Yesterday the Prosecutor of the International Criminal Court (ICC), Ms. Bensouda, issued her reply to the many submissions made to the Court by legal academics and others concerning the question whether ‘Palestine’ exists as a state, and if so what is its territory. The question the Court has to decide is whether the ICC has the power to investigate and prosecute crimes committed in the so-called “occupied territories”. In order to do so, the Court would need to decide that ‘Palestine’ is a state” within the meaning of the Rome Statute.


The Prosecutor defends the view that Palestine is a “state”

In her 60-page document, the Prosecutor vigorously defends her position that – even though Israel is not a party to the Rome Statute and ‘Palestine’ clearly does not satisfy the traditional criteria of statehood – the Court nevertheless has the power to prosecute Israeli leaders for building settlements in the “occupied territories”.

She employs creative legal reasoning to assert an expansive view of the Court’s role in ending impunity for international crimes.

The Prosecutor has four main reasons:

  • First, the fact that ‘Palestine’ has acceded to the Rome Statute is in itself reason for the Court to accept jurisdiction;
  • Second, international law concerning statehood should be applied “less restrictively” to ‘Palestine’ than in other situations; because (in her view) the Palestinians have a “right to an independent state”, the court should regard ‘Palestine’ as being a state under international law;
  • Third, this does not conflict with the Oslo Agreements; and
  • Fourth, “under the present circumstances sovereignty over the Occupied Palestinian Territory resides in the Palestinian people under occupation”.

The Prosecutor’s expansive approach to international law

The Prosecutor dismisses the strong arguments put forward by some of the most notable international lawyers in the world today, and seven states (Germany, Austria, Hungary, Czech Republic, Australia, Brazil and Uganda) warning the Court of the negative consequences of accepting jurisdiction in this case.

On our reading, Ms. Bensouda fails to seriously engage with those arguments, preferring instead to re-assert her expansive position.

She also completely ignores the arguments put forward by Israel.

Her approach raises many legal and policy problems, threatening the legitimacy of the court, which we will explore in our next newsletter.

Following is a video explaining the submissions made by thinc. Director Andrew Tucker, associates Prof. Gregory Rose, Prof. Robbie Sabel and Dr. Daphné Richemond-Barak, together with a team of international law academics from the USA and Israel. In these submissions, our team argued that the ICC has no jurisdiction to make a determination on the questions whether ‘Palestine’ is a state, and what its territory is.


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