JUSTICE - No. 66

29 Spring 2021 n March 3, 2021, the Prosecutor of the International Criminal Court (“ICC”) confirmed the initiation of an investigation on the“Situation in Palestine”with respect to alleged war crimes committed since June 13, 2014 in the West Bank, including East Jerusalem, and in the Gaza Strip. 1 This opens a new stage in the proceedings and follows from a preliminary examination that lasted close to five years. Israel claims that the ICC lacks jurisdiction to adjudicate the situation and has declared that it will not cooperate with the investigation. 2 This article sets out the events of the attempts to bring the allegedly committed war crimes within the Israeli-Palestinian conflict before the ICC. It then offers an analysis of the main arguments regarding the jurisdiction of the ICC. Beyond the argument regarding the lack of jurisdiction analyzed in this article, there are additional valid arguments that Israel can raise, including complementarity, that are not considered here. The first attempt to bring the alleged war crimes carried out within the Israeli-Palestinian conflict before the ICC, took place on January 22, 2009. The Palestinian Authority sought to submit a declaration conferring jurisdiction upon the ICC under Article 12(3) of the Rome Statute (the Court's founding treaty) 3 for all war crimes committed on the territory of “Palestine” since July 1, 2002. 4 Article 12 establishes that a “State” can confer jurisdiction to the Court by becoming a Party to the Rome Statute (article 12(1)) or by making an ad hoc declaration accepting the Court’s jurisdiction (article 12(3)). The Prosecutor of the ICC at the time, Luis Moreno Ocampo, initiated a preliminary examination into the situation, but ultimately terminated it on April 3, 2012 on the grounds that the legal status of “Palestine”within the United Nations was not that of a“State.” 5 On November 29, 2012, the UN General Assembly accorded“Palestine” the status of “non-member observer State” in the United Nations. 6 Subsequently, on January 1, 2015, the Government of Palestine lodged a declaration under article 12(3) of the Statute, accepting the jurisdiction of the Court “for the purpose of … prosecuting… crimes in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” 7 On January 2, 2015, the Government of Palestine deposited an instrument of accession to the Statute with the UN Secretary-General. 8 The Rome Statute entered The Jurisdiction of the ICC Over Israel O Pnina Sharvit Baruch 1. ICC, “Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine, ” ICC (March 3, 2021), available at https://www.icc- cpi. int/Pages/item.aspx?name=210303-prosecutor-statement- investigation-palestine 2. Press Release, “PM Netanyahu Holds Discussions on Israeli Policy regarding the Statement of the International Court in The Hague on the Opening of an Investigation against the State of Israel,”P RIME M INISTER’S O FFICE (April 8, 2021), available at https://www.gov.il/en/departments/ news/spoke_court080421 3. UN General Assembly,“Rome Statute of the International Criminal Court”(last amended 2010), July 17, 1998, ISBN No. 92-9227-227-6, available at https://www.refworld.org/ docid/3ae6b3a84.html (hereinafter: “Rome Statute”). 4. Palestinian National Authority,“Declaration Recognizing the Jurisdiction of the International Criminal Court”(Jan. 21, 2009), available at https://www.icc-cpi.int/NR/ rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/2 79777/20090122PalestinianDeclaration2.pdf. The Rome Statute entered into force on July 1, 2002 and the Court's jurisdiction extends only to events which occurred after this date. 5. Office of the Prosecutor,“Situation in Palestine”(Apr. 3, 2012), para. 4, available at https://www.icc-cpi.int/nr/ rdonlyres/c6162bbf-feb9-4faf-afa9-836106d2694a/284387/ situationinpalestine030412eng.pdf 6. UN General Assembly,“Status of Palestine in the United Nations: resolution / adopted by the General Assembly” (Dec. 4, 2012), A/RES/67/19, available at https://www. refworld.org/docid/50c5e6152.html 7. President of the State of Palestine,“Declaration Accepting the Jurisdiction of the International Criminal Court”(Dec. 31, 2014), available at https://www.icc-cpi.int › press › palestine_a_12-3 8. United Nations, “Rome Statute of the International Criminal Court, State of Palestine Accession”(Jan. 2, 2015), available at https://treaties.un.org/doc/publication/ cn/2015/cn.13.2015-eng.pdf. Several States lodged objections to the accession, including the U.S., available at CN.64.2015-Eng.pdf (un.org) , and Canada, available at CN.57.2015-Eng.pdf (un.org)