Thanks. Interesting point. Without arguing the legal merits, I'd make a couple of comments that I hope you find helpful.
First: my understanding on the Rome Statute is that Palestine has been a signatory since about 2016. If that is right, then it's in an anomalous position in respect of the UN. On that, my understanding is that it's not …
Thanks. Interesting point. Without arguing the legal merits, I'd make a couple of comments that I hope you find helpful.
First: my understanding on the Rome Statute is that Palestine has been a signatory since about 2016. If that is right, then it's in an anomalous position in respect of the UN. On that, my understanding is that it's not formally recognized as a full UN member state with voting rights, only with "observer" rights. But the General Assembly has a number of interesting powers, including I believe recognition, sanctions, etc, that can't necessarily be blocked by the Security Council. Food for thought.
Secondly: some recent impressions of the ICJ. As with other international Courts, it seems to have a relatively equitable [1] approach to jurisdiction (compared to national courts with international jurisdiction). Because in the end the buck stops with them. If that is right, they'll tend to reject technicalities and accept jurisdiction unless there are compelling arguments to the contrary. To the extent that so far the ICJ has resisted all of Israel's jurisdictional objections in the current Israel genocide case. Just as it so far has resisted all jurisdictional objections from the parties and the 32 intervening nations in the current Ukrainian genocide case.
[1] I say that as someone steeped in the equity tradition, though I h`ave no idea if the ICJ actually is a court of equity or it sources equivalent legal traditions. Here are the three equitable maxims I think most appropriate to dealing with such technical arguments as you've suggested: equity follows substance over form; equity will not suffer an injury to be without a remedy; and equity will not allow a statute to be used as a cloak for fraud.
Thanks for the great input, especially "equity follows substance over form; equity will not suffer an injury to be without a remedy; and equity will not allow a statute to be used as a cloak for fraud."
Regards your first part: "On 1 January 2015, the Government of The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court ("ICC") over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, The State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on 1 April 2015."
The ICJ has worked for the West and not the World so I'm under no impression they're holy or equitous. However, the judges are human so they will be under a lot of conflicting pressure, from friends and politicians, so there's hope now where there was none before.
That so many countries are participating in this case says a lot about geopolitical shift, that there's less global fear of the USA, and some smell blood in the water.
I'm glad you liked the equity references. I should clarify that most common law jurisdictions are also equity jurisdictions. Also, since the courts of equity and the courts of common law were almost all fused in the 19th century, it follows that almost all common law judges are also equity judges. Civil law judges won't be quite so familiar. That said, the whole idea of provisional measures is like injunctions in common law jurisdictions: and injunctions are a purely equitable remedy. In fact damages is *the* traditional common law remedy: almost all other non-statutory remedies come from equity!
As a personal anecdote, the second maxim I quoted, "equity will not suffer an injury to be without a remedy", was what inspired me to study basic law in the first place. I came across it in a library, reading Chief Justice Holt's judgment in Ashby v White, 1703. In which he used that very maxim to create a brand-new tort: misfeasance in public office. So equity, though severely constrained by its own other maxims, can be extremely powerful!
I've got a couple of smarts but that I'm still trying to swallow that all into my brain means you're smarter than me. You have an interesting and unusual hobby :)
If only the spirit of the law was practiced equally - oh, if! - I can only imagine. Except in my dream world, crimes against Public service are doubly punished.
Thanks. Interesting point. Without arguing the legal merits, I'd make a couple of comments that I hope you find helpful.
First: my understanding on the Rome Statute is that Palestine has been a signatory since about 2016. If that is right, then it's in an anomalous position in respect of the UN. On that, my understanding is that it's not formally recognized as a full UN member state with voting rights, only with "observer" rights. But the General Assembly has a number of interesting powers, including I believe recognition, sanctions, etc, that can't necessarily be blocked by the Security Council. Food for thought.
Secondly: some recent impressions of the ICJ. As with other international Courts, it seems to have a relatively equitable [1] approach to jurisdiction (compared to national courts with international jurisdiction). Because in the end the buck stops with them. If that is right, they'll tend to reject technicalities and accept jurisdiction unless there are compelling arguments to the contrary. To the extent that so far the ICJ has resisted all of Israel's jurisdictional objections in the current Israel genocide case. Just as it so far has resisted all jurisdictional objections from the parties and the 32 intervening nations in the current Ukrainian genocide case.
[1] I say that as someone steeped in the equity tradition, though I h`ave no idea if the ICJ actually is a court of equity or it sources equivalent legal traditions. Here are the three equitable maxims I think most appropriate to dealing with such technical arguments as you've suggested: equity follows substance over form; equity will not suffer an injury to be without a remedy; and equity will not allow a statute to be used as a cloak for fraud.
Thanks for the great input, especially "equity follows substance over form; equity will not suffer an injury to be without a remedy; and equity will not allow a statute to be used as a cloak for fraud."
Regards your first part: "On 1 January 2015, the Government of The State of Palestine lodged a declaration under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court ("ICC") over alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". On 2 January 2015, The State of Palestine acceded to the Rome Statute by depositing its instrument of accession with the UN Secretary-General. The Rome Statute entered into force for The State of Palestine on 1 April 2015."
The ICJ has worked for the West and not the World so I'm under no impression they're holy or equitous. However, the judges are human so they will be under a lot of conflicting pressure, from friends and politicians, so there's hope now where there was none before.
That so many countries are participating in this case says a lot about geopolitical shift, that there's less global fear of the USA, and some smell blood in the water.
As for action: https://mikehampton.substack.com/p/how-to-bypass-usa-veto-un-security-council-gaza
I'm too jaded to be count chickens but imagine the floodgate if Israel is condemned. Easy to imagine sanctions on Cuba busted etc.
Many thanks, Mike, for your useful info and link.
I'm glad you liked the equity references. I should clarify that most common law jurisdictions are also equity jurisdictions. Also, since the courts of equity and the courts of common law were almost all fused in the 19th century, it follows that almost all common law judges are also equity judges. Civil law judges won't be quite so familiar. That said, the whole idea of provisional measures is like injunctions in common law jurisdictions: and injunctions are a purely equitable remedy. In fact damages is *the* traditional common law remedy: almost all other non-statutory remedies come from equity!
As a personal anecdote, the second maxim I quoted, "equity will not suffer an injury to be without a remedy", was what inspired me to study basic law in the first place. I came across it in a library, reading Chief Justice Holt's judgment in Ashby v White, 1703. In which he used that very maxim to create a brand-new tort: misfeasance in public office. So equity, though severely constrained by its own other maxims, can be extremely powerful!
I've got a couple of smarts but that I'm still trying to swallow that all into my brain means you're smarter than me. You have an interesting and unusual hobby :)
If only the spirit of the law was practiced equally - oh, if! - I can only imagine. Except in my dream world, crimes against Public service are doubly punished.
On a different note, check out the documentary on this page in 90min time.