On August 6, 2024 the International Association of Jewish Lawyers and Jurists (IJL) submitted an amicus curiae brief to the International Criminal Court (ICC) relating to the ICC Prosecutor’s recent request to issue arrest warrants for Israel’s Prime Minister and Minister of Defense.
At the onset the brief emphasizes that the unprecedented request by the Prosecutor against the leaders of the State of Israel, a democratic State with a robust and well-respected system of criminal law enforcement, including multifaceted legal oversight mechanisms led by the Attorney General, raises multiple legal and factual issues.
Limited in scope under the Court’s instructions, the submission then focuses on two main arguments:
(1) The arrest warrant requests cannot be considered under the scope of the “Situation in Palestine” opened in 2021.
- Factually, the requests arise from a fundamentally different factual context triggered by the murderous attacks committed by Hamas on Israeli territory on 7 October 2023 and Israel’s large-scale subsequent military response. As the IJL notes, even the International Court of Justice itself adopted a similar position in its recent advisory opinion.
- Temporally, the requests relate to events that occurred after the investigation was opened, specifically starting from October 7, 2023.
- In such circumstances, the Prosecutor is required to demonstrate a sufficient link to the previously opened investigation or to open a new investigation.
- Any other interpretation of the Rome Statute would confer on the Prosecutor unlimited authority to initiate open-ended, and indefinite, investigations, without needing to demonstrate that prior appropriate legal and factual analysis has been undertaken and fundamental jurisdictional requirements are met.
- This limitation is crucial to ensure respecting the principle of complementarity and ensuring proper notification to states under Article 18 of the Rome Statute.
(2) The effects of the Oslo Accords on the capacity of the ICC to exercise jurisdiction: any Palestinian capacity to delegate the exercise of criminal jurisdiction to the ICC does not currently enable the Court to exercise jurisdiction over Israelis.
- The ICC’s authority is derived from the delegated criminal jurisdiction of States.
- In previous litigation, the ICC’s Pre-Trial Chamber did not find that Palestine is constituted as a State under general international law. A Palestinian right to self-determination does not constitute Palestine as a State.
- The sole source of Palestinian authority to prescribe, adjudicate, and enforce criminal law is the Oslo Accords.
- The binding Oslo Accords did not simply limit the exercise of Palestinian criminal jurisdiction; they constituted the Palestinian Authority and delegated a limited authority to it. Under the Oslo Accords Palestinian authorities have no jurisdiction over Israelis in any sphere, including the sphere of criminal jurisdiction. Therefore – they could not delegate such authority to the ICC.
These points highlight significant legal and procedural challenges to the current ICC proceedings in the “Situation in Palestine”.
The submission was co-authored by Hila Kugler Ramot, CEO of the IJL, Dr. Dov Jacobs Counsel to the IJL, and Joshua Kern Counsel to the IJL.
READ THE FULL BRIEF