(MARCH 17, 2020)

The full IJL Amicus submission can be found here.

As noted in our previous update (February 2020), the Office of the Prosecutor (OTP) had expressed that it was ready to conclude its Preliminary Examination into the “Situation of Palestine” and open a formal investigation. However, before proceeding further, the OTP deemed it necessary to obtain a ruling from the Pre-Trial Chamber on whether the territorial precondition to the exercise of jurisdiction was satisfied (Prosecutor’s 22 January 2020 request). The Prosecutor’s request raised fundamental questions about Palestinian statehood and territory, and the current process has seen an unprecedented number of Amicus submissions, over 40, from a number of perspectives (diplomatic, academic, historical, legal, etc.), including from seven ICC States Parties (Australia, Austria, Brazil, Czech Republic, Germany, Hungary and Uganda – who all oppose the opening of an investigation in the situation).

In its Amicus submission, the IJL observed that the Prosecutor does not convincingly prove that Palestine should be considered a State for the purposes of the Rome Statute, despite her own acknowledgment that Palestine is not currently a State under generally recognized principles of statehood under international law. IJL further explains why determining that Palestine is a State under general international law is a requirement both for determining whether it could validly join the Rome Statute and for determining whether the territorial precondition to the Court’s exercise of jurisdiction is met.

Additionally, the IJL challenged the OTP’s understanding of the effects of the Oslo Accords, both on the Palestinian capacity to claim any exclusive sovereign title over the disputed territory and on its capacity to delegate criminal jurisdiction over the territory to the ICC (prerequisites to proving both statehood and ICC jurisdiction).

Finally, the IJL explained that the Prosecutor cannot rely on Palestine’s 2018 referral to open an investigation relating to alleged crimes from 2014, without Pre-Trial Chamber authorization for the period pre-dating Palestine’s purported accession to the Rome Statute on 1 April 2015. In the absence of such authorization, the ICC would not be permitted to exercise jurisdiction over this earlier period (of particular importance given Palestinian claims relating to Operation Protective Edge in 2014).

We are now waiting for the Prosecutor’s Consolidated Response to all the submissions due on 30 April 2020 (the Pre-Trial Chamber recently approved on 23 March the Prosecutor’s request for an extension for time). Given the number of Amicus submissions (which has resulted in over 1,000 pages for the Pre-Trial Chamber to review) and the controversial nature of the questions and responses posed, coupled with the fact that there are currently numerous key cases simultaneously running at the ICC, and that the Court is now working remotely in light of the current global Corona crisis – it is estimated that the Pre-Trial Chamber will realistically only provide its own decision within a few months’ time. IJL will of course update as soon as there is any decision or notable developments in this regard.