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1/ Why the ICC investigation into Palestine should not be permitted to proceed: only states can transfer jurisdiction to the ICC, and Palestine is not (yet) a state.
2/ “It is a basic and widespread understanding, including among Palestinians themselves, that functional and legally valid statehood is a future aspiration, not a current reality.” https://www.washingtoninstitute.org/policy-analysis/view/why-the-icc-prosecutor-is-wrong-on-oslo
3/ There are 4 criteria for statehood under int’l law (pop., territory, gov’t, capacity). Palestine doesn’t fit the criteria. They have a right to self-determination, but that doesn’t immediately/automatically translate into statehood. Palestinian statehood is still aspirational.
4/ The ICC only has jurisdiction over crimes committed on the territory of a state party. This is b/c the whole system works on consent - by acceding to the Rome Statute, the state is effectively transferring jurisdiction over international crimes to the ICC.
5/ Palestine acceded to the Rome Statute and became a state party, but that never should have happened (many objected). The ICC decided to allow them to join & just decide the question of their statehood later. Now we have a bizarre situation where a "state party" is not a state.
6/ Two wrongs don't make a right. To proceed would be to "dig in" to the mistake that was made when Palestine was permitted to join the Rome Statute prematurely. Fundamentally: Palestinian statehood is a prereq to the investigation, and Palestinian statehood doesn’t yet exist.
7/ Beyond this issue w/ statehood, proceeding in this case that is so deeply political - undermines the legitimacy of the ICC, and could hinder the peaceful resolution of the conflict going forward.
