News emerged and various reactions appeared after the International Criminal Court's Chief Prosecutor Fatou Bensouda announced her decision to open a comprehensive investigation into war crimes committed in the Occupied Palestinian Territories, four years after she announced the start of the preliminary study on the situation in Palestine on 16 January 2015.
The Chief Prosecutor conducts the preliminary examination of a case, after she collects information and notes submitted by individuals proving the occurrence of crimes within the jurisdiction of the Court, which is the case for Palestine; many Palestinians submitted more than 125 correspondence containing information proving the existence of Israeli war crimes in the Palestinian territories. Based on this, Bensouda said, “I am convinced that there is a reasonable basis to proceed with the investigation of the situation in Palestine.” In addition, the Palestinian Authority (PA) referred the profile of Israeli war crimes to the International Criminal Court (ICC) on 22 May 2018 to investigate all crimes committed in the Palestinian territories.
Based on this referral, the Court could open an investigation without the need for a permission from the Pre-Trial Chamber, given that the PA has submitted a request for referral as Palestine is a non-member state in the United Nations, and a member of ICC since 1 April 2015, in line with paragraph A of Article 13 of the Rome Statute with regard to the conditions of membership and referral.
This is what the Chief Prosecutor has already approved, but she postponed the opening of an investigation until the issue of territorial jurisdiction in the Palestinian territories is determined, as she referred the determination of this case to the pre-trial judges based on paragraph 3 of Article 19 of the Rome Statute, to confirm that the court has the authority to exercise its jurisdiction in the Occupied Palestinian Territories (OPTs), which means the Gaza Strip, the West Bank and East Jerusalem.
In view of this development, I wonder why the Chief Prosecutor wants a determination on the issue of territorial jurisdiction in the Palestinian territories, and thus delaying the initiation of investigation until the finalization of this matter by the judges of the Pre-Trial Chamber, which might take a long time to decide, up to six months, or even more, especially in light of the Pre-Trial Chamber lack of accomplishment of cases during the specified period in the past, which calls into question the possibility of doing so in the case of Palestine.
Would not have been possible for the Chief Prosecutor to base her territorial jurisdiction on the status of Palestine as an observer state and not a member of the United Nations recognized by 138 of the 188 states that voted the resolution to recognize Palestine at the General Assembly? This means that Palestine has the authority and jurisdiction under which the court can exercise its territorial jurisdiction.
Another question arises, why is the Chief Prosecutor's Office was late to address the issue of territorial jurisdiction? Especially as this issue is the first step in the preliminary examinations when studying a case, as it was raised a year after another in the preliminary activities of the office of the Chief Prosecutor since 2015. In other words, why does the Office of the Prosecutor request the study of the issue of territorial jurisdiction now after four years? This suggests that the Office has already addressed the issue of territorial jurisdiction over the Palestinian territories.
As for the issue of the Palestinian territories, it is well established that the occupied territories are the lands located within the borders of the 4th of June 1967, in which the Security Council called in Resolution No. 2334 of 2016 on Israel to stop settlements construction in the West Bank, including East Jerusalem, and stressed any establishment of settlements on these lands is a violation of the provisions of international law. The UNSC urged states to distinguish in their dealings between Israeli and Palestinian occupied territories within the 1967 borders.
This position is also supported by the advisory opinion of the International Court of Justice (ICJ) on the issue of the wall issued on 9 July 2004, which noted that Israeli settlements are a flagrant violation of the provisions of international law, because they are established in the Palestinian territories occupied in 1967.
On the other hand, did the Chief Prosecutor's Office ignore that the occupied territories retain their full sovereignty? This means that the occupied population retains their right to permanent sovereignty over their national and natural resources. Accordingly, the occupier in the event of an occupation exercises only administrative rights over the territory and does not absolutely enjoy the right to sovereignty, otherwise, this results in violating the peremptory norms of international law, which completely prohibits the seizure or annexing land by force.
It is clear that the Chief Prosecutor’s referral of the issue of determination of the territorial jurisdiction to the Pre-Trial Chamber is only a waste of time and an initiation of investigation in the near future would give the Court the needed credibility it lacked for years, provided the Court enjoys independence and impartiality and ignores all pressures that may affect the future of this case.