'Palestine does not have jurisdiction to delegate to court'

Germany, Hungary tell ICC they support Israeli position against war crimes probe

Like Czech Republic, Germany to argue The Hague has no jurisdiction in West Bank, Gaza as Palestine cannot be considered a state; Hungary to speak out as well

Raphael Ahren is a former diplomatic correspondent at The Times of Israel.

Prime Minister Benjamin Netanyahu (right) and German Chancellor Angela Merkel shake hands during a joint press conference at the King David Hotel in Jerusalem on October 4, 2018. (AFP Photo/Menahem Kahana)
Prime Minister Benjamin Netanyahu (right) and German Chancellor Angela Merkel shake hands during a joint press conference at the King David Hotel in Jerusalem on October 4, 2018. (AFP Photo/Menahem Kahana)

Germany and Hungary on Friday backed Israel’s position at the International Criminal Court, which is currently weighing whether to open an investigation into possible war crimes committed in Gaza and the West Bank.

Like the Czech Republic on Thursday, Berlin submitted a request to become an amicus curiae — a “friend of the court” who is not a party to the case but wants to offer its views.

Hungary also submitted an application, diplomatic officials told The Times of Israel, citing the same rational.

The deadline for states to submit legal opinions expires Friday.

All three countries were expected to submit written legal opinion positing that The Hague does not have jurisdiction to investigate the Israeli-Palestinian conflict.

Austria, which in recent years has become closer to the Jewish state, is also expected to file an application.

In its filing, Germany noted it was “a staunch supporter of the International Criminal Court and its organs, and a leader of the fight against impunity.” It also noted that it has long been a proponent of a two-state solution to the Israeli-Palestinian conflict.

But, it argued, “The scope of the Court’s territorial jurisdiction pursuant to Article 12 of the Rome Statute does not extend to the occupied Palestinian territories. Article 12 of the Rome Statute presupposes that there is a “State” that has the ability under international law to delegate territorial jurisdiction to the Court with respect to the relevant cases.

“Palestine does not possess nor did it ever possess the jurisdiction that it would need to delegate to the Court in order for the Court to exercise jurisdiction.”

Other states, including Australia, Canada and Hungary, have taken Israel’s side in the debate over jurisdiction, but have not asked to submit written legal opinions to the court.

Knesset Speaker Yuli Edelstein, who recently raised the issue during a visit to Germany, praised Berlin Friday, saying  that “the most important power in the European Union is standing beside Israel in the face of the incitement by the Palestinians and the hypocrisy of the United Nations.

“Israel will fight for justice and will not allow (Palestinian Authority President Mahmoud) Abbas to continue his worldwide campaign of deception,” he said.

The Israeli Foreign Ministry declined to comment on the matter.

“It is really great that many countries are agreeing with our principled position,” a senior legal official told The Times of Israel on Friday. He noted that Attorney General Avichai Mandelblit and the Foreign Ministry have published lengthy statements and explanations as to why they think the ICC does not have jurisdiction to launch an investigation.

On December 20, the ICC’s chief prosecutor, Fatou Bensouda, said she had concluded her half-decade long preliminary examination of the “situation in Palestine” and has “reasonable basis to believe that war crimes were committed” by both the Israel Defense Forces and Hamas and other “Palestinian armed groups.”

At the same time, she acknowledged that The Hague may not have the jurisdiction to deal with Israel/Palestine. Hence, she asked for a ruling by three ICC judges to determine the scope of the court’s territorial jurisdiction.

Prosecutor Fatou Bensouda in the courtroom of the International Criminal Court (ICC) during the closing statements of the trial of Bosco Ntaganda, a Congo militia leader, in The Hague, Netherlands, August 28, 2018. (Bas Czerwinski/Pool via AP)

The prosecutor herself believes “Palestine,” which acceded to the Rome Statute, the court’s foundational document, in early 2015, is enough of a state for the purposes of transferring criminal jurisdiction over its territory to the court.

Israel has long argued that the ICC lacks jurisdiction over the case because there is no sovereign Palestinian state that could delegate to the court criminal jurisdiction over its territory and nationals.

It is now up to a so-called pre-trial chamber to rule on the matter. The three judges of this chamber — Péter Kovács of Hungary, Marc Perrin de Brichambaut of France and Reine Adélaïde Sophie Alapini-Gansou of Benin — invited “Palestine, Israel, and victims in the Situation in the State of Palestine, to submit written observations” on the matter by March 16.

Other states, as well as private groups or organizations could apply for amicus curiae status by Friday. If accepted, they can file their observations on the question of jurisdiction also by March 16.

In its application, signed by hand by Czech Foreign Minister Tomas Petricek, Prague reiterated that it “fully respects and trusts the independence” of the ICC and its “impartial” decision-making process.

The issue of the court’s jurisdiction and the question of Palestinian statehood needs to be analyzed “in accordance with general international law,” the Czech application reads. It goes on to cite the 1933 Montevideo Convention on the Rights and Duties of States, which has traditionally been recognized as the benchmark to determine what constitutes a state under international law.

According to the convention’s first article, a state needs to possess the following qualifications: a permanent population; a defined territory and government; and the capacity to enter into relations with the other states.

“It has been a long-standing position of the Czech Republic that Palestine has not fulfilled yet all criteria of statehood under international law,” the application states.

While Prague supports the Palestinians’ aspiration for independence, the fact that Palestine cannot be considered a state raises “doubts” regarding the ICC’s jurisdiction over the West Bank and Gaza, the document concludes.

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