On 5 February 2021, the International Criminal Court had decided by majority that its territorial jurisdiction over the situation in Palestine, a State Party to the Rome Statute, extends to the territory occupied by Israel since 1967, namely the Gaza Strip and the West Bank, including East Jerusalem.
This paper provides an overview of the general context surrounding this decision, expectations as well as concerns regarding the investigation. The paper consists of two main parts. The first part addresses the general context of the Palestinian situation and its legal framework before the Court, including, the historical framework of interactions between the State of Palestine and the Court and a breakdown of the details surrounding the Court’s ruling of the Chamber. Furthermore, the paper attempts to unpack the determining factors related to the timing of the ruling and the Court’s spatial jurisdiction over the case of Palestine and the Court’s mandate over the criminal liability of individuals suspected of committing crimes within the Court’s jurisdiction. The second part discusses what Palestinians need to do to bring to trial the occupying power, especially with regards to the latter’s possible defense for inadmissibility under Article 17 of the Court’s Statute and with reference to ‘the Principle of Complementarity under Article 19.
The paper includes a number of important recommendations, primarily to the Palestinian leadership, to prepare effectively to bring to trial the occupation masterminds and anticipate the not unlikely latter’s defense for inadmissibility on a number of grounds. Serious and robust preparation for the ICC trial, the author infers, should include a number of measures, such as
(*) to form a team of international lawyers and analysts to assist the Palestinian Authority in the process;
(*) to unify the Palestinian judiciary in the West Bank and Gaza and carry out effective investigations over Palestinian alleged perpetrators;
(*) to support human rights organizations, especially in the West Bank and Gaza, to secure technical documentation of Israeli crimes;
(*) to form an official team of the public the prosecution, including the Ministry of Foreign Affairs and the Ministry of Justice, and allow individuals to submit complaints against crimes committed by the occupying power;
(*) to prepare for a list of suspected Israeli military commanders and officials for prosecution.
(*) to build investigative files for victims to submit complaints.
(*) to create a national archive of victims of crimes committed during Israeli military attacks, in connection with settlement expansion and forceful displacement.
(*) to amplify and benefit from relevant international and local efforts supporting Palestine’s path to justice and accountability and mobilize relevant expertise, including among Palestinians in the diaspora.
ARDD is grateful to Dr. Ahmed Al-Ashkar, author of this paper, for his insightful and informative contribution; to Dr. Anis Kassim for his useful review of the paper, prior to publication.