ICC Prosecution Request on Palestine Territorial Jurisdiction PDF

ICC OTP, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine (22 January 2020). 1. The Prosecutor opened a preliminary examination of this situation on 16 January 2015, shortly after Palestine had accepted the jurisdiction of the Court for...

ICC OTP, Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine (22 January 2020). 1. The Prosecutor opened a preliminary examination of this situation on 16 January 2015, shortly after Palestine had accepted the jurisdiction of the Court for alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014”. Having acceded to the Statute, Palestine subsequently also referred this situation to the Prosecutor on 22 May 2018 (“Referral”), specifying that “[t]he State of Palestine comprises the Palestinian Territory occupied in 1967 by Israel, as defined by the 1949 Armistice Line, [which] includes the West Bank, including East Jerusalem, and the Gaza Strip”. … 5. However, notwithstanding her own view that the Court does indeed have the necessary jurisdiction in this situation, the Prosecutor is mindful of the unique history and circumstances of the Occupied Palestinian Territory. Indeed, it is no understatement to say that determination of the Court’s jurisdiction may, in this respect, touch on complex legal and factual issues. Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed. The West Bank and Gaza are occupied and East Jerusalem has been annexed by Israel. The Palestinian Authority does not govern Gaza. Moreover, the question of Palestine’s Statehood under international law does not appear to have been definitively resolved. Although the Prosecutor is of the view that the Court may exercise its jurisdiction notwithstanding these matters, she is aware of the contrary views. Consequently, in order to seek judicial resolution of this matter at the earliest opportunity—and thus to facilitate the practical conduct of her investigation by placing it on the soundest legal foundation—the Prosecutor exercises her power under article 19(3) of the Statute and respectfully requests Pre-Trial Chamber I (“the Chamber”) to rule on the scope of the Court’s territorial jurisdiction in the situation in Palestine. Specifically, the Prosecution seeks confirmation that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza. … 7.In concluding that the Court has the necessary jurisdiction for this situation—and the territorial scope of this jurisdiction—the Prosecutor has primarily been guided by Palestine’s status as a State Party to the Rome Statute since 2 January 2015 following the deposit of its instruments of accession with the United Nations (“UN” or “United Nations”) Secretary-General pursuant to article 125(3). Of note, in discharging his functions as a depositary for the Statute according to the ‘all States’ formula enshrined in article 125(3), the UN Secretary-General relies on determinations made by the UN General Assembly as to whether a particular entity may be characterised as a State. In order to exercise its jurisdiction in the territory of Palestine under article 12(2), the Court need not conduct a separate assessment of Palestine’s status (nor of its Statehood) from that which was conducted when Palestine joined the Court. This is because, under the ordinary operation of the Rome Statute, a State that becomes a Party to the Statute pursuant to article 125(3) “thereby accepts the jurisdiction of the Court” according to article 12(1). Article 12(2) in turn specifies the bases on which the Court may exercise its jurisdiction as a consequence of a State becoming a Party to the Statute under article 12(1) or having lodged a declaration under article 12(3). Simply put, a State under article 12(1) and article 125(3) should also be considered a State under article 12(2). There is no reason why this logic should not apply to Palestine. … 9. Alternatively, and to the extent that the Chamber deems it necessary to conduct a further and independent assessment of whether Palestine satisfies the normative criteria of statehood under international law, the Chamber could likewise conclude—for the strict purposes of the Statute only—that Palestine is a State under relevant principles and rules of international law. It is a fact that Palestine is restricted in the practical exercise of its authority over the entirety of the Occupied Palestinian Territory. However, this has to be assessed against the backdrop of the Palestinian people’s right to self-determination (a norm of jus cogens nature, which is opposable erga omnes) which has long been recognised by the international community, and the exercise of which has been severely impaired by, inter alia, the imposition of certain unlawful measures (including the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem). Although the situation in Palestine is unique and therefore not comparable to other situations, this approach to assessing the criteria of statehood comports with international practice. … 13. The Prosecution has also relied on views endorsed by other relevant international institutions which have long associated the Palestinian people’s right to selfdetermination with the Occupied Palestinian Territory and have called for nonrecognition of the illegal situation resulting from Israeli actions and practices in this territory. 14. The Security Council has made clear “that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”. [UNSC Resolution 2334 (2016)] The Security Council has called upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. … 17. Based on the above, and countless resolutions and pronouncements rendered by the international community over the years, the Prosecution considers that the Occupied Palestinian Territory is “the territory [where] the conduct in question occurred” within the terms of article 12(2)(a). Accordingly, the Court has jurisdiction over alleged crimes committed in that territory. This determination is made strictly for the purposes of determining the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction, and is without prejudice to any final settlement, including land-swaps, potentially to be agreed upon by Israel and Palestine. … 35. The scope of the Court’s jurisdiction in the territory of Palestine appears to be in dispute between those States most directly concerned–Israel and Palestine. A number of other States have also expressed interest and concerns on relevant issues.60 Notably, Palestine does not have full control over the Occupied Palestinian Territory and its borders are disputed. The West Bank and Gaza are occupied and East Jerusalem has been annexed by Israel. Gaza is not governed by the Palestinian Authority. Moreover, the question of Palestine’s Statehood under international law does not appear to have been definitively resolved. Although the Prosecutor is of the view that the Court may exercise its jurisdiction notwithstanding these facts, she is aware of the contrary views. Against this backdrop, a jurisdictional ruling by the Chamber would be beneficial for several reasons. … 42. Importantly, the Prosecution’s assessment is made to determine the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction. This is an essential question that the Court must resolve before it opens an investigation into a situation. However, the Court is not required to make a pronouncement with respect to or resolve Palestine’s Statehood under public international law more generally. While the Rome Statute undoubtedly cannot be interpreted in isolation from public international law, and while the Court should address questions of international law when necessary to exercise its functions and mandate, in this case, the Prosecution considers that resolution of broader questions regarding Palestinian Statehood is unnecessary. 43. If the Chamber nevertheless disagrees with the Prosecution’s primary position, and finds it necessary to assess whether Palestine satisfies the normative criteria of statehood under international law, the Prosecution submits that Palestine may be considered a ‘State’ for the purposes of the Rome Statute under relevant principles and rules of international law. The limitations that Palestine has in relation to exercising authority over the totality of the Occupied Palestinian Territory should not be fatal to the Court’s determination. First, the international community has long recognised the right of the Palestinian people to self-determination and their right to an independent State, and has connected these rights to the Occupied Palestinian Territory. The right to self-determination has jus cogens status and is opposable erga omnes. Second, both Palestine’s viability as a State and the ability of the Palestinian people to exercise their right to self-determination have been significantly impaired by the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem—all measures deemed by the international community to contravene international law. Palestine’s inability to exercise effective control over certain areas should therefore be assessed in this context. Palestine should not be prejudiced in its ability to confer jurisdiction on the Court because of consequences flowing, in part, from the wrongful actions of others. 44. In this context, the Prosecution considers that, for purposes of the Statute, the Court’s territorial jurisdiction under article 12(2)(a) extends to the Occupied Palestinian Territory, which covers the West Bank, including East Jerusalem, and Gaza. The Prosecution primarily relies on UN General Assembly resolutions, which reflect the views of the international community and have been confirmed by multiple international bodies and institutions. The General Assembly has reiterated the ‘permanent responsibility’ of the UN with regard to the question of Palestine until it is resolved in accordance with international law and relevant resolutions. 45. Therefore, while a final settlement between Israel and Palestine could result in mutually agreed land-swaps, until such time, the Court should consider the demarcations of the Occupied Palestinian Territory as they currently exist and have existed since 1967, in accordance with the approach of the UN. Before turning to these positions more fully, it is necessary to provide a contextual and historical overview of the status of the territory which forms the focus of this Request. … 51. In November 1967, the UN Security Council unanimously adopted Resolution 242. The Resolution emphasised “the inadmissibility of the acquisition of territory by war”, and affirmed the need for “a just and lasting peace” based on, inter alia, the “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict” and “a just settlement of the refugee problem”.[UNSC Resolution 242 (1967)] In May 1968, the Security Council “[c]onsidered that all legislative and administrative measures and actions taken by Israel, […] which tend to change the legal status of Jerusalem are invalid and cannot change that status” and “[u]rgently call[ed] upon Israel to rescind all such measures”.[UNSC Resolution 252 (1968)] In September 1969, the Security Council “[c]all[ed] upon Israel scrupulously to observe the provisions of the Geneva Conventions and international law governing military occupation”.[ UNSC Resolution 271 (1969)] [FN 115 regarding UNSC Resolution 242 (1967): See also Adem (2019), p. 24 (noting that there are discrepancies between the English and French versions of the text; and while the English version refers to “[w]ithdrawal of Israel armed forces from territories occupied in the recent conflict”, the French text refers to “withdrawal from the territories”: “[r]etrait des forces armées israéliennes des territoires occupés lors du récent conflit”). See also Bassiouni and Ben Ami (2009), p. 63 (“The fact that [] [R]esolution did not call explicitly for the return of ‘the’ territories and spoke only of ‘territories’ was by no means meant to imply that Israel was given a green light to expand its overall territory. The [R]esolution’s language meant that negotiations might lead to minor border adjustments, not to major territorial changes”).] … 53. In its Resolution 298 of 25 September 1971, the Security Council “[r]eaffirm[ed] the principle that acquisition of territory by military conquest is inadmissible” and “[c]onfirm[ed] in the clearest possible terms that all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section, are totally invalid and cannot change that status”. In October 1973, near the conclusion of the 1973 war between Egypt, Syria and Israel, the UN Security Council passed Resolution 338 which called for implementation of Resolution 242 and “[d]ecide[d] that, […] negotiations shall start between the parties […] aimed at establishing a just and durable peace in the Middle East”, and Resolution 339 which confirmed Resolution 338 and called for the dispatch of United Nations observers to supervise a cease-fire. 54. In December 1973 the General Assembly affirmed that the Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (“the Fourth Geneva Convention”), “applies to the Arab territories occupied by Israel since 1967”.125 In March 1979 the Security Council also affirmed that the Fourth Geneva Convention “is applicable to the Arab territories occupied by Israel since 1967, including Jerusalem”126 and determined that “the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity”.[UNSC Resolution 446 (1979), See also UNSC Resolution 592 (1986); UNSC Resolution 605 (1987)]. …. 58. By its Resolution 465 of 1 March 1980, the Security Council indicated as follows: "[…] all measures taken by Israel to change the physical character, demographic composition, institutional structure or status of the Palestinian and other Arab territories occupied since 1967, including Jerusalem, or any part thereof have no legal validity and [] Israel's policy and practices of settling parts of its population and new immigrants in those territories constitute a flagrant violation of the Geneva Convention relative to the Protection of Civilian Persons in Time of War and also constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East[.]" … 64. Oslo I was signed between Mahmud Abbas on behalf of the PLO and Shimon Peres on behalf of the Israeli Government in Washington D.C. on 13 September 1993. The Government of Israel and the PLO, representing the Palestinian people, “recognize[d] their mutual legitimate and political rights” and sought to “achieve a just, lasting and comprehensive peace settlement and historic reconciliation through the agreed political process”. Oslo I (comprised of seventeen articles and four annexes) sought, “among other things, to establish a Palestinian Interim Self-Government Authority, the elected Council (the ‘Council’), for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 (1967) and 338 (1973)”. It called for a gradual transfer of power from Israel to Palestinians in the West Bank and the Gaza Strip in stages, starting with Israel’s withdrawal from Jericho and the Gaza Strip and ending with a final agreement on key issues including Jerusalem, refugees, borders and settlements. 65. The Gaza-Jericho Agreement, signed in Cairo on 4 May 1994 some five months later than planned, provided for Israel’s withdrawal of troops from the Gaza Strip and from Jericho, and the Palestinians’ first ever assumption of self-government. The Palestinians were to gain control over their internal political arrangements and many of their daily affairs in the public domain, including elections, tax collection and the passing and enforcement of legislation. A 24-member ‘Palestinian Authority’ (“PA”) was established, with legislative and executive powers. The PA did not have powers in the sphere of foreign relations, although the PLO could conduct negotiations and sign agreements for the PA’s benefit. The Palestinians were to establish their own police force of up to 9,000 officers. Shortly after the Agreement, Israeli forces withdrew from most of the Gaza Strip and Jericho as provided for in the Gaza-Jericho Agreement with Palestinian officials taking up their posts in the Gaza Strip and Jericho. Israeli soldiers remained in the areas of Israeli settlements, military installations and security zones. Following the Gaza-Jericho Agreement, Israel and the PLO signed agreements providing for the transfer of “spheres” of civil authority to the PA in the West Bank: education and culture, health, social welfare, tourism, direct taxation, and Value Added Tax on local production, and labour, commerce and industry, gas and petroleum, insurance, postal services, local government and agriculture.178 The transfer of powers and responsibilities excluded “Jerusalem, settlements, military locations and, unless otherwise provided [], Israelis”. 66. On 28 September 1995 the parties signed Oslo II, which was to supersede the GazaJericho Agreement and subsequent related agreements with respect to the establishment of interim governance arrangements. Oslo II provided a timetable for the extension of Palestinian self-rule to the West Bank, going beyond the Gaza and Jericho transfers of Oslo I. It regulated a progressive ‘redeployment’ of Israeli forces from areas in the West Bank and imposed a variety of obligations on the parties. Oslo II thus provided for a functional transfer and a territorial transfer. The Israeli military government would retain “powers and responsibilities” not transferred. Notably, the West Bank and the Gaza Strip were viewed “as a single territorial unit, whose integrity [would] be preserved during the interim period”. 67. Oslo II further expanded the permissible number of Palestinian police in the West Bank and Gaza. It provided for the establishment of a “Palestinian Interim SelfGovernment Authority” comprised of an elected 82-person Palestinian Council (which was to replace the PA) and a Ra’ees (President or Chairman) who would be elected to serve as head of an Executive Authority of the Council. … 75. The parties did not agree on numerical targets for the third and final redeployment. In November 1998, Israel carried out the first of the three stages withdrawing further from the West Bank. The PNC amended its Charter to remove anti-Israel clauses. It later became clear however that neither party would take any steps to further implement the Wye River Memorandum. The date for the Final Status Agreement set out in Oslo II (4 May 1999) passed without a final settlement agreed upon. … 77. Additional unsuccessful attempts to resolve the impasse between the two sides followed. …. 78. In 2002 Israel began construction of a barrier (part barbed-wire fence, part concrete wall) to divide the Jewish and Arab areas of the West Bank, and to cut off the West Bank from pre-1967 borders. According to Israel, the barrier was built for security reasons. The barrier deviates from the Green Line and often encroaches into the West Bank. An area of the West Bank lying between the Green Line and the barrier was closed off such that entry and exit would only be permissible via “access gates [] opened infrequently and for short periods” and via a permit regime. On 8 December 2003, the General Assembly requested an Advisory Opinion from the ICJ on the legal consequences of the construction of the ‘wall’. On 9 July 2004, the ICJ issued its Advisory Opinion holding that the ‘wall’ and ‘its associated regime’ were contrary to international law. In particular, the ICJ concluded as follows: "The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law;"… 80. In June 2004, Israel unilaterally decided to withdraw all Israeli settlements in the Gaza Strip, and four settlements in the northern area of the West Bank. In September 2005 Israel effected the withdrawals by dismantling all settlements and military installations. Despite this, even after the disengagement from Gaza, Israel continued to control its borders, airspace, trade, electrical grid, and the flow of workers and exports to Israel and travel between Gaza and the West Bank. In January 2006, Hamas (or “Movement of the Islamic Resistance” or “Harakat al-Muqāwama al-Islāmiyya” established around 1988) obtained a majority in the Palestinian Legislative Council, defeating Fatah, the leading political party of the PLO. This created turmoil inside the Palestinian Authority. In June 2007, a new emergency Palestinian Authority government was sworn in with no Hamas members. However, Hamas leaders refused to acknowledge their dismissal and have continued to exercise control in the Gaza Strip. Despite the loss of control, the Palestinian Authority has not recognised a permanent split between Gaza and the West Bank. There have been various failed attempts at reconciliation between the two political factions over the years, the latest in 2017. Since September 2007, Israel has declared Gaza a “hostile territory” and it has been “subjected by the IDF to a regime of relative ‘closure’ imposing strict regulations on ingress and egress of persons and goods”.280 The land borders with Israel are fenced off. Despite its 2005 disengagement, Israel continues to exercise significant control with respect to Gaza and the prevalent view among the international community is that Israel remains the occupying power in Gaza.[fn 282] Notably, Israel controls and imposes restrictions on the transit of goods and persons to and from Israel, a regime that differs significantly from the one which applies in the West Bank.284 Israel retains control over the air and maritime space and borders, and controls the majority of the electricity supply to Gaza. [FN 282 See Prosecution Article 53(1) Comoros Report, paras. 26-29; Dinstein (2019), pp. 298-303, paras. 851-862 (“Israel has not lost or relinquished diverse core ingredients of effective control”); Adem (2019), p. 29 (noting that “Israel retains the ultimate control over Gaza”).] … 83. On 23 September 2011, Mr Abbas (as Chairman of the PLO Executive Committee and President of the State of Palestine) submitted an application for full UN membership. The application was subsequently passed by the Security Council to the Committee on the Admission of New Members for examination and report. The Committee, however, was unable to make a recommendation to the Security Council. In the course of its deliberations, the Committee undertook “to carefully consider whether Palestine met the specific criteria for admission to membership contained in Article 4 of the Charter of the United Nations. Experts considered whether Palestine met the criteria for statehood, was a peace-loving State, and was willing and able to carry out the obligations contained in the Charter”: "10. With regard to the requirements of a permanent population and a defined territory, the view was expressed that Palestine fulfilled these criteria. It was stressed that the lack of precisely settled borders was not an obstacle to statehood. 11. Questions were raised, however, regarding Palestine’s control over its territory, in view of the fact that Hamas was the de facto authority in the Gaza Strip. It was affirmed that the Israeli occupation was a factor preventing the Palestinian government from exercising full control over its territory. However, the view was expressed that occupation by a foreign Power did not imply that the sovereignty of an occupied territory was to be transferred to the occupying Power. 12. With regard to the requirement of a government, the view was expressed that Palestine fulfilled this criterion. However, it was stated that Hamas was in control of 40 per cent of the population of Palestine; therefore the Palestinian Authority could not be considered to have effective government control over the claimed territory. It was stressed that the [PLO], and not Hamas, was the legitimate representative of the Palestinian people. 13. Reference was made to reports of the World Bank, the International Monetary Fund and the Ad Hoc Liaison Committee for the Coordination of the International Assistance to Palestinians, which had concluded that Palestine’s governmental functions were now sufficient for the functioning of a State." Questions were raised, however, regarding the authority of the Palestinian Authority to engage in relations with other States, since under the Oslo Accords the Palestinian Authority could not engage in foreign relations. 84. On 31 October 2011, UNESCO’s General Conference admitted Palestine as a member of the Organisation following Palestine’s submission of a request for admission in 1989. 85. On 29 November 2012 the UN General Assembly adopted resolution 67/19 which accorded to Palestine “non-member observer State status in the United Nations[.]” 138 states voted in favour, 9 against, and 41 abstained. … 88. According to the available information, approximately three million people live in the West Bank and a further two million in Gaza. There are approximately 215,000 Israelis and 320,000 Palestinians living in East Jerusalem. Since 1967, the Israeli civilian presence in the West Bank, including East Jerusalem, has reportedly grown into a network of over 600,000 settlers, living in some 250 settlement locations, including over 100 settlement outposts. The information available shows a virtually constant rise in the number, population, and land area of the settlements for close to a half-century, often outpacing corresponding growth trends in Israel. In December 2012, the United Nations Office for the Coordination of Humanitarian Affairs (“OCHA”) reported that 43% of the territory of the West Bank is allocated to local and regional settlement councils, even though only 3% of the territory falls within the fenced boundaries of those settlements as such. The UN General Assembly, the Security Council and UN human rights bodies have uniformly deemed the establishment and maintenance of Israeli settlements in the Occupied Palestinian Territory to be in violation of international law and without legal validity. In its Wall Advisory Opinion, the ICJ recalled UN resolutions and concluded that “the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law”. … 94. On the basis of the available information, there is a reasonable basis to believe that war crimes were committed in the context of the 2014 hostilities in Gaza. In particular, there is a reasonable basis to believe that members of the Israel Defense Forces (“IDF”) committed the war crimes of: intentionally launching disproportionate attacks in relation to at least three incidents which the Office has focussed on (article 8(2)(b)(iv)); wilful killing and wilfully causing serious injury to body or health (articles 8(2)(a)(i) and 8(2)(a)(iii), or article 8(2)(c)(i)); and intentionally directing an attack against objects or persons using the distinctive emblems of the Geneva Conventions (article 8(2)(b)(xxiv), or 8(2)(e)(ii)). In addition, there is a reasonable basis to believe that members of Hamas and Palestinian armed groups (“PAGs”) committed the war crimes of: intentionally directing attacks against civilians and civilian objects (articles 8(2)(b)(i)-(ii), or 8(2)(e)(i)); using protected persons as shields (article 8(2)(b)(xxiii)); wilfully depriving protected persons of the rights of fair and regular trial (articles 8(2)(a)(vi) or 8(2)(c)(iv)) and wilful killing (articles 8(2)(a)(i), or 8(2)(c)(i)); and torture or inhuman treatment (article 8(2)(a)(ii), or 8(2)(c)(i)) and/or outrages upon personal dignity (articles 8(2)(b)(xxi), or 8(2)(c)(ii)). With respect to the admissibility of potential cases concerning crimes allegedly committed by members of the IDF, the Office notes that due to limited accessible information in relation to proceedings that have been undertaken and the existence of pending proceedings in relation to other allegations, the Office’s admissibility assessment in terms of the scope and genuineness of relevant domestic proceedings remains ongoing at this stage and will need to be kept under review in the context of an investigation. However, the Prosecution has concluded that the potential cases concerning crimes allegedly committed by members of Hamas and PAGs would currently be admissible pursuant to article 17(1)(a)-(d) of the Statute. 95. In addition, there is a reasonable basis to believe that in the context of Israel’s occupation of the West Bank, including East Jerusalem, members of the Israeli authorities have committed war crimes under article 8(2)(b)(viii) in relation, inter alia, to the transfer of Israeli civilians into the West Bank since 13 June 2014. The Prosecution has further concluded that the potential case(s) that would likely arise from an investigation of these alleged crimes would be admissible pursuant to article 17(1)(a)-(d) of the Statute. 96. The Prosecution further considers that the scope of the situation could encompass an investigation into crimes allegedly committed in relation to the use by members of the IDF of non-lethal and lethal means against persons participating in demonstrations beginning in March 2018 near the border fence between the Gaza Strip and Israel, which reportedly resulted in the killing of over 200 individuals, including over 40 children, and the wounding of thousands of others. 97. The Prosecution has identified no substantial reasons to believe that an investigation into the situation would not be in the interests of justice. … 100. Thus, the crimes identified above are illustrative only. Once the Prosecutor proceeds under article 53(1), her investigation will not be limited only to the specific crimes that informed her assessment at the preliminary examination stage. The Prosecution will be able to expand or modify the investigation with respect to the acts identified above or other alleged acts, incidents, groups or persons and/or to adopt different legal qualifications, so long as the cases identified for prosecution are sufficiently linked to the situation. In particular, the situation in Palestine is one in which crimes allegedly continue to be committed. 101. Further, the Prosecution considers that Palestine is the “State on the territory of which the conduct in question occurred” (under article 12(2)(a)) because of its status as an ICC State Party. Once an entity has become a State Party, the Rome Statute does not require the Prosecutor to conduct a new assessment regarding its statehood to trigger the Court’s jurisdiction. Alternatively, if the Chamber disagrees and finds it necessary to conduct such assessment, the Prosecution submits that Palestine is also a ‘State’ for the purposes of the Rome Statute under relevant principles and rules of international law. The Prosecution considers that the limitations of Palestine’s authority over the totality of the Occupied Palestinian Territory should not be fatal to the Court’s determination. Instead, the Chamber should consider the particularities of the Palestinian situation. Indeed, Palestine’s viability as a State—and the exercise of the Palestinian people’s right to self-determination—have been greatly impaired by the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem, which the international community has clearly and unequivocally considered contrary to international law. 102. The Prosecution further considers that the territorial scope of the Court’s jurisdiction in the situation of Palestine extends to the Occupied Palestinian Territory.348 It relies on the Palestinian people’s right to self-determination and the views of the international community as expressed by the United Nations General Assembly and other international bodies which have connected these rights to the Occupied Palestinian Territory. … 1. The Prosecution’s primary position: Palestine is a ‘State’ for the purpose of article 12(2)(a) because of its status as an ICC State Party 123. Further, Palestine’s accession to the Statute is consistent with the approach taken by the Court towards other “atypical” entities. For example, the Cook Islands, a selfgoverning entity in free association with New Zealand, which is not widely regarded as an independent State and which is not a UN member State or a UN non-member observer State, acceded to the Statute on 18 July 2008 without controversy. In that case, the Secretary-General permitted the Cook Islands to join treaties with the ‘all States’ formula after he “felt that the question of the status, as a State, […], had been duly decided in the affirmative by the World Health Assembly, whose membership [accepted in 1984] was fully representative of the international community”. The Secretary-General considered that due to “its subsequent admittance to other specialized agencies […] without any specifications or limitations, […] the Cook Islands could henceforth be included in the ‘all States’ formula, were it to wish to participate in treaties deposited with the Secretary-General”. 124. On 29 November 2012, the UN General Assembly adopted Resolution 67/19 which accorded Palestine “non-member observer State status in the United Nations[.]”The General Assembly “[s]tress[ed] the permanent responsibility of the United Nations towards the question of Palestine until it [was] satisfactorily resolved in all its aspects” and “[r]eaffirm[ed] the right of the Palestinian people to selfdetermination and to independence in their State of Palestine on the Palestinian territory occupied since 1967[.]” 138 States voted in favour, 9 against, and 41 abstained. While such a development is not typically regarded as implying collective recognition of statehood—and may instead be more akin to a “remedial award”— a number of States making statements considered the Resolution as recognising or establishing the existence of a Palestinian State for all purposes. Other States, however, distinguished their vote from their position regarding Palestine’s Statehood. Indeed, the Resolution “[a]ffirms its determination to contribute to the achievement of the inalienable rights of the Palestinian people and the attainment of a peaceful settlement in the Middle East that ends the occupation that began in 1967 and fulfils the vision of two States”, and “commend[s] the Palestinian National Authority’s 2009 plan for constructing the institutions of an independent Palestinian State within a two-year period”. Importantly and for purposes of the Statute, the Resolution established that Palestine was eligible to accede to treaties applying the ‘all States’ formula to determine membership. In what appears to be a leaked internal memorandum (available in open sources), the UN Office of Legal Affairs indicates as follows: "Since the General Assembly has accepted Palestine as a non-[m]ember observer State in the [UN], the Secretary-General will be guided by this determination in discharging his functions as depositary of treaties containing an ‘all States’ clause. Therefore, Palestine would be able to become party to any treaties that are open to ‘any State’ or ‘all States’ (‘all States’ formula treaties) deposited with the Secretary-General." 125. In March 2013, the Secretary-General reported as follows: "With respect to conferences convened under the auspices of the General Assembly and other United Nations conferences, as a non-member observer State of the United Nations and a member of UNESCO, the State of Palestine may participate fully and on an equal basis with other States in conferences that are open to members of specialized agencies or that are open to all States. 126. Notably, this position differed from that taken by the UN Office of Legal Affairs in July 2012 following Palestine’s membership in UNESCO. The OLA indicated at the time that Palestine could not participate in a conference via the ‘all States’ formula since Palestine had only been treated by the General Assembly at that point as “a sui generis entity”. 127. Palestine has acceded to numerous treaties and protocols, including key human rights and international humanitarian law instruments… 128. Further, Palestine has joined various international bodies,… 129. Palestine has been active in the international plane. For example, on 23 April 2018, Palestine filed an inter-State communication against Israel for breaches of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”)… … 131. On 2 January 2015, Palestine deposited with the UN Secretary-General its instrument of accession to the Rome Statute. At least one ICC State Party (Canada) lodged an objection and noted that the UN Secretary-General has a “technical and administrative role [as] Depositary”, and that “it is for States Parties to a treaty, […], to make their own determination with respect to any legal issues raised by instruments circulated by a [D]epositary”. Canada asserted that “‘Palestine’ does not meet the criteria of a state under international law and is not recognized by Canada as a state” and therefore “‘Palestine’ is not able to accede to [the Statute] [.]”Two States which are not Parties to the Rome Statute (Israel and the United States) also objected. Canada also objected to Palestine’s declaration under article 12(3) of the Statute. …. 133. Although at a meeting of the Bureau of the ASP in November 2016, Canada, Germany, the Netherlands and the United Kingdom stated their view that “the designation ‘State of Palestine’ […] shall not be construed as recognition of a State of Palestine and is without prejudice to individual positions of States Parties on [the] issue”, the fact remains that Palestine is currently a member of the Rome Statute. Moreover, there is no indication that Palestine is treated differently from any other member of the ASP; on the contrary, Palestine was elected to the ASP Bureau at its 16th session…. 134. After Palestine formally referred this situation to the Prosecutor on 22 May 2018, Israel publicly reiterated that “[t]he purported Palestinian referral is legally invalid” because, among other reasons, “the Palestinian Authority is not a state”. … 2. The Prosecution’s alternative position: Palestine may be considered a ‘State’ for the purposes of the Rome Statute under relevant principles and rules of international law 137. Statehood has generally been considered to depend on the fulfilment of the four criteria under article 1 of the 1933 Montevideo Convention (the so-called “Montevideo criteria”) coupled with international recognition. However, the Montevideo criteria have been less stringently applied in cases where circumstances so warrant. This would include the recognition of a right to self-determination of peoples within a territory, and importantly, an inability to fulfil all of the criteria because of acts deemed to be illegal or invalid under international law. Moreover, international recognition of statehood has remained a valid consideration and in some cases has been determinative. 138. Palestine has a population and a demonstrated capacity to conduct itself in the international scene. Further, the Occupied Palestinian Territory has long been recognized as the territory where the Palestinian people are entitled to exercise their right to self-determination and to an independent and sovereign State. While Palestine—upon its own acknowledgement—may not have full authority over the entirety of the Territory, this is not determinative for the Court’s purposes. Significantly, there appear to be several reasons why a case-specific application of the Montevideo criteria to Palestine is warranted. First, the internationally recognised right to self-determination of the Palestinian people in the Occupied Palestinian Territory. Second, the detrimental impact of the ongoing breaches of international law on Palestine’s effective authority over the Occupied Palestinian Territory and on the realisation of the right of self-determination of its people. Finally, the bilateral recognition of Palestine afforded by at least 138 States. 139. The 1949 International Law Commission (“ILC”) Draft Declaration on the Rights and Duties of States did not provide a definition of ‘State’ for the purpose of international law. It was considered “either unnecessary as being self-evident or too controversial[.]”Similarly, attempts by the ILC to define statehood within the wider issue of recognition of States and governments were set aside because “although it had legal consequences, it raised many political problems which did not lend themselves to regulations by law”. Nor does the Vienna Convention on the Law of Treaties provide a definition…. 140. There are two primary schools of thought on the creation and/or existence of statehood under international law: the constitutive theory and the declarative theory. The former relies upon recognition of statehood as a precondition for international legal personality; the latter deems recognition as constituting mere acceptance of a preexisting situation, relying on the fulfilment of certain normative criteria. These are, generally, the four requirements under article 1 of the 1933 Montevideo Convention: a permanent population, a defined territory, a government and the capacity to enter into relations with other States (the Montevideo criteria). Both theories have been subject to criticism. According to some, statehood determinations under the constitutive theory are prone to “extreme subjectivity” while dependent on geopolitical interests.466 Others have described the Montevideo criteria as outdated and overly rigid.467 Although preference has been shown for the declaratory theory (with emphasis on the criterion of “independence”), the constitutive theory (that is, international recognition) still remains a relevant consideration, and even determinative, in certain cases… 141. Practice also shows that the Montevideo criteria have been flexibly applied when circumstances so warrant. In particular, there is an interplay with considerations of legality and legitimacy, which have qualified how determinative the Montevideo criteria may be to statehood. For example, in light of the principle of self-determination, sovereignty and title in an occupied territory are not vested in the occupying power but remain with the population under occupation. Further, in cases where a peoples’ right to self-determination is recognised, entities claiming statehood have been recognised as such despite not having stringently fulfilled the Montevideo criteria, particularly in the context of decolonization. Moreover, statehood has not been recognised in cases where State creation has resulted from acts in breach of international law. This includes situations resulting from threat or use of force, or from denial by a State of the right to self-determination of peoples. Indeed, an entity cannot claim statehood if its creation is in violation of an applicable right to selfdetermination. 142. In this respect, Crawford aptly noted that violations of peremptory norms raise the question as to “whether the illegality is so central to the existence or extinction of the entity in question that international law may justifiably treat an effective entity as not a State (or a ‘non-effective entity’ as continuing to be a State)”. In the specific context of Palestine, Crawford further added that: "There may come a point where international law may be justified in regarding as done that which ought to have been done, if the reason it has not been done is the serious default of one party and if the consequence of its not being done is serious prejudice to another. The principle that a State cannot rely on its own wrongful conduct to avoid the consequences of its international obligations is capable of novel applications and circumstances can be imagined where the international community would be entitled to treat a new State as existing on a given territory, notwithstanding the facts. 143. Although in 2006 Crawford did not consider this proposition applicable to Palestine because the parties appeared to be committed to permanent status negotiations, by 2014 he conceded that Palestine “seems to be eking its way toward statehood”. 144. Notwithstanding that the situation in Palestine is unique and therefore not comparable to other entities, nor is Palestine like other State Parties, the Prosecution takes account of the above-mentioned considerations in determining whether Palestine may be considered a State under the relevant principles and rules of international law for the purposes of the Rome Statute… 145. The Prosecution observes that Palestine has a population and a territory consistently defined by reference to the Occupied Palestinian Territory (the West Bank, including East Jerusalem, and Gaza).486 Palestine also has a demonstrated capacity to act in the international plane, and has internationally recognised rights and duties.487 However, Palestine’s authority appears largely limited to Areas A and B of the West Bank and subject to important restrictions. Thus, while in November 2012, the General Assembly “welcome[d] the positive assessments […] about [Palestine’s] readiness for statehood by the World Bank, the United Nations and the International Monetary Fund”, the United Nations Development Program (“UNDP”) has recently reported that the “[p]rogress in ‘[S]tate-building’ that preceded Palestine’s recognition as a nonmember United Nations observer State in 2012, has since lost momentum in the face of a disabling political environment and stalled progress to statehood.” The Special Rapporteur aptly noted that “[t]he contradictions of attempting to build a sovereign economy under a prolonged occupation, without the realization of genuine selfdetermination on the foreseeable horizon, have become quite apparent”. 146. There is no indication that circumstances will change. Notwithstanding the above and for the reasons developed below, the Prosecution does not consider that Palestine’s governance shortcomings are fatal to its status for the purpose of the Court’s jurisdiction. The exceptional circumstances of Palestine, and bearing in mind the specific purpose of the Court’s determination, call for a case-specific application of traditional statehood criteria to it. The Prosecution relies on the internationally recognised right of the Palestinian people to selfdetermination and to an independent and sovereign State in the Occupied Palestinian Territory. It also relies on the fact that Palestine’s viability as a State (and the exercise of the Palestinian people’s right to selfdetermination) has been obstructed by the expansion of settlements and the construction of the barrier and its associated regime in the West Bank, including East Jerusalem, in violation of international law. Finally, and against this backdrop, that Palestine has been bilaterally recognised by at least 138 States is a significant consideration and should be given weight. … (ii) The impact of the settlement activities and the barrier 157. The international community has consistently deemed the construction and expansion of settlements and the barrier and its associated regime in the West Bank, including East Jerusalem, to be in violation of international law. Likewise, these illegal practices have been described as a major obstacle fragmenting Palestine’s territorial contiguity and integrity, undermining its viability and impinging on the realisation of the right of the Palestinian people to self-determination. Their cessation has been deemed essential to salvaging the two-State solution. Yet, identifying one factor to explain the persistent impasse in the situation of Palestine is impossible. Nor is one party solely responsible. The Court cannot and should not attempt to identify all the contributing factors. This is not necessary for the present determination and, respectfully, goes beyond this Court’s competence. Nor do the Court’s decisions affect determinations of State responsibility under international law, as article 25(4) of the Rome Statute makes clear. The Court is entitled however to rely, as a matter of fact, on the prevalent views of the international community with regard to the negative impact of Israel’s measures and practices which have consistently, clearly and unequivocally been deemed contrary to international law. Such pronouncements bear great significance when these views have been expressed by the ICJ and other UN bodies such as the General Assembly. [177 ‫]חלק על ההתנחלויות ממשיך עד פסקה‬ … 176. … The issue whether any or both of the parties may have contributed to the current impasse in the final status negotiations, does not detract from the wrongfulness and consequences of the measures described above. 177. Despite the clear and enduring calls that Israel cease activities in the Occupied Palestinian Territory deemed contrary to international law, there is no indication that they will end. To the contrary, there are indications that they may not only continue, but that Israel may seek to annex these territories. Numerous reports reflect concerns of a potential de jure annexation. In August and September 2019, Prime Minister Benjamin Netanyahu vowed to annex large parts of the West Bank if re-elected. … 180. Finally, deeming Palestine to be a State for the purposes of the Rome Statute is consistent with its object and purpose, that is, “[a]ffirming that the most serious crimes of concern to the international community as a whole must not go unpunished”. In seeking “to guarantee lasting respect for and the enforcement of international justice”, the Statute is geared towards the protection of individuals. Although the Statute certainly suggests that States must have certain attributes such as territory, legislative and judicial capacity, other provisions related to complementarity and investigative powers specifically acknowledge that States may experience limitations on their effectiveness. Significantly, if the Court does not exercise its jurisdiction in this situation, certain alleged crimes could not be investigated and, if the evidence so warranted, prosecuted. Palestine considers that its ability to conduct proceedings is curtailed by the occupation. The Israeli Government, in turn, has considered the settlements to be lawful. And while the Israeli High Court of Justice has examined the legality of discrete actions taken by Israeli public authorities connected to the Government of Israel’s settlement policy based on individual claims before it, despite the High Court’s recognised independence, it has consistently held the broader policy question of the Government of Israel’s settlement policy as such, which has been deemed to be predominantly political in nature, to be “non-justiciable”. 181. Moreover, although Israel submits that it has valid competing claims over the West Bank, it has also indicated that human rights legislation, such as the ICERD, does not apply to the West Bank or Gaza “as no special declaration had been made extending the application of that Convention to those areas, which lay outside Israeli national territory”. It has been posited that sovereignty over the territories is legally indeterminate, that sovereignty is in abeyance. Although these considerations may not be decisive, they are nonetheless pertinent to interpret the notion of ‘State’ under the Statute and to the Court’s decision on whether it may exercise its jurisdiction in Palestine. 182. In conclusion, Palestine’s accession to the Rome Statute should be given effect, and to the extent that the Chamber deems it necessary to consider relevant rules and principles of international law, Palestine is a State for the purposes of the Rome Statute. 3. The Oslo Accords do not bar the exercise of the Court’s jurisdiction 183. Lastly, it has been argued that Palestine’s ability to delegate its jurisdiction to the Court is limited because it does not have criminal jurisdiction with respect to Israelis or with respect to crimes committed in Area C (nemo dat quod non habet). Nonetheless, the Prosecution does not consider these limitations in the Oslo Accords to be obstacles to the Court’s exercise of jurisdiction. 184. First, the provisions of Oslo II regulating the PA’s exercise of criminal jurisdiction relate to the PA’s enforcement jurisdiction, namely its prerogative to enforce or ensure compliance with its legislation and to punish non-compliance with respect to certain issues and persons. Enforcement jurisdiction is different from prescriptive jurisdiction, which is the capacity to make the law,581 including the ability to vest the ICC with jurisdiction. Thus, “[t]he right to delegate jurisdiction is reflective of an internationally recognized legal authority, and not of the material ability of actually exercising jurisdiction over either the territory in question or over certain individuals within or outside that territory”. Although the Oslo Accords have limited the PA’s capacity to exercise criminal jurisdiction, to legislate, and to engage in international relations, they have not precluded Palestine from acceding to numerous multilateral treaties, many of them under the auspices of the United Nations, and others with national governments as depositaries. As noted, in December 2012, in consequence of UNGA Resolution 67/19, the UN OLA expressly recognized Palestine’s capacity to accede to treaties bearing the ‘all States’ or ‘any State’ formula. In March 2019 the Commission of Inquiry reiterated the obligation of Palestinian authorities (along with Israel) “to investigate alleged violations of international human rights law and international humanitarian law”. The Oslo Accords thus appear not to have affected Palestine’s ability to act internationally. 185. Therefore, if a State has conferred jurisdiction to the Court, notwithstanding a previous bilateral arrangement limiting the enforcement of that jurisdiction domestically, the resolution of the State’s potential conflicting obligations is not a question that affects the Court’s jurisdiction. Rather, it may become an issue of cooperation or complementarity during the investigation and prosecution stages. 186. Second, the Accords have been described as a ‘special agreement’ within the terms of the Fourth Geneva Convention that was concluded between Israel, as the ‘Occupying Power’, and the PLO, as the legitimate representative of the Palestinian population in the ‘Occupied Territory’, for the purpose of setting out a series of practical arrangements concerning the administration of the ‘Occupied Territory’. Yet, special agreements cannot violate peremptory rights nor can they derogate from or deny the rights of ‘protected persons’ under occupation. 187. Oslo II made clear that “[n]either Party [would] be deemed, by virtue of having entered into [it], to have renounced or waived any of its existing rights, claims or positions”. The PLO did not renounce any of the existing rights of the Palestinian people under international law, including the right to self-determination. Importantly, the Oslo Accords cannot override the right to self-determination of the Palestinian people given that such a right bears customary status and constitutes a peremptory norm under well-established principles of international law. The ability to engage in international relations with others is “one aspect” of the right to self-determination. Thus, and to the extent that certain provisions of the Oslo Accords could be considered to violate the right of the Palestinian people to self-determination, these could not be determinative for the Court. 188. Further, the Fourth Geneva Convention affirms that an Occupying Power cannot conclude agreements which derogate from or deny ‘protected persons’ the safeguards of the Convention. ‘Protected persons’ are “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. In the Occupied Palestinian Territory, the ‘protected persons’ are the Palestinian people. This principle of ‘nonrenunciation’ of rights reflects the view that protected persons under occupation are not in a sufficiently independent and objective state of mind to fully appreciate the implications of a renunciation of their rights under the Convention. As the ICRC Commentary has noted, it would be a “misnomer” to use the term liberty to describe their situation. Indeed, the position of the Occupying Power and the people under occupation is not one of equals. Accordingly, and to the extent that provisions of the Oslo Accords could be interpreted as excluding from the PA’s jurisdiction the obligation to prosecute individuals allegedly responsible for grave breaches under article 146(2) (or to delegate such duty to an international tribunal),603 those provisions could not be determinative for the Court. 189. In conclusion, any limitations to the PA’s jurisdiction agreed upon in the Oslo Accords cannot and should not bar the exercise of the Court’s jurisdiction in Palestine pursuant to article 12(2)(a). …