CYIL vol. 12 (2021)

CYIL 12 (2021) Selected Issues of the Responsibility of the State of Israel and Palestine… As a member of the ICC, Palestine has brought a case to the Court concerning all crimes committed in the territory of Palestine by the State of Israel since 13 June 2014 (without stating the final date). While Palestine became a party to the Rome Statute in 2015, the State of Israel signed the Statute in 2000 but did not ratify it, and it considers that the ICC does not have jurisdiction over the territory of the State of Israel. Based on the opinion of the State of Israel, the territory which is the matter of Palestine’s case is not “occupied Palestinian territory”, the State of Israel holds the opinion that it does not carry out a military occupation in relation to this territory, but it is rather a territory which is the subject of a dispute, or a territory in which the State of Israel exercises long-term control, 19 and the territory which Israel considers to be in its national interest. 20 The subject of Palestine’s case is the war crimes that Israel supposedly committed in the West Bank, East Jerusalem, and the Gaza Strip. For this reason, it was first necessary to address the question of whether the ICC has the power to investigative in this territory. As regards the question of the ICC’s territorial jurisdiction to investigate crime, from a theoretical point of view, doubts would be dispelled if the State of Israel accepted the ICC’s jurisdiction. At present, however, there is no indication of Israel’s even possible interest to accept the jurisdiction of the Court. In case Israel hypothetically accepted the jurisdiction of the ICC, the ICC would be entitled to prosecute crimes that should have been dealt with by the national courts only if those national courts had not done so. If Israel demonstrated that it had investigated, prosecuted, and punished crimes in good faith, then it would not be possible to establish ICC jurisdiction. If Israel, as a Member State of the Statute, “failed to prosecute the crimes”, then the ICC would first have to assess whether the crimes, which are meant to be investigated, meet the characteristics of the crimes the Court can prosecute. Furthermore, doubts about the ICC’s jurisdiction would be dispelled if the notification were made by the Security Council. However, this was not even realistically possible for procedural reasons; such a submission would require the consensus of all permanent members of the Security Council (given the trend of US representatives voting in the Security Council, it is likely that at least the United States would use its veto). Prosecutor Fatou Bensouda stated in 2019 that she would launch an investigation into the alleged crimes as soon as the jurisdiction of the competent court in relation to the West Bank, East Jerusalem, and the Gaza Strip was confirmed. The issue of jurisdiction of the ICC was to be dealt with by a three-member chamber, whose members are judges from Hungary, France, and Benin. Within the pre-trial chamber proceeding, several other actions were taken, including calling on Palestine to clarify its position by 10 June 2020 on whether it felt bound by the Oslo II accords, which defined the division of administration in Palestinian territory between Israeli and Palestinian authorities. Palestine replied that it was not because of a breach of these agreements by the State of Israel. GARAYOVÁ, L., Budúcnosť prava – pravo budúcnosti, Zbornik prispevkov z online vedeckej konferencie . [The Future of Law – The Law of the Future, Proceedings of an online Scientific Conference] Bratislava: Paneurópská vysoká škola, 2021, pp. 289–322. 19 ISRAEL SUPREME COURT, The Levy Commission Report on the Legal Status of Building in Judea and Samaria. 2012. p. 8. 20 STATE OF ISRAEL. Basic Law: Israel The Nation State of the Jewish People, 2018.


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