🔴The primary argument of certain interveners, with slight variations, is based on the proposition that the Oslo Accords did not grant to the Palestinian Council the power to exercise criminal jurisdiction over Israeli nationals. These interveners propose that because the Palestinian Council could not exercise jurisdiction over Israeli nationals under the Oslo Accords, the Court cannot do so today under article 12 of the Statute. The consequence of this contention, if correct, would be that the State of Palestine’s ratification of the Rome Statute did not have the ordinary effect of endowing the Court with jurisdiction over crimes committed on its territory. It would also mean that ratifying the Statute did not have the same effect for the State of Palestine that it has had for each of the other States Parties to the Statute. Rather, it would mean that the State of Palestine’s ratification took effect with a qualification: that the Court has jurisdiction over crimes committed on the territory of the State of Palestine except when committed by Israelis.

🔴Article 12 makes no provision for bilateral or other agreements to limit the exercise of the Court’s jurisdiction.

🔴Article 27 of the Statute provides for the irrelevance of official capacity of any person to the exercise of the Court’s jurisdiction. No immunity or special procedural rule—whether under national law or international law—bars the Court from exercising its jurisdiction.

🔴Article 120 of the Statute provides: “No reservations may be made to this Statute.” Evident, here, is that the Statute, except as otherwise explicitly provided, establishes a unitary framework for the exercise of jurisdiction. Just as a State cannot accept the jurisdiction of the Court subject to a formal reservation seeking to exempt one category of people, so any functional equivalents should not be smuggled in through the interpretation of other provisions.

🔴The object and purpose of the treaty is, “that the most serious crimes of concern to the international community as a whole must not go unpunished.” It is plainly inconsistent with this object and purpose of the Rome Statute to read into the terms of article 12 an exemption from the Court’s jurisdiction based on a bilateral agreement entirely extraneous to the Statute. This inconsistency is exacerbated in situations where the agreement in question is one procured by an occupying power. To do so would allow an occupying power, including when in breach of the prohibition on the use of force under international law, to exempt its nationals from the ordinary application of the Court's jurisdiction in relation to international crimes.

🔴Pursuant to article 21(3) of the Statute, the Court must interpret and apply the applicable law—in this instance, article 12—consistently with internationally recognised human rights. As the Appeals Chamber noted in Lubanga: “Human rights underpin the Statute; every aspect of it, including the exercise of the jurisdiction of the Court.” In general terms, interpreting article 12 as being subject to negotiated or procured exclusions and exemptions would be inconsistent with the right of victims of international crimes of access to justice. In the matter at hand, it would be inconsistent with the rights of Palestinian victims of access to justice and of the Palestinian people to self-determination, which encompasses the enjoyment of fundamental rights guaranteed by international law.

🔴Article 12 establishes a unitary scheme of territorial jurisdiction with no exceptions. The Court’s jurisdiction is not limited by, and cannot be limited by, bilateral or other agreements undertaken by States Parties or, indeed, non-parties or other subjects of international law.

🔴In its Article 19(3) decision, the Chamber explicitly held that there is no basis for treating the State of Palestine differently from any other State Party. It did so in the following terms:
“By becoming a State Party, Palestine has agreed to subject itself to the terms of the Statute and, as such, all the provisions therein shall be applied to it in the same manner than to any other State Party. Based on the principle of the effectiveness, it would indeed be contradictory to allow an entity to accede to the Statute and become a State Party, but to limit the Statute’s inherent effects over it.”

🔴There is an additional problem with the contention of certain interveners that the Oslo Accords bar the exercise of the Court’s jurisdiction over international crimes committed on the territory of the State of Palestine by Israeli nationals. The argument is based on a misunderstanding of foundational concepts of jurisdiction under international law, including under the law of occupation. It also misunderstands how the drafters of the Statute specifically sought to accommodate certain bilateral and other arrangements.

Thus, for one intervener, the Oslo Accords “delegated a limited authority” to the Palestinian Authority. For another, it entailed but a limited transfer of powers to the Palestinian Authority by Israel. For another still, “[a]ll the powers and responsibilities, including the exercise of jurisdiction (prescriptive or enforcement), transferred to the PA were granted by Israel. In short, and in relation to the present matter, according to these interveners whatever jurisdictional entitlements are enjoyed by the State of Palestine today were in Israel’s gift.

In my opinion, this is a very brave and powerful submission. You won’t see it on MSM, but now his life might be at risk.

[RT]

💥🔽💥🔽💥An explosion in I'billin and Tamra, east of Haifa, coinciding with the sound of sirens.

[G&T]