Lt. Col. (Res.) David Benjamin is an Israeli attorney specializing in International Law, the Law of Armed Conflict and Counter-Terrorism and a former senior officer in the Israel Defense Forces Legal Division. He is currently Of-Counsel to the American Center for Law and Justice in its Jerusalem, Israel office and was a member of the team submitting an amicus brief on the “Situation in Palestine” to the ICC on behalf of the European Centre for Law and Justice.
The idea was not that the ICC would go after the great democracies of the world which have fully functioning, autonomous, independent legal systems. The ICC was meant to go after those legal black holes, where there is really not accountability.
David Benjamin lays out the importance of statehood as prerequisite for jurisdiction under the ICC Statute. If you are not a state, you cannot join the ICC. That is not a formality. A state has jurisdiction that it needs to delegate to the ICC. Without the competence to delegate that jurisdiction, the ICC has no jurisdiction. That requirement is not just a formal one – it is an absolute requisite to the ICC’s jurisdiction. As Palestine’s statehood is highly disputed – as the Prosecutor herself aknowledges – this case clearly lacks the ‘solid jurisdictional basis’ necessary to proceed with this matter.