On 22 January 2020, the Prosecutor of the International Criminal Court (ICC), satisfied that international crimes were likely being committed in the Occupied Palestinian Territory, requested the Pre-Trial Chamber (PTC) provide a ruling, prior to her opening an investigation, confirming that the Court’s territorial jurisdiction under Article 12(2)(a) of the Rome Statute of the International Criminal Court1 encompasses the West Bank, including East Jerusalem, and the Gaza Strip.2 As such, following the invitation by the PTC for amici curiae to submit on this question,3 Al-Haq, the Palestinian Centre for Human Rights (PCHR), the Al Mezan Center for Human Rights, and the Al-Dameer Association for Human Rights (hereinafter “the organisations”), submitted observations to the Court.4
In all, some 43 submissions were received, from States, international organisations, academics, NGOs, and other observers.5 A further 10 submissions were filed by lawyers of victims, 9 of these from lawyers representing Palestinian victims, with some submissions representing hundreds of victims each. The purpose of this paper is to identify and refute arguments raised by Israeli-aligned amici in opposition to a criminal investigation into war crimes and crimes against humanity committed within the State of Palestine, including the occupied West Bank, East Jerusalem and the Gaza Strip. In doing so, such arguments will be addressed under three broad thematic categories: (1) the object and purpose of the Rome Statute; (2) objections on the grounds of Palestinian Statehood; and (3) objections on the grounds of the mechanics of territorial jurisdiction itself.
A broad trend has emerged in the argumentation presented to the Court in amici submissions; those in support of the Prosecutor pursuing a criminal investigation in the Situation in the State of Palestine broadly favour an expansive interpretation of the Rome Statute, whereas those in opposition are in favour of a more conservative approach. This point of contention stems from competing views as to the extent to which the object and purpose of the Rome Statute should be considered by the PTC. Given the central importance of this issue, it is worthwhile to consider the place of the Court’s ultimate goal before dealing with substantive arguments.