Dov Jacobs and Joshua Kern file Amicus Brief at the ICC in the "Situation of Palestine"

23 March 2020

On 16 March 2020, Dov Jacobs and Joshua Kern, instructed by Daniel Reisner of the IJL (International Association of Jewish Lawyers and Jurists), filed an Amicus Brief at the International Criminal Court (ICC), following the Prosecutor's 22 January 2020 Request for an Article 19(3) jurisdictional ruling in the "Situation of Palestine".

In its Request, the Office of the Prosecutor announced that it was ready to conclude its Preliminary Examination into the situation and open a formal investigation. However, before proceeding further the OTP deemed it necessary to obtain a ruling from the Pre-Trial Chamber on whether the territorial precondition to the exercise of jurisdiction under Article 12(2)(a) was satisfied.

The Prosecutor's Request raises fundamental questions about Palestinian statehood and territory and the process has seen an unprecedented number of Amicus submissions, over 40, from a number of perspectives (diplomatic, academic, historical, legal), including from six ICC States Parties (Germany, Brazil, Australia, Czech Republic, Uganda and Hungary), who all oppose the opening of an investigation in the situation.

In its amicus observations, the IJL provides the Pre-Trial Chamber with a number of insights which are necessary to assess the Prosecutor's claims. The IJL observes that the Prosecutor does not convincingly prove that, despite acknowledging that Palestine is not currently a State under generally recognised principles of statehood under international law, Palestine should be considered a State for the purposes of the Rome Statute.

In particular, the observations explain why determining that Palestine is a State under general international law is a requirement both for determining whether it could validly join the Rome Statute and for determining whether the territorial precondition to the exercise of jurisdiction is met under Article 12(2)(a) of the Rome Statute.

The IJL challenges the Prosecutor understanding of the effects of the Oslo Accords, both on the Palestinian capacity to claim any exclusive sovereign title over the disputed territory and on its capacity to delegate prescriptive (as well as adjudicative and enforcement) criminal jurisdiction over the territory to the ICC.

Finally, the IJL notes that the Prosecutor cannot rely on Palestine's 2018 Referral to open an investigation without Pre-Trial Chamber authorisation for the period pre-dating Palestine’s purported accession to the Rome Statute on 1 April 2015. In the absence of such authorisation, the ICC is not permitted to exercise jurisdiction over this period.

More generally, the IJL highlights the OTP's overreliance on pronouncements from political bodies, such as the United Nations General Assembly, on a number of crucial issues and its corresponding refusal to engage in an autonomous legal and factual assessment of the Situation.

The full submission can be read here.

While the IJL submission focused on these particular issues per the instructions issued by the Pre-Trial Chamber, it pointed out in its 14 February Request for leave to submit observations that the "OTP has also included in its Request its summary evaluation of whether Article 53(1)’s criteria for opening an investigation are satisfied" and that "the OTP’s cursory evaluation of these criteria warrants further discussion on a number of points (be they the potential exercise of personal jurisdiction against nationals of non-States Parties, the admissibility of the Situation under Article 17, and/or issues concerning the interests of justice)." The IJL also questioned the propriety of the use of the Article 19(3) procedure in the current situation.

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