the situation in Palestine

Andrew Tucker, Director, and Pieter Hoogendoorn, Secretary & Treasurer of thinc. in front of the ICC building in The Hague, 14 February 2020 at noon.

On behalf of a group of eight international law academics, thinc. Director Andrew Tucker and colleague Prof. Greg Rose of the University of Wollongong today filed an Application to the International Criminal Court (ICC) in The Hague regarding the “Situation in the State of Palestine”. 

The Application was filed in response to the invitation issued by the Pre-Trial Chamber of the Court on 28 January to states, organisations and persons to apply for permission to submit “written observations” on the Prosecutor’s Request. 

In her Request of 20 January, the Prosecutor asks the Pre-Trial Chamber for a ruling confirming her decision that “Palestine” is a State for the purposes of the ICC Rome Statute, and that “Palestine” comprises all of “the West Bank, including East Jerusalem, and Gaza”. 

Tucker: “Our Application submits that the Court simply has no jurisdiction over the Situation in Palestine because the preconditions to the exercise of jurisdiction under Article 12 of the Rome Statute have not been fulfilled. A decision to proceed to an investigation and possible prosecution of Israeli (and Palestinian) leaders “in Palestine” would be a massive overreach of the Court’s jurisdiction. The Court was simply not set up to decide on such historically complex, legally controversial and politically sensitive issues.”

The Applicants ask the Court to give permission to make three fundamental arguments with supporting reasons demonstrating a lack of jurisdiction:

First, the Applicants argue that questions whether Palestine is a State, and the territorial scope of that State, are beyond the competence of the Court to determine. Second, the Court should not exercise its jurisdiction where to do so would detrimentally affect the sovereign rights of a State (Israel) that is not a party to the Rome Statute and has not consented to proceedings affecting its rights. Third, it will be argued that these questions of sovereignty and territorial delimitation are matters that are unable to be judicially determined based on existing authorities in international law.

If the Application is accepted, then written observations will need to be filed by 16th March.

The academics who contributed to the Application are:

  • Prof. Laurie Blank – Clinical Professor of Law, Director of the Center for International and Comparative Law and the Director of the International Humanitarian Law Clinic at Emory University School of Law
  • Dr. Matthijs de Blois – Assistant Professor emeritus, Utrecht University and University of Leiden
  • Prof. Geoffrey Corn – Vinson and Elkins Professor of Law and Director, Center for International Legal Practice and National Security at South Texas College of Law at Houston and Distinguished Fellow, JINSA Gemunder Center for Defense and Strategy
  • Dr. Daphné Richemond-Barak – Assistant Professor at Interdisciplinary Center Herzliya (IDC Herzliya)
  • Prof. Gregory Rose – University of London and the University of Wollongong Australia
  • Prof. Robbie Sabel – Professor of International Law, Hebrew University Jerusalem
  • Prof. Gil Troy – Distinguished Scholar at North American History at McGill University
  • Mr. Andrew Tucker – Director of The Hague Initiative for International Cooperation.
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