JUSTICE - No. 65

10 No. 65 JUSTICE would like to thank the International Association of Jewish Lawyers and Jurists for inviting me to speak at this conference. It is a pleasure to meet you all virtually. I hope you will all remain safe and healthy, and that things will go back to normal soon. Today I would like to speak about the past year's developments at the International Criminal Court regarding the so-called“situation in Palestine.”As many of you know, the ICC was established to address mass atrocities that deeply shock the conscience of humanity. Israel supported, and still supports, this noble mission. However, regrettably, the Court is far from reaching this goal. Throughout the eighteen years of its operation, the ICC has secured relatively few convictions. It has also spent a great deal of energy on attempts to adopt controversial interpretations that were disconnected from the original intention of the drafters of the statute. Thus, the Court effectively neutralized its own screening mechanisms, invested resources into cases that were clearly outside its mandate, and has rendered itself vulnerable to political interests. The approach taken by the ICC Prosecutor to the Palestinian effort to embroil the ICC in the complex, and politically charged, Israeli-Palestinian conflict is a recent example of the problems I have just described. On December 20, 2019, the ICC Prosecutor announced that she had concluded her five-year preliminary examination into what she calls “the situation in Palestine.”The Prosecutor did so with a determination that all legal criteria for the opening of an investigation had been met. The Prosecutor, however, recognized the uncertainty of her conclusion regarding the “unique and highly contested legal and factual issues attaching to this situation.”Accordingly, she asked the judges to give her a“green light” to open an investigation. She requested, in the form of a request for a judicial ruling, that the judges confirm her position that the scope of the territorial jurisdiction in this situation comprises the West Bank, East Jerusalem and the Gaza Strip. This is a highly unusual practice. The Prosecutor's request is still pending before the judges of the Pre-Trial Chamber. Israel's position with respect to the jurisdiction of the Court in this matter is very clear. Israel is not a State Party to the Rome Statute; the Palestinian Authority (PA) is not a state, and, therefore, the ICC simply has no jurisdiction. A few hours prior to the Prosecutor's announcement, the Israeli Attorney General published a memorandum on the ICC's lack of jurisdiction over the so-called “situation in Palestine.”The Israel Ministry of Foreign Affairs also published a synopsis that included a brief overview of the main legal arguments, and added some important policy considerations. This legal position was the product of hard work and cooperation between my office, the Legal Department of the Ministry of Foreign Affairs, and the Legal Department of the National Security Council. The Attorney General's memorandum explains in detail that there is no sovereign Palestinian state, as the Palestinians do not fulfill the necessary criteria for statehood. Thus, there is no “territory of” a state over which the ICC can exercise territorial jurisdiction, as required under the Rome Statute. It should be emphasized that according to the Court's mandate, jurisdiction is based upon sovereign states delegating to the Court their own criminal jurisdiction over their territory and nationals. In that regard, the Palestinian Authority does not possess, nor has it ever possessed, criminal jurisdiction neither de jure nor de facto over Area C, Jerusalem, and Israeli nationals – and thus cannot delegate such jurisdiction to the Court. It is also important to emphasize that the alleged recognition of “Palestine” by some states cannot compensate for the absence of the established criteria for statehood; and that the Palestinians' claim to self- determination must not be conflated with any claim to statehood. Events surrounding the Palestinians' purported accession to the Rome Statute did not settle any of these jurisdictional questions. A serious legal analysis can only lead to one possible conclusion: the ICC has no jurisdiction over this situation. Israel and the ICC Address at IJL 17 th Congress I Roy Schöndorf