The Borders of the Occupied Palestinian Territory are Determined by Customary Law

2020 ◽  
Author(s):  
Marco Pertile
Keyword(s):  
International Law ◽  
Criminal Court ◽  
Customary Law ◽  
International Consensus ◽  
Territorial Jurisdiction ◽  
Occupied Palestinian Territory ◽  
The Right ◽  
Palestinian Territory ◽  
East Jerusalem

Abstract In her request pursuant to Article 19(3) of the ICC Statute for a ruling on the territorial jurisdiction of the International Criminal Court (ICC) in Palestine, the Prosecutor of the ICC took the view that the Occupied Palestinian Territory corresponds to the West Bank, including East Jerusalem, and Gaza. The article discusses this finding from a twofold perspective. First, it investigates the actual existence of an international consensus on the borders of the Palestinian territory. Subsequently, it addresses the qualification of such consensus in the system of the sources of international law. Putting the elements analysed by the Prosecutor more clearly into relation with the statements expressed by states individually and within regional groupings, the author finds that her position is accurate. The article then shows that the existing consensus on the borders can be qualified as evidence of a procedural customary rule implementing the right to self-determination of the Palestinian people. In this regard, the ICC may thus exercise its jurisdiction.

State of Exception

2020 ◽  
Author(s):  
Ardi Imseis
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
State Of Exception ◽  
Critical Examination ◽  
Territorial Jurisdiction ◽  
Preliminary Examination ◽  
Occupied Palestinian Territory ◽  
Palestinian Territory

Abstract In December 2019, the Prosecutor of the International Criminal Court concluded her preliminary examination into the situation in Palestine, determining there is a reasonable basis to initiate an investigation into the situation. Instead of doing so, she first decided to seek a ruling from the Pre-Trial Chamber on the scope of the Court’s territorial jurisdiction, specifically aimed at confirming her view that the ‘territory’ over which the Court may exercise its jurisdiction comprises the Occupied Palestinian Territory (OPT). This article focuses on the amici curiae observations and other communications made by eight states parties in the proceedings — Australia, Austria, Brazil, Canada, Czech Republic, Germany, Hungary and Uganda. A critical examination of these observations and communications reveals that they did not answer the question posed by the OTP, but rather advanced a number of strained arguments aimed, inter alia, at impugning the very notion that the Court has any jurisdiction at all on the basis that Palestine is not a state. When juxtaposed against the ostensible commitment of these states parties to the object and purpose of the Statute, their observations and other communications reveal a conspicuous hypocrisy. If accepted by the Court, these observations and communications would operate to not only affirm the continued contingency of the state of Palestine on the international plane, but, even worse, to shield persons known to have committed or be committing crimes of the gravest concern to the international community with impunity.

The Prosecutor’s Request Concerning the Rohingya Deportation to Bangladesh: Certain Procedural Questions

2018 ◽  
Vol 31 (4) ◽  
pp. 981-1002 ◽  
Author(s):  
MICHAIL VAGIAS
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Territorial Jurisdiction ◽  
The Right ◽  
First Time

AbstractOn 9 April 2018, the Prosecutor of the International Criminal Court filed a request seeking the composition of a Pre-Trial Chamber, in order to decide whether the Court has territorial jurisdiction over the Rohingya deportation from Myanmar to Bangladesh as a crime against humanity. This filing is a first for the Court on at least two fronts; it is the first time the Prosecutor has asked the Court to interpret Article 12(2)(a) and apply qualified territoriality; it is also the first time the Prosecutor has asked for a ruling on jurisdiction under Article 19(3).This study explores certain procedural questions emerging from this request, such as the Court’s authority to decide while its jurisdiction is ‘dormant’; the function of Article 19(3) within the Rome Statute’s overall system concerning jurisdictional determinations; issuing a decision on jurisdiction, while avoiding prejudice to subsequent proceedings and without rendering meaningless the right to challenge jurisdiction under Article 19(2) of the Statute. The article accepts that the request is a step in the right direction, as it signals the Prosecutor’s determination to investigate the Rohingya crisis. However, the manner and timing of its presentation give rise to plausible claims of incompatibility with the Court’s procedural framework. Arguably, the Court may well instruct the Prosecutor to assume the risk of wasting precious resources and proceed with further investigations, pending the final determination of the jurisdictional question at a later stage.

The Denial of the Right of Return as a Rome Statute Crime

2020 ◽  
Author(s):  
Micheal G Kearney
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
Rome Statute ◽  
Final Section ◽  
International Criminal ◽  
Trial Chamber ◽  
Criminal Court ◽  
Central Importance ◽  
Right Of Return ◽  
The Right

Abstract In 2018, Pre-Trial Chamber I of the International Criminal Court (ICC) held that conduct preventing the return of members of the Rohingya people to Myanmar could fall within Article 7(1)(k) of the Statute, on the grounds that denial of the right of return constitutes a crime against humanity. No international tribunal has prosecuted this conduct as a discrete violation, but given the significance of the right of return to Palestinians, it can be expected that such an offence would be of central importance should the ICC investigate the situation in Palestine. This comment will review the recognition of this crime against humanity during the process prompted by the Prosecutor’s 2018 Request for a ruling as to the Court’s jurisdiction over trans-boundary crimes in Bangladesh/Myanmar. It will consider the basis for the right of return in general international law, with a specific focus on the Palestinian right of return. The final section will review the elements of the denial of right of return as a crime against humanity, as proposed by the Office of the Prosecutor in its 2019 Request for Authorization of an investigation in Bangladesh/Myanmar.

scholarly journals Victim’s Right of Access to International Criminal Courts

2016 ◽  
Vol 10 (1) ◽  
pp. 279
Author(s):  
Fazlollah Foroughi ◽  
Zahra Dastan
Keyword(s):  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
International Level ◽  
Human Beings ◽  
International Crimes ◽  
The Government ◽  
The Right ◽  
Right Of Access

Due to quantitative expansion and evolution in committing the crime at the international level, the scope of criminal proceedings has been widened significantly. Tolerance and forgiveness towards crimes that happen at international level not only is a double oppression on the victims, but also provide a fertile context for others to commit crimes more daringly. Thus, it is essential that international criminals are held accountable to the law and competent institution, and the realization of this issue leads to the victim satisfaction in international law. Not only in international law, but also in domestic law, show respect and protection of human rights is effective only when there is an effective justice system to guarantee the rights. Although some international crimes practically occur by the government or at least high-ranking government officials, the Statute of the International Criminal Court has reiterated this point that they only have jurisdiction over the crimes committed by natural persons rather than legal entities, which one good example is governments, and although the real victims of these crimes have been human beings, in the case of action and referring the case to the competent international courts, these are the states (rather than the victims) that actually have the right of access to the authorities and not beneficiaries .Thus, at the first step, we should see whether the Court has jurisdiction over the crime committed by the government and whether people can file an action independently in the International Criminal Court or not? When people, rather than governments, are beneficiaries in some international crimes, why only the government and not the people is the plaintiff? And what is the right of the victim in such category of crimes? Accordingly, the current research seeks to examine these rights and restrictions, and relevant limitations.

Political Participation of Aboriginal People (Orang Asli) in Peninsular Malaysia: Examining the Compatibility of the Aboriginal Peoples Act 1954 with Undrip Standards

2020 ◽  
pp. 1-21
Author(s):  
Muhamad Sayuti Hassan ◽  
Rohaida Nordin
Keyword(s):  
Political Participation ◽  
International Law ◽  
Aboriginal People ◽  
Well Being ◽  
Peninsular Malaysia ◽  
Self Determination ◽  
Aboriginal Peoples ◽  
Orang Asli ◽  
The Right

The main objective of this article is to critically evaluate the compatibility of the ‘right to political participation’ of the Orang Asli by looking at international law standards. The present study utilises a qualitative socio-legal approach, which analyses the political participation of the Orang Asli under Malaysian law and determines whether the Aboriginal Peoples Act 1954 (apa) can provide for the protection, well-being, and the advancement of the Orang Asli. Arguably, the existing provisions of the apa are not in conformity with the recognition in undrip and in no way guarantee the Orang Asli’s right to self-determination as recognised by international law. Thus, the current study recommends an amendment to the apa and introduces guidelines to empower political participation of the Orang Asli by incorporating the principles of undrip. The amendment is necessary to ensure that the protection of the right to self-determination of the Orang Asli is compatible with international law standards.

Introduction The customary law of human rights is hiding in plain sight

2021 ◽  
pp. 1-8
Author(s):  
William A. Schabas
Keyword(s):  
Human Rights ◽  
International Law ◽  
Customary Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
Human Rights Law ◽  
Customary International Law ◽  
Regional Systems ◽  
Second World

Many areas of international law developed first as custom and were only subsequently, generally in the course of the twentieth century, subject to codification. Human rights law was different. It was viewed as quintessentially a matter of domestic concern, a subject shrouded in State sovereignty. Only following the Second World War was international human rights law recognised as a source of binding obligations, mainly through the adoption of the Universal Declaration of Human Rights and other instruments of the United Nations as well as the regional systems. Later, jurists began contending that the norms in these instruments might also be customary in nature. They struggled with identifying the two classic elements in the determination of custom, opinio juris and State practice. Most analysis of the content of customary international law was rather perfunctory and also quite conservative, confining itself largely to civil and political rights.

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