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Abstract

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter jurisdiction, regardless of where they were committed, it will have to assess its jurisdiction over a non-member state, in this case Israel. Despite having signed the Rome Statute that founded the Court and having expressed "deep sympathy" for the Court's goals, the state of Israel withdrew its signature in 2002, in accordance with Article 127 of the Statute. At any rate, a signature is not tantamount to accession, and accordingly Israel was never a party. The latest highly publicized moves in The Hague come amid mounting international pressure on Israel and a growing recognition in Israeli government circles that the country may eventually have to defend itself against war crimes allegations. Unlike the ad hoc international criminal tribunals of the second half of the twentieth century, it already appears that the Prosecutor of the International Criminal Court could act in accordance with the formal requests of the state parties, and with respect to the availability of the accused individual. The ICC already is said to have encountered difficulties in reviewing the Prosecutor's exercise of discretion in a few highly politicized international conflicts. The recent Israel-Gaza conflict and present judicial process serve as a prime example.

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