Original: English No. ICC-01/18 Date

ICC-01/18-9 20-12-2019 6/112 EK PTreferring State to participate in the proceedings, if they wish. In addition, other States andinterested parties or entities may also seek to participate pursuant to rule 103 of the Court’sRules of Procedure and Evidence, subject to the Chamber’s ruling on the conduct ofproceedings. Considering the complexity of the issues arising in this situation, the Courtwould benefit from a judicial process that enables the Chamber, within a reasonabletimeframe, to hear relevant views which might assist it in its determination and therebyendow its decision with greater legitimacy.87.In concluding that the Court has the necessary jurisdiction for this situation—and theterritorial scope of this jurisdiction—the Prosecutor has primarily been guided by Palestine’sstatus as a State Party to the Rome Statute since 2 January 2015 following the deposit of itsinstruments of accession with the United Nations (“UN” or “United Nations”) SecretaryGeneral pursuant to article 125(3).9 Of note, in discharging his functions as a depositary forthe Statute according to the ‘all States’ formula enshrined in article 125(3), the UN SecretaryGeneral relies on determinations made by the UN General Assembly as to whether aparticular entity may be characterised as a State.10 In order to exercise its jurisdiction in theterritory of Palestine under article 12(2), the Court need not conduct a separate assessment ofPalestine’s status (nor of its Statehood) from that which was conducted when Palestine joinedthe Court. This is because, under the ordinary operation of the Rome Statute, a State thatbecomes a Party to the Statute pursuant to article 125(3) “thereby accepts the jurisdiction ofthe Court” according to article 12(1).11 Article 12(2) in turn specifies the bases on which theCourt may exercise its jurisdiction as a consequence of a State becoming a Party to theStatute under article 12(1) or having lodged a declaration under article 12(3). Simply put, aState under article 12(1) and article 125(3) should also be considered a State under article12(2). There is no reason why this logic should not apply to Palestine.8.In this case, pursuant to UN General Assembly resolution 67/19 which was adopted on29 November 2012, Palestine assumed the status of a UN “non-member observer State.”12This afforded it with the ability to accede to international treaties like the Rome Statute via an‘all States’ formula. As a result, Palestine deposited its instrument of accession with the8See below para. 220.See Statute, article 125(3) (“This Statute shall be open to accession by all States. Instruments of accession shallbe deposited with the Secretary-General of the United Nations”).10See UNSG Depositary Practice, paras. 81-83.11See Statute, article 12(1) (“A State which becomes a Party to this Statute thereby accepts the jurisdiction of theCourt with respect to the crimes referred to in article 5”).12See UNGA Resolution 67/19 (2012).9ICC-01/186/11220 December 2019

ICC-01/18-9 20-12-2019 7/112 EK PTSecretary-General on 2 January 2015 and became the 123rd State Party to the Rome Statute.13Therefore, the Court may exercise its jurisdiction on its territory pursuant to article 12(2)(a).9.Alternatively, and to the extent that the Chamber deems it necessary to conduct a furtherand independent assessment of whether Palestine satisfies the normative criteria of statehoodunder international law, the Chamber could likewise conclude—for the strict purposes of theStatute only—that Palestine is a State under relevant principles and rules of international law.It is a fact that Palestine is restricted in the practical exercise of its authority over the entiretyof the Occupied Palestinian Territory. However, this has to be assessed against the backdropof the Palestinian people’s right to self-determination (a norm of jus cogens nature, which isopposable erga omnes) which has long been recognised by the international community, andthe exercise of which has been severely impaired by, inter alia, the imposition of certainunlawful measures (including the expansion of settlements and the construction of the barrierand its associated regime in the West Bank, including East Jerusalem). Although the situationin Palestine is unique and therefore not comparable to other situations, this approach toassessing the criteria of statehood comports with international practice.10.The Prosecution does not purport to explain or cover in this request the entirety ofissues potentially relevant to the current circumstances in Palestine, including all of thepossible causes for the limitations of Palestinian authority. Nor does the Prosecution implythat one party bears sole responsibility for the existing situation. The Court cannot and shouldnot attempt to identify all the contributing factors. This is not necessary for the presentdetermination and, respectfully, goes beyond this Court’s competence. Moreover, the Statutemakes clear that the Court’s determination of individual criminal responsibility has nobearing on the responsibility of States under international law.14 The Court is entitledhowever to rely, as a matter of fact, on the prevalent views of the international communitywith respect to the negative impact of certain State practices which have clearly andunequivocally been deemed contrary to international law.11.The Prosecution submits that on the basis of either approach, the Court’s territorialjurisdiction extends to the Occupied Palestinian Territory, namely the West Bank, includingEast Jerusalem, and Gaza. In so concluding, the Prosecution has relied on the views of theinternational community as expressed primarily by the UN General Assembly. These1314See above fn. 3.See Statute, article 25(4).ICC-01/187/11220 December 2019

ICC-01/18-9 20-12-2019 8/112 EK PTpronouncements are significant because the General Assembly bears “permanentresponsibility” for the resolution of the question of Palestine15 and is the UN’s chiefdeliberative body where all member States have an equal vote.1612.Significantly, in Resolution 67/19 which accorded Palestine “non-member observerState” status at the UN, the General Assembly “reaffirm[ed] the right of the Palestinianpeople to self-determination and to independence in their State of Palestine on the Palestinianterritory occupied since 1967”.17 Further, the General Assembly has consistently stressed “theneed for respect for and preservation of the territorial unity, contiguity and integrity of all theOccupied Palestinian Territory, including East Jerusalem”.1813.The Prosecution has also relied on views endorsed by other relevant internationalinstitutions which have long associated the Palestinian people’s right to self-determinationwith the Occupied Palestinian Territory and have called for non-recognition of the illegalsituation resulting from Israeli actions and practices in this territory.14.The Security Council has made clear “that it will not recognize any changes to the 4June 1967 lines, including with regard to Jerusalem, other than those agreed by the partiesthrough negotiations”.19 The Security Council has called upon all States “to distinguish, intheir relevant dealings, between the territory of the State of Israel and the territories occupiedsince 1967”.2015.The International Court of Justice (“ICJ”) has found that the construction of a barrier inthe West Bank, which deviates from the Green Line, “severely impedes the exercise by thePalestinian people of its right to self-determination [.]”2116.The Human Rights Council has “[s]tresse[d] the need for Israel, the occupying Power,to withdraw from the Palestinian territory occupied since 1967, including East Jerusalem, so15See e.g. UNGA Resolution 67/19 (2012), preamble (“Stressing the permanent responsibility of the UnitedNations towards the question of Palestine until it is satisfactorily resolved in all its aspects”); UNGA ResolutionES-10/17 (2007), preamble (“Reaffirming the permanent responsibility of the United Nations towards thequestion of Palestine until it is resolved in all its aspects in a satisfactory manner on the basis of internationallegitimacy”).16See UN Charter, article 18(1).17UNGA Resolution 67/19 (2012), paras. 1-2.18UNGA Resolution 73/19 (2018), para. 13. See also UNGA Resolution 72/14 (2017), para. 13; UNGAResolution 71/23 (2016), para. 12; UNGA Resolution 70/15 (2015), para. 11.19UNSC Resolution 2334 (2016), para. 3.20UNSC Resolution 2334 (2016), para. 5.21ICJ Wall Advisory Opinion, para. 122.ICC-01/188/11220 December 2019

ICC-01/18-9 20-12-2019 9/112 EK PTas to enable the Palestinian people to exercise its universally recognized right to selfdetermination”.2217.Based on the above, and countless resolutions and pronouncements rendered by theinternational community over the years, the Prosecution considers that the OccupiedPalestinian Territory is “the territory [where] the conduct in question occurred” within theterms of article 12(2)(a).23 Accordingly, the Court has jurisdiction over alleged crimescommitted in that territory. This determination is made strictly for the purposes ofdetermining the Court’s ability to exercise its jurisdiction and the scope of such jurisdiction,and is without prejudice to any final settlement, including land-swaps, potentially to beagreed upon by Israel and Palestine.22HRC Resolution 37/35 (2018), para

ICC-01/18 2/112 20 December 2019 Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Ms Fatou Bensouda, Prosecutor Mr James .