By opening an investigation into the conflict between Israel and the Palestinians, the International Criminal Court’s prosecutor has accepted that there is, in fact, a Palestinian state. Granting such recognition to “Palestine,” writes Eugene Kontorovich, flies in the face of international law and the ICC’s own founding documents:
[T]he prosecutor did not actually determine that Palestine qualifies as a “state” under the well-established legal definitions of the term. Rather, she said that the UN General Assembly’s vote in 2012 to call Palestine a “non-member state” is dispositive of the question. In short, she substituted the determination of the General Assembly for her own. The General Assembly is not a judicial body, but a political one. Its determinations are political, not legal. It also has no power under the UN Charter to create or recognize states. . . .
Unfortunately, this is not the first time the prosecutor has deferred to judgments of the General Assembly in lieu of legal analysis. Even more unhappily, the other recent occasion also involved Israel, and the prosecutor grabbed onto General Assembly resolutions to find an “occupation” where it could not be said to exist under normative international law, including International Court of Justice precedents. An Office of the Prosecutor that merely echoes the General Assembly is in danger of becoming simply another UN Human Rights Council.
Read more on Washington Post: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/16/icc-prosecutor-undermines-courts-independence/