The ICC Should Not Encourage Occupation

Abstract

The International Criminal Court (the ICC) has neither universal jurisdiction (jurisdiction that is not dependent on the consent of the parties), nor consent-based jurisdiction (jurisdiction that depends on the mutual consent of the two involved states). The ICC does have jurisdiction in cases in which the conduct to be judged took place in a State that accepts the Rome Statute (that declares that the crimes within the jurisdiction of the Court shall not be subject to anystatute of limitations).

Universal jurisdiction would provide the best protection of human rights. Universal jurisdiction does not obtain. It obtains only partially. That is to say, the ICC, which is the institution that is closest to having universal jurisdiction, has only partial universal jurisdiction. The assumption is common that partial jurisdiction is second best. This is not always true. The shift of the ICC from traditional consent- based jurisdiction to a partially universal jurisdiction might weaken human rights protection in some scenarios. The ICC may provide the following undesirable incentives: it might encourage an occupying state to continue the occupation in order to prevent the emerging free state from becoming a party to the Rome Statute and, especially, from accepting its jurisdiction retroactively. It may likewise encourage the occupying state to initiate a civil war in the occupied state as a means of discouraging it from joining the ICC. Moreover, it may encourage

Keywords: Game Theory, International Law, International Criminal Court, Law and Economics,The Israeli Occupation

JEL Classification: k