The Article 12 (3) Declaration of the Palestinian Authority, the International Criminal Court and International Law

Abstract

This article analyses the validity of the Palestinian Authority Declaration of February 2009 purporting to accept the jurisdiction of the ICC under article 12 (3) of the Rome Statute, which requires the declarant be a State. After reaffirming that Palestine is currently not a State under public international law, the article examines the arguments claiming that Palestine should be regarded as a State for the purposes of the Rome Statute whether because the Statute should be taken as incorporating non-state entities or on account of the existing jurisdictional capacity of the PA. It is concluded that neither argument is sustainable. No reasonable interpretation of ‘State’ in article 12 (3) in the light of the object and purpose of the Rome Statute can extend that term to include non-State entities of whatever hue, while no acceptable reading of the existing jurisdictional capacity of the PA can encompass anything approximating to the satisfaction of the required criteria. Attempts to stretch the interpretation of article 12 (3) beyond the credible might well have deleterious consequences for the Court.