On March 3, Bensouda confirmed that her office had opened an investigation. In its majority ruling, delivered February 5, 2021, the chamber held that the ICC does possess jurisdiction in this situation, and that the territory in question encompasses Gaza and the West Bank, including East Jerusalem. The matter was examined by the ICC’s Pre-Trial Chamber I (PTC I), consisting of three judges. The prosecutor sought clarification based on the “unique and highly contested legal and factual issues” linked to the question of whether “Palestine,” a party to the ICC, must be considered a state. Per article 19(1) of the Rome Statute (RS)-the treaty that established the ICC-the court is indeed obligated to ensure it possesses the jurisdictional power to investigate a given situation. Over the course of 2020, the International Criminal Court (ICC) in The Hague deliberated how it would respond to legal questions surrounding potential investigations of the “situation in Palestine.” Specifically, the ICC’s prosecutor at the time, Fatou Bensouda, had asked the court to confirm the scope of its jurisdiction in this matter and the territory over which it may exercise that jurisdiction. The legal details of recent preliminary rulings presage the difficulties that the ICC will likely encounter while investigating the Israeli-Palestinian scene, highlighting the broader dilemma of importing political conflicts into the courtroom.
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