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- Title
DEFINING "STATE" FOR THE PURPOSE OF THE INTERNATIONAL CRIMINAL COURT: THE PROBLEM AHEAD AFTER THE PALESTINE DECISION.
- Authors
Hyeyoung Lee
- Abstract
In April of 2012, former Prosecutor Ocampo rejected Palestine's declaration for accepting International Criminal Court ("ICC") jurisdiction. The Prosecutor decided that only a "state" is eligible to accept ICC jurisdiction and that Palestine was not a "state" according to the UN General Assembly ("UNGA"). After the UNGA officially recognized the State of Palestine seven months later, Palestine, now eligible to accept ICC jurisdiction, resubmitted its declaration and acceded to the Rome Statute of the ICC ("Rome Statute" or "Statute") in early 2015. Incumbent Prosecutor Bensouda welcomed Palestine's resubmission and confirmed that Palestine is to be considered a "state" from the date it was first recognized by the UNGA. This Article examines the problems and implications of the Prosecutor's decision on Palestinian statehood and ultimately suggests an alternative definition of "state" for the Rome Statute as a whole. In particular, this Article acknowledges that, contrary to the Prosecutor's decision, a developed understanding of "state" within other prescriptive areas of the Statute does not determine an entity's statehood based on any formal recognition. This Article also acknowledges that a functional interpretation of "state" is often allowed for determining the scope of applicability of war crimes and the crime of aggression to include a nonrecognized entity that exercises de facto governmental functions. Considering the use of the term "state" in the Rome Statute as a whole, this Article suggests that the definition of "state" should be based on an assessment of whether entities can be regarded as functionally equivalent to states that constitute the contextual elements of international crimes. This approach is in accordance with the broad framework of international law and practice, better serves the purpose of the Rome Statute to end impunity of the most serious international crimes, and allows the current Prosecutor to focus on international criminal law, separating her office from political implications.
- Subjects
PALESTINE; INTERNATIONAL Criminal Court; INTERNATIONAL criminal law; WAR crimes; AGGRESSION (International law)
- Publication
University of Pittsburgh Law Review, 2016, Vol 77, Issue 3, p345
- ISSN
0041-9915
- Publication type
Article
- DOI
10.5195/lawreview.2016.405