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52512 , 10 ' ",

Beit Hakeren, 10 Hata'as St. Ramat Gan


52512, Israel
www.israellawcenter.org
___________________________________________________________________________________________________________________________________________________

Tel: 97237514175 :
Fax: 97237514174 :
Tel (US): 2125910073

June 22, 2015


Fatou Bensouda, Prosecutor
International Criminal Court
Maanweg 174, Den Haag 2516 AB
The Netherlands

Dear Prosecutor,
Re: Palestine / ICC
I write to you on behalf of "Shurat Ha-Din", an Israeli non-governmental
organisation, whose vision and activities include, inter alia, achieving justice and
compensation for terror victims from terrorist organizations, their sponsors, and the
financial institutions that aid and abet their criminal activities. ("the Applicant").1
For reasons which will be set out hereinafter, the Applicant requests that you
recuse yourself from further dealings with any existing or future application and/or
referral filed by the Palestinian Authority or the so-called State of Palestine.
Relevant Chronology
The Applicant reminds itself that on 5 August 2014, at the height of armed
conflict which broke out between Israel and the Hamas organization, you received the
official in the Palestinian Authority dealing with foreign affairs Riad al-Malki and
clarified for him the different mechanisms for a State to accept the jurisdiction of the
ICC.
Subsequent to this meeting, you gave a spontaneous and detailed comment to
the Guardian Newspaper which was entitled The Public deserves to know the truth
about the ICCs jurisdiction over Palestine. Among other things, you opined as
follows:
The Palestinian Authority sought to accept the jurisdiction of the ICC in
2009. My office carefully considered all of the legal arguments put forth and
1

http://israellawcenter.org/

concluded in April 2012, after three years of thorough analysis and public
consultations, that Palestines status at the UN as observer entity was crucial
since entry into the Rome statute system is through the UN secretary general,
who acts as treaty depositary. Palestines status at the UN at that time meant it
could not sign up to the Rome statute. The former ICC prosecutor concluded that
as Palestine could not join the statute, it could also not lodge an article 12-3
declaration bringing itself under the ambit of the treaty, as it had sought to do.
In November 2012, Palestines status was upgraded by the UN general
assembly to non-member observer state through the adoption of resolution
67/19. My office examined the legal implications of this development and
concluded that while this change did not retroactively validate the previously
invalid 2009 declaration, Palestine could now join the Rome statute.[emphasis
added].
That Palestine has signed various other international treaties since
obtaining this observer state status confirms the correctness of this position.2
On 1 January 2015, Mohammed Abbas referring to himself as the President of
the State of Palestine - deposited with the Registrar a declaration, purportedly
pursuant to article 12(3) of the Rome Statute (the Declaration), in which he requested
the investigation and prosecution of accomplices of crimes within the jurisdiction of
the Court committed in the occupied Palestinian territory, including East Jerusalem,
since June 13, 2014.3 The Registrar regrettably accepted this document without
reservation and two weeks later, on 16 January 2015, you announced that you were
opening a preliminary investigation into the matter.
On 1 April 2015, having deposited its documents of ratification with the
Secretary General of the United Nations on 2 January 2015, the so-called State of
Palestine was welcomed as the 123rd State Party to the Rome Statute.4
Statutory Framework
Article 12 of the Statute states as follows:
Preconditions to the exercise of jurisdiction
http://www.theguardian.com/commentisfree/2014/aug/29/icc-gaza-hague-court-investigate-warcrimes-palestine
3 http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf
4 http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr1103.aspx
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1.
A State which becomes a Party to this Statute thereby accepts the jurisdiction of
the Court with respect to the crimes referred to in article 5.
2.
In the case of article 13, paragraph (a) or (c), the Court may exercise its
jurisdiction if one or more of the following States are Parties to this Statute or have
accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime
was committed on board a vessel or aircraft, the State of registration of that vessel or
aircraft;
(b) The State of which the person accused of the crime is a national.
3.
If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question. The accepting
State shall cooperate with the Court without any delay or exception in accordance with
Part 9.
Rule 44 of the Rules of Procedure and Evidence states as follows:
Declaration provided for in article 12, paragraph 3
1.
The Registrar, at the request of the Prosecutor, may inquire of a State that is not a
Party to the Statute or that has become a Party to the Statute after its entry into force, on
a confidential basis, whether it intends to make the declaration provided for in article
12, paragraph 3.
2.
When a State lodges, or declares to the Registrar its intent to lodge, a declaration
with the Registrar pursuant to article 12, paragraph 3, or when the Registrar acts
pursuant to sub-rule 1, the Registrar shall inform the State concerned that the
declaration under article 12, paragraph 3, has as a consequence the acceptance of
jurisdiction with respect to the crimes referred to in article 5 of relevance to the situation
and the provisions of Part 9, and any rules thereunder concerning States Parties, shall
apply.
The issue central to any future litigation arising out of the Declaration will be
whether the State of Palestine the existence of which the Applicant denies - has
settled territory over which it may exercise jurisdiction or effective control for the
discrete purpose of article 12(2)(a) of the Rome Statute. The boundaries of Palestine
are still subject to dispute even among Palestinian leaders who continue to debate the
question whether to seek recognition of a State within boundaries resulting from the
1967 Arab-Israeli conflict or whether to petition for more. Yet even if there was
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consensus to declare a State of Palestine within 1967 borders, this would not entitle
the Palestinian Authority in Ramallah to refer a situation, as it did, in territory over
which its own judicial apparatus has no effective control nor capacity to effect
cooperation pursuant to Part IX of the Rome Statute such as those parts of Jerusalem
subject to the sovereign authority of the State of Israel. The Declaration and its
predecessor submitted in 2009 jointly constitute a gross breach of undertakings given by
the Palestinian Authority itself in the context of the Oslo Accords whereby it agreed that
Israel would have exclusive jurisdiction over all criminal offences committed by Israeli
citizens in the occupied Palestinian territory. The Declaration also unilaterally
frustrates the spirit of the Oslo Accords the purpose of which was to negotiate the
future establishment of a Palestinian State.
The Applicant states its firm view that the declaratory process under article 12(3)
was intended to provide sovereign non-State Parties with the opportunity to refer
crimes committed by their nationals or on their national territory. Article 12(3) must, it
is submitted, be read in conformity with article 34 of the Vienna Convention on the Law
of Treaties according to which signatory parties to a convention cannot create
obligations or rights for a third party state and its citizens (such as Israel) without the
latters consent. Article 12(3) cannot be exploited as a mechanism for permitting an
entity with aspirations of statehood to subvert customary international law governing
the attribution of sovereignty.
With this in mind, we firmly believe that your declaration that Palestine could
now join the Rome Statute in the Guardian Comment was not only erroneous but also
inappropriate since it pre-empts a matter which in the words of the former Registrar of
the Court Ms. Silvia Arbia would be subject to judicial determination.5
Notwithstanding, the opinion expressed in your Guardian newspaper comment, which
is not legally binding in any way, encouraged the incumbent Registrar to receive the
Declaration - without reservation and even before the Palestinian Authority signed the
Rome Statute.

http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4C8071087102C/279778/20090123404SALASS2.pdf;
Silvana Arbia to Ali Khashan, 2009/404/SA/LASS, 23 January 2009: Without prejudice to a judicial
determination on the applicability of article 12, paragraph 3 to your correspondence, I wish to inform you
that a declaration under article 12, paragraph 3 has the effect of the acceptance of jurisdiction with respect to crimes
referred to in article 5 of relevance to the situation and the application of the provisions of Part 9 and any rules
thereunder, concerning State Parties, pursuant to Rule 44 of the Rules of Procedure and Evidence. [emphasis
added].

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As mentioned above the Declaration is defective because it purports to empower


you with the capacity to initiate a preliminary investigation into crimes committed in
the nebulous geographical spatial entity known as the occupied Palestinian territory,
including East Jerusalem.6 Indeed, in reaching your conclusion that Palestine could
now join the Rome Statute, the Applicant believes that you failed to appreciate that
Mohammed Abbas has no power whatsoever to facilitate the essential modes of
cooperation envisaged in Part 9 of the Rome Statute most particularly in East
Jerusalem which is under the complete sovereign control of Israel.
Rule 34(d) of the ICC Rules of Procedure and Evidence is unequivocal: the
grounds for disqualification of a judge, the Prosecutor or a Deputy Prosecutor shall
include, inter alia, the following: Expression of opinions, through the
communications media, in writing or in public actions, that, objectively, could
adversely affect the required impartiality of the person concerned. You will surely be
aware that Prime Minister Benjamin Netanyahu of Israel has previously and
unambiguously stated his view that any Palestinian referral to the Court should be
rejected because of Palestines lack of statehood credentials.7 With your Guardian
comment, therefore, you have expressed an opinion on the very issue central to any
potential Israeli argument on the issue of jurisdiction which could be submitted for
judicial determination. Your expressed opinion is proof of your lack of impartiality and,
moreover, has encouraged the Palestinian Authority to continue its relentless abuse of
the Courts procedures in pursuit of its politically motivated campaign of law-fare
against Israel. Your comment in the Guardian Newspaper is sufficient grounds for your
disqualification from any further dealings with the Declaration and any future
Palestinian referral.
Conclusion
By performing your "preliminary examination"8 of the "Situation in Palestine",
you are currently acting ultra vires ad in breach of recognized principles of
prosecutorial impartiality. The Applicant therefore requests that you refrain from any
futher dealings with the present or any future Situation in Palestine. Immediate
action on your part is imperative in order to prevent your involvement in a further
Palestinian referral which, so it is rumoured, will be submitted on 25 June 2015.

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7

http://www.icc-cpi.int/iccdocs/PIDS/press/Palestine_A_12-3.pdf.
http://www.haaretz.com/news/diplomacy-defense/.premium-1.634983
8 Regulation 25(1)(c) of the Regulations of the Office of the Prosecutor.

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Respectfully yours,

Nitsana Darshan-Leitner, Esq


Shurat HaDin-Israel Law Center, President

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