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On August 6, 2024, NGO Monitor and the the Jerusalem Center for Public Affairs submitted an amicus to the International Criminal Court (ICC).

Introduction

1. In accordance with the Chamber’s Order of 22 July 2024, granting the undersigned organisations leave to submit Observations on the question of whether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords, the undersigned organisations respectfully present their observations.
2. The Rome Statute is predicated on the delegated powers of its States Parties. In other words, the Court may only exercise its jurisdiction where a State Party holds and can exercise its own criminal jurisdiction and has the legal capacity to transfer such powers to the Court.
3. As the Observations will demonstrate, “The State of Palestine” does not exist as a sovereign state and has never held the criminal jurisdiction it would have needed in order to delegate such jurisdiction to the Court. In reality, the only Palestinian entity that has ever held any jurisdiction – the Palestinian Authority (PA) – was a creation of the Oslo Accords and its powers to act in any capacity are prescribed solely by those agreements. 4. Since the Palestinian Authority never held legal capacity to exercise criminal jurisdiction over Israelis, it could not have the power to delegate any such jurisdiction to the Court. Accordingly, the Court lacks jurisdiction under Article 12 of the Rome Statute to proceed, and must therefore reject the Prosecutor’s request to issue arrest warrants against any Israeli nationals.

Observations

As noted, the Rome Statute is predicated on the delegated powers of States Parties and a State Party can only transfer such powers to the Court which it holds and can exercise. In this case, “The State of Palestine,” does not and has never existed as a sovereign state and therefore has never possessed the inherent power to exercise criminal jurisdiction. Any powers flowing to “The State of Palestine” are a result of those granted to the Palestinian Authority under the Oslo Accords that were responsible for its creation. Under the Accords, it was barred from exercising any and all criminal jurisdiction pertaining to Israelis, whether prescriptive, enforcement, or otherwise.

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