57 Pages Posted: 30 Jun 2010 Last revised: 6 Mar 2012
Date Written: June 29, 2010
The Palestinian National Authority has recently accepted the jurisdiction of the International Criminal Court and requested an investigation into the situation in Gaza. The ICC has replied that it must consider whether Palestine has the capacity to accept the jurisdiction of the Court before the ICC may begin any investigation. This paper will argue that the ICC may assert jurisdiction to investigate allegations of international criminal law violations in the territory based on this communication.
The Rome Statute provides that it is open for ratification by any of the original States Parties to its negotiation and is also “open to accession by all States.” Throughout the Rome Statute reference is made to “States” or “States Parties.” In the alternative to joining the ICC, the Rome Statute also provides that non-members of the ICC may accept the jurisdiction of the Court on a case-by-case basis. In such a situation, the Rome Statute also appears to require that the entity be a “State.” At this point we might quickly conclude that Palestine, not being a state, can neither become a member nor accept the jurisdiction of the Court; however, the conclusion is not so easy.
In terms of statehood, the effective triumvirate of the PNA, PLO and people of Palestine do not appear to fully and conclusively satisfy the objective requirements for statehood, and certainly have not garnered subjective recognition from an overwhelming majority of the states in the world. In no true sense could we argue that the territory and its international relations are fully independent or that it has full capacity to enter into international relations. It acts internationally in many ways and in many situations, but it does not enjoy the degree of freedom in international relations that other states do. We cannot honestly conclude that Palestine is a state for all purposes, though it appears to be incrementally exerting increasing independence. That being said, it would appear that it has been regarded as a state at certain times by certain actors in certain contexts. Indeed, Palestine is a quasi-state.
The quasi-statehood that Palestine has is sufficient for it to accede to the Rome Statute or otherwise accept the jurisdiction of the ICC. International law does not require an international organization to interpret the word “state” in its constitutive document in a restrictive fashion. Given that the Vienna Convention permits interpretation of language with consideration for the object and purpose of the treaty, and the object and purpose of the Rome Statute is to end impunity, we can conclude that international law does not require a narrow interpretation of the word “state” for purposes of Palestinian accession or an Article 12(3) acceptance of jurisdiction.
Keywords: Palestine, Palestinian, ICC, International Criminal Court, Rome Statute, Jurisdiction, Gaza, Israel, State, Statehood
JEL Classification: K00, K10, K14, K19, K30, K33, K40, K41, K42, K49
Suggested Citation: Suggested Citation
Worster, William Thomas, The Exercise of Jurisdiction by the International Criminal Court Over Palestine (June 29, 2010). American University International Law Review, Vol. 26, No. 5, 2012. Available at SSRN: https://ssrn.com/abstract=1632565 or http://dx.doi.org/10.2139/ssrn.1632565
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