After Five Years the Prosecutor of the International Criminal Court Finally Advances the Situation of Palestine from Preliminary Examination to the Pre-Trial Chamber for questions on Territorial Jurisdiction
Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan) and the Palestinian Center for Human Rights (PCHR) (hereafter the organizations) welcome, albeit with some reservations, the development from the Office of the Prosecutor, to finally progress the Situation of Palestine, and submit the question of territorial jurisdiction to the Pre-Trial Chamber of the International Criminal Court (ICC). The Situation of Palestine has been stalled for five years in preliminary examination, despite the Office of the Prosecutor having received over 125 communications pursuant to Article 15 of the Rome Statute.  By 2016, the Office had “produced a comprehensive database of over 3,000 reported incidents and crimes that allegedly occurred during the 2014 Gaza conflict” which even at this point, must have indicated a reasonable basis to proceed.
Today, 20 December 2019, marks over ten years since political representatives from the Government of Palestine on 21 January 2009, signed an Article 12(3) declaration submitting the occupied Palestinian territory to the jurisdiction of the ICC. The declaration following at the time, the most heinous Israeli military assault on the Gaza Strip, killing 1,409 Palestinians, including 1,172 civilians of which 342 were children. In April 2012, after three-years of silence from the Office of the Prosecutor, a mere two-page statement was issued, declining Palestine’s Article 12(3) declaration, on the basis that it was unclear whether Palestine was a State. In the meantime, Israel continued its colonization of Palestine and military offensives on the Gaza Strip, with so-called Operation Protective Edge in 2014, killing 2,219 Palestinians, including 1,545 civilians of which 550 were children, in 51-days of heavy Israeli bombardments and shelling of densely populated civilian Palestinian areas.
However, since Palestine’s well-publicized recognition as a non-member observer State to the United Nations (UN) under General Assembly Resolution 67/19 in 2012, these issues have largely been put to rest. It must be noted, that even prior to recognition as a non-member UN observer State, Palestine was recognized by over 130 governments in their bilateral relations as a State. In the meantime, Palestine has acceded to the Rome Statute, became a member of the Assembly of States Parties of the International Criminal Court, acceded without reservation to seven international human rights treaties and four Optional Protocols, and has to date submitted two State reports to the Committee on the Elimination of Discrimination Against Women (CEDAW), and to the Committee on the Elimination of Racism (CERD). While the deposit by the State of Palestine of instruments of ratification to over 60 international treaties has been met with little objection by the international community of States, including declarations on maritime delimitation.
Further, on 28 September 2018, the State of Palestine instituted contentious proceedings against the United States of America before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, with respect to a dispute concerning alleged violations of the Vienna Convention on Diplomatic Relations of 18 April 1961. And in December 2019, the United Nations Committee for the Elimination of Racial Discrimination, affirmed jurisdiction over the inter-state communication submitted by the State of Palestine against Israel for its failures and breaches under the Convention for the Elimination of All Forms of Racial Discrimination.
Notwithstanding, in her recent December 5th ‘Report on Preliminary Examination Activities 2019’, the Office of the Prosecutor, outlined that the situation in Palestine “raised a number of unique challenges” and that before coming to a determination under Article 53(1)(a), the issue of “exercise of territorial jurisdiction by the Court” would need to be resolved.  This echoed the previous 2018 Report from the Office of the Prosecutor on Preliminary Examination Activities, which again cautioned that the “situation in Palestine has raised specific challenges relating to both factual and legal determinations”.  In respect of the latter, the Court would consider challenges to the Courts jurisdiction and the “scope of any such jurisdiction”. In 2017, the Office of the Prosecutor, declared that “during the reporting period, the Office has continued to consider relevant submissions and other available information on issues pertaining to the exercise of territorial and personal jurisdiction by the Court in Palestine.”
Despite this welcome development, our organisations question why the Office of the Prosecutor delayed for so many years in addressing such a seemingly integral question on territorial jurisdiction, especially as it was raised year after year since 2015, in each OTP Report on Preliminary Activities. More precisely, the examination of preconditions to the exercise of jurisdiction, is usually considered a “first stage” issue in preliminary examinations, and it is questionable why now, after five years, and after the Office of the Prosecutor had progressed by 2018 to “an advanced stage of its assessment of statutory criteria for a determination”, the question of territorial jurisdiction has only now come to the fore? Further, our organisations note with concern, that since the State of Palestine referral in 2018, the Prosecutor had full competence to proceed to investigation, without any need to seek the authorization of the Pre-Trial Chamber and should have done so, with confidence and without delay.
We submit that the questions posed to the PTC hark back to an earlier less palatable era. In November 2009, Al-Haq was informed by the then representatives from the Office of the Prosecutor that “complex legal issues” needed to be resolved, such as whether “the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the Court meets the necessary statutory requirements.” In December 2019, at the launch of the 2019 Report, Prosecutor Fatou Bensouda again informed that there were outstanding “complex” issues, which needed to be resolved in relation to the Palestine situation. At this level, it hardly needs pointing out that territories under occupation, retain full sovereignty, which is merely temporarily de facto suspended and during which time, the Occupying Power exercises limited rights of administration over the territory and does not have rights of sovereignty. To deduce otherwise, would mean that every Occupying Power, has in fact annexed the territories that they occupy, a position inconsistent with basic jus cogens principles prohibiting acquisition of territory through use of force. Meanwhile, the occupied population, maintain rights of self-determination and permanent sovereignty over national and natural resources.
In terms of the territory of the State of Palestine, it is well established that the territories occupied since 1967, are the territories beyond the Green Line. In fact, according to the State of Palestine, “the June 4, 1967 border, also known as green line, is the internationally recognized border between the occupied Palestinian territory (i.e. West Bank, including East Jerusalem, and Gaza Strip) and the State of Israel.” In this vein, United Nations Security Council Resolution 2334 (2016) calls on States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. The resolution which is internationally legally binding, further states that the “establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”. This position is supported by numerous international findings including inter alia the United Nations Commission of Inquiry, the Secretary General’s Fact Finding Mission, UNESCO, and the Advisory Opinion of the International Court of Justice where the ICJ concluded, “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law. In addition to this, Palestine’s reports to the UN Treaty-Monitoring Bodies under the core human rights treaties that Palestine acceded to in 2014 cover all of the occupied territory since 1967 including area C, where Israeli settlements are located, in spite of the fact that this area is under Israel’s full control.
While the Oslo Accords provided for Israel’s temporary territorial jurisdiction over the settlements and functional jurisdiction over settlers, sovereignty still vested de jure in Palestine. The temporary five-year arrangement under Oslo in no way negates the underlying illegality of the settlement enterprise, constructed on public and private lands unlawfully appropriated from Palestinians, the destruction of Palestinian properties, forcible transfer of the protected Palestinian population and unlawful transfer in of nationals of the Occupying Power, thereby altering the demography of the occupied territory to manipulate a Jewish majority, while erasing Palestinian presence. As such, the Oslo Accords were a temporary administrative measure, implemented for what was intended to be a five-year transitional period, which ended in 1999. In addition, many of the provisions concluded between the PLO and Israel, violate provisions of the Geneva Conventions, and these agreements are therefore in breach of Article 47 of the Fourth Geneva Convention, which alongside Articles 7 and 8 of Fourth Geneva Convention, protect the occupied population from special agreements concluded between the Occupying Power and their political representatives in breach of minimum rights enshrined in the Geneva Conventions, including the annexation of occupied territory.
Further, Palestinian President Mahmoud Abbas has publicly confirmed that the Oslo Accords are no longer binding given Israel’s bad faith in failing to conclude the peace process and transition power to Palestine in the five year transitional phase, now over a quarter of a century ago. Following this, in 2019 the Palestinian Ministry of Local Government issued a circular calling on all local authorities to exercise their powers and responsibilities in all areas of the occupied territory, regardless of artificial Israeli imposed classifications regarding Areas A, B and C. This included plans by the Palestinian Authority to progress the issuing of building permits to Palestinians in all parts of the occupied territory, now considered under full Palestinian jurisdiction.
After 71 years of continuing Nakba and 52 years of military occupation, the time has come to end impunity for Israel’s war crimes and crimes against humanity committed in the furtherance of its aggressive colonization of Palestinian territory. We remind the PTC, that the starting point in Palestine, unlike other contexts, is the framework of belligerent occupation under the Hague Regulations and Fourth Geneva Convention, which regulates Israel’s control and administration of the territory. To reiterate, Israel does not have sovereign authority, but de facto administrative authority premised on actual and potential effective control in terms of military presence and substitution of authority, in the areas beyond the Green Line. While states’ jurisdiction is primarily territorial, Israel, the Occupying Power, exercises extra-territorial jurisdiction in the occupied Palestinian territory for purposes related to the protection of the occupied population due to the fact that the area is under its temporary control and military occupation. This does not in any way give Israel sovereign rights over the territory. As such, the PTC examination of the question of territorial jurisdiction in the Situation of Palestine is a redundant and moot point, amounting to an unnecessary delay in the progression of the situation to full investigation.
Al-Haq, Al-Mezan and PCHR continue to support the work of the International Criminal Court, as the only avenue for Palestinians to secure justice for Israel’s criminal breaches of international law. Our organisations maintain that only through justice will there be peace in Palestine. On behalf of the Palestinian victims that we represent, we urge in the interests of justice, that an impartial and transparent investigation is opened without delay, where the senior Israeli politicians and military commanders who through their policies and plans have perpetrated grave crimes against the Palestinian people, are held to account
 Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
 The Office of the Prosecutor, “Report on Preliminary Examination Activities 2016” para 138, available at: https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf
 Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018), para. 268, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
 Office of the Prosecutor, “Report on Preliminary Examination Activities 2017” (4 December 2017), para. 72, available at: https://www.icc-cpi.int/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf
 International Criminal Court, “Situation in Palestine” (3 April 2012) para 3, available at: https://www.icc-cpi.int/NR/rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG.pdf
 Office of the Prosecutor, “Report on Preliminary Examination Activities 2018” (5 December 2018) para. 282, available at: https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf
 A/HRC/40/CRP.2, “Report of the detailed findings of the independent international Commission of inquiry on the protests in the Occupied Palestinian Territory” para. 138.
 Decision : 43 COM 7A.29 Hebron/Al-Khalil Old Town (Palestine) (C 1565), “Deplores the ongoing Israeli excavations, works, construction of private roads for settlers and of a Wall inside the Old City of Al-Khalil/Hebron which are illegal under international law and harmfully affect the authenticity and integrity of the site, and the subsequent denial of freedom of movement and freedom of access to places of worship and asks Israel, the occupying Power, to end all violations which are not in conformity with the provisions of relevant UNESCO conventions, resolutions and decisions.”
 “Legal Consequences of the Construction of a Wall In the Occcupied Palestinian Territory Advisory Opinion Of 9 July 2004” I. C.J. Reports 2004, p. 136, para. 120, available at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf