Welcomed ICC landmark decision recognising its territorial jurisdiction over Palestine including Gaza and the West Bank

(The Hague, Paris) On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC) decided by majority, that the Court’s jurisdiction over Palestine extends to Gaza and the West Bank, including East Jerusalem, and therefore, the Prosecutor is allowed to investigate international crimes committed on these territories. FIDH welcomes this landmark decision, in line with our observations filed in March 2020, and calls upon the Prosecutor to proceed with a full-fledged investigation and prosecutions into the international crimes committed in Palestine.

See our Q&A for more details on the situation of Palestine at the ICC

In its 5 February 2021 majority decision, the ICC Pre-Trial Chamber I first confirmed that Palestine is a State Party to the Rome Statute and “has the rights to exercise its prerogatives under the Statute.” [1] The Chamber noted that the accession process of Palestine to the ICC Statute “followed the correct ordinary procedure” and remained uncontested. Pre-Trial judges then found that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” [2] They added that this conclusion was consistent with the right to self-determination. [3] The Pre-Trial Chamber clarified that The Chamber’s ruling is for the “sole purpose of defining the Court’s territorial jurisdiction”, and that it is “is neither adjudicating a border dispute under international law nor prejudging the question of any future borders.” [4]

“With the confirmation by the Pre-Trial Chamber of the territorial jurisdiction of the ICC over Palestine, including its occupied territory, and the lack of justice at national level, it is imperative that the Prosecutor immediately moves to effectively investigate and prosecute the full array of international crimes committed in Palestine. An ICC investigation into the Situation in Palestine would serve as a historic step in renewing victims’ hopes for justice and accountability.”

Shawan Jabarin, FIDH Secretary General and General Director of Al-Haq

After nearly five years of preliminary examination, the Prosecutor confirmed in December 2019 that there is “a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip.” [5] However, despite concluding that an investigation is warranted, the ICC Prosecutor sought in January 2020 a jurisdictional ruling from ICC judges to confirm, prior to commencing an investigation, that the court has the necessary territorial jurisdiction for this case, which includes the West Bank, including East Jerusalem, and Gaza. In March 2020, FIDH, with Redress, No Peace Without Justice and Women’s Initiative for Gender Justice, submitted amicus curiae observations demonstrating that the ICC has jurisdiction over Palestine on the basis of Palestine’s status as a State Party, and that the Court has jurisdiction to investigate allegations of international crimes on the entire territory of Palestine, comprising Gaza and the West Bank, including East Jerusalem. [6] The Palestinian human rights organisations Palestinian Centre for Human Rights (PCHR), Al-Haq Law in the Service of Man (Al-Haq), Al Mezan Center for Human Rights (Al Mezan), and Al-Dameer Association for Human Rights (Al-Dameer) also submitted joint amicus curiae observations to the Pre-Trial Chamber of the International Criminal Court (ICC). [7]

FIDH’s member organisations in Palestine, Al-Haq, Al-Mezan Center for Human Rights (Al-Mezan), the Palestinian Center for Human Rights (PCHR), have welcomed as well this fundamental decision at this stage of the proceedings before the Court. [8]

See also the reaction of Raji Surani, General Director of the Palestinian Center for Human Rights (PCHR), and Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights (CCR) and representing victims in the Palestine situation at the ICC, on "Democracy Now":

Background

The ICC Prosecutor opened a preliminary examination into the situation in Palestine in January 2015, after the UN General Assembly recognized Palestine as a non-member observer State to the United Nations (UN) in November 2012, and after Palestine’s acceptance of the Court’s jurisdiction and the submission of its instrument of accession to the Court’s Statute in January 2015. The ICC Statute entered into force for Palestine which became a State Party on 1 April 2015. Palestine has also referred its situation to the Court in 2018 and urged the ICC to proceed with an investigation with no further delay.

Over the past five years, the ICC Office of the Prosecutor received an abundance of information, including from several of our organisations, on crimes committed in the situation and on factual and legal issues, including on the Court’s territorial jurisdiction in the situation.

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