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False Positives, False Negatives, and Prosecutorial Discretion regarding the Jurisdiction of the ICC

Critics of the ICC Prosecutor’s request for a determination under article 19(3) in the Situation in the State of Palestine are right to point out that she could have simply launched an investigation without seeking such a ruling. As this critique goes, the Prosecutor has the authority to investigate a State referral without seeking the authorisation of the Pre-Trial Chamber (“PTC”). But on closer inspection, one must acknowledge the practical and strategic soundness of the Prosecutor’s decision. Even if the Prosecutor had not raised it at this stage, the jurisdictional question now submitted by the Prosecutor would certainly not have been avoided. Surely, once the investigation advanced, Israel or an individual suspect would have brought a challenge to the jurisdiction of the Court. It seems the Prosecutor is wise to take pre-emptive action. In that vein, one could argue that the Prosecutor could have raised this question with the PTC a long time ago. The Court first received a declaration from Palestine in 2009, at which time the former Prosecutor, Luis Moreno Ocampo,…

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part II

  In my previous post, I argued that contrary to the view of the GOI, a Palestinian state has existed since 1919, and a Palestinian government was established – even if momentarily – in the territories occupied by the armed forces of Egypt and Jordan during the 1948 war following the termination of the mandate. This was known…

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A critical assessment of the Government of Israel’s memorandum to the ICC – Part I

  On 20 December 2019, the Prosecutor of the International Criminal Court (ICC) published a 112-page document requesting that Pre-Trial Chamber 1 rule within 120 days on the Court’s territorial jurisdiction in the situation in Palestine. On the same day the request was made public, the Government of Israel (GOI) published a 34-page memorandum of the Office…

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Breaking new ground? The CERD Committee’s decision on jurisdiction in the inter-State communications procedure between Palestine and Israel

  2018 marked the year in which the CERD Committee received its first three inter-State communications under Art. 11 (1) CERD (an overview of the procedure is offered here). This was for good reason referred to as a historic development, given that this was the first time ever that such procedure has been used under…

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Of Temporal Jurisdiction and Power Struggles in the ICC’s Palestine Investigation

  It’s been five years since Palestine made the much-awaited move of requesting the International Criminal Court to investigate crimes allegedly committed by Israel “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” Like last month’s decision of the Prosecutor announcing her intention to open an investigation, it was made public…

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