New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute.

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