42 No. 73 JUSTICE Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” The Court, however, did not rule on, and explicitly left open the jurisdictional issues relating to the Oslo Accords. It stated: When the Prosecutor submits an application for the issuance of a warrant of arrest or summons to appear under article 58 of the Statute, or if a State or a suspect submits a challenge under article 19(2) of the Statute, the Chamber will be in a position to examine further questions of jurisdiction which may arise at that point in time.14 Nevertheless, after Israel submitted such a jurisdictional challenge, the Court summarily denied it, noting that “States are not entitled under the Statute to challenge jurisdiction of the Court on the basis of Article 19 prior to the issuance of a warrant of arrest or a summons.”15 Article 19(1) of the Rome Statute provides, in part, that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it.” Pre-Trial Chambers have consistently relied upon Article 19(1) to hold that an initial determination as to whether the case falls within the jurisdiction of the Court is a prerequisite for the issuance of warrants of arrest.16 Because Israel is not a party to the Rome Statute and has not consented to this Court’s jurisdiction regarding the Situation in Palestine, absent a UN Security Council referral, the only way for the Court to obtain jurisdiction over Israeli nationals pursuant to Article 12 of the Rome Statute would be through a valid delegation of such jurisdiction from the State of Palestine.17 For the delegation of powers to be valid, the delegating state must possess the jurisdiction that it purports to delegate. As the Court held in the Myanmar case, “the drafters of the Statute intended to allow the Court to exercise its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which States Parties would be allowed to assert jurisdiction over such crimes under their legal systems”18 [emphasis added]. Palestine, however, does not have jurisdiction over Israeli nationals for acts alleged to have been committed in the Gaza Strip because Palestine explicitly waived jurisdiction over Israeli nationals in two separate provisions of the Oslo II agreement: first, Article XVII.2.c provides, in pertinent part: “the territorial and functional jurisdiction of the [Palestinian] Council will apply to all persons, except for Israelis, unless otherwise provided in this Agreement” [emphasis added]. Second, Article I.2.b of Annex IV (Protocol Concerning Legal Affairs) provides that “Israel has sole criminal jurisdiction over . . . offenses committed in the Territory [West Bank and Gaza Strip] by Israelis” [emphasis added]. Palestine therefore lacks jurisdiction over any alleged crimes committed by Netanyahu and Gallant in the Gaza Strip. Thus, Palestine could not delegate to the ICC jurisdiction which Palestine did not possess in the first instance.19 14. ICC-01/18-143, Pre-Trial Chamber I, Decision on the Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ¶ 131 (Feb. 5, 2021). 15. ICC-01/18, Pre-Trial Chamber I, Decision on Israel’s challenge to the jurisdiction of the Court pursuant to article 12(2) of the Rome Statute (Nov. 21, 2024). 16. The Prosecutor v. Ahmad Harun, ICC-02/05-01/07-1Corr, Pre-Trial Chamber I, Decision on the Prosecution Application under Article 58(7) of the Statute, ¶ 13 (April 27, 2007); see also, e.g., The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-1-Corr-Red, Pre-Trial Chamber I, Decision on the Prosecutor’s Application for a warrant of arrest, Article 58, ¶ 18 (Feb. 10, 2006); see also reclassified as public, para. 18; ICC-01/11-12; Pre-Trial Chamber I, Decision on the Prosecutor's Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Alsenussi, public, ¶ 6-10 (June 27, 2011). 17. Most scholarly commentators view the Court’s jurisdiction over nationals of non-consenting and/or non-party states under Article 12 of the Rome Statute as based on the delegation theory, under which State parties to the Rome Statute may delegate to the Court jurisdiction they otherwise possess over crimes committed by nationals of non-state parties. See Cormier, supra note 10, at 36-70; see also Todd Buchwald, “International Criminal Court and the Question of Palestine's Statehood: Part II, ” JUSTSECURITY (Jan. 23, 2020), available at https://www.justsecurity.org/68227/ international-criminal-court-and-the-question-ofpalestines-statehood-part-ii/ (“It has been taken as fundamental that the Court operates on the basis of jurisdiction that only States can delegate.”) 18. ICC-RoC46(3)-0l/18-37, Decision on the Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ¶ 70 (Sept. 6, 2018). 19. Cormier concedes that Palestine cannot delegate jurisdiction to the Court so long as Palestine remains bound by the Oslo Accords. See Cormier, supra note 10, at 111.
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