Joshua Kern and Dov Jacobs, instructed by the International Association of Jewish Lawyers and Jurists (IJL), submit amicus curiae Brief Regarding the ICC's Prosecutor’s Request to Issue Arrest Warrants for Israeli Leaders
On 6 August 2024, the International Association of Jewish Lawyers and Jurists (IJL) submitted an amicus curiae brief to the International Criminal Court (ICC) relating to the ICC Prosecutor's recent request to issue arrest warrants for Israel’s Prime Minister and Minister of Defence. The submission was co-authored by Hila Kugler Ramot (CEO of the IJL), Dr. Dov Jacobs (Counsel to the IJL), and Joshua Kern (Counsel to the IJL).
The observations focus on two main submissions:
(1) The arrest warrant requests cannot be considered under the scope of the “Situation in Palestine” opened in 2021.
- Factually, the requests arise from a fundamentally different factual context triggered by the attacks committed by Hamas on Israeli territory on 7 October 2023 and Israel’s large-scale subsequent military response.
- Temporally, the requests relate to events that occurred after the investigation was opened, specifically starting from 7 October 2023.
- In such circumstances, the Prosecutor is required to demonstrate a sufficient link to the previously opened investigation, or to open a new investigation.
- Any other interpretation of the Rome Statute would confer on the Prosecutor unlimited authority to initiate open-ended, and indefinite, investigations, without needing to demonstrate that prior appropriate legal and factual analysis has been undertaken and fundamental jurisdictional requirements are met.
- This limitation is crucial to ensure respecting the principle of complementarity and ensuring proper notification to states under Article 18 of the Rome Statute.
(2) The effects of the Oslo Accords on the capacity of the ICC to exercise jurisdiction: any Palestinian capacity to delegate the exercise of criminal jurisdiction to the ICC does not currently enable the Court to exercise jurisdiction over Israelis.
- The ICC's authority is derived from the delegated criminal jurisdiction of States.
- In previous litigation, the ICC’s Pre-Trial Chamber did not find that Palestine is constituted as a State under general international law. A Palestinian right to self-determination does not constitute Palestine as a State.
- The sole source of Palestinian authority to prescribe, adjudicate, and enforce criminal law is the Oslo Accords.
- The binding Oslo Accords did not simply limit the exercise of Palestinian criminal jurisdiction; they constituted the Palestinian Authority and delegated a limited authority to it. Under the Oslo Accords, Palestinian authorities have no jurisdiction over Israelis in any sphere, including the sphere of criminal jurisdiction. Therefore they could not delegate such authority to the ICC.
The full Brief is available here
