Justice and Politics – The ICC’s territorial jurisdiction over occupied Palestinian territory

University essay from Lunds universitet/Juridiska institutionen

Abstract: The subject of this thesis concerns the ICC’s jurisdiction over the occupied Palestinian territories, a question actualised in recent years due to the Palestinian ICC membership. The thesis is mainly conducted through a traditional legal dogmatic method, the exception being the historical background. The author has chosen to apply a scientific theory for this thesis. The theory adopted is Martti Koskenniemi’s theory on the structure of the international legal argument. This theory is applied on the arguments of scholarly contributions and the arguments of the thesis, problematizing the capacity of international law to produce objective, determinate results. After a historical introduction, the thesis starts with the question of Palestinian statehood, arriving at the conclusion that Palestine should be considered a state for the purposes of the ICC. Secondly, the thesis discusses the extent of the Palestinian territory, arriving at the conclusion that the Palestinian territory should be considered a continuation of the Palestinian self-determination unit, therefore encompassing the occupied Palestinian territories including East Jerusalem. After this, the thesis investigates the impacts of the Oslo accords on the jurisdiction of the ICC, arriving at the conclusion that the Oslo accords does not constitute an obstacle for ICC jurisdiction, but may affect the prospects of an ICC arrest warrant. Finally, the thesis discusses general questions surrounding the crime of illegal transfer under article 8 (2) (b) (viii) of the Rome Statute. The author arrives at the conclusion that the Court has jurisdiction over all crimes of illegal transfer with a nexus to the military occupation, and are initiated or completed on Palestinian territory. However, analysis show problems with determinacy for the legal arguments featured in the works of scholars as well as in the thesis. This problem can possibly be a result of inherent indeterminacy within the legal system, and questions the objectivity of legal adjudication in a political conflict.

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