tag:blogger.com,1999:blog-6279241844677447368.post5746910202558398384..comments2024-01-23T18:04:35.144+01:00Comments on Spreading The Jam (moved to www.dovjacobs.com): Palestine and the ICC (follow-up): asking the right question and giving the wrong answerDov Jacobshttp://www.blogger.com/profile/14088064995374954241noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-6279241844677447368.post-65054302765222432352010-07-05T14:26:46.001+02:002010-07-05T14:26:46.001+02:00Thank you for this clarification Michael. I suppos...Thank you for this clarification Michael. I suppose that our disagreement now boils down to whether the interpretation of the GCIV by the AG and its application to Palestine is persuasive or not. <br />But just one more point from a methodological perspective: even if i were to accept that the AG is correct in its application of the obligations deriving from GCIV to Palestine, thus, you are right, implying that it is a State for the meaning of the Geneva Conventions, it doesn't necessarily mean that it a State for the purposes of the ICC Statute. Indeed, your own point in the paper is to say, that one can avoid the general discussion of what is a State OUTSIDE the Statute (based on general concepts of State recognition in international law), but you then yourself draw the determination of Statehood from an OUTSIDE determination in the field of IHL...<br />In any case, I enjoy our exchanges and look forward to what is likely to be a long debate on the matter :-)Dov Jacobshttps://www.blogger.com/profile/14088064995374954241noreply@blogger.comtag:blogger.com,1999:blog-6279241844677447368.post-40008246160012957972010-07-05T13:51:07.438+02:002010-07-05T13:51:07.438+02:00My paper doesn’t suggest, explicitly or implicitly...My paper doesn’t suggest, explicitly or implicitly, that an additional criterion exists for article 12(2). The question is whether Palestine qualifies as a state for the purpose of the Rome Statute. Material jurisdiction has nothing to do with territory or nationality, nor should it have any impact on whether a state can submit an article 12(3) declaration, or otherwise ratify the Statute.<br /><br />In this instance, the emphasis on the scope of Palestinian jurisdiction is simply an indicator that the UNGA, when considering Palestine’s responsibility vis-à-vis international law, acted on the premise that Palestine shared the duty of states to investigate and prosecute for violations of GCIV. The resolution in question noted that Israel had the same duty. This represents recognition, albeit implicit, that Palestine is a state. Along with all the other factors that support this conclusion, and in line with the functional approach to consideration of this specific question, the conclusion is that the Prosecutor should accept the declaration as valid ie that for the purposes of the Statute, Palestine is a state. <br /><br />This should be the same conclusion whether Palestine is submitting a 12(3) declaration or whether Palestine seeks to ratify the Statute.Michael Kearneynoreply@blogger.com