CYIL vol. 12 (2021)
CYIL 12 (2021) Selected Issues of the Responsibility of the State of Israel and Palestine… The court found that there were sufficient grounds to believe that the IDF members, Israeli officials, Hamas, and Palestinian armed groups had committed a number of crimes within the ICC’s jurisdiction. Further identification of the alleged offenses, which fall within the applicant’s case, will be subject of the prosecutor’s investigation and the Court’s ruling. 60 In relation to the substantive decision on whether the Court did or did not have the jurisdiction to deal with the action, the Court came to the following conclusions. On the first question, whether Palestine is a state (the answer to which is difficult to establish a precondition for recourse to the ICC proceedings), the Court ruled that Palestine was a state for the purposes of the Rome Statute. The Court interpreted Article 12(2)(a) of the Rome Statute in accordance with the provisions of Article 31(1) of the Vienna Convention on the Law of Treaties, i.e., in good faith and in accordance with the usual meaning of the terms contained in the contract, their interrelationships and the subject matter and purpose of the Statute. 61 The Court also took into account that the Rome Statute does not require that a Member State must be a state from the point of view of international law. Last but not least, the Court also took into account General Assembly resolution 67/19, which expresses the (political) conviction of the majority of the international community that Palestine is a state. 62 On the second question, concerning the delimitation of the territory of Palestine in relation to the territorial jurisdiction of the ICC, Court emphasized, in particular, that it was only a sub judice finding, that is to say, a finding relating only to a particular case. 63 The Court ruled that it would be a territory that the State of Israel had occupied since 1967, incl. East Jerusalem. 64 The Court emphasized that its decision on the merits had no effect on disputes over national borders or their delimitation. 65 At this point, the author notes that the State of Israel did not use the possibility to challenge the ICC’s jurisdiction to exercise jurisdiction under the provisions of Article 19(2) of the Rome Statute. From a theoretical point of view, it could now be found that a state that is not a member of the ICC statute will be investigated on the basis of prosecution by an entity that is a state not from the point of view of international law, but only a state for the purpose of the Rome Statute. 5. Investigation of crimes As mentioned above, from the point of view of international law, the ICC has complementary jurisdiction, which means that it can prosecute and punish crimes only if the national courts have not done so if the national courts have not acted sufficiently. The ICC’s jurisdiction covers the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. With regard to the confirmation of the jurisdiction of the Court to deal with the prosecution, it can be found that the prosecutor has opened an investigation against several areas and groups of victims. These include, for example, victims of demolition in the Bedouin village
60 INTERNATIONAL CRIMINAL COURT. Ibidem pp. 37–38. 61 ONDŘEJ, J., POTOČNÝ, M. pp. 189–205. 62 INTERNATIONAL CRIMINAL COURT. Ibidem pp. 39–44. 63 Ibidem p. 50.
64 Ibidem pp. 55–56. 65 Ibidem pp. 59–59.
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