JUSTICE - No. 66

30 No. 66 JUSTICE into force for Palestine on April 1, 2015, pursuant to article 126 of the Statute. On January 16, 2015, the ICC Prosecutor at the time, Fatou Bensouda, opened a preliminary examination of the situation in Palestine. 9 The Prosecutor completed the preliminary examination on December 20, 2019 and announced her decision to launch an investigation into the“situation in Palestine.” 10 She requested, however, that a Pre-trial Chamber issue a ruling on the scope of territorial jurisdiction, given the unique and highly contested legal and factual issues attached to this situation. The Prosecutor emphasized that such a determination by the Court at this stage is in the interests of all those involved – victims, communities and potential witnesses – and will contribute to the conduct of the investigations and the efficiency of the judicial proceedings, as well as provide clarity to the States concerned. 11 In her detailed request, the Prosecutor presented the reasons why she believes Palestine can be viewed as a State for the purpose of the Court’s jurisdiction. 12 First, she asserts that the UN General Assembly’s acceptance of Palestine as an Observer State suffices to that end. Beyond this formal argument, she gives a detailed analysis of the additional claim that Palestine also meets the substantive conditions required for statehood under international law. The Prosecutor argues that even though Palestine does not exercise full control over all of the territory of the West Bank and East Jerusalem (which is under Israeli control) and the Gaza Strip (which is under Hamas rule), it should still be recognized as a State in the entirety of these territories, on three grounds: first, given the Palestinian people's recognized right to self- determination in the “Occupied Palestinian Territory”; second, given the detrimental impact of Israel's ongoing breaches of international law by building the settlements and the security fence, which impede realization of this right to self-determination; and third, given the fact that 138 States have recognized a State of Palestine. 13 The Prosecutor further emphasized that the question of which side is responsible for the current impasse in reaching a negotiated solution to the conflict is not relevant, as it is clear from Israel’s conduct that it does not intend to stop the policy that impedes the exercise of the Palestinians’ right to self-determination and because there are also indications that Israel may seek to annex large parts of the West Bank. The Prosecutor further stressed that treating Palestine as a State is consistent with the object and purpose of the Rome Statute of preventing war criminals from escaping justice, as Israel considers the settlements to be lawful, and as its High Court, despite its recognized independence, ruled the matter “non-justiciable.” 14 The Prosecutor asserted that the provisions of the Oslo Agreements between Israel and the Palestinian Liberation Organization (PLO), stipulating that the Palestinian Authority has criminal jurisdiction only over offenses carried out by Palestinians in certain parts of the West Bank (Areas A and B) and not beyond these areas, nor over offenses carried out by Israelis, do not affect possible ICC jurisdiction. In addition, the Prosecutor argued that the Palestinian Authority's lack of control over Gaza and the uncertainty regarding the final borders of Palestine do not affect jurisdiction to discuss crimes in territory regarded as belonging to this State, even if ultimately there are changes to the border as a result of land swaps with Israel. Following the request of the Prosecutor, the Pre-trial Chamber invited submission of written observations via amicus curiae on this topic, 15 and almost 50 briefs were submitted (including by the IJL). Seven of the amicus curiae submitted were by States: Germany, 16 9. ICC,“The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the situation in Palestine,” ICC (Jan. 16, 2015), available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1083 10. ICC,“Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction,” ICC (Dec. 20, 2019), available at https://www.icc-cpi.int/Pages/item.aspx?name=20191220- otp-statement-palestine&fbclid=IwAR2FHFZNUyEA9r xD_ahs6O5UiqNdxZ5l3swRE5JAmjInDVfKepYX0opMjsk0x5 11. Ibid . 12. Office of the Prosecutor, ICC, “Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine” (Jan. 22, 2020), ICC- 01/18-12, available at https://www.icc-cpi.int/ CourtRecords/CR2020_00161.PDF 13. See supra note 6. 14. The Prosecutor refers, in para 181 and footnote 572, to the Bargil et al. case (HCJ 4481/91 Bargil et al. v. Government of Israel et al. [1992-4] I SR .L.R. 158. 15. ICC,“Order setting the procedure and the schedule for the submission of observations”(Jan. 28, 2020), ICC-01/18- 14, available at https://www.icc-cpi.int/Pages/record. aspx?docNo=ICC-01/18-14 16. ICC,“Observations by the Federal Republic of Germany” (March 16, 2020), available at CR2020_01075.PDF (icc-cpi. int)