CYIL vol. 14 (2023)

CYIL 14 (2023) THE MONETARY GOLD PRINCIPLE interpretation seems contrary to the principle of individual responsibility of each State for its own acts. The mere allegation of a third party’s wrongdoing as a prerequisite to the proof of one’s own cannot deflect the course of justice and steer it away from the principle of a State’s individual responsibility for its individual actions. 66 That is exactly the reason, why judicial bodies should, in opinion of the author of this article, interpret the existence of the right to seek permission to intervene (and not the intervention itself) as creating an exception to the applicability of the Monetary Gold principle with the goal of letting themselves fulfil their goal (peaceful settlement of disputes) function properly, regardless of whether the right is sought by the relevant third state or not. Anything else might lead to the absurd results of blockage of the judicial bodies capabilities. 5. A matter for judicial bodies assessing state responsibility only? One particular topic needs to be addressed separately because it raises many important questions. On 5 February 2021, the International Criminal Court (ICC) issued a decision 67 that refused to apply the Monetary Gold principle as a reason to protect the legal interests of Israel, as a third party. The point was that for the ICC to be able to exercise jurisdiction over the territory of any State Party of the Rome Statute (RS), 68 such as Palestine, it must first be clear (or it must find out) what that state party’s territory is. And there is obviously a dispute between the states of Israel and Palestine on the borders between them, including the question of legality of Israeli presence within the disputed areas. Thus, in order for the ICC to be able to exercise jurisdiction over alleged crimes committed within the territory of Palestine, it had to first make an assessment upon the extent of Palestinian territory and if finding it extending over areas under Israeli control, such conclusion logically has legal implications for Israel regarding the legality of its presence therein. The Monetary Gold principle popped into heads and was raised before the Chamber exactly for that reason. 69 By rejecting it, the ICC was allowed to rule on the scope of its territorial jurisdiction (i.e., implicitly upon the territory of Palestine in its opinion) to extend “ to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem .” 70 In the analysis on the correctness of the ICC approach, it must be stressed that the proceedings in front of the ICC are of a completely different nature than in any of the previously mentioned cases that the principle was even considered to be applied in. The ICC exists to investigate and prosecute individuals for crimes under international law. 71 It does not assess state responsibility. The ICC stressed both arguments as well. 72 Secondly, its rights to exercise jurisdiction are not built upon the same principles as those of the ICJ and 66 Dissenting opinion of Judge Weeramantry to ICJ, East Timor (Portugal v. Australia), Judgment (30 June 1995), ICJ Reports 1995, pp. 162–163. 67 ICC, Situation in the State of Palestine, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18-143, 5 February 2021. 68 Rome Statute of the International Criminal Court, 2187 UNTS 3, adopted on 17 July 1998, entered into force on 1 July 2002. 69 ICC, Situation in the State of Palestine, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18-143, 5 February 2021, para. 58.

70 Ibid , p. 60. 71 Art. 1 RS.

72 ICC, Situation in the State of Palestine, Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, ICC-01/18-143, 5 February 2021, paras. 59, 60 and 130.

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