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PMW submits brief to the International Criminal Court

Maurice Hirsch, Adv.  |

In a joint effort with other organizations, Palestinian Media Watch yesterday submitted an expert opinion to the International Criminal Court (ICC). In the submission, PMW addressed a number of subjects that relate to the ICC prosecutor’s request that the court “rule on the scope of the Court’s territorial jurisdiction in the situation of Palestine and to confirm that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza.”

This is not a trial since no investigation has yet been conducted and no indictment has been filed. Rather, this is a preliminary proceeding that relates solely to the question of whether the court would have jurisdiction to enter into a full criminal process, given sufficient evidence.

As a rule, the ICC only has jurisdiction over “States”. For this reason, since there is no “State of Palestine” it would seem obvious, that the court would be devoid of jurisdiction to deal with events that allegedly took place therein.

However in a lengthy, 110 page request, the ICC prosecutor distorted both fact and law and argued that a “State of Palestine” exists on all the territory that came under Israeli control in the 1967 Six Day War.

After the submission of the prosecutor’s request, PMW, together with The Lawfare Project, NGO Monitor and the Jerusalem Center for Public Affairs petitioned the ICC to be recognized as Amicus Curaie (Friends of the Court). Recognizing the expertize of the group, the court granted the recognition and gave permission to make a submission.

In the submission, (click here to read the submission in PDF format) we raised a number of points:

1) There is no "State of Palestine.” In the brief, we explain how the Palestinian entity fails to meet what are known as the “Montevideo Criteria”. These are the internationally applied criteria for deciding whether a certain entity can be recognized as a State.

2) The reliance of the ICC Prosecutor on highly political United Nations General Assembly resolutions is mistaken and without legal basis.

3) The Oslo Accords left a number of subjects open for further negotiations between Israel and the PLO, including Jerusalem, settlements, Palestinian refugees, and borders. Accordingly, it would be impossible to recognize a "State of Palestine" that encompasses all of the territories that came under Israeli control in 1967.

4) The Prosecutor's request to demarcate the "borders" of the "State of Palestine" based on what the Palestinians consistently refer to as the "1967 borders" is erroneous and misleading. The so-called “1967 borders” are really the armistice lines drawn in 1949 at the end of Israel’s War of Independence. While Israel was willing to accept these lines as the borders of the new State of Israel, it was the Arab counties that adamantly refused. They remained cease-fire lines until they were replaced by new cease-fire lines after the 1967 Six Day –War.

5) The Oslo Accords never granted the PA any criminal jurisdiction over Israelis and accordingly, the PA cannot delegate to the ICC any criminal jurisdiction regarding Israelis. This is of fundamental importance, since the ICC operates on the basis of delegation of a state’s criminal jurisdiction. If no jurisdiction existed, then no jurisdiction can be delegated.

6) While the PA may have been given limited powers and jurisdiction in certain parts of the area referred to in UN documents as “Judea and Samaria”, no such power or jurisdiction was granted to the PA over all of Judea and Samaria or in any part of Jerusalem.

7) While the ICC Prosecutor’s politically motivated machinations may have brought her to demarcate the borders of the “State of Palestine" based on the non-existent "1967 borders", the Palestinian leadership rejects this limitation of the geographical size of the "State of Palestine". To support this argument the brief referred to numerous such statements documented by PMW.

Alongside the legal arguments and analysis, PMW is certain that the factual content of the submission will be of great use for anyone wishing to understand the complex reality of Judea and Samaria. 

In addition to PMW and many other internationally recognized experts who also made submissions to the ICC, a number of countries, including the Czech Republic, Germany, Austria, Australia, Hungary, Brazil and Uganda also filed submissions in which they rejected the existence of a “State of Palestine”.

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