Israel, Palestine and the ICC
University of Haifa - Faculty of Law
University of Haifa - Faculty of Law; University of Oxford - Faculty of Law
October 8, 2009
Michigan Journal of International Law, Vol. 32, p. 73, 2010
This Article provides a critical assessment of theoretical and practical arguments for judicial state recognition by the International Criminal Court (ICC). It does so both generally and with regard to a highly pertinent contemporary example, namely a judge-made Palestinian state. In the wake of the Israel–Gaza 2008-09 armed conflict and the recently commenced process in the ICC, the Court will soon face a major challenge – one that holds the potential to define its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, for the purposes of the Court itself, and perhaps in general. Apart from the possibility that such a declaration may constitute a controversial intervention in the Israeli-Palestinian peace process, it would also set a precedent within public international law concerning judicial state recognition. The Rome Statute of 1998 establishing the ICC created a state-based system, so that the existence of a Palestinian state is a precondition for the present proceedings to continue. Moreover, although the ICC potentially bears the authority to investigate crimes that fall under its subject-matter jurisdiction, regardless of where they were committed, the question remains as to whether and to what extent it has jurisdiction over non-member states, in this case Israel.
Number of Pages in PDF File: 55
Keywords: Israel, Palestine, ICC, GazaAccepted Paper Series
Date posted: November 11, 2009 ; Last revised: January 3, 2011
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