CYIL vol. 12 (2021)
CYIL 12 (2021) Selected Issues of the Responsibility of the State of Israel and Palestine… also revoked. 42 In another document, the 1988 Palestinian Declaration of Independence, declared the independence of the Palestinian state in the Palestinian territory with the capital Jerusalem. According to Benvenisti, there are two conflicting references to what should be the Palestinian territory (the whole Palestinian Mandate and the territory towards which Israel has been carrying out the militarily occupation since 1967). 43 According to Benvenisti, the ambiguities regarding the territory of Palestine were not satisfactorily clarified even in Palestinian Basic Law (which can be considered as an equivalent of the constitution) of 2003. 44 Palestine’s application for membership in the United Nations in 2011 included an application for recognition of Palestine as a member state with the 1967 borders 45 (pre-6 days war borders). 46 Benvenisti also refers to the reasoning included in Palestine’s case before the International Court of Justice against the United States, which states that Jerusalem should be considered a corpus separatum based on a General Assembly 181(II) of 1947. 47 However, this very resolution along with other legal sources supporting the claim of the State of Israel to part of the territory in that region was rejected by the Arabs, and as mentioned above. The Arabs identified these documents as legally ineffective. Benvenisti therefore considers that it is necessary for the Palestinian Authority to first clarify what is considered to be Palestinian territory and only then, if necessary, to bring a new case to the International Criminal Court in the matter of crimes committed in Palestinian territory. Under the circumstances, Benvenisti states that “ the ICC should fulfil its role as a custodian of the international legal order rather than to legitimize Palestine’s bifurcated, case-specific approach to territorial sovereignty, which could be detrimental to the endeavour of creating a coherent legal system, one that resolves potentially contradictory outcomes ”. 48 The fourth quoted opinion of the subject according to Article 103 of the Rome Statute is the opinion of the Czech Republic. In its opinion, the Czech Republic stated that Palestine does not meet the criteria of the state from the point of view of international law. The Czech Republic also stated that the membership of Palestine in a number of international organizations cannot replace the criteria of statehood under international law. 49 The Czech Republic expressed doubts as to whether the ICC can exercise jurisdiction in this matter. The Czech Republic justified this position with its earlier position in relation to the issue of Palestine membership in UNESCO and the UN and stated that it supports the creation of the State of Palestine, which, however, is still does not recognize it. 50 The Czech Republic shares the view of the majority of the international community as well as the International Court of Justice, 51 that 45 In the author’s opinion, however, this statement would practically correspond only to the territory of the Gaza Strip, which was administered by Egypt but was not part of Egyptian territory. The territory of West Bank, including East Jerusalem was annexed by Jordanian domestic law to the territory of Jordan, which exercised exclusive territorial jurisdiction over it. 46 Ibidem p. 15. 47 Ibidem p. 16. 48 Ibidem pp. 17–19, 22–25. 49 CZECH REPUBLIC. Situation in Palestine. Submission of Observations Pursuant to Rule 103. No. ICC- 01/18. International Criminal Court. 12 March 2020. p. 5. 50 Ibidem pp. 6–8. 51 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , Advisory Opinion of the ICJ, 9 July 2004, ICJ Reports 2004, para 124. 42 Ibidem pp. 9–11. 43 Ibidem pp. 11–13. 44 Ibidem pp. 13–14.
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