The International Association of Jewish Lawyers and Jurists (IJL) filed a request to submit observations on the “Situation in Palestine” as a friend of the court at the International Criminal Court (ICC or the Court).

The IJL request responds to an order issued by Pre-Trial Chamber I (PTC) of the ICC, which concerned Prosecutor Bensounda’s own requested ruling on the scope of the ICC’s territorial jurisdiction under the Rome Statute[1], following her conclusion that there is reasonable basis to believe that war crimes have been (or are being) committed in the West Bank, including East Jerusalem and the Gaza Strip.

The Prosecutor’s requested ruling is an exception to the usual ICC procedures, given (to use her words) the “complex legal and factual issues”. The PTC’s order sets the procedure and schedule for submitting observations on the Prosecutor’s request, including an invitation to interested parties to request leave to submit written observations on the specific question of jurisdiction set out in the Prosecutor’s request.

More than forty such leave requests were submitted to the PTC, either in support of, or otherwise denouncing, the Prosecutor’s position. Among these are seven submissions from states (Germany, Brazil, Austria, Australia, Hungary, Czech Republic and Uganda – all expressing serious legal reservations with the Court’s jurisdiction; Canada also provided an official letter to the Court expressing similar sentiment), leading international academics (including William Schabas, Eyal Benvenisti, and Malcolm Shaw), well-known former politicians and statesmen (Dennis Ross, Robert Badinter and Irwin Cotler) and various NGOs (similar to the IJL).

On February 20, the PTC granted leave to nearly all applicants, including the IJL. The PTC set a thirty page limitation for submissions of observations and a filing deadline of March 16.

Background to Prosecutor Bensouda’s Request

In January 2015, following the acceptance of “Palestine” as a non-member State by the UN General Assembly, the “State of Palestine” acceded to the Rome Statute and, that same month, Prosecutor Bensouda commenced a preliminary examination into the “Situation in Palestine.” On May 22, 2018, this examination was augmented by a formal referral of the ‘situation’ for investigation by the State of Palestine.

On December 22, 2019, the Prosecutor officially announced the conclusion of her preliminary examination, and determined that, in her opinion, all statutory criteria required under the Rome Statute for opening a formal investigation have been met. Following the announcement, she submitted request for a ruling to the PTC on January 22, 2020.

The IJL’s Submission

IJL previously submitted a letter to the Office of the Prosecutor in February 2015 raising strong concerns on the same issue of jurisdiction and on the Prosecutor’s then decision to open a preliminary examination into the Situation in Palestine.

In relation to the current request, the IJL intends to focus on the following issues (in rebuttal to the Prosecutor’s position), relating to ‘statehood’ and ‘territory’ under international law.

From the perspective of ‘statehood’, the IJL will observe as follows:

• Palestine is not a state party to the ICC simply because the Secretary-General accepted its instruments of accession. The Secretary-General’s function as a depository of instruments of accession is entirely administrative, and has no substantive legal consequence.
• United Nations General Assembly Resolution 67/19 of November 29, 2012 (through which Palestine was granted non-Member Observer Status at the UN) does not constitute Palestine as a “state” under international law, and has no impact on whether Palestine can validly accede to the Rome Statute.
• Palestine is additionally not a state according to accepted criteria for statehood under general international law.

From the perspective of ‘territory’, the IJL will observe as follows:

• The Palestinian Authority does not have sovereign legal title to the territory on which crimes have been alleged to occur, which is necessary for the exercise of jurisdiction under the Rome Statute.
• Even if a finding was made that Palestine is a state for the purposes of the Rome Statute (which IJL expressly denies), then the Court’s jurisdiction would be limited to begin only from April 1, 2015 and not from June 13, 2014 as the Palestinians and Prosecutor purport is the starting date (this is important with respect to the ICC’s jurisdiction with respect to events in Gaza).

The IJL will stress two important themes throughout its arguments:

• Jurisdiction is a question of law, and the Prosecutor must attain the degree of certainty required to exercise jurisdiction in any situation before it does so. However, throughout the Prosecutor’s request, she incorrectly applies the “reasonable basis to believe” standard of proof to the question of jurisdiction and whether to open an investigation.
• The Prosecutor used a flawed methodology throughout her preliminary examination and in her request, which is manifest in her misrepresentation of historical events, inaccurate understanding and application of crucial legal issues; and the fact that, generally, she privileges the Palestinian position over the Israeli.[3] Thus, she fails to provide the PTC with adequate tools to address the highly complex matter on its merits, which she has requested for its determination.

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[1] Specifically, the Prosecutor inquired whether, under Article 12(2)(a) of the Rome Statute, the “territory” over which the ICC may exercise its jurisdiction comprises the West Bank, and East Jerusalem, and Gaza Strip.

[2] Paragraph 220 of the Prosecutor’s Request states, “The Prosecution respectfully requests Pre-Trial Chamber I to rule on the scope of the Court’s territorial jurisdiction in the situation of Palestine and to confirm that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza. In doing so, the Chamber is invited to issue its ruling, subject to any modification needed to accommodate representations by other participants, within 120 days. This timeline is based on the timeline for article 15 requests and the similarity of the nature and scope of the present Request and an article 15 request.“

[3] For example, among other inaccuracies, the Prosecutor places undue emphasis on the “all States” formula in Article 125 of the Rome Statute; has a flawed understanding of the role and competency of the UN General Assembly and political statements made in international fora; incorrectly understands and applies the effect of the right to self determination; and abuses “object and purpose” as a tool of treaty interpretation.