Palestinian victims have faced double standards and unnecessary procedural hurdles at the ICC, leading to a ‘state of exception’ where standard legal procedures are either suspended or circumvented. Ardi Imseis has critically examined this phenomenon in relation to the Office of the Prosecutor (OTP), specifically Prosecutor Bensouda’s request on 22 January 2020 for a ruling on the Court’s territorial jurisdiction in Palestine. Despite her own finding that ‘the Court does indeed have the necessary jurisdiction in this situation’, Benouda sought Pre-Trial Chamber I’s (PTC I) ‘confirmation that the “territory” over which the Court may exercise its jurisdiction under article 12(2)(a) comprises the Occupied Palestinian Territory, that is the West Bank, including East Jerusalem, and Gaza’. In Prosecutor Bensouda’s view, it was necessary to put the investigation on ‘the soundest legal foundation’ – a standard that is not required by the Rome Statute. As Imseis argues, the Prosecutor’s request was unnecessary as she could have initiated the investigation without it, as was her obligation following Palestine’s referral on 22 May 2018.- This cautious approach, likely aimed at insulating the Court from accusations of political bias, has led the Court down a troubling path of exceptionalising Palestine in its practices…
…“the Pre-Trial Chamber shall […] issue a warrant of arrest”. The use of the word “shall” indicates that the Pre-Trial Chamber is under an obligation to issue a warrant of arrest, provided that the prerequisites listed in article 58(1) of the Statute are met.
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