ICC-01/18-290 06-08-2024 1/11 PT
Original: English No. ICC-01/18
6 August 2024
PRE-TRIAL CHAMBER I
Before: Judge Iulia Antoanella Motoc, Presiding Judge
Judge Reine Adélaïde Sophie Alapini-Gansou
Judge Nicolas Guillou
SITUATION IN THE STATE OF PALESTINE
Public
Written Observations Pursuant to Rule 103 by the Al-Quds Human Rights Clinic-
Al-Quds University
Source: Al Quds Human Rights Clinic- Al-Quds University
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Document to be notified in accordance with regulation 31 of the Regulations of the
Court to:
The Office of the Prosecutor Counsel for the Defence
Mr Karim A. A. Khan KC
Legal Representatives of the Victims Legal Representatives of the Applicants
Unrepresented Victims Unrepresented Applicants
(Participation/Reparation)
The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence
States Representatives Amicus Curiae
REGISTRY
Registrar Counsel Support Section
Mr Osvaldo Zavala Giler
Victims and Witnesses Unit Detention Section
Victims Participation and Reparations
Section Other
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Introduction
1. On 5 February 2021, the Pre-Trial Chamber I of the International Criminal Court (ICC)
decided that the state of Palestine is a “State Party to the statute.”1 (Emphasis added)
2. The decision of the court ended the legal dispute, at least within the scope of the ICC, on
whether Palestine is a state.2
3. The Chamber found that the jurisdiction of the Court extends to the Gaza Strip, as well as the
West Bank including East Jerusalem. This has been decided despite the territorial
fragmentation of the territory of the State of Palestine as provided in the Oslo accords.3
4. This decision on territorial jurisdiction was made pursuant to a request made by the then
Prosecutor of the ICC, which led to the submission of amici curiae by both states and
scholars. One of the main arguments utilized by those who consider that the International
Criminal Court only has jurisdiction over Palestinians but not Israelis invoke the nemo dat
quod non habet principle, which literally means “no one gives what they do not have.” This
argument is based on the fact that the Palestinian Authority (PA), due to the Oslo Accords,
does not exercise criminal jurisdiction over Israelis in light of the administrative
classification and associated jurisdictional arrangements made in the Accords.
5. The Chamber briefly examined the potential impact of the Oslo Accords to its jurisdiction in
Palestine, and found that the questions were beyond the scope of the issue that the court was
examining, namely, the territorial jurisdiction in the State of Palestine, stating in Paragraph
129 “The Chamber finds that the arguments regarding the Oslo Agreements in the context of
the present proceedings are not pertinent to the resolution of the issue under consideration,
namely the scope of the Court’s territorial jurisdiction in Palestine”.
6. Despite ruling for territorial jurisdiction, the Pre-Trial Chamber of the ICC kept the door
open to examine issues of jurisdiction when an arrest warrant or a summons to appear is
requested.4
1
Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in
Palestine,’ No. ICC-01/18 (International Criminal Court 2021).
2
Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in
Palestine’ at 60.
3
Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in
Palestine’ at 60.
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7. In the current Amicus Curiae, we aim at demonstrating to the Pre-Trial Chamber I that the
Oslo Accords do not affect the court’s personal jurisdiction over Israelis in the State of
Palestine. Specifically, this Amicus Curiae will make three arguments. First, based on the
principle of equal sovereignty of states, Palestine has an inherent criminal jurisdiction over
its territory. Second, that Palestine, as a state party to the Rome Statute, accepts the
jurisdiction of the Court as governed by its Statute and does not delegate jurisdiction to the
Court. Third, that it is denying the exercise of jurisdiction contradicts the purpose and object
of the Court, particularly when based on a legal principle that is derived from private
property law, has a completely different purpose, and relies in its application to the situation
of Palestine on illegal matters.
The Principle of Equal Sovereignty of States
8. Beyond the nemo dat quod non habet argument, those arguing against the jurisdiction of the
ICC stated that they do not recognize Palestinian statehood. This is despite the ruling of the
Court that Palestine is a State and enjoys the rights inherent to all states.
9. One of the main basic customary principles of public international law is that all states have
sovereignty, and all states are equal in their sovereignty. As stipulated in the statute of the
United Nations, “The Organization is based on the principle of the sovereign equality of all
its Members.”5
10. In 1970, the UN General Assembly adopted a resolution that stressed, among other
principles, the principle of sovereign equality. It stated that
“All states enjoy sovereign equality. They have equal rights and duties and are
equal members of the international community, notwithstanding differences of an
economic, social, political or other nature. In particular, sovereign equality
includes the following elements: a) States are judicially equal; b) Each state
enjoys the rights inherent in full sovereignty; […]6
4
Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in
Palestine’ paragraph 131.
5
United Nations, “Charter of the United Nations,” October 24, 1945, art. 2(1).
6
UN General Assembly, “Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations, 24 October 1970,
A/RES/2625(XXV)” (Adopted by General Assembly resolution 2625 (XXV) of 24 October 1970, 1970).
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11. Similarly, the preamble of the Vienna Convention on the Law of Treaties of 1969 explicitly
stresses the principle of sovereign equality among states.7
12. According to this principle, every state enjoys the same level of sovereign power, regardless
of its economic, military, or political power.
13. The State of Palestine was declared on two historic occasions. First, in 1948, the first
declaration of the state of Palestine was made in the Gaza Strip, claiming the whole territory
of mandatory Palestine as the territory of the state of Palestine. 8 On that occasion, a
government known as the All Palestine Government assumed its responsibility in the Gaza
Strip. In 1988, the State of Palestine was declared for the second time, but this time without
determining the final borders, making reference to the UN Partition Resolution of 1947.9
14. The Oslo peace process came about after both declarations were made. Through this process,
the Palestine Liberation Organization aimed at securing an end of the occupation of the
Occupied Palestinian Territory of the Occupied Palestinian Territory at least within the
boundaries of the 1967 occupation.
15. As a result of the failure of the peace process to bring about the end of the occupation,
Palestine continued to pursue international justice through joining international organizations
and acceding to treaties, including the Rome Statute.
16. Indeed, Israel and a number of other countries continue to reject recognizing the State of
Palestine. However, it cannot be concluded that Palestine is not a full state only because the
state that occupies its territory and its allies refuse to recognize it.
17. Since Palestine is a state recognized by the ICC, then it enjoys the same sovereign powers
that any other state party to the ICC enjoys.
18. Any other conclusion will result in an absurd situation where states can lose their sovereignty
as a result of an occupation, civil war, or even organized crime. Should the court accept this
argument, it will create a precedent for ongoing or future occupations and limit its
jurisdiction only in the territory of independent states.
7
United Nations, “Vienna Convention on the Law of Treaties” (Vienna, May 23, 1969), United Nations, Treaty
Series, vol. 1155, p. 331.
8
A. Shlaim, “The Rise and Fall of the All-Palestine Government in Gaza,” Journal of Palestine Studies 20, no. 1
(1990): 37–53, http://www.jstor.org/stable/10.2307/2537321; Muhammad K. Al-Az’ar, Hukumat ’Umum Filastin Fi
Thikraha Al-Khamseen (The All Palestine Government in its Fiftieth Memory) (Amman: Dar Al-Shurooq, 1999).
9
“Declaration of State of Palestine - Palestine National Council,” Question of Palestine (blog), November 15, 1988,
https://www.un.org/unispal/document/auto-insert-178680/.
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19. The power temporarily conferred upon by the State of Palestine through the Oslo process to
Israel is a concession made by Palestine, resulting from its inability to exercise its
adjudication and enforcement jurisdiction to prosecute Israeli suspects. However, Israel has
not only shielded its citizens from Palestinian criminal jurisdiction since the beginning of the
temporary 5-year transitional period that was prescribed in the Oslo process, but also has
demonstrated its unwillingness to shoulder its responsibility of prosecuting Israelis,
particularly vis-a-vis international crimes.
20. The conferring by Palestine of the responsibility on Israel to prosecute Israeli suspects does
not suggest in any way that Palestine lacks the inherent jurisdiction over any crime that takes
place in its territory. Furthermore, the occupying power is not sovereign in occupied territory,
and therefore does not enjoy an inherent criminal jurisdiction in the occupied territory.
21. The conferring of adjudicative and enforcement jurisdiction to the occupying power can only
be understood in the context of the inability of the State of Palestine to enforce law over
Israeli citizens, whether they were soldiers, colonial settlers transferred illegally into the
occupied territory by Israel, or military and political leaders. Moreover, this was intended to
be a 5-year temporary transitional period, and not extend indefinitely for over 30 years.
22. Similarly, Israel has consistently demonstrated that it is unwilling to prosecute those in
charge of war crimes, crimes against humanity, or genocide, not to mention many other acts
criminalized under the laws of the State of Palestine.
23. Hence, the ICC remains to be the only venue for exercising jurisdiction over international
crimes.
24. The right of protected persons within the territory of the State of Palestine, as defined by the
International Court of Justice (ICJ), to be protected from international crimes is a peremptory
norm of international law that overpowers any agreements between the occupying power and
the representatives of the population under occupation. As rightly concluded by the ICJ in its
recent advisory opinion that examined the legality of the Israeli occupation, apartheid and
other practices in Palestine, Article 47 of the Fourth Geneva Convention protects the rights of
protected persons in the occupied territory from a number of circumstances,10 including “any
10
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, in, No.
186 (International Court of Justice July 19, 2024).
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agreement concluded between the authorities of the said [i.e. occupied] territories and the
Occupying Power.”11
25. This is consistent with the practice of the ICC in other situations where states are unable to
exercise their enforcement jurisdiction. For example, the ICC exercises its jurisdiction over
members of the Lord Resistance Army in Uganda, despite the inability of the Ugandan
government to enforce its jurisdiction in the territory controlled by the militia.12
26. Furthermore, even within the context of peace agreements and transitional justice, the United
Nations incorporated a disclaimer into peace agreements that provided amnesties to persons
accused of international crimes stating: “The United Nation does not recognize Amnesty for
genocide, crimes against humanity, war crimes and other serious violations of international
humanitarian law.”13 Even with peace treaties leading to end conflicts permanently, the UN
refrained from recognizing the instruments that shielded perpetrators of serious crimes from
accountability.
Deriving of Jurisdiction under Rome Statute of the International Criminal Court
27. There are three statutory restrictions that determine the jurisdiction of the International
Criminal Court. The first is subject-matter jurisdiction, as determined by Article 5 of the
Rome Statute. The second is temporal jurisdiction, as determined by Article 11 of the Rome
Statute. The third is personal jurisdiction, as determined by Articles 25 and 26 on individual
criminal responsibility. The preconditions to exercise jurisdiction are met since the conduct
in question occurred on the territory of a state party to the Rome Statute of the International
Criminal Court, as per Article 12(2)(a).
28. The argument based on the nemo dat quod non habet principle, which argues that the ICC
cannot prosecute Israelis because Palestine does not have jurisdiction over them to delegate
to the Court is erroneous as it is based on a theory that the Court gains only the jurisdiction
held by the State Party. In fact, State Parties do not delegate their jurisdiction to the Court,
but rather accept the jurisdiction of the International Criminal Court, as per Article 12(1),
11
“Convention (IV) Relative to the Protection of Civilian Persons in the Times of War” (Geneva, August 12, 1949),
art. 47.
12
ICC, “Situation in Uganda,” accessed August 6, 2024, https://www.icc-cpi.int/situations/uganda.
13
United Nations General Assembly, “Annual Report of the United Nations High Commissioner for Human Rights
and Reports of the Office of the High Commissioner and the Secretary-General: Analytical Study on Human Rights
and Transitional Justice” (A/HRC/12/18, August 6, 2009), para. 53.
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which states “A State which becomes a Party to this Statute thereby accepts the jurisdiction
of the Court with respect to the crimes referred to in article 5”.
29. Palestine is a State Party to the Court and accepts its jurisdiction. This jurisdiction is not
restricted by the Oslo Accords or any bilateral agreements or domestic legislation. Indeed, a
State party cannot fragment the acceptance of the jurisdiction of the Court over some
individuals and crimes over others. This is confirmed by the Pre-Trial Chamber of the Court,
which stated in paragraph 102 in its ruling on February 5, 2023 “By becoming a State Party,
Palestine has agreed to subject itself to the terms of the Statute and, as such, as 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.”
30. The use of the term “delegation” is both problematic and in fact dangerous. If the jurisdiction
of the Court was derived from delegations by State Parties, this means that these States are
amending and rewriting the Rome Statute without adhering to the followed procedures. The
ICC is an independent body that is governed only by its Statute, as clearly captured in Article
1, which states “The jurisdiction and functioning of the Court shall be governed by the
provisions of this Statute”.
31. The Office of the Prosecutor of the Court has already argued on January 20, 2020, in
paragraph 183 in her submission to the Pre-Trial Chamber, that she does not consider the
limitations imposed by invoking the nemo dat quod non habet principle on prosecuting
Israelis or crimes committed in Area “C” an obstacle to the Court’s exercise of jurisdiction.
The Purpose and the Object of the Rome Statute of the International Criminal Court
32. The purpose and the object of the ICC can be deduced from the preamble of the Rome
Statute, which states “Affirming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective prosecution must be
ensured by taking measures at the national level and by enhancing international cooperation”
and “Determined to put an end to impunity for the perpetrators of these crimes and thus to
contribute to the prevention of such crimes…”.
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33. The reliance on the nemo dat quod non habet principle in determining the jurisdiction of the
Court is erroneous on two main levels. First, the principle originates from private property
law, which has a completely different purpose than public international law and particularly
international criminal law. Second, and relatedly, the principle presupposes complete
symmetry between domestic criminal jurisdiction and that of the Court, 14 which is illogical
and contravenes the purpose and the object of the Court. This is captured in that in situations
of symmetry, the Court will be unable to prosecute perpetrators of international crimes if
their domestic jurisdictions do not criminalize those crimes. For instance, transfer of civilian
population of the occupying power to occupied territory, which is commonly referred to in
the case of Palestine as settlement expansion, constitutes a war crime under Article 8(b)(viii).
However, not only is this action not criminalized under Israeli law, but also is considered a
national value that the state will encourage and promote.15 This supposition of symmetry
negates the whole purpose and object of the Court of filling in accountability gaps and
ending impunity.
34. The interpretation of the nemo dat quod non habet principle contravenes the principle ex
injuria jus non oritur, which means “illegal acts do not create law”, a principle of high
relevance and applicability to the mandate and purpose of the court. This is based on that the
interpretation of the nemo dat quod non habet principle argues against jurisdiction of the
Court over Israeli nationals because of the Oslo Accords, which gave criminal jurisdiction
over Israelis to Israel instead of the PA. These arrangements were intended to be temporary,
extending for a period of 5 years. The persistence of these arrangements continued due to
Israeli occupation, colonization, and aggression, all of which are illegal. Colonization is
prohibited under international law. Furthermore, law of armed conflict imposes strict
obligations on the occupying power, which include prohibition of annexation of occupied
territory, the temporary nature of an occupation, and the restriction of the role of the
occupying power to the management of public order and civil life and doing so in good faith,
14
Carsten Stahn, “Response: The ICC Pre-Existing Jurisdictional Treaty Regimes, and the Limits of the Nemo Dat
Quod Non Habet Doctrine- A Reply to Michael Newton,” Vanderbilt Journal of Transnational Law 49 (2016): 443–
454
15
Basic Law: Israel as the Nation-State of the Jewish People, Article 7.
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and acting in the best interest of the people under occupation. 16 The Israeli occupation’s lack
of adherence to these principles is evidenced in settlement expansion, land expropriation,
deprivation of natural resources, home demolitions, residency revocation, and other measures
of forced displacement, to name a few. The illegality of the occupation is corroborated by the
recent ruling by the International Court of Justice.17 Hence, in determining that the Court
does not have jurisdiction over Israelis based on the nemo dat quod non habet principle, the
Court would not only be contravening the principle ex injuria jus non oritur, but also would
be legalizing an illegal matter.
Conclusion
35. This Amicus Curiae presents arguments against the proclamation that the International
Criminal Court does not have jurisdiction over Israeli nationals for crimes committed on the
territory of the State of Palestine, based on the nemo dat quod non habet principle. Overall, it
argues that the Oslo Accords do not restrict the jurisdiction of the State of Palestine nor the
International Criminal Court in prosecuting Israelis for war crimes, crimes against humanity,
and genocide, in Palestine.
36. Palestine is recognized as a State Party by the ICC, and thus enjoys the inherent equal
sovereignty of States. Accordingly, Palestine has a right to accept the jurisdiction of the
Court and request the prosecution of Israelis for war crimes, crimes against humanity, and
genocide committed on the territory of the State of Palestine. The fact that it is unable to
exercise its own jurisdiction over Israeli nationals as a result of the Oslo Accords should not
be interpreted in a way that questions its right to full sovereignty over its territory or the
inherent rights derived from this, including its full criminal jurisdiction over its territory.
37. Palestine conferring criminal jurisdiction to Israel over Israelis through the Oslo Accords was
intended to be temporary, extending for a period of 5 years. While this arrangement and the
persistence of the Israeli occupation limited Palestinian jurisdiction, it did not at any single
point impact sovereignty of Palestine. Since 1) Israel was unwilling and continues to be
unwilling to prosecute Israelis who commit international crimes and 2) the State of Palestine
16
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, in, No.
186 (International Court of Justice July 19, 2024).
17
Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, in
paragraph 285.
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is unable to prosecute Israeli nationals, this leaves only the ICC as a pathway for
international criminal justice for Palestinians.
38. Palestine accepts the jurisdiction of the ICC and does not delegate jurisdiction to the Court.
The ICC is an international independent body that exercises its mandate, which is derived
from the Rome Statute itself. The qualification of ICC jurisdiction is derived from its own
Statute. The Oslo Accords do not restrict the jurisdiction of the Court, as determined by the
Office of the Prosecutor of the ICC.
39. Based on the principle ex injuria jus non oritur and the illegality of the Israeli military
occupation, it would be inconceivable to deny the exercise of jurisdiction based on a legal
principle that is derived from private property law, has a completely different purpose and
object than international criminal law, and relies in its application to the situation of Palestine
on the persistence of occupation, colonization, and aggression, all of which are illegal.
Respectfully submitted this 6th day of August 2024.
Al-Quds Human Rights Clinic, Al-Quds University
Jerusalem, Palestine
Dr. Munir Nuseibah Osama Risheq Tamara Tamimi
Director, Al-Quds Human Legal Supervisor, Al-Quds Legal Researcher Volunteer,
Rights Clinic, Al-Quds Human Rights Clinic, Al- Al-Quds Human Rights
University Quds University Clinic, Al-Quds University
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