Defining “State” for the Purpose of the International Criminal Court: The Problem Ahead after the Palestine Decision

Authors

  • Hyeyoung Lee

DOI:

https://doi.org/10.5195/lawreview.2016.405

Abstract

In April 2012, the former ICC Prosecutor Ocampo rejected Palestine’s declaration for accepting ICC jurisdiction. The prosecutor decided that only a “state” is eligible to accept ICC jurisdiction and Palestine was not a “state” according to the UN General Assembly. So after the UN General Assembly recognized the State of Palestine seven months later, Palestine, now eligible to accept ICC jurisdiction, resubmitted its declaration and acceded to the ICC Statute in early 2015. Incumbent Prosecutor Bensouda welcomed Palestine’s resubmission and confirmed that Palestine is considered a state from the date it was recognized by the UN General Assembly. This article examines the problems and implications of the prosecutors’ 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 the other prescriptive areas of the Statute does not determine an entity’s statehood based on any formal recognition. This article also acknowledges 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 non-recognized entity that exercises de facto governmental functions. Considering the usage of the term “state” in the Rome Statute as a whole, this article suggests that the definition of “state” should be based on the assessment about whether entities could 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 Statute to end impunity of the most serious international crimes, and allows the prosecutor to focus on the criminal law, separating her office from political implications.

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Published

2016-03-15

How to Cite

Lee, Hyeyoung. 2016. “Defining ‘State’ for the Purpose of the International Criminal Court: The Problem Ahead After the Palestine Decision”. University of Pittsburgh Law Review 77 (3). https://doi.org/10.5195/lawreview.2016.405.

Issue

Vol. 77 No. 3 (2016)

Section

Articles

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