Journal Article

In Defence of Functional Interpretation of Article 12(3) of the Rome Statute

Yuval Shany

in Journal of International Criminal Justice

Volume 8, issue 2, pages 329-343
Published in print May 2010 | ISSN: 1478-1387
Published online April 2010 | e-ISSN: 1478-1395 | DOI: http://dx.doi.org/10.1093/jicj/mqq023
In Defence of Functional Interpretation of Article 12(3) of the Rome Statute

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In an article published in the Journal, Yaël Ronen considered the 21 January 2009 declaration by the Palestinian National Authority (PNA) recognizing the International Criminal Court’s (ICC) jurisdiction over the events which took place in Gaza in 2008–2009, to persuasively argue that the ICC Prosecutor would be ill-advised to assume jurisdiction over the alleged crimes committed by Israel in Gaza by virtue of the PNA’s lack of statehood. In this brief response, the author advocates a more functional approach to Article 12(3) of the ICC Statute than that taken by Dr Ronen, contending that at the least it allows ‘quasi-states’ with international legal personality to seek the ICC’s delegation-based jurisdiction over criminal matters within a territory over which they have recognized authority. At the same time, however, the ability of quasi-states such as the PNA, to delegate authority to an international organization may be fatally circumscribed by instruments that facilitated their creation. The Oslo Accords, which created the PNA, denied it jurisdiction over Israelis and seriously restricted its ability to conduct foreign relations. Acceptance of jurisdiction by delegation must respect these inherent limitations, both conceptually and as a practical matter. Thus the author reaches a similar, although not identical, conclusion to that reached by Dr Ronen, albeit based on a very different reading of Article 12(3) of the ICC Statute.

Journal Article.  7604 words. 

Subjects: Criminal Law ; International Law

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