The OTP has filed its response to the various submission in the #Palestine situation. I still maintain asking the PTC to decide now was a mistake. I think the OTP is quite likely to lose. icc-cpi.int/CourtRecords/C… #ICC #Israel
2. The OTP opens (para. 3) by expressing regret at the adversarial tone of some of the amicus briefs, citing the ridiculous ones filed by @ECLJ_Official, @ShuratHaDin, and the Israeli Bar Association.
@ECLJ_Official @ShuratHaDin 3. OTP rejects (paras. 7-10) idea it should not have sought a preliminary ruling on jurisdiction. Unconvincing argument that ignores institutional considerations. As @pilabuda and I have argued, finding no jurisdiction in response to an arrest warrant would be more difficult.
@ECLJ_Official @ShuratHaDin @pilabuda 4. OTP rightly rejects (para. 10) idea that the Court should find no jurisdiction because it would harm the peace process. There is no peace process, because #Israel is not interested in one. See, eg., its current plan to illegally annex territory in the West Bank.
@ECLJ_Official @ShuratHaDin @pilabuda 5. Next section carefully dispels the idea OTP is arguing that #Palestine doesn’t have to qualify as a state for #ICC jurisdiction. Makes clear the argument is that neither the PTC nor the OTP should second-guess the ASP’s belief Palestine is a state. Procedural position only.
@ECLJ_Official @ShuratHaDin @pilabuda 6. OTP adopts Schabas’s argument about the UN depository accepting Palestine’s articles of accession — doesn’t create statehood but failure of states to object at the time (including those that are protesting now) means they accepted statehood for at least Rome Statute purposes.
@ECLJ_Official @ShuratHaDin @pilabuda 7. OTP argues (para. 19) that states opposing Palestine’s accession to Rome Statute have to bring their challenge to the ASP, per Art. 119 of the Rome Statute. I agree.
@ECLJ_Official @ShuratHaDin @pilabuda 8. Twisting the screws, the OTP then points out (para. 24) that none of the states currently opposing jurisdiction in #Palestine bothered to use the mechanisms available in the statute to challenge Palestine's accession.
@ECLJ_Official @ShuratHaDin @pilabuda 9. OTP relies on Buchwald and Rapp’s opposing brief (!) to remind PTC (para. 25) that the UNSG told states as depository that it was their responsibility to resolve any disputes over accession. Then reiterates they did not.
@ECLJ_Official @ShuratHaDin @pilabuda 10. OTP points out (para. 26) that not only did states not object in a timely fashion to Palestine’s accession, they even elected Palestine to hold office in the ASP Bureau. (We argued this in our amicus.) Excellent.
@ECLJ_Official @ShuratHaDin @pilabuda 11. OTP also argues, very intelligently, that there is absolutely no merit to the argument, offered by some states and amici, that “state” means something different for Art. 12 than it does for Art. 125. Rightly takes position that “state” has one meaning throughout Rome Statute.
@ECLJ_Official @ShuratHaDin @pilabuda 12. Very sophisticated and convincing OTP rejection (paras. 31-38) of the idea that the ICJ's Monetary Gold judgment applies to the #ICC generally and to the #Palestine situation in particular.
@ECLJ_Official @ShuratHaDin @pilabuda 13. OTP now turns to the argument that #Palestine is a state under international law. Smartly opens (para. 40) by noting that opposing briefs generally acknowledge Montevideo criteria have never been strictly applied — they just don’t want that to be the case for #Palestine.
@ECLJ_Official @ShuratHaDin @pilabuda 14. OTP cites (para. 41) Shaw’s opposition brief for idea that Montevideo criteria are not immutable and can vary in importance. This is excellent, because Shaw openly argues the criteria can be relaxed only if powerful states approve. (So Kosovo is a state but Palestine is not.)
@ECLJ_Official @ShuratHaDin @pilabuda 15. Kudos to @AeyalGross! The OTP relies heavily (para. 42) on his work arguing sovereignty over occupied territory being vested in the people under occupation.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross 16. OTP correctly reiterates (paras. 47-49) that the effectiveness requirement for statehood should be relaxed for #Palestine in light of #Israel’s systematic reliance on illegal actions to deny Palestinians their right of external self-determination.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross 17. OTP argues (para. 56) that object and purpose of Rome Statute — combating impunity — means it can operate on territory of “less effective” states. I hate this argument and wish it was not in the reply, because it detracts from the OTP's other, more convincing arguments.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross 18. OTP rejects — again correctly — idea that it has ignored the Oslo Accords or misrepresented them. Reiterates its position, derived from @carstenstahn’s work (inter alia), that the Accords did not prohibit Palestine from delegating its prescriptive jurisdiction to the #ICC.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 19. OTP perceptively notes (para. 75) that #Palestine has long engaged in foreign relations that are not permitted by the Oslo Accords, yet the international community has not only not protested, it has permitted Palestine to ratify treaties, accede to the Rome Statute, etc.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 20. Finally, OTP turns (para. 78) to question of what #Palestine’s territory is within #ICC jurisdiction. Opens by noting, as we argued in our amicus, that the ICC does not have to determine borders of the state of Palestine to find territory within the Court’s jurisdiction.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 21. Not surprisingly, OTP adopts (paras. 82-84) the 1967 Green Line as the best indicator of the territory over which #ICC can exercise jurisdiction. Notes #Israel’s illegal settlement activity cannot limit that territory.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 22. OTP nicely reminds (para. 91) that #Israel has made clear its intention to illegally annex large swathes of the West Bank. Not really connected to a legal argument, but an important reminder to the PTC that #Israel has no intention of complying with international law.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 23. OTP again argues (para. 96) that #Palestine’s lack of effective control over Gaza does not deprive #ICC of jurisdiction over that territory just as #Ukraine’s lack of effective control over #Crimea does not. Smart.
@ECLJ_Official @ShuratHaDin @pilabuda @AeyalGross @carstenstahn 24. That’s it. This is a very sophisticated reply brief. That said, I won't be surprised if the OTP loses, given the opposition of powerful #ICC-supporting states like Germany. I still believe it was a serious mistake for the OTP to ask the PTC to weigh in outside an actual case.
