JUSTICE - No. 65

11 Fall 2020 Reaching a different conclusion would require adopting “creative” interpretations of the factual and legal record, deviating from the accepted approaches in international law in favor of fringe theories on fundamental issues. A few weeks after the Prosecutor submitted her request, the Pre-Trial Chamber invited states, organizations and individuals to submit their observations on the scope of the Court's territorial jurisdiction, subject to the Chamber's leave. Following this invitation, 23 observations supporting the position that the Court lacks jurisdiction were submitted. These include seven states that submitted their observations – Germany, Australia, Brazil, Hungary, Uganda, Austria and the Czech Republic. Germany, a State Party to the Rome Statute, holds in its submission that the technical act of circulating an instrument of accession cannot determine the status of an entity as a state, and that statehood under international law (or lack thereof) requires an evaluation by the Court. In addition, the submissions made to the Court also included observations by several organizations and many well-known international law experts. Among the experts supporting this position were Prof. Robert Badinter, former Minister of Justice of France; Prof. Irwin Cotler, former Minister of Justice and Attorney General of Canada; Prof. David Crane, former Chief Prosecutor of the Special Court of Sierra Leone; Prof. Guglielmo Verdirame, a professor of international law at King’s College London; the well-known Prof. Eyal Benvenisti and Prof. Malcolm Shaw. In fact, Prof. Shaw's submission is of importance, in view of the Prosecutor's extensive reliance on his work in her submission, in order to support her theory regarding Palestinian statehood. Prof. Shaw clarified that in his view, the Prosecutor's analysis is flawed according to international law. Another significant position that focused on the Prosecutor's inaccuracy in her treatment of the Oslo process was submitted by Ambassador Dennis Ross. As is well known, Ambassador Ross is one of the most experienced diplomats on the Israeli-Palestinian negotiations. In his submission, he clarified that under the Oslo Accords, the PA does not have, and has never had , any type of criminal jurisdiction and that the issue of statehood was effectively reserved for future negotiations. The International Association of Jewish Lawyers and Jurists submitted its observations as well. Among other claims, the Association emphasized that jurisdiction is a question of law, and that it is required to establish a standard of certainty. This is especially important as the Prosecutor admitted that Palestinian statehood has not been“definitively resolved.” The Association also claimed in its submission that “the OTP’s [the Office of the Prosecutor] argument suggests a result-oriented process, reasoning backwards from a desired outcome.” Unfortunately, even after reading the well-founded opinions that were submitted, the Prosecutor, in her response to the Pre-Trial Chamber in April 2020, chose to adjust her arguments rather than admitting that her legal approach is shaky. It is quite puzzling that even after five years of preliminary examination, the Prosecutor is still jumping through hoops to provide the legal reasoning for the jurisdiction she claims to have. The Prosecutor's primary position in her submission from December 2019 was that the term “state” in the Rome Statute should be determined by the Palestinian entity's status as a State Party, and that once the Palestinians submitted their instrument of accession, “no additional consent or separate assessment is needed.” In her response to the submissions made to the Court, she also referred to the submission of the Association, and essentially admitted that “[S]tatehood is a condition precedent for accession to the Statute.” However, she claimed, the State Parties bear the ultimate responsibility for ensuring that only states that are qualified to accede do so, and once an entity is permitted to accede, the organs of the Court – including the Chamber and the Prosecutor itself – are required to accept its status as a State Party. These inconsistencies and result-oriented processes are also reflected in the Prosecutor's alternative position in her request. The Prosecutor claimed that the Palestinian entity may be considered a “state” for the purpose of the Rome Statute under general international law. Just two weeks before submitting her original request, the Prosecutor expressed, regarding another situation under preliminary examination (the South China Sea), the position that “territory”“includes those areas under the sovereignty of the State”and interpreted sovereign territory to mean“the areas over which a State exercises exclusive and complete authority.”However, in our case, the Prosecutor ignored this legal reasoning, and instead chose to rely on alternative arguments, based on non- binding resolutions of political organs and the right to self-determination. A few months later, in April 2020, she claimed that sovereignty resides with the Palestinian people. I will not elaborate further today on the tortuous path the Prosecutor took in her arguments. I will only briefly