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PA Minister of Justice confirms that ICC has no jurisdiction over Israel

Maurice Hirsch, Adv. and Itamar Marcus  |

In a critical and timely confession, the Palestinian Authority’s Minister of Justice Dr. Muhammad Al-Shalaldeh has announced that the Palestinian Authority has never had legal jurisdiction over Israelis, and accordingly, the International Criminal Court (ICC) likewise lacks jurisdiction to deal with Palestinian complaints against Israel.

The ICC is not a regular national criminal court. Rather, it works solely on the basis of “delegated jurisdiction.” Membership in the ICC is limited to “states,” whose national jurisdiction could be delegated, in given circumstances, to the ICC.

While the Prosecutor of the ICC, Fatou Bensouda, has used unfounded legal acrobatics in order to invent a “State of Palestine,” she completely ignored the fact that this so-called “state”, known as the Palestinian Authority, lacks any criminal jurisdiction over Israelis. The old maxim declares “nemo dat quod non habet” - “no one gives what they do not have.” Since the PA has no jurisdiction over Israelis, it cannot delegate that jurisdiction to the ICC.

Citing multiple provisions in the 1995 Oslo Accords, Palestinian Media Watch, raised this argument in the brief submitted to the ICC, together with other organizations, as “Friends of the Court.”

However in a striking new development, PMW has found that earlier this year the PA Minister of Justice publicly admitted that the PA never asserted jurisdiction regarding Israelis. He announced in January that the PA Ministry of Justice is working on a new strategic plan to prosecute Israelis:

“The Ministry of Justice has been appointed to determine a plan and strategy for submitting lawsuits against settlers, who commit war crimes and crimes against humanity towards [Palestinian] civilians on occupied Palestinian lands – including East Jerusalem – before the Palestinian judicial system… First, this constitutes the establishment of the principle of the sovereignty of the Palestinian state that was declared in 2012 at the UN. This is the establishment of the local, criminal, and civil principle of rule over the occupied Palestinian land.”

[Official PA TV, Topic of the Day, Jan. 5, 2020]

When asked by the interviewer “but the part regarding suing settlers in the Palestinian national local courts – will the settlers be brought to the Palestinian courts?” Al-Shalaldeh responded:

"We, in this legal case… we will deal with all of the legal and judiciary methods of carrying out a fair trial. We rely on the Foundations of Civil Adjudication Law in this aspect. And we on our side will implement all of the judicial proceedings, the matter of interrogation, the matter of witnesses, and the matter of relaying the orders, and in the end, the verdict will be published.”

Just two weeks ago, Al-Shalaldeh repeated that even though his ministry has no ability to bring Israelis into a Palestinian court, the pretense of a trial will still go on:

“We will hold a fair trial, and it does not matter if the Israeli is present or not, but we will take and produce decisions from the Palestinian legal system,”

[Official PA TV, PLO – Conventions and Agreements, July 29, 2020]

Clearly Al-Shalaldeh recognizes that the PA has never seen itself as having criminal jurisdiction over Israelis and in fact does not have any jurisdiction at all. The Oslo Accords specifically and repeatedly provided that the PA would be devoid of any criminal jurisdiction regarding Israelis. What is also significant is that the PA until today has understood and acted in accordance with this: Since the PA’s establishment in 1994, the PA has never even attempted to prosecute an Israeli in the PA legal system.

As PMW exposed, ICC prosecutor Bensouda has been engaged in close collaboration with the PA and other Palestinian terror groups. This collaboration fundamentally undermined her legal judgment and was probably the reason why she ignored PMW’s revelation that the PA intentionally submitted a false document to the ICC.

One would hope the pending decision of the judges of the ICC-Pre-Trial Chamber will be free of Bensouda’s inherent bias against Israel and will clarify that there is no “State of Palestine” and that the non-existent state could not delegate to the ICC, the criminal jurisdiction it never possessed.