JUSTICE - No. 66

33 Spring 2021 borders, and moreover that the issue of borders is one that the parties have agreed to settle through negotiations. Prosecutor Bensouda’s conclusion goes even further. She suggests that there is a Palestinian State covering the whole of the“Occupied Palestinian Territory,”despite the lack of actual control, based on “the detrimental impact of the ongoing breaches of international law”by Israel, which impede realization of the Palestinian's right to self-determination. 30 Here, she has clearly taken a political stand in support of one of the sides to the conflict. Third, the Prosecutor, and subsequently the majority judges, disregarded the division of powers determined in the Oslo Agreements between Israel and the PLO. Jurisdiction in these Agreements – which established the Palestinian Authority – is clearly limited so that it does not cover Israelis, Area C, in which all settlements are located, and East Jerusalem, which was outside the scope of these Agreements altogether. Therefore, even if one accepts that “Palestine” is a State that can confer jurisdiction to the Court, then, as Judge Kovács rightfully asserted, the jurisdiction of the ICC would be subject to these limitations. One of the basic tenets of the ICC is that it derives its authority from that shared with it by the State Parties, which is limited to the authority they possess. The Court's territorial jurisdiction cannot cover offenses over which the Palestinian Authority has no jurisdiction. By ignoring this, the decision of the Chamber undermines the basic principles on which the Court is based. To summarize, there are powerful counterarguments to the position that the ICC has jurisdiction over this situation. As mentioned, the PTC stated in its decision that its conclusions pertain to the current stage of the proceedings, namely the initiation of an investigation by the Prosecutor. Therefore, if proceedings are opened against individuals for allegedly committing war crimes in the territories of “Palestine,” the suspects will be able to raise claims regarding the lack of territorial jurisdiction in later stages too. While the current Prosecutor, Fatou Bensouda, clearly will not change her mind on this issue, she is due to be replaced in June 2021 by Adv. Karim Khan from the UK. 31 Adv. Khan has the authority to reconsider the conclusion that the ICC has jurisdiction in this case, and indeed, it is highly hoped that he does so. n Col. (res.) Adv. Pnina Sharvit Baruch is a senior researcher and head of the Program on Law and National Security at the Institute for National Security Studies. She served as head of the International Law Department at the IDF, where she was responsible for advising on the law of armed conflict. She participated in the Israeli delegations for the peace negotiations with the Palestinians and with Syria. Adv. Sharvit taught courses on international law and conflict resolution at Tel Aviv University and in the IDF’s National Defense College. 30. Supra note 12, p. 75. 31. Press Release, ICC, “Assembly of States Parties concludes the second resumption of its nineteenth session” (Feb. 12, 2021), available at https://www.icc-cpi.int/Pages/item. aspx?name=pr1567