary Objections, Judgement, 1992, para. 55. [9] See, Noam Zamir, ‘The applicability of the Monetary Gold principle in international arbitration’, International Arbitration vol. 33, 2017, pp. 523-538. [10] Pre-Trial Chamber I, supra n. 1, note. 228; The Office of the Prosecutor, Situation in Palestine, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, 22 January 2020, ICC-01/18-12, note. 60. [11] Zachary Mollengarden, Noam Zamir, ‘The Monetary Gold Principle: Back to Basics’, The American Journal of International Law vol. 115, 2021, pp. 56-75. [12] ICJ, Case of Monetary Gold Removed from Rome in 1943, Preliminary Question, Declaration of Sir Arnold McNair; ICJ, Ibid, Preliminary Question, Individual Opinion by Judge Read. [13] Pierre d’Argent, ‘The Monetary Gold Principle: A Matter of Submissions’, AJIL UNBOUND 2021, pp. 149-151. [14]ICJ, Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Application to Intervene, Judgement, 1990, para. 73. [15] ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004; ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019. [16] ICJ, supra n. 8, Preliminary Objections, Dissenting Opinion of Judge Schwebel, p. 330. [17] ICJ, Northern Cameroons (Cameroon v. United Kingdom), Preliminary Question, Judgement, 1963, p. 23; Pomson, supra n. 7, p. 99. [18] ICJ, Separate Opinion of Judge Fitzmaurice, supra n. 17, p. 102. [19] ICJ, Nuclear Tests (Autralia v. France), Preliminary Question, Judgement, 1974, para. 23. [20] Shany, supra n. 4, pp. 780, 786-788. [21] Pre-Trial Chamber I, supra n. 1, paras. 60-62. [22] ICJ, East Timor (Portugal v. Australia), Judgement, Dissenting opinion of Judge Weeramantry, 1995. [23] ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgement, 2015, para. 116. [24] Prosecutor, supra n. 10; Akande, “The Monetary Gold Principle and ICC: Can the ICC determine the Territorial Boundaries of Israel and Palestine?”, EJIL: TALK!, 16 June 2020. [25] ICJ, East Timor (Portugal v. Australia), Judgement, 1995, para. 32; PCA, Larsen v. Hawaiian Kingdom, Award, 2001, para. 11.24. [26] ICTY, Tadic AC, 31 January 2000, para. 13. [27] Rome Statute art. 18(2), 19(2), 82(2) etc. [28] Rome Statute art. 53(1)(c), (2)(c); Situation in the Republic of Kenya, Victims’ response to Prosecution’s application to dismiss in limine the Victims’ request for review, ICC-01/09-157, Legal Representative of Victims, 15 September 2015, para. 53.