Coronavirus crisis

ICC prosecutor requests more time to weigh jurisdiction over Palestinian areas

As The Hague shuts its doors due to COVID-19, Fatou Bensouda requests additional month to say if she still believes the court has jurisdiction to open war crimes investigation

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

ICC Chief Prosecutor Fatou Bensouda at the International Criminal Court in The Hague, Netherlands, January 28, 2016. (AP Photo/Peter Dejong)
ICC Chief Prosecutor Fatou Bensouda at the International Criminal Court in The Hague, Netherlands, January 28, 2016. (AP Photo/Peter Dejong)

Due the widening coronavirus crisis the chief prosecutor of the International Criminal Court this week asked for a one-month delay of her deadline to respond to submissions from states and legal experts on the question of Palestinian statehood and The Hague’s jurisdiction over the West Bank, Gaza and East Jerusalem.

The prosecutor, Fatou Bensouda, herself believes the court has jurisdiction to investigate possible war crimes in those regions, but due to the controversial nature of the case she asked for a definitive ruling from a pretrial chamber on the matter. Member states and independent experts were invited to weigh on the matter as well.

On Monday, more than seven countries and more than 120 international organizations and independent scholars of international law submitted so-called amicus curiae (friend of the court) documents, offering their views on whether “Palestine” is a state that can transfer criminal jurisdiction over its territory to The Hague.

Originally, Bensouda was given a 30-day deadline to respond to amicus curiae submissions. But on Monday she requested that the pretrial chamber to grant her an additional month, “due to the effect of external circumstances on the operations of the Prosecution—specifically the global pandemic of the novel coronavirus known as COVID-19.”

The three judges of the pretrial chamber have yet to respond to her request. If granted, the postponement of her deadline would delay by a month the pretrial chamber’s ruling on the matter. The chamber is expected to hand down its ruling within 120 days of having received Bensouda’s response to the amicus curiae files.

More than 2,000 people are known to have contracted the coronavirus in the Netherlands, the court’s host country., and nearly 60 people have died from the disease there so far.

“The implications of the global COVID-19 pandemic constitute good cause for the Prosecution’s deadline to be extended by one month, so that it is due on 30 April 2020,” Bensouda wrote in her letter, noting that the ICC headquarters in The Hague was closed due the pandemic.

“Staff members are expected to work remotely during this time (and possibly longer if the measures are extended), and only critical staff will be authorized to access the building,” Bensouda wrote.

Some members of her staff have to take care of their children who no longer have school or daycare, and “a number of staff are themselves sick or acting as primary carers from other family members who are sick,” according to the prosecutor. She also cited likely “technical limitations in the Court’s IT system” that will make it difficult for staff to access servers and databases needed to meet the deadline.

In a press release issued earlier this week, the ICC said it was closing the court building to the public and is asking most staff to work from home. At the same time, the court vowed to maintain “business continuity,” and to continue fulfilling its mandate, without elaborating.

Demonstrators carry banners and Palestinian flags outside the International Criminal Court, ICC, urging the court to prosecute Israel’s army for war crimes in The Hague, Netherlands, November 29, 2019. (AP Photo/Peter Dejong)

On Monday, Germany, Australia, Austria, Brazil, the Czech Republic, Hungary and Uganda submitted their respective amicus curiae files, all positing that Palestine cannot transfer criminal jurisdiction over its territory to The Hague.
Even those countries that have formally recognized the “State of Palestine” along the pre-1967 lines argued that Palestine cannot necessarily be considered to have validly granted the ICC jurisdiction to probe war crimes allegedly committed on its territory.

The Arab League and the Organization of Islamic Cooperation — but not a single individual state —  posited that Palestine was indeed a state that could confer jurisdiction to the Hague.

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