PSE Situation: Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States

1. The Prosecutor is satisfied that there is a reasonable basis to initiate an investigation into the situation in Palestine under article 53(1) of the Rome Statute, and that the scope of the Court’s territorial jurisdiction comprises the West Bank, including East Jerusalem, and Gaza (“Occupied Palestinian Territory”). The Prosecutor nonetheless requested the Pre-Trial Chamber to confirm the scope of the Court’s territorial jurisdiction in Palestine, under article 19(3). Such a ruling will presumptively resolve this question for the purpose of the Court’s future proceedings—according to the principle of res judicata, subject to articles 19(2) and (4)—and place the conduct of further proceedings by the Court on the soundest legal foundation.

2. As the Prosecution recalled, this course of action was taken, exceptionally, in light of the uniquely complex legal and factual issues associated with the Occupied Palestinian Territory and contrary views expressed. By seising the Pre-Trial Chamber of this matter, under article 19(3), the Prosecution sought a forum in which the legal representatives of victims, the referring State (Palestine), Israel, and other States and interested parties could assist in the proper determination of the presented question. The Prosecution expresses its appreciation to the Chamber for convening such a process, and to the numerous legal representatives of victims, States Parties, intergovernmental organisations, and amici curiae, who have answered this call.10 In total, the Chamber now has the benefit of submissions from some 11 groups of one or more victims, 31 States Parties (from States Parties directly, and from 2 international organisations which include 23 States Parties, alongside more than 30 other non-States Parties), and 33 academics or non-governmental organisations (individually or in groups). Such a wide variety of perspectives will afford considerable legitimacy to the Court’s ultimate decision.

3. Given this inclusive approach—aiming to ensure, through a fair and transparent process, that the Court reaches a proper determination of jurisdiction, and where the Prosecution itself acknowledged the need to ventilate and resolve the divergence of legal opinions by bringing this matter on its own volition to the Chamber—the adversarial tone of a small minority of participants would seem to be misplaced. The Prosecution approached this situation with the independence and impartiality required by article 42 of the Statute, as it always does. It was precisely in this context that the Prosecutor decided it was appropriate to seek judicial confirmation of the scope of the Court’s territorial jurisdiction by means of a public, inclusive process. While she articulated her own view—which formed the basis for her determination under article 53(1)—this was presented to the Chamber with the express acknowledgement that “determination of the Court’s jurisdiction may [...] touch on complex legal and factual issues”, and that “the Prosecution [Request] has sought to reflect” the “detailed views” of “both the Palestinians and the Israelis”, but that “it would more effectively advance the proceedings if the Chamber could receive those respective positions directly”. Indeed, since the institution of article 19(3) proceedings is an act of prosecutorial discretion, it should be clear that the Prosecution has sought to ensure that all views on these complex issues are fairly represented, so that the Prosecution’s own position can be evaluated on its true merits.

4. The Prosecution has carefully considered the observations of the participants and remains of the view that the Court has jurisdiction over the Occupied Palestinian Territory. It respectfully requests Pre-Trial Chamber I to confirm that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the West Bank, including East Jerusalem, and Gaza.