JUSTICE - No. 66

31 Spring 2021 Australia, 17 Brazil, 18 Hungary, 19 Uganda, 20 Czech Republic, 21 and Austria, 22 contending that the Court lacks jurisdiction in this case. While Israel did not present an official submission, it did publish a detailed legal memorandum by the Attorney General, elaborating its position on the lack of jurisdiction of the Court. 23 On February 5, 2021, the Pre-trial Chamber (PTC) ruled in a majority opinion that “Palestine” can be viewed as a State whose territory comprises all of the “occupied territories” – the West Bank, East Jerusalem, and the Gaza Strip – thereby accepting the position of the Prosecutor and confirming the jurisdiction of the Court to open an investigation for alleged war crimes committed in these territories. 24 The majority judges of the PTC, in a brief and rather superficial decision, ruled that it is sufficient that “Palestine”has the status of a“State Party” to the Rome Statute for it to be considered a “State” over which the Court has jurisdiction to judge crimes carried out in its territory. Consequently, in the judges’ opinion, there is no need to check whether “Palestine” meets the requirements for the existence of a State according to international law, but rather it is sufficient that they find that its accession to the Court was done properly, after it was recognized as an “Observer State” by the UN General Assembly. As for the territory of this State, the judges ruled, in brief, that because the UN decision was based on the right of the Palestinian people for self-determination and independence in the Palestinian territory occupied since 1967, all of the said territory can be viewed as the territory of the Palestinian State for the purpose of the Court's jurisdiction. As for the claim that Palestine could not have delegated to the Court criminal jurisdiction beyond that granted to it in the Oslo Agreements, the Judges avoid any substantial analysis. They simply found that this is not relevant in determining the jurisdiction in relation to initiating an investigation, although this issue can be raised in future requests and proceedings by interested parties. No explanation is given for this conclusion. The judges in the majority emphasized that their rulings on the issue of the status of “Palestine”as a State and its territory apply only to the need to determine the Court's jurisdiction. These rulings do not presume to influence its status as a State in other contexts or to prejudge its future borders. The final paragraph of the ruling states that the Chamber's conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor. However, if requests are submitted for a warrant of arrest or summons to appear, or challenges to jurisdiction are submitted by a suspect or a State, the Court will be in a position to examine further questions of jurisdiction which may arise at that time. It is worth noting that by emphasizing that challenges to the jurisdiction can be raised in further proceedings, the Court in essence did not give the Prosecutor what she requested – a clear and binding decision regarding jurisdiction. 25 The dissenting judge, Péter Kovács of Hungary, the President of the PTC, rejected the majority opinion whereby it is sufficient that Palestine has the status of a “State Party” to the Statute for it to be considered a “State” for the purpose of granting jurisdiction to the 17. ICC,“Observations of Australia”(March 16, 2020), available at CR2020_01034.PDF (icc-cpi.int) 18. ICC,“Brazilian Observations on ICCTerritorial Jurisdiction in Palestine”(March 16, 2020), available at CR2020_01083. PDF (icc-cpi.int) 19. ICC, Written Observations by Hungary Pursuant to Rule 103” (March 16, 2020), available at CR2020_01047.PDF (icc-cpi.int) 20. ICC, “The observations of the Republic of Uganda Pursuant to rule 103 of the Rules of Evidence and Procedure“ (March 16, 2020), available at CR2020_01112. PDF (icc-cpi.int) 21. ICC,“Submission of Observations Pursuant to Rule 103” (March 12, 2020), available at CR2020_00996.PDF (icc-cpi. int) 22. ICC, “Amicus curiae observations of the Republic of Austria”(March 15, 2020), available at CR2020_01018.PDF (icc-cpi.int) 23. Office of the Attorney General, State of Israel, “The International Criminal Court's lack of jurisdiction over the so-called ‘situation in Palestine’” (Dec. 20, 2019), available at https://mfa.gov.il/MFA/PressRoom/2019/ Documents/ICCs%20lack%20of%20jurisdiction%20 over%20so-called%20%E2%80%9Csituation%20in%20 Palestine%E2%80%9D%20-%20AG.pdf 24. ICC,“Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’” (Feb. 5, 2021), ICC-01/18-143, available at https://www.icc-cpi.int/CourtRecords/ CR2021_01165.PDF 25. This is explicitly noted by the dissenting judge - ICC, “Judge Péter Kovács’ Partly Dissenting Opinion”(Feb. 5, 2021), ICC-01/18-143-Anx1, in para 91, available at https:// www.icc-cpi.int/RelatedRecords/CR2021_01167.PDF