(NB An Amicus Curiae is “A non-party with an interest in the outcome of a pending lawsuit who argues or presents information in support of or against one of the parties to the lawsuit.”)
The International Court of Justice (ICJ) submitted Amicus Curiae Observations to the International Criminal Court (ICC) in March 2020 claiming that the ICC has the competency to exercise jurisdiction over Palestine, including the West Bank, East Jerusalem, and Gaza. This would make the ICC capable of receiving and judging cases of international crimes that occur within the Palestinian State as well as crimes committed by Palestinian nationals.
BACKGROUND TO THE SUBMISSIONS BY THE ICJ
The ICJ’s Amicus Curiae Observations were made as a response to the ICC Prosecutor’s request, in which the Prosecution’s Office questions if the territory over which the ICC may exercise its jurisdiction according to Article 12(2)(a) of the Rome Statute, the ICC’s founding document, includes the Occupied Palestinian Territory.
On 1 January 2015, the Government of Palestine lodged a declaration accepting the jurisdiction of the ICC over alleged crimes committed in the occupied Palestinian territory, including East Jerusalem, since 13 June 2014. Palestine acceded to the Rome Statute on 2 January 2015 with the ICC instrument entering into force on 1 April 2015. Although the Prosecution’s Office concluded that all statutory criteria for the opening of an investigation had been met under the Rome Statute, questions had been raised over the scope of the territorial jurisdiction, which prompted the Prosecutor’s Request on 20 December 2019.
THE ICJ ARGUMENT FOR ICC JURISDICTION
Said Benarbia, the ICJ’s MENA Programme Director, has affirmed that “Palestine is a State under international law, satisfying recognized international law criteria for statehood, displaying and effectively exercising State authority over parts of the Palestinian territory and demonstrating capacity to enter into relations with other sovereign States and exercise treaty-making powers”. Kate Vigneswaran, the ICJ’s MENA Programme Senior Legal Adviser, has stated that: “The Court can and should exercise jurisdiction over all individuals responsible for crimes under the Rome Statute committed in the Palestinian territory, irrespective of the nationality of the accused or the victims.”
In summary, the ICJ concluded that “The decades long belligerent occupation of Palestine has no legal effect on the validity of its claim to sovereignty and statehood.” The top UN court stated that Palestine successfully acceded, and is a State Party, to the Rome Statute. It outlined that the ICC should accordingly exercise its jurisdiction over Palestine as it does in respect of any other State Party. The ICJ argued that Palestine is a State under international law, having satisfied the international legal criteria for statehood, being that it has displayedState activity and has engaged, and is capable of engaging, in diplomatic relations with other sovereign States. Finally, it stated that the Palestinian Territory over which the ICC should exercise jurisdiction comprises the West Bank, East Jerusalem, and Gaza.
CONSEQUENCES IF THE ICJ’S OBSERVATIONS ARE CONFIRMED
If there is a confirmation that the jurisdiction of the ICC also includes the OccupiedPalestinian Territories, the ICC will be able to investigate and provide a judgment on cases of crimes of genocide, crimes against humanity, and war crimes committed within the all the Palestinian territory – including the West Bank, East Jerusalem, and Gaza - by persons of any nationality and over Palestinians who commit serious crimes anywhere in the world. The ICC’s Pre-Trial Chamber I is yet to make a final decision on the matter.
Victoria has a bachelor’s degree in law from Pontifícia Universidade Católica de São Paulo, an LLM in European and Global Law from Pompeu Fabra University in Barcelona and is now pursuing a MA in Human Rights at the University of Vienna. She is also enthusiastic about international humanitarian and criminal law.