[PDF version of ICC submission available here]
[PDF version of statement available here]
The UK charity, Lawyers for Palestinian Human Rights (“LPHR”), yesterday filed written observations to the International Criminal Court (“ICC” or “Court”), which address the relevance of the Oslo Accords to the Court’s jurisdiction over Israeli nationals. The Court has registered our submission.
LPHR has undertaken this action following the recent decision by Pre-Trial Chamber I to approve a request made by the previous UK government to provide written submissions on “whether the Court can exercise jurisdiction over Israeli nationals, in circumstances where Palestine cannot exercise criminal jurisdiction over Israeli nationals pursuant to the Oslo Accords.”1 Although the new UK government subsequently withdrew from this matter, these proceedings are continuing.
The previous UK government’s request followed ICC Prosecutor Karim Khan KC’s announcement of 20 May 2024 that he had made applications for warrants of arrest to Pre-Trial Chamber I against Israel’s Prime Minister and Defence Minister, and three Hamas leaders.
LPHR is concerned at the prospect of the Chamber potentially finding that the Oslo Accords do act as a prohibitive bar on the Court exercising jurisdiction over Israeli nationals. Such a determination would devastate the prospect of critically realising legal accountability for alleged exceptionally serious criminal wrongdoing.
LPHR endorses the Prosecution position that, even if they have continued legal force, the Oslo Accords do not affect the Court’s jurisdiction.2 Our written submissions address a specific related question: the Accords’ de facto implementation. LPHR submits that in determining their relevance, the Court must take account of the extent to which the Accords are actually alive and operational.
Our submissions analyse that question by focusing on three core obligations which are emblematic: transfer of civil powers in Area C, safe passage between Gaza and the West Bank, and water management in the West Bank. Because the question before the Court concerns benefits purportedly conferred by the Accords on Israel, our submissions focus on Israel’s compliance.
LPHR’s ten-page submission is available here. We provide below the concluding four paragraphs of our observations in full, so as to illuminate a range of critical points and findings.
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31. These are three examples among many. Other unimplemented aspects of the Accords include the promised Gaza seaport and Palestinian rights over the sea and continental shelf (including gas fields) adjacent to Gaza. A system of committees was established, almost none of which function. And most centrally: the Accords established a temporary arrangement. They were not intended to operate for decades.
32. Beyond the failure to meet many Oslo II obligations, Israel is simultaneously taking active steps to defeat the core premises underpinning the interim arrangement (that the “integrity and status” of the West Bank and Gaza will be preserved, and that permanent status negotiations will be pursued, resulting in Israel’s withdrawal from those territories). For example:
a) Since 1998, Israel has seized nearly 50 sq. km of land in Area C and declared it “state property” within Israel’s exclusive control. 23.7 sq. km has been seized this year alone.
b) Israel invests heavily in West Bank settlements located in Area C, and incentivises Israelis to live in them: between 1995 (when Oslo II was agreed) and 2022, the number of the West Bank rose from 134,000 to 478,000.
c) In February 2023, Israel transferred responsibility for West Bank civil affairs from the military to the Israeli civil service, a striking departure from Oslo II, which anticipated the transfer of control directly from the Israel’s military to the Palestinian Council.
d) Last month, Israel extended its civil powers in the West Bank into Area B, assuming for itself planning powers there to enable demolitions. Planning powers in Areas A and B had been transferred to the Palestinian Authority in phase 1 of the Oslo II redeployment, and held by them throughout the decades since.
33. Such actions cannot be ascribed simply to security concerns or reciprocity in respect of Palestinian non-compliance. Rather, they reflect a policy of annexation,3 engineered to frustrate the possibility of permanent status negotiations resulting in Palestinian control of Area C (as contemplated by the Accords and Security Council resolution 242).
34. These submissions do not afford space to address legal consequences. However, it is clear that, in practice, Israel has decisively turned its back on Oslo II. In light of its moves to permanently undermine the very basis of Oslo II, selective adherence to beneficial provisions – such as in relation to water – cannot be interpreted as commitment to Oslo II. The Chamber may ask whether Israel should benefit from a treaty which it is not implementing in good faith; any attempt by its leaders to use it as a shield against criminal jurisdiction would be made without “clean hands”.4
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1 Request, Para. 27.
2 Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ICC-01/18-12, 22 January 2020, paras 183-188.
3. Now recognised as such by the International Court of Justice (“ICJ”): Advisory Opinion of 19 July 2024, paras especially 157-179, paras 173, 179.
4. See for example the view of Judge Van den Wyngaert sitting in the ICJ: Arrest Warrant of 11 April 2000 (DRC v Belgium), Dissenting Opinion of Judge ad hoc Van den Wyngaert, p161.