CYIL vol. 12 (2021)
Veronika D’Evereux CYIL 12 (2021) the State of Israel occupies Palestinian territory and, as an occupying military power, should restore ground and ensure public order as soon as possible in accordance with Article 43 of the Hague Convention on War Laws and Customs War on Land, 52 and the State of Israel, as an occupying power, is obliged under the same provision to respect the relevant provisions of international human rights law and international humanitarian law, which includes the obligation to investigate all alleged crimes under international law that have occurred in the Occupied Palestinian Territory. The Czech Republic is therefore of the opinion that the State of Israel has exclusive jurisdiction over crimes committed in the Occupied Palestinian Territories, the perpetrators of which were Israeli citizens. 53 The Czech Republic argues that Palestine is not entitled to transfer jurisdiction to investigate and prosecute crimes in the Occupied Palestinian Territory to the International Criminal Court on the grounds that Palestine itself does not have that jurisdiction. 54 4. The decision of the International Criminal Court on the question of jurisdiction over Palestine’s case The following chapter describes some relevant points of the International Criminal Court’s decision 55 on the issue of jurisdiction to deal with Palestine’s action. The ICC quotes the statement of the Permanent Court of International Justice 56 in which is explicitly confirmed that “ territoriality of criminal law is not an absolute principle of international law and by no means coincides with territorial sovereignty ”. Therefore, in the opinion of the court, the determination of the territory over which the court may exercise criminal jurisdiction, does not in any way establish a decisive determination of the range of the territory of Palestine. 57 The Court explained that it holds the jurisdiction over the Palestinian case based on the interpretation of the Article 19(1) of Rome Statute according to which the Court “shall satisfy itself that it has jurisdiction in any case brought before it” in connection to section 3, according to which the Court respected the conviction of the prosecutor, who asked the ICC to grant the jurisdiction because she is satisfied that there is reasonable basis to initiate an investigation into the situation in Palestine, pursuant to article 53(1) of the Statute, there is a reasonable basis to believe that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip . 58 The prosecutor further stated that “ there are no substantial reasons to believe that an investigation would not serve the interests of justice ”. 59 52 ONDŘEJ, J., POTOČNÝ, M. ibidem pp. 284–285. 53 CZECH REPUBLIC. ibidem p. 8–9. 54 Ibidem p. 9. 55 INTERNATIONAL CRIMINAL COURT. Situation in the State of Palestine. Decision on the Prosecution request pursuant to Article 19(3) for ruling on the Court’s territorial Jurisdiction in Palestine. No. ICC-01/18. 5 February 2021. p. 60. 56 Permanent Court International of Justice, The Case of the SS “Lotus” ( France v. Turkey ), Judgement, 7 September 1927, P. I. C. J. Series A. No. 10. 57 INTERNATIONAL CRIMINAL COURT. Ibidem pp. 29–30. 58 Request under Regulation 46(3) of the Regulations of the Court, Decission on the “Prosecution’s Request for Ruling on Jurisdiction under Article 19(3) of the Statute”, 6 September 2018, ICC-RoC46(3)-01/18-37 (the “ Regulation 46(3) Decision”), para 66. 59 Ibidem para 2.
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