In ‘To Be (a State) or Not to Be’, our KGF Director Dr. Robert Heinsch and IHL Clinic Deputy Director Dr. Giulia Pinzauti discuss the impact of the law of belligerent occupation on Palestine’s ability to satisfy certain criteria for statehood under international law, especially with regard to triggering the jurisdiction of the International Criminal Court.
The authors recall that under the Montevideo Convention, an entity must demonstrate it has an ‘effective government’, but that the protracted occupation in Palestine has, however, led many to call into question whether Palestine has the necessary effectiveness to be considered a state under international law. The authors argue that the ‘effective government’ criterion requires a flexible interpretation especially in cases of belligerent occupation. Moreover, the authors purport that deficiencies in ‘effectiveness’ in situations of belligerent occupation should be weighed against other factors, including the principle of international recognition and self-determination. While the authors center this discussion on the situation in Palestine, similar considerations apply to other entities attempting to claim statehood while under a regime of belligerent occupation.
The journal article has been published with the Journal for International Criminal Justice (Oxford University Press), Volume 18, issue 4, pages 927-945 (September 2020), https://doi.org/10.1093/jicj/mqaa048.