CYIL vol. 12 (2021)
Veronika D’Evereux CYIL 12 (2021) The opinion on the question of the jurisdiction of the court could also be expressed by the parties who applied for amici curiae status . A number of entities have sent their views to the International Criminal Court on this issue. It can be found that there are certainly formal reasons why the question of ICC jurisdiction can be considered. On the one hand, Palestine is a contracting state of the ICC, and a number of resolutions of the General Assembly and the Security Council state that Gaza and the West Bank are occupied Palestinian territories. On the other hand, Palestine does not fully fulfil the characteristics of a state from the point of view of international law, Palestinian statehood has not yet been fully developed and, last but not least, Palestine does not have full membership in the UN. The following chapter contains some views on the question of the ICC’s jurisdiction to deal with Palestine’s case, these entities acting as amici curiae . Included there are the opinions of three leading experts in international law, who have been dealing with issues related to the State of Israel and Palestine for a long time, namely prof. John Quigley, prof. Malcolm N. Shaw, and prof. Eyal Benvenisti, the opinion of the Czech Republic was also included with regard to the focus of this yearbook. 3. Selected views on the ICC’s jurisdiction to deal with Palestinian case The opinions of the selected authors of the doctrine as well as the opinion of the Czech Republic on the question of the ICC’s jurisdiction to deal with Palestine’s case have one fundamental common point, and that is to examine whether Palestine is or is not a state from the point of view of international law. The examination of this question appears to be a crucially important to make a decision on the jurisdiction of the ICC because on the grounds established through the Rome Statute, in particular the right of the Court to investigate and prosecute international crimes committed in the territory of the member states or if the perpetrators were nationals of a member state in the role of state authorities. In other cases, the court has jurisdiction only if it receives a request from the Security Council, and this condition was not met in the case of a Palestine. The first of the quoted authors of the doctrine is Professor John Quigley. 21 In his response to the International Criminal Court, he was of the opinion that the beginning of Palestinian statehood could be dated to 1923 in connection to the Lausanne PeaceTreaty, which regulated, among other things, the change of territory as Turkey’s successor state after the defeat of the Ottoman Empire in World War I. 22 Quigley is of the opinion that the statehood of Palestine can be dated back to the above year, and he also believes that the international administration of Great Britain was not an obstacle to the statehood of Palestine. Quigley considers that the territory of the State of Palestine covers the entire territory of the Palestinian Mandate. According to Quigley, the statehood of Palestine continued intact even after 1948, when the independence of Israel (which occupied most of the territory of the State of Palestine) was declared. Arab states, namely Egypt (towards the Gaza Strip) and Jordan (towards the West Bank) occupied the remaining parts of Palestine in order to protect and preserve Palestinian 21 John Quigley is Professor in Law at Ohio State University. In 1995 he was a recipient of The Ohio State University Distinguished Scholar Award. John Quigley is active in international human rights work. He has published many articles and books on human rights, the United Nations, war and peace, east European law, African law, and the Arab Israeli Conflict. 22 QUIGLEY, J. Situation in the State of Palestine, Submissions Pursuant to Rule 103 (John Quigley). No.: ICC- 01/18. International Criminal Court. 3 March 2020. pp. 6–11.
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