February 5, 2021
American Jewish Committee (AJC) deeply regrets the decision of the International Criminal Court’s Pre-Trial Chamber, adopted by two in favor to one against, that the Court’s territorial jurisdiction extends to Gaza, the West Bank, and East Jerusalem. We welcome the State Department’s expression of “serious concerns” about the Court’s attempted over-reach.
AJC has long supported international criminal justice mechanisms, from the Nuremberg tribunals, to the tribunals on former Yugoslavia and Rwanda, to the ICC, as important tools for ensuring accountability for perpetrators of genocide and other atrocity crimes. However, we strongly oppose the ICC’s investigation with respect to “the situation in Palestine.”
The ICC is a treaty body of states. The purported “State of Palestine,” on the other hand, is not a state: it does not satisfy the traditional criteria for statehood, including control over a defined territory and over a permanent population, and effective government. The alleged recognition of “Palestine” by international political bodies and some states does not confer the legal status of statehood. Since “Palestine” is not a state, the ICC is an inappropriate forum to adjudicate its claims.
Indeed, seven states that are party to the Rome Statute – Australia, Austria, Brazil, Czech Republic, Germany, Hungary, and Uganda – made formal submissions to the ICC asserting that the Court does not have jurisdiction to proceed with this investigation. Following is an excerpt from the German government’s submission: “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.”
We regret that the Pre-Trial Chamber has not given due weight to these submissions. Involvement of the ICC in this matter will have a detrimental effect on its credibility. It will politicize the Court, thus undermining its ability to sustain its core mandate.
The international community should urge Palestinian leadership to return to the path of peace. It is only by reaching a negotiated settlement with Israel that the Palestinian people can fulfill their legitimate national aspirations. Reverting to the old ways of confrontation, such as promoting one-sided UN resolutions, or seeking the indictment of Israelis in the ICC, will only prolong the conflict, and the suffering of both peoples.