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Abstract

The article Israel, Palestine, and the ICC by Daniel Benoliel and Ronen Perry, published in Volume 32 of the Michigan Journal of International Law, makes a case against a possible assertion of jurisdiction by the International Criminal Court over war crimes that may have been committed by persons on either side of the 2008-2009 war in Gaza. Benoliel and Perry argue that the International Criminal Court is powerless to investigate or to prosecute such war crimes, despite the strong possibility that such crimes were committed. Concern over such possible crimes has been widely expressed at the international level, including a study produced by a panel convened by the Human Rights Council of the United Nations. In the abstract, Benoliel and Perry could be correct. The fact of the commission of war crimes does not automatically create jurisdiction over them in the International Criminal Court. The Rome Statute of the International Criminal Court, the court's founding treaty, provides for jurisdiction only in a limited way, broadly requiring some connection to a state that is party to the Rome Statute. But even absent any connection to a state party, jurisdiction also results if the state in whose territory a war crime was committed confers jurisdiction upon the court by lodging a declaration to that effect with the court's registrar. Neither Israel nor Palestine is a party to the Rome Statute. However, Palestine lodged a declaration conferring upon the International Criminal Court jurisdiction over war crimes committed in the territory of Palestine. Benoliel and Perry dispute the effectiveness of that declaration by asserting that Palestine is not a state. A substantial segment of their argument is in the form of a reply to my position to the contrary, as published in the Rutgers Law Record. Benoliel and Perry recount the principal points of my argument and give their arguments to the contrary. The pages that follow explain why there is no validity to the points made by Benoliel and Perry as they seek to challenge my arguments on Palestine's statehood.

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