Decision On Intl. Criminal Court’s Territorial Jurisdiction Over Palestine

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The pre-trial chamber 1 of the International Criminal Court in the Hague, Netherlands, issued a Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’.

One of the key determinations involved whether the issue at hand is political and therefore non-justiciable. The Chamber noted that “by the very nature of the core crimes under the Rome Statute, the facts and situations that are brought before the Court arise from controversial contexts where political issues are sensitive and latent”. “Accordingly, the judiciary cannot retreat when it is confronted with facts which might have arisen from political situations and/or disputes, but which also trigger legal and juridical issues”.

Some of the amici curiae took the view that, for the reasons specified in the Prosecutor’s and Palestine’s observations, “the conditions for the exercise of the Court’s jurisdiction in the present Situation have been fulfilled”.

“As a State Party to the Statute”, Palestine submitted that it ‘has fulfilled all of its obligations under the Statute’; it has ‘cooperated fully and effectively with the Office of the Prosecutor; has helped coordinate the efforts of the Court’s organs; and has systematically enabled the Court to fullfil its mandate’, and it is, for those reasons, ‘entitled to expect all the rights acquired by a State Party under the Statute’.

The Prosecutor’s request stated ‘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’.

The Prosecutor also submitted that “article 19(3) of the Statute ‘allows the Prosecution to pose a jurisdictional question to the Chamber, and obliges the Chamber to resolve such a question’. She argues that the present Situation is different from the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar,..”

With regard to the scope of the Court’s territorial jurisdiction, the Prosecutor indicated that she ‘has been guided by Palestine’s status as a State Party to the Rome Statute since 2 January 2015 following the deposit of its instruments of accession with the United Nations […] Secretary General pursuant to article 125(3)’.

The Prosecutor submitted that ‘in order to exercise its jurisdiction in the territory of Palestine under 12(2), the Court need not conduct a separate assessment of Palestine’s status (nor of its Statehood) from that which was conducted when Palestine joined the Court’.

Palestine’s accession to the Statute has the following two consequences, the Prosecutor stated. First, ‘under the ordinary operation of the Rome Statute, a State that becomes a Party to the Statute pursuant to article 125(3) “thereby accepts the jurisdiction of the Court” according to article 12(1)’. Second, ‘[a]rticle 12(2) in turn specifies the bases on which the Court may exercise its jurisdiction as a consequence of a State becoming a Party to the Statute under article 12(1) or having lodged a declaration under article 12(3)’. Accordingly, ‘a state under article 12(1) and article 125(3) should also be considered a State under article 12(2)’. The Prosecutor contends that this logic should also apply to Palestine. MORE…