To Be (a State) or Not to Be?

Journal of International Criminal Justice, vol. 18, pp. 927–945

Abstract

Abstract One of the traditional criteria for statehood under the Montevideo Convention is that an entity possesses an ‘effective government’. Against this backdrop, this article discusses the impact of belligerent occupation on Palestine’s ability to possess an effective government, and thus fulfil the criteria for statehood. It argues that, as a matter of law, the requirement of effective government should not be interpreted strictly. Statehood does not require an immutable threshold of effectiveness; rather, the criterion has been flexibly interpreted and applied in practice. Belligerent occupation is a factual circumstance calling for such a flexible interpretation. While occupation impairs an occupied entity’s ability to exercise the functions of government, it does not affect statehood. Within the framework of the Rome Statute, the fact that the Court has jurisdiction over situations of belligerent occupation confirms this interpretation. Moreover, when assessing whether an occupied entity meets the criteria for statehood, deficiencies in effectiveness should be weighed against the principle of self-determination and international recognition. Applying those considerations to Palestine’s situation, the conclusion seems warranted that it meets the criteria for statehood under general international law and can thus validly trigger the Court’s jurisdiction to investigate and prosecute alleged crimes committed on its territory.

Authors 2

1. Robert Heinsch corresponding Aachen Public International Law Grotius Centre for International Legal Studies

   Leiden University

   Affiliation as printed

   Public International Law , Grotius Centre for International Legal Studies , Leiden

   Associate Professor of Public International Law, Grotius Centre for International Legal Studies,

   Leiden Law School and Director of the Kalshoven-Gieskes Forum on International Humanitarian Law and its IHL Clinic

2. Giulia Pinzauti Aachen Public International Law Grotius Centre for International Legal Studies Professor of Public International Law

   Leiden University

   Affiliation as printed

   Public International Law , Grotius Centre for International Legal Studies , Leiden

   Professor of Public International Law, Grotius Centre for International Legal Studies, Leiden