The International Criminal Court (ICC) was established in 2002. Its mandate is to end impunity for the most heinous crime of concern to the international community. The ICC was created to act as a court of last resort with the capacity to prosecute individuals, when national jurisdictions for any reason are unable or unwilling to do so. The Court was never intended to pursue democratic states with robust and effective legal systems.
‘Jurisdiction’ is the authority of a court to make decisions and judgments. It plays a crucial role in defining competence in order to prevent abuse of a judicial process and to protect the law from both power and populism.
The ICC lacks jurisdiction over Israel as only sovereign states can delegate criminal jurisdiction over their territory to the Court. The Palestinian Authority clearly does not meet the criteria for statehood under international law and the Court’s Statute.
Furthermore, Israel has valid legal claims over the same territory in relation to which the Palestinians are seeking to submit to the Court’s jurisdiction. This was explained in a detailed legal memorandum published by Israel’s Attorney General, and supported by seven States parties to the ICC as well as by leading international law scholars during the proceedings before the Pre-Trial Chamber.
They have cautioned that proceeding with this matter without jurisdictional basis will harm the integrity of the Court.
The recent ICC ruling approving the Prosecutor’s position on Jurisdiction contravenes accepted facts and well-established principles of international law. The decision is the direct outcome of politicized process and an erroneous reading of the Court’s Statute. It should deeply concern all who care about the Court and International Criminal Justice.