On 6 August 2024, the Palestinian human rights organisations, Al-Haq, Law in the Service of Man (Al-Haq), the Palestinian Centre for Human Rights (PCHR), and Al Mezan Center for Human Rights (Al Mezan) filed their joint amicus curiae (friends of the Court) written observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence (RPE) of the International Criminal Court (ICC) and in accordance with the Pre-Trial Chamber I decision of 22 July 2024, granting requests of a number of States, international organisations, non-governmental organisations (NGOs) and individual experts, to file written observations.

These written observations came after the Court granted the United Kingdom (UK) request to file amicus curiae observations, in which the UK claimed that “[t]he Oslo Accords issue necessarily forms part’ of the Chamber’s ‘initial determination of jurisdiction in resolving the application for arrest warrants,” and therefore, the Court should examine “[w]hether 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 UK’s request came after the ICC Prosecutor’s unusual practice of publicly announcing his office’s application for arrest warrants before their issuance by the Chamber.

The Oslo Accords do not bar or limit the Court from exercising its jurisdiction, including over Israeli nationals, for crimes within its jurisdiction committed on the territory of the State of Palestine, nor do they form part of the Chamber’s determination on the Prosecutor’s application for the issuance of warrants of arrest. As such the UK misrepresented the Chamber’s 2021 decision on the scope of its territorial jurisdiction, in which the Chamber found that “the Court’s territorial jurisdiction in the Situation in Palestine extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.” Moreover, the observations affirmed that “authorising the UK’s request, as well as other subsequent requests, at this particular juncture in Article 58 ex parte proceedings was unnecessary, on the basis that it is not justified by reference to exceptional circumstances, and has prompted an unwarranted delay in proceedings.”

The organisations also argued that the UK’s request would not have been possible without the Prosecutor’s statement and that the Chamber “must ensure that the Prosecutor consistently complies with its instructions, especially when his ‘actions have the potential to affect the administration of justice and the integrity of the [proceedings before its determination] pursuant to article 58 of the Statute has even been made.” They further submitted that the Chamber “as the judicial guarantor of the administration of justice and the integrity of the proceedings, consider addressing the Prosecutor’s noncompliance with its instructions: ‘in order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation.’”

The organizations cautioned the Court that allowing amicus curiae interventions in “Article 58 ex parte proceedings, causes unnecessary delay and effectively creates a form of de facto shadow adversarial proceedings (proceedings within proceedings),” which have no legal basis under the statutory framework of the Court. Noting in particular, that the “UK’s claims that ‘[t]he Oslo Accords issue necessarily forms part’ of the Chamber’s Article 19(1) statutory duty to satisfy itself that it has jurisdiction, is erroneous and misleading,” cautioning the Chamber that “an examination exceeding what is statutorily required from the Chamber to satisfy itself that it has jurisdiction could be viewed as a result of the UK’s request, risking the appearance of unwarranted political pressure.”

The organisations also argued in their observations that the error of the UK argument – which appears to be built on the legal rule ‘nemo dat quod non habet’, meaning that no one can give what he does not already have– emanates from its disregard for the effect of the law of occupation, and its assumption that as a result of the Oslo Accords, the occupying power (Israel) necessarily deprived the occupied State (Palestine) of its sovereign rights, including its plenary prescriptive jurisdiction. Noting that the Oslo Accords while restricting the State of Palestine’s enforcement jurisdiction, cannot affect Palestine’s prescriptive jurisdiction, including the ability to confer jurisdiction to the ICC. The State of Palestine’s prescriptive jurisdiction is reflective of its sovereignty and its “internationally recognized legal authority”. The Observations stressed that “the Oslo Accords constitute a ‘special agreement’ within the meaning of the Fourth Geneva Convention” and therefore, “cannot deprive or deny ‘protected persons’ of their rights.” It further reiterated that the ICJ Advisory Opinion on Israel’s unlawful occupation in Palestine clearly ruled that “Israel may not rely on the Oslo Accords to exercise its jurisdiction in the [oPt] in a manner that is at variance with its obligations under the law of occupation.”

The observations concluded that “[t]he rules of the Rome Statute cannot be rewritten by the terms of a bilateral agreement, especially those between an Occupying Power and the representatives of an occupied people, in such a manner inconsistent with the fundamental tenets and purposes of the establishment of the Court, as well as, with the protected Palestinian people’s right to self-determination.” Finally, the observations noted that “the present arrest warrant application is unjustifiably restricted in its scope,” and “called for the inclusion of the Rome Statute crimes of genocide, apartheid, and crimes related to settlements including direct or indirect transfer of settlers into the oPt to the charges against Israeli Prime Minister Netanyahu, and Minister of Defence, Gallant,” stressing that the crime of genocide is “being perpetrated without pause or remorse.”

Read the full written observations here.