Palestine and the International Criminal Court: asking the right question

This is one of a series of papers published in the inaugural volume of the UCLA Human Rights & International Criminal Law Online Forum addressing legal issues arising from the Palestinian Authority’s submission of a declaration under Article 12(3) of the Rome Statute. The paper considers the differing approaches to the question at hand by critically reviewing each of the papers submitted to the Office of the Prosecutor and published in the Annex to the Summary of Arguments, published by the OTP in May 2010 The paper identifies and reviews two distinct approaches, labeled as the ‘Orthodox’ and ‘Functional’ approaches, and argues that it is the reasoning followed by the proponents of the latter approach that should guide the Prosecutor when making a decision as to whether to accept the Palestinian Authority’s declaration as valid