55 Pages Posted: 11 Nov 2009 Last revised: 3 Jan 2011
Date Written: October 8, 2009
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.
Keywords: Israel, Palestine, ICC, Gaza
Suggested Citation: Suggested Citation
Benoliel, Daniel and Perry, Ronen, Israel, Palestine and the ICC (October 8, 2009). Michigan Journal of International Law, Vol. 32, p. 73, 2010. Available at SSRN: https://ssrn.com/abstract=1391963