An Op-ed by Professor Megan A. Fairlie in the JURIST

In the following op-ed that appeared in the January 22, 2013, edition of the JURIST, Florida International University College of Law Professor Megan A. Fairlie makes the case that the  International Criminal Court (ICC) will ultimately delay pursuing an investigation into the effect of Palestine’s non-Member Observer State status on the Court’s jurisdiction…

Palestine’s Upgraded Status and the International Criminal Court

by Megan A. Fairlie

Almost immediately after the UN General Assembly voted to give Palestine non-Member Observer State status, the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) announced its plan to “consider the legal implications” of Palestine’s upgrade. In theory, OTP’s assessment could lead to a blockbuster result: an ICC investigation into the serious crimes alleged to have been committed on the territory of Palestine, and the subsequent prosecutions of the perpetrators deemed responsible, whether Palestinian or Israeli. In reality it seems more likely that OTP will opt to remain silent about its assessment for some time, and that it ultimately will delay pursuing an investigation.

The 2009 Declaration

The Palestinian Authority began its efforts to accept the ICC’s jurisdiction in 2009, when it lodged a declaration under Article 12(3) of the Rome Statute of the ICC. This provision allows a State that is not a party to the Rome Statute to consent to the retroactive jurisdiction of the court over all ICC crimes (genocide, war crimes and crimes against humanity) committed on its territory. Written in the wake of Israel’s Operation Cast Lead, the declaration aims to grant the ICC jurisdiction over persons alleged to be responsible for war crimes and crimes against humanity committed in Gaza and the West Bank since July 2002.

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