ICC Presentation of the 2020 Annual Report on Preliminary Examination Activities – Press Release (Excerpts)

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With respect to Palestine, as you know, at the end of last year I announced that we had concluded the preliminary examination and determined there was a reasonable basis to proceed. I determined that war crimes have been or are being committed in the West Bank, including East Jerusalem, and the Gaza Strip; that the potential cases arising from the situation would be admissible; and that there were no substantial reasons to believe that an investigation would not serve the interests of justice.

Since there was a referral from the State of Palestine, I did not need to seek authorisation to open an investigation. Nonetheless, I proceeded to file a request with the Pre-Trial Chamber asking for a ruling on the jurisdictional scope of the Court’s competence – more specifically, I asked the Pre-Trial Chamber to confirm that the Court may exercise its jurisdiction with respect to any alleged ICC crime occurring in the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza. In other words, we asked the judges to confirm the territorial jurisdiction where we can investigate.^[1]

I have been criticised by some for seeking this ruling – and I appreciate the frustrations caused by the resultant delay in opening investigations. My intention was to secure a swift resolution of this complex question, as you know.

I sought the request because this matter is of such fundamental importance that it will be litigated, at some point, during the life cycle of the situation. Better now, at the outset, where its resolution can pave the way for an effective investigation on a judicially tested ground, rather than years down the line when a suspect is in the dock. Moreover, because my powers to require cooperation from States Parties are linked to the Court’s jurisdictional competence, the lack of clarity and even conflict among some States Parties as to the extent of that authority raised the very real prospect of early disputes on the legality of my cooperation requests.

Resolving this issue at the outset clears the path for effective investigations. Since this issue could not be avoided, I asked for a ruling as early as possible, to be delivered expeditiously.

I am aware of the pace of proceedings, almost a year hence. But I also recognise that the question posed is a highly complex one which has divided scholars, practitioners and States. I remain hopeful of a ruling early in 2021.

[1] Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC–01/18–12, 22 January 2020.

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