“The Office of the Prosecutor of the ICC has never been in a position to open such an investigation for lack of jurisdiction,” says the statement. “We have always, clearly and publicly, stated the reasons why this is so.”
Several international organizations have accused both the Israeli army and Hamas of serious violations of international humanitarian law in Gaza.
“The Rome Statute, the ICC's founding treaty, is open to participation by states,” Bensouda continues. “As Prosecutor, I can only investigate and prosecute crimes committed on the territory or by the nationals of states that have joined the ICC Statute or which have otherwise accepted the jurisdiction of the ICC through an ad hoc declaration to that effect pursuant to article 12-3 of the Statute.”
The Palestinian Authority sought to accept the jurisdiction of the ICC in 2009. However, after analysis, the former ICC Prosecutor concluded in April 2012 that the Palestinian Authority's "observer entity" status at the UN at that time meant it could not sign up to the Rome Statute, since entry into the Rome Statute system is through the UN Secretary-General.
On November 29, 2012, the UN General Assembly upgraded Palestine’s status to "non-member observer State". The Prosecutor’s Office subsequently concluded that Palestine could join the Rome Statute.
“That Palestine has signed various other international treaties since obtaining this ‘observer State’ status confirms the correctness of this position,” says Bensouda. “Nonetheless, to date, the Rome Statute is not one of the treaties that Palestine has decided to accede to.”
In August, Bensouda received a visit from Palestinian Foreign Minister Riad al-Malki who “requested clarifications on different mechanisms for a State to accept the jurisdiction of the ICC and generally regarding the legal framework of the Rome Statute”, according to an ICC press release.