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“Situation in Palestine” (Int'l Crim. Ct. Pre-Trial Chamber)

Published online by Cambridge University Press:  24 June 2021

Anne Bayefsky*
Affiliation:
Anne Bayefsky is Professor and Director of the Touro Institute on Human Rights and the Holocaust, and Professor Emeritus, York University.

Extract

On February 5, 2021, the Pre-Trial Chamber (PTC) of the International Criminal Court (ICC) delivered its decision on territorial jurisdiction in the “Situation in Palestine.” The result reflects the controversy surrounding the process and the merits: a divided bench, with a Minority decision three times the length of that of the Majority. The outcome marked the culmination of sustained attempts by Palestinians and their supporters over more than two decades to engage the ICC, beginning with contentious negotiations preceding the vote on the Rome Statute at the Rome Conference and including three preliminary examinations, the third of which concluded with this decision. The Rome Statute, adopted by vote on July 17, 1998, included elements that negotiators acknowledged had never appeared before in international law, and were directed at an Israeli target. For this reason, in large part Israel, which had long supported the principle of an international criminal court, chose not to become a state party to the Statute or to participate in the proceedings.

Type
International Legal Documents
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of The American Society of International Law

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References

1 Situation in the State of Palestine, ICC-01/18-143 (Majority), ICC-01/18-143-Anx1 (Partly Dissenting Opinion of Judge Péter Kovács), ICC-01/18-143-Anx2 (Partly Separate Opinion of Judge Perrin de Brichambau), Decision on ‘the Prosecution request pursuant to article 19(3) for a ruling on the Court's territorial jurisdiction in Palestine,’ Pre-Trial Chamber I, International Criminal Court, (Feb. 5, 2021) [hereinafter Majority or Kovács].

2 Mahnoush H. Arsanjani, The Rome Statute of the International Criminal Court, 93 Am. J. Int'l L. 22, 36 (1999); Philippe Kirsch & John T. Holmes, The Rome Conference on an International Criminal Court: The Negotiating Process, 93 Am. J. Int'l L. 2, 10, 11 n. 34 (1999). Arsanjani was the Secretary of the Committee of the Whole of the Rome Conference, and a Senior Legal Officer in the UN's Office of Legal Affairs.

3 David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 205 (2011); Herman von Hebel, Article 8(2)(b)(viii), in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 159 (Roy S. Lee ed., 2001); Herman von Hebel & Darryl Robinson, Crimes Within the Jurisdiction of the Court, in The Making of the Rome Statute 113 (Roy S. Lee ed., 1999).

4 G.A. Res. 489(V), International Criminal Jurisdiction (Dec.12, 1950).

5 Statement by Judge Eli Nathan Head of the Delegation of Israel, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 9th Plenary Meeting (July 17, 1998), https://mfa.gov.il/MFA/AboutIsrael/State/Law/Pages/Judge%20Eli%20Nathan%20at%20UN%20Diplomatic%20Conference%20of%20Pl.aspx.

6 Rome Statute of the International Criminal Court, 2187 U.N.T.S. 90, Art. 53(1) [hereinafter Rome Statute].

7 Situation in the State of Palestine, ICC-01/18-12, Prosecution request pursuant to article 19(3) for a ruling on the Court's territorial jurisdiction in Palestine, [For procedural reasons, the original request dated Dec. 20, 2019 was refiled], (Jan. 22, 2020), ¶ 36 [hereinafter Prosecutor's Request].

8 Thirty-three from individuals and organizations granted permission to file (including the present author on behalf of the Touro Institute on Human Rights and the Holocaust), one from the ICC's Office of Public Counsel for Victims, one from the ICC's Office of Public Counsel for the Defence, seven from states (Australia, Austria, Brazil, Czech Republic, Germany, Hungary, Uganda), one from the Organization of Islamic Cooperation (OIC), one from the Arab League, nine from the representatives of victims, and one from the “State of Palestine.” Subsequently, the PTC also requested and received additional information from the “State of Palestine” concerning the Oslo Accords; The “State of Palestine's” response to the Pre-Trial Chamber's Order requesting additional information, (June 4, 2020), https://www.icc-cpi.int/CourtRecords/CR2020_02277.PDF.

9 Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine, International Criminal Court (Mar. 3, 2021), https://www.icc-cpi.int/Pages/item.aspx?name=210303-prosecutor-statement-investigation-palestine.

10 ICC jurisdiction for “acts committed on the territory of Palestine since 1 July 2002” – ICC Prosecutor declaration, Office of the Prosecutor of the International Criminal Court (Apr. 3, 2012),https://www.icc-cpi.int/nr/rdonlyres/c6162bbf-feb9-4faf-afa9-836106d2694a/284387/situationinpalestine030412eng.pdf.

11 Referral of “the Union of the Comoros” under Articles 14 and 12(2)(a) of the Rome Statute arising from the May 31, 2010, Gaza Freedom Flotilla situation (May 14, 2013), https://www.icc-cpi.int/iccdocs/otp/Referral-from-Comoros.pdf; Decision on the Request for Leave to Appeal the “Decision on the ‘Application for Judicial Review by the Government of the Comoros’,” Decision by the Pre-Trial Chamber of the International Criminal Court, (Dec. 21, 2020), https://www.icc-cpi.int/CourtRecords/CR2020_07650.PDF.

12 Report of the detailed findings of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/CRP.4 (June 23, 2015), ¶ 503, http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoIGaza/A_HRC_CRP_4.doc; Noah Browning, Senior Hamas official says group abducted Israeli teens, Reuters (Aug. 21, 2014), https://www.reuters.com/article/us-mideast-gaza-kidnapping/senior-hamas-official-says-group-abducted-israeli-teens-idUSKBN0GL0YQ20140821.

13 Palestine Article 12(3) Declaration Accepting the Jurisdiction of the International Criminal Court (Dec. 31, 2014), http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf (filed Jan. 1, 2015).

14 C.N.13.2015.TREATIES-XVIII.10 (Depositary Notification), Rome Statute of the International Criminal Court, Accession of State of Palestine, https://treaties.un.org/doc/Publication/CN/2015/CN.13.2015-Eng.pdf. The “State of Palestine” was said to have acceded to the Rome Statute on January 2, 2015, and the depositary notification was deposited and transmitted on January 6, 2015.

15 C.N.63.2015.TREATIES-XVIII.10 (Depositary Notification), Rome Statute of the International Criminal Court, Communication (Jan. 23, 2015), Israel, https://treaties.un.org/doc/Publication/CN/2015/CN.63.2015-Eng.pdf; C.N.64.2015.TREATIES-XVIII.10 (Depositary Notification), Rome Statute of the International Criminal Court, Communication (Jan. 23, 2015), United States, https://treaties.un.org/doc/Publication/CN/2015/CN.64.2015-Eng.pdf; C.N.57.2015.TREATIES-XVIII.10 (Depositary Notification), Rome Statute of the International Criminal Court, Communication (Jan. 23, 2015), Canada, https://treaties.un.org/doc/Publication/CN/2015/CN.57.2015-Eng.pdf.

16 The Prosecutor of the International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine, International Criminal Court, (Jan. 16, 2015), https://www.icc-cpi.int/Pages/item.aspx?name=pr1083&ln=en.

17 Referral from the State of Palestine pursuant to articles 13(a) and 14 of the Rome Statute (May 22, 2018), https://www.icc-cpi.int/RelatedRecords/CR2018_02690.PDF.

18 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, https://www.icc-cpi.int/CourtRecords/CR2020_00161.PDF, together with Public Annex A, ICC-01/18-12-AnxA, https://www.icc-cpi.int/RelatedRecords/CR2020_00162.PDF, ¶¶ 94, 95. For procedural reasons, the original request dated December 20, 2019, was refiled on January 22, 2020.

19 From September 2014 to September 2018, the Israeli-based NGO, Shurat Hadin, filed ten communications with the OTP relating to, amongst others, Mahmoud Abbas (President of the Palestinian Authority), Majid Faraj (head of the Palestinian General Intelligence Agency), Jibril Rajoub (deputy secretary on the Central Committee of FATAH), and Rami Hamdallah (who served as Prime Minister and Minister of the Interior of the Palestinian Authority). Letter from Shurat Hadin to Head of the Independent Oversight Mechanism, International Criminal Court (Jan. 18, 2021), https://israellawcenter.org/wp-content/uploads/2021/05/letter-to-the-oversight-mechanism-final.pdf.

20 Majority, ¶ 98.

21 Id. ¶¶ 99–100.

22 Id. ¶¶ 102, 103, 109, 112.

23 Id. ¶ 108.

24 Id. ¶ 102, 103, 106, 111.

25 Id. ¶ 193.

26 Id. ¶ 111.

27 Id. ¶ 102, 106.

28 Id. ¶¶ 116–118.

29 Id. ¶¶ 119, 122, 123.

30 Id. ¶¶ 88, 110.

31 Id. ¶¶ 128–129.

32 The primary agreements included the following: the 1993 Declaration of Principles on Interim Self-Government Arrangements (DOP or Oslo I), the 1994 Gaza-Jericho Agreement, the 1995 Interim Agreement (Oslo II), the 1997 Hebron Protocol, the 1998 Wye River Memorandum and the 1999 Sharm el-Sheikh Memorandum, Yoram Dinstein, The International Law of Belligerent Occupation 20 (2d ed. 2019) ¶ 54.

33 Majority, ¶ 129.

34 Kovács, ¶¶ 34, 36, 37, 49 ff.

35 Id. ¶¶ 48, 49, 50, 53.

36 Id. ¶ 61; see also ¶¶ 55–58.

37 Id. ¶¶ 67-71.

38 “a State in statu nascendi,Id. ¶¶ 11,15, 267, 323.

39 Patricia O'Brien, Under-Secretary-General for Legal Affairs, Legal Counsel, Interoffice Memorandum, “Issues related to General Assembly resolution 67/19 on the status of Palestine to the United Nations,” (Dec. 21, 2012), https://palestineun.org/wp-content/uploads/2013/08/012-UN-Memo-regarding-67-19.pdf.

40 Kovács, Annexes 1 and 2, pp. 155–163.

41 Id. ¶ 224ff.

42 Id. ¶ 261.

43 Id. ¶¶ 6–11, 93, 270.

44 Id. ¶¶ 279, 322.

45 Rome Statute, Art. 12(2)(a).

46 Kovács, ¶ 278.

47 Id. ¶¶ 271, 277–279.

48 Id. ¶¶ 348, 366.

49 Id. ¶¶ 370–371.

50 Id. ¶¶ 330, 372.

51 Id. ¶¶ 88, 91.

52 Majority, ¶ 131.

53 Id. ¶ 129.

54 Id. ¶ 56.

55 Kovács, ¶ 3.

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