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Playing Safe or Hide and Seek? The ICC Prosecutor’s Request for a Ruling on the Court’s Territorial Jurisdiction in Palestine

Published on January 10, 2020        Author: 

 

On 20 December 2019, the Office of the Prosecutor (OTP) of the ICC issued a Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine (“Prosecution request”). The request by Fatou Bensouda’s office was filed on the same day as the publication of a detailed memorandum drafted by the Office of the Attorney General for the State of Israel (“OAG’s memorandum”), outlining the reasons why the ICC has no jurisdiction over Palestine. In a nutshell, the 34-pages memorandum argues that in the situation in the State of Palestine the fundamental precondition to jurisdiction enshrined in the Rome Statute – namely, that a State having criminal jurisdiction over its territory and nationals has delegated such jurisdiction to the Court – is clearly not met. The ICC Prosecutor presents a contrary view. Whilst the Prosecutor believes that the Court does indeed have the necessary jurisdiction in this situation, she is “mindful of the unique history and circumstances of the Occupied Palestinian Territory” (i.e. the Prosecutor considers that the Court’s territorial jurisdiction extends to the Palestinian territory occupied by Israel during the Six-Day War in June 1967, namely the West Bank, including East Jerusalem, and Gaza; this territory is delimited by the “Green Line” agreed on in the 1949 Armistices), and “seek[s] judicial resolution of this matter at the earliest opportunity” (§§ 3-5 of the Prosecution request). Without hoping to provide an exhaustive overview of the complex issues at stake, it is worth taking a closer look at the OTP’s request to Pre-Trial Chamber I (PTC I) and sharing some initial thoughts on its possible outcomes.

Background of the Prosecution request

As is well known, on 1 January 2015 the Government of Palestine lodged a declaration under Article 12(3) of the ICC Statute accepting the Court’s jurisdiction over alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. On 2 January 2015, the Government of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. Following the accession, the Rome Statute entered into force for the State of Palestine on 1 April 2015. On 16 January 2015, the OTP opened on its own initiative a preliminary examination into the situation in Palestine. On 22 May 2018, Palestine also referred this situation to the Prosecutor, pursuant to Articles 13(a) and 14 of the Rome Statute. The preliminary examination into the situation in Palestine resulted in the determination that all the statutory criteria under the Rome Statute for the opening of an investigation have been met(ish?). Read the rest of this entry…