34 No. 73 JUSTICE an investigation and provide an explanation if he/she refuses to do so (which can then be challenged before the Court). In its referral, Palestine specifically requested the Court to investigate Israeli practices in the West Bank, including administrative detentions and settlement construction. In 2019, the then Prosecutor, Fatou Bensouda (who had previously refused to open an investigation relating to the 2010 Flotilla incident off the shores of Gaza, brought before the Court by Comoros – the flag state of one of the flotilla ships), decided to move toward opening a criminal investigation into violations of international law from 2014 onwards. This decision was based on her four-year preliminary examination of the situation, during which she had looked into the various allegations made by different stakeholders. The investigation was supposed to focus on rocket launches by Hamas towards Israeli civilians, excessive use of force by the IDF during the 2014 conflict in Gaza, Israel’s West Bank settlement policy, and possible violations by Israel regarding the demonstrations on the Gaza border in 2018 (dubbed by Palestinians as the “Great March of Return”). The upshot of her decision was that the Palestinians finally succeeded in persuading the ICC Prosecutor to launch a criminal investigation into Israel’s conduct. Stage Three While she decided to open an investigation, Prosecutor Bensouda was still quite careful in the manner by which she proceeded. She knew the Palestine situation would raise unique legal problems – specifically, whether Palestine is a state for all means and purposes, and whether the Oslo Accords limit the power of the Court to adjudicate certain cases. While, as mentioned, Palestine was accepted as a state party to the Rome Statute, Israel and several other states – including some Member States of the Rome Statute – still do not recognize Palestine as a state, and it is questionable whether Palestine meets traditional international law tests for statehood. In addition, there remains the question of the impact of the Oslo Accords on the Court’s jurisdiction. This seems to be a technical matter, but it actually raises a fundamental issue in international criminal law that goes to the legal theory underlying the creation of the International Criminal Court: Is this a court whose jurisdiction emanates from above – that is, from the fact that it represents the voice of the international community, resulting in every Member State being able to trigger its jurisdiction when certain procedural requirements are met; or does jurisdiction come from below, through acts of delegation of the legal authority held by different state parties? The concrete argument Israel and other intervenors made at different stages of the litigation was that Palestine could not delegate to the Court more power than it actually had. Since the Oslo Accords, which were concluded in the first half of the 1990s, established the Palestinian Authority as a legal entity with limited powers – including the power to govern parts of the occupied territories and to exercise criminal jurisdiction over Palestinians, but not over Israeli nationals, the question is whether it could delegate to the Court the legal authority that it never had to introduce criminal proceedings against Israeli nationals. The previous Prosecutor was concerned about the possibility that these legal issues would complicate the case going forward. She therefore resorted to an exceptional procedure that exists under the Rome Statute, Article 19, Paragraph 3, before taking the next step of formally launching an investigation and considering whether to request the issuance of arrest warrants. She requested the Court at an early stage of the proceedings to weigh in on questions of jurisdiction. The idea underlying the invocation of this procedure was that before proceeding further with the case, she would have before her the Court’s position on its scope of jurisdiction. In February 2021, the Pre-Trial Chamber (which had a different composition than the current Pre-Trial Chamber), issued a 2-1 decision holding that the Court does have jurisdiction to review the Palestine situation on the basis of Palestine’s membership in the Rome Statute. In that regard the Court took the position that it does not need to decide whether Palestine is a state for all purposes in international law. This is not its function as a criminal court. Still, it can safely rely for jurisdictional purposes on the United Nations Resolution accepting Palestine as an observer state (Resolution 67/19) and on the acceptance by the Assembly of State Parties of Palestine to the Rome Statute. As a result, the majority of the Pre-Trial Chamber Court opined that, as far as the investigation involves alleged crimes committed in the territory of Palestine (which the Court – following the UN – considered to include the West Bank, East Jerusalem and the Gaza Strip), it can continue. Still, on the question of the impact of the Oslo Accords there was a split among the three judges who reviewed the case. The dissenting judge, Judge Kovacs (from Hungary), accepted the challenge to jurisdiction and took the position that the Court does not have jurisdiction over Israeli nationals by virtue of the Oslo Accords that restricted the legal power of the Palestinian Authority
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