It is evident, of course, that the declaration cannot change the limitations on jurisdiction that are prescribed by the ICC Statute itself, as adopted on 17 July 1998 by the States assembled at the Diplomatic Conference of Plenipotentiaries in Rome.

The language of Article 12 of the ICC Statute sets forth plain and irreducible “[p]reconditions to the exercise of jurisdiction” by the Court. It states unequivocally that the acceptance of the Court’s jurisdiction is limited to “States” both under Article 12(2) and Article 12(3). However, the Palestinian Authority does not qualify as a “State” or “State Party” under the ICC Statute. It is therefore ineligible, inter alia, to make a declaration under Article 12(3). The language of Article 12(3) was finalized at the Rome conference in July 1998, and has not been the subject of any corrigenda.3

The Palestinian Authority was not a participating “State” at the Rome Conference in 1998. The conference’s official roster of “Participating States” includes 163 States from around the world, but it does not include the Palestinian Authority or “Palestine” as a State. Rather, the Palestinian Authority, listed as “Palestine,” was placed under the category of “Other Organizations” in the official diplomatic roster of the Rome Conference.4

The Palestinian Authority’s General Delegate to Italy, Mr. Nimer Hammad, and the Counselor of the Permanent Observer Mission of Palestine at the United Nations in New York, Mr. Marwan Jilani, did not attend the Rome Conference as representatives of a State, according to the official records of the Conference, but rather under the aegis of “Other Organizations”.5

In accordance with international law and settled diplomatic usage, the Palestinian Authority also did not attempt to vote on the adoption of the final treaty text that established the International Criminal Court at the Rome Conference, as Palestine was not considered a State. So, too, throughout the ICC Preparatory Commission that convened after the adoption of the Rome Statute, the Palestinian Authority again neither attended nor participated as a “country” or “state”, but rather was accepted only under the category of “Entities, intergovernmental organizations and other bodies having received a standing invitation to participate as observers in the sessions and the work of the General Assembly.”6

The same practice was observed, for evident reasons, during the meetings of the ICC Assembly of States Parties over the last seven years, ever since the ICC Statute entered into force on 1 July 2002. At these meetings, the same diplomatic and legal distinctions have been preserved. For example, at the most recent meeting, held at the United Nations Headquarters in New York City from 9th to 13th of February 2009, neither the Palestinian Authority nor “Palestine” was seated in any of the categories applicable to States. They were neither listed as a “State Party to the Rome Statute”, nor as an “Observer State”, nor even as a “State invited to be present”. Rather, the Palestinian Authority or Palestine attended under a fourth category entitled “Entities, intergovernmental organizations, and other entities”.7

Quite apart from the plain meaning of the ICC Statute and the standing diplomatic practice and credential decisions of the Rome conference and the succeeding implementing conferences, there is also the scholarly literature on the ICC Statute that compels this good faith and ordinary reading of the word “State” in Article 12(3).8 As made evident by Rule 44(1) of the ICC Rules of Procedure and Evidence,9 a declaration under Article 12(3) of the ICC Statute can be submitted only by “States” that are otherwise eligible to become Parties to the ICC Statute.

In Article 125 to the ICC Statute, it is noted that only a “State” is eligible for “Signature, ratification, acceptance, approval or accession” to the ICC treaty. Declarations under Article 12 also speak of “acceptance” of the jurisdiction of the Court, and in particular, Article 12(3) invites the retrospective “acceptance” of jurisdiction by a non-party State.10 But the precondition is that it has to be a “State” within the meaning of the treaty and general international law.

As noted in the respected Commentary on the Rome Statute edited by Professor Otto Triffterer, following the Rome conference, “[i]n accordance with normal modern practice for multilateral treaties, the [ICC] Statute [was] open for signature by all States”.11 The commentary notes that not every “entity” qualifies as a “State”, and thus that the range of possible signatories was limited.12

When the period for State signature expired on December 31, 2000, the ICC Statute still remained open to “accession”, but again, only by States. As the Triffterer Commentary notes, in a second edition of this notable treatise, published in 2008,

“States that did not find it possible to sign within the relevant time period may always ‘accede’ to the Statute. Timor-Leste, for example, which had not achieved its independence at the relevant time, was among those acceding to the Statute.”13

But as Professor Triffterer’s treatise indicates, the class of possible members is still strictly limited to States, and does not include Palestine:

A number of small States and Switzerland have joined the United Nations since 1998. In addition to the 191 Members of the United Nations and the Holy See, the lone State that now has Observer Status with the organization, the other entities generally regarded by the international community as States are both small island countries in the Pacific: Cook Island and Niue. … The total potential parties to the Rome Statute thus stands at 193, given the present political status of the World.”14

Professor Triffterer’s treatise excludes the Palestinian Authority and “Palestine”. So, too, the ICC Commentary by Professor Antonio Cassese notes that accession to the treaty, including under Article 12(3), is limited to States.15

Thus, both the wording of the ICC basic documents, the diplomatic practice of the ICC Rome Conference, Preparatory Commission, and Assembly of States Parties, and scholarly commentary make it clear that the Palestinian Authority is not a “State” for the purposes of Article 12(3) of the ICC Statute. This answers conclusively the question raised by submission of the declaration of the Palestinian Authority under Article 12(3).

While no additional general question of international public law arises in this regard, it may nevertheless be worth noting that Article 12(3) is entirely consistent with the practice under other global multilateral treaties and public international law. For example, at the United Nations General Assembly, the representatives of the Palestinian Authority are not permitted to vote. Indeed, unlike the Holy See, Palestine is not included or seated in the category of “Non-member State having received a standing invitation to participate as observer in the sessions and the work of the General Assembly and maintaining permanent observer mission at Headquarters.”16

Rather, in the Official Protocol List of the United Nations, Palestine is listed as belonging to the category of “Entities having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and maintaining permanent observer missions at Headquarters.”17

In addition, general principles of international law concerning the recognition of statehood argue strongly against any different conclusion. For example, the terms of Article 1 of the Montevideo Convention18 establish prerequisites to statehood that include “(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” These criteria are principal indicia of statehood. Yet under the terms of the 1995 interim agreement, one or more of these elements is problematic, since the Palestinian Authority has, for example, foresworn a general capacity to enter into foreign relations with other states.19 So, too, the Palestinian Authority does not effectively control the territory of Gaza.

Furthermore, since the end of the Cold War, there has been a suggestion by some scholars and diplomats that an added normative element should be prerequisite to the recognition of new states. In the early 1990’s, the European Community built upon the Charter of Paris and the Helsinki Final Act, and announced guidelines to regulate the recognition of new states during the break-up of the former Soviet Union and the Federal Republic of Yugoslavia.20

These guidelines suggested that before a new state should be recognized, its record of performance must demonstrate respect for the rule of law, democracy, human rights, and the rights of ethnic minorities, as well as “respect for the inviolability of all frontiers which can only be changed by peaceful means and common agreements.”

Under these standards as well, it would put the cart before the horse to effectively grant statehood before the elements of this test are satisfied. Indeed, it has been noted that premature recognition of a contested territory as an independent state can diminish the incentives for establishing the legal bulwark of these norms.

As a matter of law, the Palestinian Authority was established as a provisional body with clearly defined and circumscribed powers, under a series of agreements between Israel and the Palestinian Liberation Organization, pending the conclusion of permanent status negotiations. Under these agreements, as noted above, the PA lacks capacity in such essential spheres as the conduct of foreign relations.

For example, by the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, signed by Israel and the Palestinian Liberation Organization,21 the newly created Palestinian Council is specifically limited in its powers by Article 9(5). In particular, under Article 9(5)(a), the Palestinian Council does “not have powers and responsibilities in the sphere of foreign relations … and the exercise of diplomatic functions.”22

In addition, Article 9(5)(c) of the 1995 Interim Agreement specifically states that “Dealings between the Council [of the Palestinian Interim Self-Government Authority] and representatives of foreign states and international organizations … shall not be considered foreign relations.”

The difference between an agreement to allow substantial internal autonomy and achieving international status as a State has been emphasized by Professor James Crawford, who drafted the original proposal of the ICC Statute while serving as a member of the International Law Commission in 1994. In regard to the status of the Palestinian Interim Self-Government Authority, Professor Crawford notes:

“the limited character of [the Israeli] withdrawal can be seen, for example, from the jurisdiction of the Palestinian Interim Self-Government Authority, which covers: ‘West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, military locations, and Israelis.’ Thus a jurisdiction defined apparently in normal territorial terms is for practical purposes redefined as a jurisdiction over Palestinians (and visitors).”23

Professor Crawford also notes that the commitment of the Palestinian Interim Self-Government Authority to forego any general claim of competence in foreign relations further serves to thwart any plausible claim of statehood.24

While, as Professor Crawford notes, the Palestinian Liberation Organization has served as a representative of the Palestinian people in various international negotiations, the PLO is also not a state.

“The PLO of course is a national liberation organization, widely recognized as such, and is the external representative of the Palestinian people. …There is thus a non-State legal entity recognized as represented by a national liberation movement.”25

Thus, there is no State entity capable of joining the International Criminal Court. As Dr. Crawford notes bluntly, there is an ongoing diplomatic process, but the recognition of a new state of Palestine:

“has never commanded anything like the level of quasi-unanimous support that would be required to establish a particular rule of international law to the effect that Palestine is a State.”26

The international legal formula for creating a future Palestinian State is defined in historic bilateral agreements between Israel and the PLO, which received the active support of the international community. The international community itself (including the United States, the European Union, Russia and the United Nations) has supported the “Roadmap” announced in June 2002 — formally known as the “Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict”.27

As steps towards reaching that goal, the Roadmap requires steps to be taken by the two sides, including dismantlement of the infrastructure of terrorism on the Palestinian side, institution and capacity-building of Palestinian institutions, and a legitimate government capable of governing the whole Palestinian territory. The Roadmap of course, makes performance demands on Israel as well. This staged process was further reinforced by the international community in the Annapolis conference, as well as by many recent statements of world leaders.

Quite apart from the limiting language of the ICC Statute, the diplomatic practice of the ICC negotiations, and the opinions of scholarly commentators — which do not permit acceptance of the declaration of the Palestinian Authority because it is not a State — it is not the role of the ICC to involve itself in political issues or to truncate that international and bilateral process through a unilateral ascription of statehood, whether direct or implied, countering delicate agreements and on-going international efforts in this matter.

In addition to all of these controlling authorities, there is a central principle of interpretation that argues against any “expansionist” or “teleological” reading of Article 12(3) in this matter. This is the rule of “lenity” in criminal cases, in which the law is not to be read beyond its established meaning.

It may be worth noting the high-level task force report that was issued in March 2009 by the American Society of International Law, following meetings with officials of the International Criminal Court and other figures who were central in the conclusion of the ICC Statute. The task force report properly salutes the Court for its important role in strengthening respect for the principles of humanitarian law, and urges that the United States strengthen its practical support for the work of the Court.28

At the same time, the ASIL task force report also sounds a tocsin warning that the ICC should not stray beyond the established limits of international law, in particular, in regard to jurisdictional decisions.

Notably, the task force remarks that there is a “test for the ICC” in how it handles the declaration submitted by the Palestinian Authority and the claim of accession as a “State” under Article 12(3) of the ICC Statute.29 In the considered view of this group of eminent jurists and former prosecutors, the declaration submitted by the Palestinian Authority

“raises issues about the authority of the Prosecutor, and of the ICC, to treat as a State an entity which is not generally recognized as a State and which is not a U.N. member.”30

This decision, suggests the ASIL task force, will necessarily be an important benchmark in evaluating the performance of the Court.

It would be most unfortunate if a general perception of politicization of the Court’s handling of the Article 12(3) declaration by the Palestinian Authority were to take hold. The Court should abide by the established rules of international law, in which the recognition of new states is not a matter delegated to courts. Otherwise, even a preliminary examination by the Office of the Prosecutor may end up raising more serious questions and obstacles in the diplomatic world of real negotiations outside the Court, and raise serious questions for other states on the role and practice of the International Criminal Court. Based on the negotiating history, it is clear that the State Parties that created the Statute did not intend this effect.

Both the Palestinian Authority and Israel have the obligation to investigate any serious violations of humanitarian law and human rights law that have occurred, and in appropriate cases bring to trial those who committed such violations. In the wake of the Gaza military campaign, Israel has stated that it will conduct a national investigation of any disputed actions, to include reviews both by military and civilian authorities, with further review available in the High Court of Justice in Israel. Likewise, the Palestinian Authority has the responsibility, and will wish to investigate and bring charges against any persons or organizations in Gaza that have launched thousands of rockets against the territory of Israel over the course of a multi-year terror campaign, and allegedly used Gaza citizens as human shields.

The solution of the Israeli-Palestinian conflict is something that all people of good faith should devoutly seek. But the jurisdictional basis of a criminal tribunal must also be founded on the steadiness of the law. Neither the Palestinian Authority nor the “entity” of Palestine currently qualifies as a State within the meaning of the Rome Statute. Hence, the declaration submitted on January 22, 2009 cannot be accepted by the Court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See “Declaration recognizing the Jurisdiction of the International Criminal Court” (21 January 2009) from Mr. Ali Khashan, Minister of Justice, Palestinian National Authority, to the ICC Registrar, available online. The Registrar of the Court received this declaration on 22 January 2009. ↩

2. 2.

   In its first full paragraph, the Declaration reads as follows: “In conformity with Article 12, paragraph 3, of the Statute of the International Criminal Court, the Government of Palestine hereby recognizes the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.” It further states that “This declaration, made for an indeterminate duration, will enter into force upon its signature.” ↩

3. 3.

   The ICC Statute, the records of the Rome Conference, the ICC Rules of Procedure and Evidence and the Regulations of the Prosecutor’s office are equally clear. See the ICC Rules of Procedure and Evidence, Official Records ICC-ASP/1/3, Rule 44; and the Regulations of the Office of the Prosecutor, ICC-BD/05-01-09, 23 April 2009, Regulation 25(1)(c). ↩

4. 4.

   See the Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/CONF.183/13, volume II, pp. 5 and 44. ↩

5. 5.

   See id. at 44. ↩

6. 6.

   See, e.g., Preparatory Commission for the International Criminal Court, 9th session, New York, 8–19 April 2002, PCNICC/2002/INF/6, 30 April 2002 (emphasis added). ↩

7. 7.

   See International Criminal Court, Assembly of States Parties, 7th session (second resumption), New York, 9–13 February 2009, ICC-ASP/7/INF.1/Add.2. Compare Vienna Convention on the Law of Treaties, Mary 23, 1969, 1155 U.N.T.S. 331, Article 31(3)(b). ↩

8. 8.

   Vienna Convention on the Law of Treaties, supra note 7, Article 31(1). ↩

9. 9.

   See Article 44(1) of the ICC Rules of Procedure and Evidence: “The Registrar, as the request of the Prosecutor, may inquire of a State that is not a Party to the Statute or that has become a Party to the Statute after its entry into force, on a confidential basis, whether it intends to make the declaration provided for in article 12, paragraph 3” (emphasis added). ↩

10. 10.

    The declaration filed by the Palestinian Authority fails to track the exact language of Article 12(3), rather speaking of its “recognition” of the Court’s jurisdiction for an “indeterminate duration” rather than its “acceptance”— but it does reference Article 12(3). ↩

11. 11.

    Otto Triffterer, editor, “Commentary on the Rome Statute of the International Criminal Court, First Edition,” at p. 1287 (Nomos Verlagsgesellschaft, Baden-Baden, Germany, 1999 edition) (emphasis added). ↩

12. 12.

    Id. at 1287 note 1. ↩

13. 13.

    Otto Triffterer, “Commentary on the Rome Statute of the International Criminal Court, Second Edition,” at p. 1773, (Hart Publishing Company, Oxford, 2008 edition) On April 8, 2009, Professor Triffterer won the Certificate of Merit of the American Society of International Law “for high technical craftsmanship and utility to practicing lawyers and scholars” for this volume. ↩

14. 14.

    Id. at 1773 note 1 (second edition). ↩

15. 15.

    Antonio Cassese, Paola Gaeta, John R.W. D. Jones, “The Rome Statute of the International Criminal Court: A Commentary” (Oxford University Press 2002), vol. 1, p. 1203. ↩

16. 16.

    See, e.g., Executive Office of the Secretary-General, Protocol and Liaison Service, Publication of Permanent Missions to the United Nations, No. 297, July 2007, at p. 293. ↩

17. 17.

    See, e.g., Executive Office of the Secretary-General, Protocol and Liaison Service, Publication of Permanent Missions to the United Nations, No. 297, July 2007, at p. 294. ↩

18. 18.

    See Convention on the Rights and Duties of States (Montevideo Convention), December 26, 1933, 165 League of Nations Treaty Series (LNTS) 19; 28 American Journal of International Law (Supplement) 53 (1934). ↩

19. 19.

    See “Israeli-Palestine Liberation Organization: Interim Agreement on the West Bank and the Gaza Strip,” Sept. 28, 1995, article 9(5), 36 International Legal Materials 551, 561 (1997) [hereinafter cited as Interim Agreement]. ↩

20. 20.

    See “Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union”, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991, EC Bulletin, 12-1992, p. 199; UN Doc. S/2393 of 17 December 1991, Annex II; International Legal Materials 31 (1992), p. 1486. ↩

21. 21.

    See Interim Agreement, supra note 19. ↩

22. 22.

    Id. at art. 9(5)(a). The only exception is for “economic agreements,” “agreements with donor countries”, “agreements for the purpose of implementing … regional development plans”, and “cultural, scientific and educational agreements”. See Article 9(5)(b). This is comparable to the ability of entities and international organizations, which are not States, to enter into such agreements. ↩

23. 23.

    James Crawford, “The Creation of States in International Law” (Oxford University Press, second edition, 2006, paperback edition 2007), at pp. 443–4 (citing the Agreed Minutes to the Declaration of Principles on Interim Self-Government Arrangements, B, Art. IV: (1993), 32 International Legal Materials 1542, “repeated with further elaboration in Art XVII … of the Interim Agreement on the West Bank and the Gaza Strip, 28 September 1995, which states that “[i]n accordance with the Declaration of Principles, the jurisdiction of the Council will cover West Bank and Gaza Strip territory as a single territorial unit, except for: (a) issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis.”). ↩

24. 24.

    Id. at 444. ↩

25. 25.

    Id. at 444 (emphasis added). ↩

26. 26.

    Id. at 438 (emphasis added). ↩

27. 27.

    Reproduced online. ↩

28. 28.

    The ASIL Task Force issued its report, entitled “U.S. Policy Toward the International Criminal Court: Furthering Positive Engagement,” on 21 March 2009. The co-chairs of the task force were Patricia Wald, former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and former judge of the International Criminal Tribunal for the former Yugoslavia, and William H. Taft IV, former legal adviser of the U.S. Department of State. Task force members included, inter alia, retired U.S. Supreme Court Justice Sandra Day O’Connor, former president of the International Court of Justice Stephen Schwebel, and David Tolbert, former deputy prosecutor of the International Criminal Tribunal for the former Yugoslavia. ↩

29. 29.

    Id. at pp. vi-vii. ↩

30. 30.

    Id. (emphasis added). ↩

31. Suggested Citation for this Comment:

    George P. Fletcher, No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza#Fletcher.

    Suggested Citation for this Issue Generally:

    Should the ICC Investigate War Crimes in Gaza?, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza.

In July 2009, after the presentation of the Dugard Report,4 the prosecutor visited Arab League headquarters to discuss the matter.5

In October 2009, after the Goldstone Committee recommended that the UN Security Council refer crimes committed by both sides in the Gaza war to the ICC, the Prosecutor met again with Palestinian officials and members of the Arab League, as well as with the Dugard commission and with other international lawyers.6

More significantly, he was reported in Newsweek to have stated that he had authority to prosecute David Benjamin, an officer with dual Israeli and South African citizenship, who served in the Military Advocate General’s international law department, which authorized which targets troops would strike before and during the Gaza war.7 Benjamin had visited South Africa in August, sparking a campaign for his arrest and causing him to return to Israel.8 No press release was issued confirming the statement made to Newsweek, and no further action, at least no public action, has been taken in relation to David Benjamin since.

From a legal perspective, the Prosecutor has done nothing very significant in relation to crimes committed in the 2008–2009 Gaza war.

In January 2010, the Prosecutor published on the ICC website his response to an inquiry by the United Nations High Commissioner for Human Rights, stating again that it was analyzing whether the ICC could have jurisdiction, summarizing the information his office had received regarding jurisdiction as well as substantive evidence, and pointing out that there is no deadline in the Rome Statute for making a determination.9

In May 2010, he published a summary of submissions made on the issue of jurisdiction, annexed by a list of most significant submissions. The document is what its title describes, a summary, relating what some submissions say, and what others say, but nowhere referring to any possible conclusions on the side of the ICC.10

In other words, from a legal perspective, the Prosecutor has done nothing very significant in relation to crimes committed in the 2008–2009 Gaza war. Yet he has periodically raised media attention, associating crimes committed in the Gaza war with the idea of ICC prosecution, and has even named a ‘virtual suspect’, whilst ‘analyzing’ the jurisdictional issues involved for over eighteen months. Why?

Potential sociopolitical effects

I have argued elsewhere11 that the actual prosecution and trial of perpetrators of war crimes, crimes against humanity or genocide is only one aspect of the ICC’s power in the world, and that it may in fact be the most disappointing and least important aspect.

The ICC will never be able to try more than a handful of suspects, and who these are will necessarily be a function of who is subject to the Court’s jurisdiction, and who can actually be apprehended, as much as who in the world is most guilty.

In the seven years that the ICC has been up and running, it has served 13 arrest warrants (two Ugandan suspects have since died), received three volunteer suspects, and only actually arrested four people, all Congolese warlords. The first, nearly aborted, trial on the narrow charge of using child soldiers has yet to see a verdict. From the perspective of retributive justice, the record of the ICC to date looks rather dismal. This will get better, as there will eventually be more trials and presumably also some convictions, but it will not get very much better. The ICC will never be able to try more than a handful of suspects, and who these are will necessarily be a function of who is subject to the Court’s jurisdiction, and who can actually be apprehended, as much as who in the world is most guilty.

But that is not to say that the five investigations to date, and the threat of investigations elsewhere, have been without positive, justice-enhancing socio-political consequences. In relation to these other cases, the mere existence of the ICC, and the announcement that the prosecutor is considering opening an investigation, can have the following positive effects:

• drawing attention to, and raising the profile of, human rights violations in a particular situation; mobilizing victims and raising their self-esteem
• opening public debates about guilt and accountability that might otherwise have remained closed; in particular constructing responsibility for crimes in terms of individual rather than collective guilt
• triggering more serious national investigations and prosecutions to prevent ICC involvement

I have argued that these ‘unintended consequences’ of the ICC have been and will continue to be far greater than its legal authority and capacity would suggest.

I have argued that these ‘unintended consequences’ of the ICC have been and will continue to be far greater than its legal authority and capacity would suggest.12 I will now attempt assess whether any such positive effects may be expected from the mere association between crimes committed in the Gaza war and the prospect of ICC prosecution, raised by the prosecutor’s subtle actions to date. This assessment comes with an immediate disclaimer: the author is by no means an expert on the situation in Gaza or Israel, and is merely extrapolating and speculating on whether effects seen in other situations may apply in this case as well.

Catalyst for world attention and victims’ sense of agency?

The first effect, that of drawing attention to, and raising the profile of, human rights violations in a particular situation, has been of great value in the Central African Republic, and perhaps to a lesser extent in Darfur, DRC and Uganda.13 In the case of the Gaza war, this effect is highly doubtful. There may be a lot of controversy surrounding crimes committed in the Gaza war, but they have not escaped notice. Practically every state, international organization and numerous civil society organizations have responded both to the initial crimes and to the subsequent reports of the two independent fact-finding commissions. The people of Gaza did not need the ICC merely to draw attention to what had happened.

The second effect, that of mobilizing victims and raising their self-esteem has again been particularly evident in the case of the CAR, in a context where many of the crimes committed were of a sexual nature.14 Different assessments could be made about how mobilized, and in what ways, the people of Gaza are, and how their self-esteem may be affected by their hopeless situation. It is clear, however, that the Palestinians in the Occupied Territories have been the subject of decades of solidarity campaigns in the Arab world, in the developing world and in the West.

The Goldstone commission has already given official UN validation to the crimes against them, as well as the lesser crimes against Israeli citizens, in the Gaza war. Amidst decades of demonstrations, boycotts, letters and legal action, including some by Israeli activists, the unlikely prospect of ICC prosecutions is not a unique mobiliser. Even the opening of an investigation might not be distinguishable, by the average Palestinian, from the numerous unsuccessful attempts at pursuing universal jurisdiction suits against Israeli officials in various national courts. Only actual arrests might be substantially different.

Catalyst for accountability debates?

The second effect, that of opening debate, would at first sight seem one that the Gaza situation is little in need of. The actions of the Israeli army against Palestinians, and the actions of Hamas against Israeli civilians, have been the subject of extensive, virulent debate, in Israel and elsewhere. By and large, however, these debates can hardly be credited with being informed, civil, or constructive.

I have argued, in the wake of the Gaza war, that the intimation of an ICC investigation might bend the debate in Israel itself in a particular, more constructive direction, suggesting that the allocation of individual rather than state responsibility might widen the space for debating the morality and legality of the Gaza bombings in Israel itself, because it is less immediately associated with debates on Israel’s right to exist and to defend itself. Collective attribution of responsibility, I argued, is open to being read as implying that a) every Israeli citizen (including for instance Arab Israelis or conscientious objectors) shares in the guilt and b) that Israel, being guilty, has no right to exist. This collectivization serves to strengthen siege mentality and self-justification, and shrinks the space for critical voices. The ICC on the other hand could disaggregate exactly which political or military leaders could be considered ‘the most responsible’ in relation to specific crimes.15

In the former Yugoslav republics, although initial local reactions to the Yugoslavia Tribunal were intensely hostile, the long-term effect of indictments has precisely been to marginalize some of the most hawkish individuals and shrink the space for denial of what exactly happened in the recent wars.16 The focus on individual responsibility might therefore also be more promising in helping Israeli citizens reflect and speak out loud about whether the Gaza attacks occurred, and similar attacks should continue to occur ‘in their name’.

However, eighteen months later I must conclude that this effect has not occurred to date. There is little reason to believe that most Israeli’s are carefully distinguishing between accusations against the state of Israel and against individual soldiers and politicians. Insofar as there has been any public debate on possible ICC involvement, one finds rather the opposite. Coverage by the (liberal) Haaretz newspaper of the Newsweek report about Lt. Col. Benjamin for instance provoked the online comment “We are all David Benjamin”, enthusiastically endorsed by subsequent posts.17

Catalyst for internal investigations?

The prosecutor of the ICC famously said when he began his term that the success of the ICC should be measured not by the number of prosecutions, but by their absence.18 What he had in mind was not so much outright prevention as domestic prosecution of crimes. This ‘positive complementarity’ effect is supposed to occur both in situations where an investigation has been opened and in situations that are under consideration (and perhaps even in situations where there is no such threat). The latter appears to be the strategy in relation to Colombia as well as Georgia. In both cases, there are ongoing proceedings which could with some latitude be interpreted as meeting the ‘genuine willingness’ criteria that would render an ICC case inadmissible.19 Further research would be required to establish whether there is indeed a causal relation between the prosecutor’s actions and the vigour with which these proceedings are pursued, but a credible argument can certainly be made that such an effect could occur in certain cases.

In relation to the Gaza war, there has certainly not been an absence of domestic investigations. In its response to the Goldstone Report, the Israeli government make mention of “more than 100 incidents…15 Military Police criminal investigations…eight additional criminal investigations into forty incidents…and twenty three additional Military Police criminal investigations.”20 At that point, there had however been only one conviction, for theft. There is no doubt then about the quantity of investigations. Their quality is the subject of virulent contestation amongst lawyers and human rights activists. The question for the purpose of this article is, however, a different one: did the prosecutor of the ICC have anything to do with this flurry of investigations?

There is little reason to believe this to be the case. First of all, the large number of investigations following the Gaza war is not unique. According to the Israeli government’s own information, 1,467 criminal investigations were opened into alleged misconduct by soldiers, leading to the issuance of 140 indictments against soldiers regarding crimes committed against the Palestinian population, between 2002 and 2008.21 Secondly, Israeli officials devote a great deal of detailed attention to disputing the results of the Goldstone commission, whilst the ICC receives little mention, either in official documents or in the press. Finally, these official defences of operation Cast Lead are primarily framed in terms of the state of Israel’s conformity with international law.

Indeed, whilst the prosecutor has requested information from both sides about ongoing national proceedings, he has, unlike in the Colombian, Georgian or Kenyan case, refrained from remarks to the effect that there have to be such proceedings, nor has he attempted to take credit for, or commented on the quality of, the Israeli investigations.

Then what is the point? The ICC’s quest for legitimacy and relevance

Eighteen months after the Gaza war, there is no indication that the prosecutor of the ICC will actually seek permission from the pre-trial chamber to open an investigation in relation to the Gaza war. The premise of this article has been to investigate whether the mere hints at investigation thrown out by the prosecutor appear to have had any of the positive socio-political effects on the situation that have been observed in other situations.

The answer is a resounding ‘no’. The human rights violations that took place in the Gaza war were not a forgotten incident that needed to be brought to the attention of the world by the ICC. Its victims were not galvanized by the (unlikely) prospect of seeing justice done in the ICC. The prosecutor’s cautious expression of interest in the situation did not substantially influence the public debate in Israel. There is no reason to believe that it had a preventive effect on future abuse, and while there are ongoing national proceedings, these cannot be interpreted as having been prompted by the interest of the prosecutor of the ICC. Then why has the prosecutor taken the situation into consideration, and taken action every few months to renew attention to the fact that he is still analyzing it? I would argue that while Gaza does not need the ICC, the ICC, and more particularly its prosecutor, needs Gaza.

I would argue that while Gaza does not need the ICC, the ICC, and more particularly its prosecutor, needs Gaza.

One of the most frequent questions non-experts in Europe and elsewhere ask about the ICC, is why no Americans have been prosecuted for the invasion of Iraq, or for suspected crimes committed in the course of that war. It is a question that is of course easy to answer in terms of jurisdiction determined by the Rome Statute, but the next question, what the point is of a Court that can investigate some situations but not others, and more particularly not the actors perceived as most powerful in world politics, is not so easy to answer. The jurisdictional constraints of the Court impinge on its perceived legitimacy with various publics. More particularly, the ICC has in recent years been much criticized for its apparently exclusive focus on Africa, by academics, civil society groups and African states. The fact that the United States remains a non-party, and continues to view the ICC with moderate hostility, does little to diminish the perception of a hegemonic, pro-Western court whose purpose is to discipline African rebels and rogue states.

It is precisely with these audiences that an investigation of the Gaza war (and particularly of course, of crimes committed by the Israeli side) would play extremely well, and could do much to redeem the reputation of the ICC as a universal instrument of justice. Indeed, even states that have not ratified the ICC Statute and never been sympathetic to it may now include a reference to the ICC in their ritual anti-Israel policies.22

Quo Vadis, Prosecutor?

However, as the other contributions to this forum will undoubtedly be pointing out, seeking the pretrial chamber’s approval to open an investigation on a territorial basis would be highly controversial in legal terms. In political terms, it would alienate the United States, recently more cooperative than under the Bush administration, as much as it would gratify pro-Palestinian audiences and non-western states.

This dilemma explains why the prosecutor has been stringing out the ‘analysis’ of whether and how the ICC can exercise territorial jurisdiction in the Gaza situation. Complex though the issue may be, as an intellectual exercise surely it should be within the capabilities of the prosecutor’s legal staff to answer the question within a year. Instead, the letter sent to the UN High Commissioner for Human Rights last January pointed out that the ICC Statute does not specify any deadline for a decision on whether to open an investigation, implying that the ‘analysis’ might be prolonged indefinitely.23

Any legitimacy gains the ICC may have made with certain audiences by making a show of considering the situation cannot be sustained indefinitely.

However, while perpetual analysis might be the safest course of action in terms of avoiding controversy, any legitimacy gains the ICC may have made with certain audiences by making a show of considering the situation cannot be sustained indefinitely. Eventually, the refusal to make a determination either way will be interpreted as cowardly. If we liken the prosecutor’s actions in relation to the Gaza situation to a game of chess, we must ask, how many moves has he thought ahead?

One alternative route to prosecution, which he has already pointed to, would be the identification of suspects with dual citizenship with an ICC-ratifying state, such as South Africa. If accepted by the pre-trial chamber, this would allow for an arrest warrant to emerge from the Gaza war whilst sidestepping the question of Palestinian statehood. This would probably still mar the rapprochement with the US, but not as much as the territorial route.

However, such course of action raises its own problems. First, it would deviate from the prosecutor’s own policy of pursuing ‘the most responsible’, replacing it with a morally arbitrary policy of pursuing ‘those who happen to have dual nationality’. The apprehension of minor suspects on this criterion would be unlikely to instill a sense of justice being served among Palestinians, let alone Israeli’s. Second, unless the prosecutor gets lucky and finds a suspect of dual nationality recklessly hanging around in a cooperative state, it is unlikely that such an arrest warrant could be served. In effect, like the arrest warrant against President Al-Bashir of Sudan, it would function as little more than a travel ban. It is unlikely that a warrant that cannot be served would unleash any of the positive socio-political effects discussed above. Moreover, adding yet again to the number of suspects whose arrest warrant is a dead letter will make the ICC look less, rather than more relevant and legitimate as an actor in world politics.

The prosecutor’s attempt to establish a mental association between his office and Palestinian victims in the wake of the Gaza war may at the time have appeared like a clever public relations strategy serving to obscure and mitigate the ICC’s legal and realpolitical limitations. But many months of inaction later, it is actually making these limits all the more visible.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   In this I follow both the Dugard Report and the Goldstone Report: Report of the Independent Fact Finding Committee on Gaza: No Safe Place, Presented to the League of Arab States, 30 April 2009, p.3, available online, last visited 28 July 2010; Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009, p.17, available online, last visited 28 July 2010. ↩

2. 2.

   Letter, Silvana Arbia, Registrar, International Criminal Court, to Palestinian National Authority, 23 January 2009, available online, last visited 28 July 2010. ↩

3. 3.

   Press Release, “OTP ICC, Visit of the Minister of Justice of the Palestinian National Authority, Mr Ali Khashan,” 22 January 2009, available online, last visited 28 July 2010;

   Press Release, “OTP ICC, Visit of the Palestinian National Authority Minister of Foreign Affairs, Mr. Riad al-Malki, and Minister of Justice, Mr. Ali Khashan, to the Prosecutor of the ICC,” 13 February 2009, available online, last visited 28 July 2010. ↩

4. 4.

   Report of the Independent Fact Finding Committee, cf. note 1. ↩

5. 5.

   Letter, Béatrice Le Fraper du Hellen, Director, Jurisdiction, Complementarity and Cooperation Division, OTP ICC, to Kyung Wha Kang, Deputy High Commissioner for Human Rights, 12 January 2010, available online, last visited 28 July 2010. ↩

6. 6.

   Press Release, “OTP ICC, ICC Prosecutor Receives Palestinian Minister of Justice, Arab League and Independent Fact-Finding Committee,” 16 October 2009, available online, last visited 28 July 2010. ↩

7. 7.

   Dan Ephron, “ICC Prosecutor May Charge Israeli With War Crimes”, Newsweek 21 September 2009. ↩

8. 8.

   Yotam Feldman, “ICC May Try IDF Officer in Wake of Goldstone Gaza Report”, Haaretz, 24 September 2009. ↩

9. 9.

   Letter, Le Fraper du Hellen, cf. note 5. ↩

10. 10.

    OTP ICC, “Situation in Palestine: Summary of submissions on whether the declaration lodged by the Palestinian National Authority meets statutory requirements,” 3 May 2010, available online, last visited 28 July 2010. ↩

11. 11.

    Marlies Glasius, “We Ourselves, We Are Part of the Functioning”: The ICC, Victims, and Civil Society in the Central African Republic. African Affairs. Vol.108, No.430, January 2009, 49–67; Marlies Glasius, The ICC and the Gaza war: legal limits, symbolic politics, Open Democracy, 28 March 2009, available online, last visited 28 July 2010; Marlies Glasius, 2009a ‘What is Global Justice and Who Decides?: Civil Society and Victim Responses to the International Criminal Court’s First Investigations’. Human Rights Quarterly. Vol.31, No.2, May 2009, 496–520. ↩

12. 12.

    On the other hand, I have also pointed out obstacles to these effects, and even negative effects: the aspirations of victims for rehabilitation may be converted into disillusionment if justice is done too little, too slowly, and with too little ownership on their part; legal rehabilitation may be of little value to victims when their material and physical security remains under threat; the potential of debates on accountability may not be realized if the organs of the Court, including the prosecutor, do not foster and contribute to these debates. ↩

13. 13.

    See Glasius, “We Ourselves” and Glasius, “What is Global Justice?”, note 11. ↩

14. 14.

    See Glasius, “We Ourselves”, note 11. ↩

15. 15.

    See Glasius, “The ICC and Gaza”, note 11, for a more extensive version of this argument. ↩

16. 16.

    Diane F. Orentlicher, “Shrinking the Space for Denial: The Impact of the ICTY in Serbia,” New York: Open Society Institute, May 2008. ↩

17. 17.

    Online comment 20 et al. to Feldman, note 9, available online, last visited 28 July 2010. ↩

18. 18.

    ICC OTP, Paper on some policy issues before the Office of the Prosecutor, September 2003, 4, available online, last visited 28 July 2010. ↩

19. 19.

    Maartje Stabel, “Massacre in Colombia: Ending Impunity with the Justice and Peace Law,” July 2010, Masters’ Thesis on file with the author; Amnesty International, “Civilians in the Aftermath of War: The Georgia-Russia conflict One Year On,” 7 August 2009, 26–27, available online, last visited 29 July 2010. ↩

20. 20.

    Ministry of Foreign Affairs, Government of Israel, Initial Response to Report of the Fact Finding Mission on Gaza Established Pursuant to Resolution S-9/1 of the Human Rights Council, 24 September 2009, p.21–22, note 23, available online, last visited 29 July 2010. ↩

21. 21.

    State of Israel, “The Operation In Gaza: Factual And Legal Aspects,” July 2009, 109, available online, last visited 29 July 2010. ↩

22. 22.

    The Malaysian parliament for instance unanimously adopted a resolution asking Turkey to refer the recent Israeli attack on the aid ship Marmara to the ICC. Melissa Goh, “Malaysia wants Israel referred to ICC over Gaza flotilla raid”, Channel News Asia, 7 June 2010, available online, last visited 21 July 2010. Other news reports suggesting that Turkey does indeed want to refer the flotilla raid to the ICC appear to be confusing it with the International Court of Justice. ↩

23. 23.

    See note 5. ↩

24. Suggested Citation for this Comment:

    Marlies Glasius, Press Releases, Not Arrest Warrants: Interpreting the ICC Prosecutor’s Moves in Relation to the Gaza Situation, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza#Glasius.

    Suggested Citation for this Issue Generally:

    Should the ICC Investigate War Crimes in Gaza?, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza.

A striking feature of the Summary of Submissions published by the Prosecutor’s office is the dichotomy in the approaches taken by the various authors. Four of the papers apply a rigid and strict interpretation of the 1933 Montevideo Convention to conclude that Palestine is not a state and therefore the declaration must be rejected since only states can engage with the International Criminal Court. The remaining papers conclude that the declaration can and should be accepted as valid by the Prosecutor. To these authors the Montevideo Convention is of limited, if any, significance, with the emphasis placed instead on the Palestinian right to self-determination and their sole sovereignty over the occupied Palestinian territory, as well as widespread implicit and explicit recognition of Palestine either as a state, or as an international legal personality that in relevant ways is the equivalent of a state. The crucial element to this approach is that the question for the Prosecutor and for the Court is not one of determining whether Palestine is a state per se and for every purpose, but rather to determine whether in light of the Rome Statute, Palestine as an entity with the capacity to enter into relations with states and international organizations, and with jurisdiction over the crimes set forth in the Rome Statute, has the capacity to validly transfer that jurisdiction to the Court.

Summary of the Submissions to the OTP

Prior to the publication of the OTP’s summary of arguments on 6 May 2010 and the accompanying Annex, academic consideration of the matter had been quite limited. A debate at Rutgers Law Record revolved around whether Palestine was in fact a state or not, with John Quigley making a quite convincing argument that Palestine is a state, an argument repeated in his submission to the OTP. Robert Weston Ashe argued to the contrary, relying in large point on his claim that Quigley ‘utterly failed to consider a long series of official statements (including very recent ones) by top Palestinian officials that openly and repeatedly disclaim that Palestine is currently a “State.”1

I do not believe this particular issue to be the deal breaker that others suggest it is,2 yet beyond representing an understandable mis-interpretation of what the Palestinian political leadership is saying, it highlights the difference between the ‘orthodox’ and ‘functional’ approaches that characterize the two schools of thought to be observed in the papers submitted to the Prosecutor. While those following an orthodox approach repeatedly emphasize such statements, they are wholly absent from the submissions of those advocating for acceptance of the declaration.

Malcolm Shaw, in an Opinion commissioned by the International Association of Jewish Lawyers and Jurists, places substantial store by the absence of any formal Palestinian claim to statehood that has been ‘a consistent feature of Palestinian Authority and PLO practice, particularly since 1993, to argue for a Palestinian state to be created’.3 Similarly the European Centre for Law and Justice paper stresses statements such as Palestinian Authority president Mahmoud Abbas’s references to Jerusalem as ‘the capital of our future independent state’.4

A more attentive reading of such statements suggests an alternative interpretation since such statements do not stress a demand for a Palestinian state, but rather for ‘independence’ and ‘viability’. It is incorrect to read into such statements a renunciation of statehood, sine the central message instead is the demand for an end to the occupation that denies independence to the Palestinians.

On 30 May 2010 Saeb Erekat, chief negotiator of the PLO requested in meetings with representatives of eight nations that ‘Countries that have not recognized Palestine and failed to upgrade PLO missions to embassies should do so “instantly, without hesitation”. He further noted that “Israel continues to evade implementing requirements of peace, including bringing an end to the occupation, and establishing an independent Palestinian state with East Jerusalem as its capital.”5 What is to be made of such a seemingly contradictory statement other than that the PLO/PA considers Palestine to be a state and that they wish for increased recognition by other states in order to help force an end to the occupation and thereby facilitate Palestinian independence? Such is the position of the Arab League, to which Palestine was admitted as a member by route of a special procedure to allow it to participate in the League’s work ‘until that country enjoys actual independence’, since ‘[h]er existence and her independence among the nations can, therefore, no more be questioned de jure than the independence of any of the other Arab States’.6

The existence of such a marked contrast concerning the significance or otherwise of these political statements is a marker for the distinct philosophies embodied by the orthodox and functional approaches. Crudely put, the orthodox approach seems satisfied to accept words at face value, without any attempt at contextualisation or reflection and reasoning, whether they be the statements of politicians or the texts of international treaties. The following sections will consider the key elements of both approaches, beginning with the Orthodox approach, and critiquing its mechanical, conservative character, before moving to discuss, and endorse, the practical functional approach to the questions raised by the Palestinian declaration.

An Orthodox Approach

Four of the submissions rely almost entirely upon similar interpretations of the Montevideo Convention criteria of statehood to conclude that Palestine is not a state for the purposes of international law and therefore the Palestinian declaration must be rejected. The IAJLJ paper does consider, and reject, the idea that the meaning of state for the purpose of the Rome Statute may be any different than it is for international law and international relations in every sense.7 Advocates of the Montevideo approach argue that only states can submit valid article 12(3) declarations, a state is an independent entity that satisfies the Montevideo criteria, Palestine is neither independent, nor a member state of the UN. Since it fails to meet the criteria, the declaration must be rejected.

The Montevideo Convention of 1933 claimed that the four prerequisites to statehood are 1) permanent population 2) defined territory 3) government 4) capacity to enter relations with other states.8 While Palestine is generally accepted as meeting the first two criteria, critics stress a failure to satisfy the latter pair, interpreting government strictly to mean effective control over all the territory in question. Pointing to the limitation of Palestinian exercise of control in the West Bank due to its division under the Oslo Accords into Areas A, B, & C, over which the PA exercises varying degrees of control, and more pointedly to the division of political control between Gaza and the West Bank, it is held that Palestine does not satisfy this requirement.9 David Davenport has argued that even if Palestine were a state, failure to exercise effective government over Gaza is adequate to deny the validity of the PA declaration.10 I have considered and dismissed this suggestion elsewhere, having reference for example to the situation of Cyprus but it does need to be highlighted that both the Fatah and Hamas political organizations continue to consider the Palestinian Authority as the legitimate framework and manifestation of the Palestinian polity throughout the oPt.11 Mendes, critical of the orthodoxy whereby the Montevideo criteria are considered core elements of international law, has convincingly demonstrated how the lack of effective government presented no impediment to the majority of western states, including the EC and the US, which recognized Bosnia as a state in 1992 despite ongoing armed conflict.12 It would appear then that the strict interpretation of government to mean total independence and effective control is unreasonable and justified neither by international law nor state practice.

The claim that Palestine does not have the capacity to enter into relations with other states is based upon provisions of the Oslo Accords severely restricting Palestinian ability to enter into foreign relations,13 and even where tolerated it was to be the PLO and not the PA who could exercise such capacity.14 Shaw argues that ‘critical functions seen as indispensible to statehood in international law have by agreement between the relevant parties been recognized as matters subject to Israeli control’.15

Nonetheless, despite the failure of the Oslo process to achieve the stated outcome of Palestinian independence, Palestine has emerged as an increasingly autonomous international actor in the economic, legal, and security spheres. It is clear that international practice is to overlook the Oslo restrictions for the benefit of the Palestinian people and to support their steps towards independence.16 As noted in the Al-Haq paper, the EU considers the PA evolved enough to disregard many of the Interim Agreement restrictions regarding its capacity to enter foreign relations. The Euro-Mediterranean Interim Association Agreement on trade and cooperation was signed between the European Community and the PLO (on behalf of the PA) in 1997.17 In 2005 the EU Coordinating Office for Palestinian Police Support was formally established by an exchange of letters between the PA and the EU Special Representative to the Middle East Peace Process, and it was on the explicit written invitation of the PA that the Council of the European Union established the EU Police Mission in the Palestinian Territories the same year under the European Security and Defence Policy.18

It would appear that Shaw’s conclusion that Palestine ‘simply cannot conform with the basic requirements in international law of statehood’ since the only powers and responsibilities that the PA may exercise are those that have been expressly transferred by Israel by way of Oslo,19 no longer – if ever – stood up to the realities of state practice, including the practice of the Arab League states, the EU, US and others.20

Although this may seem an assault on the principle of legality, the restrictions on Palestinian development which Oslo construed were intended to be temporary at which point Palestine would have reached independence. Given the incessant violation of Oslo by all parties, its limited temporal framework, and the extent to which international policy is committed to developing Palestinian institutions in preparation for independence, there can be little criticism of the trumping by Palestine of the exercise of its sovereign right to self-determination over the mean terms of Oslo. As the only sovereign in the oPt there is no basis in international law or practice to Shaw’s claim that by acting beyond the Oslo limitations Palestinian claims to statehood ‘may well be therefore vitiated by such illegal activity’.21

A Contrary Approach

As with Quigley’s submission, Mendes draws upon the Palestinian right to self-determination and to an independent state, the Palestinians’ monopoly over sovereignty in the oPt, Palestinian engagement with international institutions and relations with other states, and recognition by third states (as well as institutions and organisations), to conclude that Palestine is a state, denied full recognition and independence only by powerful geopolitical interests. Palestine can therefore engage fully and on an equal basis with other states with international institutions including the ICC. Mendes warns against a simple ‘mechanical application of the Montevideo Convention’ when considering statehood in light of ‘de facto states…under belligerent occupation or protected status or under some form of international administration’.22 In particular, Mendes undermines the correctness of uncritically accepting the Montevideo orthodoxy as constituting established or customary international law, identifying state practice as being closer to a constitutive theory of statehood, whereby recognition must be considered at least as significant as the four criteria. This is in keeping with James Crawford’s observation that ‘the formula represented in the Montevideo Convention is considered to a certain extent insufficient and outdated, even “hackneyed”.23 Both Quigley and Mendes make compelling arguments for the existence of the Palestinian state by a combination of the recognition of a Palestinian state and of Palestinian capacity to enter foreign relations, taken with an interpretation of Montevideo criteria that avoids a simple mechanical approach, and having reference to the Palestinian right to self-determination, sovereignty, and the inequity of occupation.

The Functional Approach

Mendes further considers whether the relevance of international legal personality, as opposed to supposed general criteria of statehood under international law, should be the test when considering the application of the Rome Statute to the Palestinian declaration, concluding that at the least Palestine enjoys adequate international legal personality to be regarded as a state for the purposes of article 12(3).24

This is the approach advanced by Al-Haq and Alain Pellet. It is striking that neither Al-Haq nor Pellet give any attention to Montevideo, contending that while it appears that Palestine does exhibit all the attributes of a state, the question for the Prosecutor is not to pronounce in abstractio on whether ‘in the absolute’ Palestine is or is not a state. Instead, by having reference to the rights, duties, and actions of Palestine and the international community, the OTP should acknowledge that Palestine can be considered a state for the purposes of article 12(3) of the Rome Statute. The essence of the approach advocated is that since the Rome Statute makes no reference to Montevideo, nor to the definition of ‘state’, the question at hand must be framed narrowly within the ‘precise and particular context of Article 12 of the Statute of the ICC’25

In stressing that the role of the ICC is not to recognise a Palestinian state, a matter which remains the prerogative of individual states as well as international organisations, but to identify whether Palestine can be considered a state for the purposes of article 12 and therefore legitimately transfer its jurisdiction to the Court, Pellet advocates for the adoption by the OTP of a functional, ‘teleological and practical’, approach.26 Of course it goes without saying that were the Court to accept Palestine as a state for the purposes of the Rome Statute, it is unlikely that such a decision would not impact on the willingness or otherwise of many states to individually recognise Palestine, but since that remains their free choice such considerations, so far as the Court is concerned must remain by-the-by.

Pellet suggests the Prosecutor adopt a functional, practical approach on the basis of such being a common and well established feature of international law. Thus the UNGA in requesting an advisory opinion from the ICJ re Kosovo did not ask whether Kosovo is a state, but rather whether the unilateral declaration of independence conforms with international law.27 Jurisprudence from a variety of international treaties and tribunals, including the Convention on the Rights of People with Disabilities, the Convention on International Liability for Damage Caused by Space Objects, the European Court of Justice, European Court of Human Rights, and the International Centre for Settlement of Investment Disputes Tribunal, is cited in support of this approach.28

Having demonstrated the legitimacy of adopting a functional approach in understanding the concept of a state for the purpose of international treaties and international law, Pellet observes that ‘the context and the object and purpose of the Statute and of its Article 12 are of particular importance due to the “variable geometry” of the very concept of the State, which makes it difficult to keep to a single unambiguous meaning, and, therefore to an ‘ordinary meaning’. In addition, the determination of the jurisdiction of international bodies (organisations and courts – the ICC being both) is a privileged area of teleological treaty interpretation.’29 Drawing on article 31 of the Vienna Convention of Treaties, and the jurisprudence of the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia,30 Pellet reiterates that Palestine has the sole claim to sovereignty in the oPt, to conclude that the ICC has kompetenz-kompetenz to accept the Palestinian declaration as being valid and effective in accordance with the provisions of article 12 and that all conditions for the Court to exercise its jurisdiction in pursuance of Article 13 are met.31

Pellet’s analysis complements Al-Haq’s paper which demonstrates that since the PA has the capacity to enter into relations with states, and since it has been recognised by the international community as having the capacity to exercise jurisdiction over crimes within the jurisdiction of the Rome Statute , it must therefore be recognised as having the ability to transfer such jurisdiction to the ICC by means of an article 12(3) declaration.

Confirmation of Palestinian jurisdiction over international crimes arises from what may be one of the most significant, yet implicit, recognitions of Palestinian statehood yet. This relates to the extent of Palestinian criminal jurisdiction that could be transferred to the ICC. The PA exercises criminal jurisdiction over Palestinians and nationals of third states other than Israel in Area A of the oPt.32 Under Oslo it is clear that the Palestinian legal system has no jurisdiction, civil or criminal, over Israeli citizens. Al-Haq reported that in order to overcome this prima facie obstacle, the PA submission to the OTP argued that in concluding an interim, that is, a temporary agreement with Israel to exclude Israelis from the scope of their criminal jurisdiction in the West Bank and Gaza, the PA temporarily waived an inherent right which as the bearers of the right to self-determination and to an independent state in the West Bank and Gaza, they continue to hold.33 Such a waiver was conceived of along with many other compromises – such as the continued presence of unlawful settlements – not as acceptance of any Israeli claim or otherwise but as part of a bona fide effort to secure an end to the conflict and to see the two states living side by side. By this reckoning, the current situation vis-à-vis PA jurisdiction over Israelis may be reversed should they choose to unilaterally withdraw from the Accords. Such an interpretation by the PA would support the claim advanced earlier that the Palestinians have always considered on the basis of their uncontested sovereignty their state to have existed at least since the 1988 declaration even if it has not achieved independence.

Al-Haq suggested an additional, more persuasive argument by which to establish the requisite levels of capacity by reference to the customary nature of the grave breaches regime of international humanitarian law. Specifically, crimes over which the ICC has jurisdiction, including grave breaches of the Geneva Conventions, crimes against humanity, and genocide are crimes under customary international law, and many are widely recognised as being subject to universal jurisdiction. There is an obligation upon all states to enact effective penal sanctions in domestic law and an obligation to search for and to try or extradite persons suspected of grave breaches on the basis of universal jurisdiction, regardless of the nationality of the perpetrator. With 194 states parties, the Geneva Conventions of 1949 and the grave breaches regime, as confirmed in 1996 by the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons, form part of customary international law.34

The grave breaches of the Geneva Conventions documented in the Goldstone Report are alleged to constitute war crimes and possibly crimes against humanity. The General Assembly resolution that endorsed the Report, urged: in line with the recommendation of the Fact-Finding Mission, the undertaking by the Palestinian side, within a period of three months, of investigations that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law reported by the Fact-Finding Mission, towards ensuring accountability and justice.35

This represents an acknowledgement by the international community that, whether there exists a Palestinian state or not, ‘the Palestinian side’ not only has the ability to investigate and prosecute international crimes but also that it has the duty to do so. Such investigations, to be in conformity with international standards must be directed against all those responsible for the alleged crimes and not discriminate on grounds of nationality. Article 146(2) of the Fourth Geneva Convention is explicit in stating that each High Contracting Party “shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts”.36

It is impermissible however to create distinctions on the grounds of nationality in the duty to investigate and prosecute any individual allegedly responsible for grave breaches.37 The exclusion of Israelis from PA jurisdiction as provided for in the Interim Agreement cannot legitimately be considered as extending to the international crimes of war crimes and crimes against humanity as to do so would be incompatible with international law. As an entity acknowledged by the international community as having both the capacity and responsibility for investigating and prosecuting serious violations of international human rights and humanitarian law the PA must therefore be acknowledged as having the capacity and responsibility for investigating Israelis suspected of being responsible for such actions.

The Resolution, and statements from states that opposed its adoption but nonetheless called upon the Palestinian authorities to undertake investigations, was a clear assertion that the Palestinian authorities were recognised as having the capacity and jurisdiction to investigate and prosecute Grave Breaches of the Geneva Conventions. By this reckoning there is broad consensus that Palestine, at least when it comes to the application and enforcement of international humanitarian law, is on a par with ‘proper’ states.

Summary

What has emerged from the documents in the Summary of Arguments are two very different approaches to the question at hand – indeed at heart there is a division even as to what the question is that is being asked. I would submit that the Orthodox approach is not only unduly conservative and strict interpretation, but a wholly unreasonable reading and assertion of both general international law and the text of the Rome Statute itself. While there is certainly merit to the analysis proffered by Mendes and Quigley, given the purpose and principles of the International Criminal Court, the legitimacy and commonality of the functional approach as noted by Pellet, and the factual conditions of capacity and recognition pertaining to the extent of Palestinian jurisdiction, it would appear that the proper and lawful procedure to be followed by the OTP is to accept the transfer from Palestine of jurisdiction over the crimes set forth in the Statute.

One issue raised above demands some further consideration. Yuval Shany published a strong defence of the functional interpretation of article 12(3) of the Rome Statute, yet concluded that due to the terms of the Oslo Accords, neither the Court nor the Prosecutor can accept the Palestinian declaration since the Palestinians have waived their potential to engage in foreign relations.38 This deserves some additional consideration since it is repeatedly cited as a basis for rejecting the Palestinian engagement with the Court. In the first instance, and as discussed in the Al-Haq paper, international humanitarian law recognises that protected persons, those ‘who at any given moment and in any manner whatsoever, find themselves, in cases of a conflict or occupation in the hands of a Party to the conflict or Occupying Power of which they are not nationals’,39 are liable to come under immense pressure to forfeit the protections guaranteed them under the Fourth Geneva Convention.

The drafters were conscious of the experience during the Second World War when national governments struck agreements with occupying powers that were presented to those concerned ‘as an advantage, but in the majority of cases involved drawbacks which were sometimes very serious’,40 addressed this potentiality in Article 8 of the Fourth Geneva Convention which asserts that: protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention and by the special agreements referred to in the foregoing Article.

The drafters also wanted to ensure that states could not take ‘refuge behind the will of the protected persons’ to justify their failure to comply with the provisions of the Convention. In this spirit, the drafters further emphasised the ‘cardinal importance’ of the non-derogability of the Convention’s protections, with Article 47 asserting that: Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

In sum, Articles 8 and 47 affirm that belligerents cannot conclude agreements which derogate from or deny to protected persons the safeguards of the Fourth Geneva Convention. Nor can any renunciation of rights by protected persons have legal effect. On this basis it cannot be countenanced in law that the Oslo Interim Agreement can be regarded as today excluding from the jurisdiction of the PA the obligation set forth in Article 146 (2) to prosecute any individual allegedly responsible for grave breaches. Neither can the Palestinian right to self-determination, a jus cogens norm,41 one aspect of which is the ability to engage in international relations with other peoples,42 be denied. That Oslo does not provide the basis for excluding Palestine from engagement with the ICC is further accentuated by recent and ongoing Palestinian engagement at the International Court of Justice and at UN institutions such as the Human Rights Council and Security Council, all of which clearly constitute precisely those manifestations of foreign relations supposedly unlawful under Oslo. Sean Murphy noted that in its treatment of Palestine throughout the Advisory Opinion on the Wall proceedings, by allowing Palestine to make written and oral submissions and in much of the ius in bello analysis ‘the Court appears to regard Palestine as the functional equivalent as a state’.43 Similarly Quigley cites UN Security Council practice of permitting Palestine to routinely participate in sessions where relevant issues are on the agenda, despite Security Council rules providing that only a state is entitled to participate.44

These precedents support the contention that Palestine is for many purposes of international considered a state, despite not enjoying independence. More critically though, this bulwarks the argument that not only can and should the Prosecutor adopt a functional approach to Article 12(3), but that the terms of the Oslo Accords can in no way be considered as denying Palestine the right to engage with the International Criminal Court.

In conclusion, this author sees in Palestine many, if not all, the orthodox characteristics of statehood, and stresses the underlying sovereignty and right to self-determination of the Palestinian over the oPt. Nonetheless, limiting the question of what constitutes a state to an abstract question is cautioned against. By looking to the purpose of the Rome Statute and relying upon the recognition that Palestine has jurisdiction over the crimes set forth in the Rome Statute, it is submitted that the best approach is a functional approach, and the acknowledgment that what is at question is not the issue of whether Palestine is a state or not. Having had regard to the precedents of other international tribunals when faced with the question of the meaning of state – a term whose meaning remains subjective and unbound from any definitive criteria – and a contextual interpretation of the Rome Statute, and noting the recognition by the international community that Palestine shares with all other states the duty to investigate and prosecute Grave Breaches of the Geneva Conventions, it is submitted that the proper and lawful procedure to be followed by the OTP in this situation is to accept the transfer from Palestine of jurisdiction over the crimes set forth in the Statute.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Robert Weston Ashe Is Palestine a State”? A Response to Professor John Quigley’s Article, “The Palestine Declaration to the International Criminal Court: The Statehood Issue, 36 Rutgers Law Record (2009) [hereinafter cited as Statehood Issue], 187. ↩

2. 2.

   ECLJ, Legal Memorandum in Opposition to the Palestinian Authority’s January 2009 Attempt to Accede to ICC Jurisdiction Over Alleged Acts Committed on Palestinian Territory Since 1 July 2002, 9 September 2009 [hereinafter cited as Opposition Memo], 12; Yaël Ronen, ICC Jurisdiction over acts committed in the Gaza Strip: art 12(3) of the ICC Statute and non-state entities, 8 J. Int’l Crim. Just. 1 (2010) [hereinafter cited as ICC Jurisdiction], 3–27, 5. ↩

3. 3.

   IAJLJ Opinion of Malcolm Shaw: In the Matter of the Jurisdiction of the International Criminal Court with regard to the Declaration of the Palestinian Authority, 9 September 2009 [hereinafter cited as Shaw Opinion], 21–2. ↩

4. 4.

   ECLJ, Opposition Memo, supra note 2, 14; Daniel Benoliel & Ronen Perry, Israel, Palestine and the ICC, Michigan Journal of International Law, Vol. 32, p. 73, 2010, available online. David Davenport, The Palestinian Declaration and ICC Jurisdiction, 19 November 2009 [hereinafter cited as Palestinian Declaration], 8–9. Ronen, ICC Jurisdiction, supra note 2, 6. ↩

5. 5.

   Ma’an News Network, Erekat: Time for countries to recognize Palestine 30 May 2010. Available online. ↩

6. 6.

   Pact of the League of Arab States, Annex on Palestine. Cited by Ronen, ICC Jurisdiction, supra note 2, 11. ↩

7. 7.

   Shaw Opinion, supra note 3, 27–31. ↩

8. 8.

   Convention on the Rights and Duties of States, 26 December 1933, 49 stat 3097. ↩

9. 9.

   ECLJ, Opposition Memo, supra note 2, 18; Shaw Opinion, supra note 3, 11, ↩

10. 10.

    Davenport, Palestinian Declaration, supra note 4, 9–11. ECLJ, Opposition Memo, supra note 2, 19. ↩

11. 11.

    Errol Mendes, Statehood and Palestine for the Purposes of Article 12(3) of the ICC Statute: A Contrary Perspective, 25. ↩

12. 12.

    Id. at 18. ↩

13. 13.

    Shaw Opinion, supra note 3, 15. ↩

14. 14.

    ECLJ, Opposition Memo, supra note 2, 19. ↩

15. 15.

    Shaw Opinion, supra note 3, 35. ↩

16. 16.

    Michael Kearney & Stijn Denayer, Al-Haq Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor of the International Criminal Court under Article 12(3) of the Rome Statute, 14 December 2009 [hereinafter cited as Al-Haq], ¶ 27. ↩

17. 17.

    Official Journal of the European Communities, 16.7.97, No L 187/3. ↩

18. 18.

    Council Joint Action 2005/797/CFSP of 14 November 2005 on the European Union Police Mission for the Palestinian Territories. ↩

19. 19.

    Shaw Opinion, supra note 3, 16. ↩

20. 20.

    Al-Haq, supra note 16, at ¶¶ 25–28. ↩

21. 21.

    Shaw Opinion, supra note 3, 35; Mendes, supra note 11, 22–26, 29. ↩

22. 22.

    Mendes, supra note 11, 2. ↩

23. 23.

    James Crawford, The Creation of States in International Law, (Oxford University Press, 2007, 2nd ed) 437. Mendes also brings to attention the unusual situation whereby a very significant number of claims as to the law of statehood made by those advocating the rejection of the Palestinian declaration and adoption of a strict interpretation of the Montevideo criteria almost exclusively rely upon the Crawford’s writings on the topic. With all due respect to Crawford’s scholarship, such overwhelming reliance on a single scholar, particularly in light of the statement quoted above, demands serious questioning of the arguments and reasoning upon which the Orthodox approach is premised. Mendes, supra note 11, 27. ↩

24. 24.

    Mendes, supra note 11, 44–8. ↩

25. 25.

    Alain Pellet, Effects of Palestinian Recognition of the Jurisdiction of the ICC, 14 February 2010 ¶ 5 (original in French); Mendes, supra note 11, 38; Al-Haq, supra note 16, ¶ 43. ↩

26. 26.

    Id. at ¶ 4. ↩

27. 27.

    Id. at ¶ 7. ↩

28. 28.

    Id. at ¶¶ 8–15. ↩

29. 29.

    Id. at ¶ 18. ↩

30. 30.

    Id. at ¶¶ 17–23. ↩

31. 31.

    Id. at ¶ 33. ↩

32. 32.

    Al-Haq, supra note 16, ¶ 30. ↩

33. 33.

    Id. at ¶ 32. ↩

34. 34.

    Jean-Marie Henckaerts, The grave breaches regime as customary international law, 7 J. Int’l Crim. Just. 4 (2009) 697. ↩

35. 35.

    Al-Haq, supra note 16, ¶ 34. ↩

36. 36.

    Id. at ¶ 34. ↩

37. 37.

    Id. at ¶ 36. ↩

38. 38.

    Shany, Yuval, In Defence of Functional Interpretation of Article 12(3) of the Rome Statute: A Response to Yaël Ronen, 8 J. Int’l Crim. Just. 2 (2010) 329–343. ↩

39. 39.

    Article 4, Fourth Geneva Convention. This provision extends to all who are not of the nationality of the occupying state: Pictet Commentary to Geneva Convention IV, 46, n 4. HSRC Occupation, Colonialism, Apartheid? A Reassessment of Israel’s practices in the occupied Palestinian territories under international law, (Cape Town, 2009) 71–81, available online. ↩

40. 40.

    Pictet, supra note 39, 69–70. ↩

41. 41.

    Antonio Cassese, International Law, (Oxford, 2nd ed 2005) 65; Martin Dixon, International Law, (Oxford, 6th ed 2007) 164. ↩

42. 42.

    Geoffrey Watson, The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements, (Oxford University Press, 2000) 245. ↩

43. 43.

    Sean D. Murphy, Self-Defense and the Israeli Wall: Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory, 99 Am. J. Int’l L. 92 (2005) 63. Cited by Mendes, supra note 11, 46. ↩

44. 44.

    Statehood Issue>, supra note 1, 5. ↩

45. Suggested Citation for this Comment:

    Michael Kearney, It is Imperative that in Considering the Issue at Hand, the Correct Question be Asked, and that Palestinian Jurisdiction Over Crimes Set Out in the Rome Statute be Acknowledged as Giving the ICC the Ability to Accept the PA Declaration, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza#Kearney.

    Suggested Citation for this Issue Generally:

    Should the ICC Investigate War Crimes in Gaza?, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza.

Argument

The military incursion by Israel into the Gaza Strip in 2008–2009 generated allegations of crimes potentially within the jurisdiction of the International Criminal Court (ICC). The Office of the Prosecutor at the ICC was presented with information from non-governmental organizations about such violations, with the suggestion that the Office investigate. Under the multilateral treaty creating the court, a document titled “Statute,” the ICC has subject-matter jurisdiction over war crimes, crimes against humanity, and genocide. It has temporal jurisdiction over such acts if committed after July 1, 2002.

Under the ICC Statute, jurisdiction is based largely on adherence by states as state parties to the Statute. Unless the UN Security Council refers a situation—which has not occurred in regard to the Gaza hostilities—the ICC has jurisdiction only if the act, even if falling within subject matter and temporal jurisdiction, is related to a particular state. That relation can be in one of four ways. The first is that the act was committed in the territory of a state party to the Statute. The second is that the act was committed by a person who is a national of a state party. The third is that the act was committed by a national of a non-party state, but where that state files a declaration with the Court conferring jurisdiction. The fourth is that the act was committed on the territory of a non-party state, but where that state files a declaration with the Court conferring jurisdiction.

As regards Israel’s incursion of 2008–2009 into the Gaza Strip, the first route to jurisdiction was lacking because Palestine was not a party to the Statute. The second route was, for the most part, lacking because Israel as well was not a party, so individuals holding Israel’s or Palestine’s nationality would not fall under the Court’s jurisdiction on the basis of their nationality.

On January 21, 2009, a declaration was filed with the Registrar of the ICC in the name of Palestine. The declaration did not confer jurisdiction for acts by nationals of Palestine, but it did confer jurisdiction for acts after July 1, 2002 and falling within the Court’s subject matter jurisdiction, if they were committed on the territory of Palestine.

The declaration’s validity in conferring that scope of jurisdiction turned on construction of the Statute, as well as on the status of Palestine as an international entity. A declaration of this type is to be filed by “the State on the territory of which the conduct in question occurred.” The Statute does not define “territory” or “state.” As specified in Article 31 of the Vienna Convention on the Law of Treaties, a document widely regarded as reflecting the customary law of nations in regard to the construction of treaties, terms are construed in their “ordinary meaning,” taken “in their context” and in light of the “object and purpose” of the treaty. For “territory,” this probably means an act committed not only by a person who is physically on the territory, but also an act committed by a person who is physically outside the territory but where the act produces effects on the territory.

Article 31 opens the possibility of a construction of the term “state” to include entities that might not fit under the “ordinary meaning” of “state,” given the treaty’s “object and purpose” of protecting against atrocities. But even without an expansive reading, the term “state” as understood in general international law includes Palestine, in whose name the declaration of January 21, 2009 was filed.

Ordinary meaning of the term “state”

In international usage, the term “state” covers a broad range of territorial entities. At one extreme, in terms of territory or population level, stand such entities as China, the Russian Federation, and India. At the other extreme stand so-called “micro-states,” which have minimal territory and population. The fact that micro-states are states means that they are included in the ordinary meaning of the term “state.” Thus, for example, the State of Niue, a grouping of islands off New Zealand that formerly was under New Zealand’s trusteeship, has been admitted as a member of a number of UN-related organizations that require statehood for membership. Niue has been ruled by the UN Secretary-General to qualify as a “state” when it has acceded to multilateral treaties to which only states may be party. Niue’s land area is 260 square kilometers. Niue’s inhabitants number fewer than two thousand, and they are nationals of New Zealand, because Niue has no nationality of its own. Niue’s status is not recognized by any international document, but rather by a piece of New Zealand legislation.

Beyond territory and population, a state normally has a government with some minimal level of control over its affairs. The level of control required, however, is not high. Entities whose foreign affairs are handled by an outside state nonetheless qualify as states. Niue has no diplomatic service or embassies, these functions being handled on Niue’s behalf by New Zealand. Responsibility for national defense may rest wholly in the hands of an outside state. Palau, another grouping of islands in the Pacific Ocean, was formerly a U.S. trust territory. By bilateral treaty, the United States has complete authority over the defense of Palau, to the exclusion any authority held by Palau itself. Yet Palau has been admitted to membership in the United Nations, an organization that requires statehood for membership.

With some micro-states, an outside state plays a decisive role even in internal governance. France plays such a role in Monaco. By bilateral treaty, seconded French civil servants head a number of governmental departments in Monaco. Yet Monaco, like Palau, is a member state of the United Nations.

The criterion of control vanishes altogether if a state’s territory is held by another state in belligerent occupation. A state whose territory has been occupied by a foreign army may exercise little or no control. Yet its statehood is not thereby negated.

In one other category of “state,” internal control is lacking. In states commonly referred to as “failed,” the government may exercise little control over sectors of the territory, or perhaps no control anywhere in the territory. Yet such entities are considered to be states.

The Convention on Rights and Duties of States (Montevideo) of 1933 is often cited for a listing of the criteria required for statehood. The Convention lists, prominently, territory, a population, and control by a government over the population in the territory. As indicated, these criteria are honored more in the breach in the contemporary practice of states.

Status of Palestine as a Class A mandate territory

It is sometimes said that in order to be a state, an entity must be independent of other states, but this proposition is doubtful. The “independence” of some of the micro-states is fragile at best. The absence of a requirement of independence is demonstrated by the status in the aftermath of World War I of Palestine and the other formerly Ottoman territories. Iraq, Syria, Lebanon, Palestine, and Transjordan were set up as states under a newly devised system called mandates, that involved “tutelage” by an outside state on a temporary basis. Supervision was to be exercised by the League of Nations, through a special agency it created for the purpose, called the Permanent Mandates Commission. The outside power was called a “mandatory.” In the case of Palestine, Great Britain held the status of mandatory and was given the power of administration.

These territories came to be called “Class A” mandates, to distinguish them from other mandates whose international status was less than statehood. The Class A mandates were, according to the League of Nations Covenant, “provisionally recognized as independent nations.” The 1923 Treaty of Lausanne, which embodied the terms of peace with Turkey, referred to these territories as “states” being “detached” from Turkey. The territorial disposition effected by the Treaty of Lausanne was accepted by the international community. There were differences among the five in the relationship between the territory and the mandatory power, but all were regarded by the League, and by its Permanent Mandates Commission, as holding the same status, namely, statehood.

As is more fully recounted in my The Statehood of Palestine: International Law in the Middle East Conflict, to be published shortly by Cambridge University Press, Palestine functioned as a state under this arrangement and was regarded as a state by other states. Palestine’s inhabitants held Palestine nationality, pursuant to a provision of the Treaty of Lausanne that called for a Palestine nationality. That nationality was recognized by other governments, which honored Palestine passports. When issues of the nationality of Palestine’s inhabitants arose in foreign courts, Palestine nationality was routinely accepted.

Palestine entered into bilateral and multilateral treaties with states in the immediate region and with European states. These treaties were concluded by Britain’s High Commissioner as the executive authority in Palestine. Under the mandate arrangement it was Britain who held the power to conclude treaties for Palestine. A distinction is made in regard to treaty-making between power and capacity. For Palestine, Britain exercised the power, but the capacity was that of Palestine.

When issues involving Palestine’s status surfaced in practice at the international level, Palestine was found to be a state. In 1932, for example, after the British Parliament enacted a general tariff law, the British Government contemplated extending a tariff preference to Palestine so that goods entering Britain from Palestine would not be subject to duty. But Britain had most-favored-nation clauses in bilateral commercial treaties with a number of other states. If it offered a tariff preference to Palestine, other states could claim that goods from their territories could be assessed tariffs by Britain no higher than Britain collected on goods from Palestine.

Rather than grant Palestine a preference and run that risk, the British Government decided to survey Italy, Spain, and the United States, with each of whom it had a most-favored-nation treaty. It asked them whether, if Britain were to grant a preference to Palestine, they would claim it as well. The three countries said they would, their rationale being that Palestine was a state. The British government contemplated suing the three states over the issue in the Permanent Court of International Justice. But Britain’s Attorney General advised that Italy, Spain and the United States would likely be ruled to be validly invoking the most-favored-nation provisions on the rationale that Palestine was a state. Britain dropped the plan to sue, or to grant Palestine a trade preference.

The academic lawyers of the League era found the status of the mandate territories a source of fascination, and of confusion. Dissertations were written on the topic in Vienna and Paris. Articles filled the legal periodicals. The academics were not of one mind on the status of the Class A mandates. But the governments of the era regarded them as states and dealt with them in that way.

The top British-appointed officials in Palestine itself regarded Palestine as a state. Britain’s High Commissioner, Sir Herbert Samuel said that Palestine under the mandate arrangement was a state, as did Norman Bentwich, who served as Attorney General of Palestine. The chair of the League of Nations Permanent Mandates Commission, which supervised Britain’s administration of Palestine, was of the same view. The fact that administration was exercised by Great Britain, and that Palestine’s independence was only “provisionally recognized” did not detract from the fact that Palestine was a state.

Status of Palestine after 1948

When a new international organization of states was formed, a clause was written into its Charter to preserve rights under League of Nations mandates. Article 80 of the Charter of the United Nations protected the rights of “states” or “peoples” under “existing international instruments to which Members of the United Nations may respectively be parties.” Britain, as party to the arrangement with the League of Nations for a mandate in Palestine, fell under this provision. Hence the international recognition of Palestine statehood did not vanish upon the demise of the League of Nations. Nor did it vanish when Britain withdrew in 1948. The rights of both Palestine as a state and of the people of Palestine were preserved by UN Charter Article 80.

In the wake of Britain’s withdrawal, a National Council took control of the greater portion of Palestine’s territory in the name of the Jewish community of Palestine. The National Council seceded from Palestine to form a state called Israel. Egypt assumed administration of the Gaza Strip, and Jordan (renamed from “Transjordan”) assumed administration in what at the time was called central Palestine, and soon to be called the West Bank of the Jordan River. Egypt and Jordan, each in its own way, acknowledged Palestine’s continuing statehood, consistent with UN Charter Article 80. Each put itself in a caretaker role pending the reemergence of a government to administer Palestine. The international community accepted the continuation of Palestine statehood by acquiescing in Egypt’s mode of administration in the Gaza Strip, and, though with some hesitation, in Jordan’s mode of administration in the West Bank of the Jordan River.

Since 1967, the territory over which Egypt and Jordan assumed administration in 1948 has been occupied by Israel under a regime of belligerent occupation. The control thus exercised by Israel had no impact on the statehood of Palestine. Although Palestine is deprived of control in its territory, its statehood subsists. This disposition is consistent with the character of belligerent occupation, which effects no change in the statehood of territory. Just as, for example, Denmark retained its character as a state while under occupation by Germany (1943 to1945), so Palestine retained its character as a state under occupation by Israel.

In 1988, a government-in-exile for Palestine was proclaimed. A declaration issued in that year by the Palestine Liberation Organization referenced the League of Nations Covenant and the Treaty of Lausanne on Palestine’s status in re-affirming Palestine statehood. That declaration was met with a resolution of the UN General Assembly welcoming this re-affirmation of Palestine statehood, and Palestine was shortly recognized in one way or another at the diplomatic level by over one hundred states. Palestine applied for membership in several specialized agencies affiliated with the United Nations. These organizations admit only states as members. Most member states favored Palestine’s admission, but the organizations decided not to act on the applications in light of threats of financial sanctions against the organizations issued by the Government and Congress of the United States.

Palestine in the contemporary world

The United States and the Soviet Union initiated a peace process three years later, calling on Palestine and Israel to come to terms in regard to a territorial divide. In 1993, the two parties penned an agreement in which they pledged to resolve the question of their borders. Benjamin Netanyahu, at the time the leader of the opposition in the Israeli parliament, denounced the agreement because, he said, it meant that Israel had recognized Palestine as a state. Netanyahu was correct in that assessment, because the agreement to negotiate borders presumed the statehood of each of the parties. Further, the Israeli government demanded the recognition of Israel, which Yassir Arafat as Chairman of the Palestine Liberation Organization extended in writing. Recognition, like the negotiation of borders, is an act in which only states engage. By demanding recognition of itself, Israel indicated that it regarded Palestine as a state.

Achieving an agreement over borders proved elusive, but the major powers pressed the parties to pursue the effort. This pressure from the international community showed that it, like Israel, regarded Palestine as a state. Recognition of Palestine statehood is reflected in particular in the Performance-based Road Map to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, drawn up by the so-called Quartet (United States, Russia, European Union, and United Nations). Issued on April 30, 2003, the Road Map called on the major powers to promote recognition of Palestine in what was identified as Phase 2 of the Road Map, which was to begin in June 2003. Although Phase 2 was not reached, the issuance of such a plan, contemplating diplomatic recognition of Palestine within a few weeks, indicated that Palestine was regarded as a state.

In international practice, recognition of a state may be manifested in a variety of ways. Recognition need not be explicit. It may be implied from practice. The practice of states in the peace process shows that even those states that have not recognized Palestine formally nonetheless regard it as a state.

Although Palestine has yet to be admitted to membership in the United Nations, the main UN organs treat it as a state. The General Assembly accords to Palestine’s representatives the right to reply to statements made by representatives of other states, a right enjoyed, under General Assembly rules, only by representatives of states. The Security Council admits Palestine participation in its debates, a right accorded, under Security Council rules, only to member states. The Economic and Social Council, another of the main organs of the United Nations, treated Palestine as a state by admitting it, as it did, as a member of the Economic Commission for Western Asia, a body open only to states. The International Court of Justice also treats Palestine as a state. The Court invited Palestine to participate when it held proceedings leading to a 2004 advisory opinion about the barrier Israel was constructing at the time in the West Bank of the Jordan River. Under Article 66 of the Court’s Statute, only states may so participate.

Among the minority of states that have yet to accord Palestine formal diplomatic recognition are states of Western Europe. Their reticence, however, has nothing to do with their view about Palestine as a state. They withhold formal recognition in order to pressure Palestine to come to terms with Israel. Their view of the status of Palestine was made clear in 1997, when the European Community signed with the PLO the Euro-Mediterranean Interim Association Agreement on Trade and Cooperation. Under the founding treaty of the European Community, such agreements are concluded only with states located outside Europe. Hence, penning this agreement with the PLO meant that the European Community found the PLO to represent a state.

Palestine thus holds a status as a state that dates from the time of the League of Nations. Palestine falls comfortably within the meaning of the term “state” as that term is used in international practice, hence as one finds it in the ICC Statute. As a result, the Palestine declaration of January 21, 2009 is an instrument with legal effect. Since the Gaza Strip is part of the territory of Palestine, the ICC has jurisdiction in particular over offenses committed in relation to the hostilities of 2008–2009.

Counter-arguments

A number of organizations and individuals sent submissions to the Office of the Prosecutor to urge either the acceptance or rejection of the Palestine declaration. In May 2010, the Office posted on its website a summary of these submissions and their texts. Of these submissions, four argued against the validity of the Palestine declaration on the ground that Palestine is not a state. I submitted two of the items that were posted, presenting arguments along the lines of those above that Palestine is a state. One of the four submissions in opposition—submitted by two professors at the University of Haifa—was structured as a response to my arguments. The other three also took positions contrary to mine.

The arguments made against Palestine statehood in the four submissions ignored relevant facts and mis-construed principles of law. Several of the submissions cited statements by Palestine officials who spoke of establishing an independent Palestine state. These statements were taken by the authors of the submissions to mean that the officials regarded a state as coming into being in the future, but not as one that presently exists. Uniformly, however, the quoted statements were calls for an end to Israel’s occupation of Palestine territory. The purport of the statements was that the independence of the Palestine state was being infringed by Israel.

Several of the submissions pointed to statements in resolutions of the UN General Assembly and UN Security Council, and in the 2003 Road Map, advocating a two-state solution. These statements were taken as reflective of an understanding that Palestine is not presently a state. These submissions ignored the actions, cited above, by the General Assembly and Security Council accepting Palestine’s participation on the basis of its being a state. A call for a two-state solution, as made in the Road Map, does not presume the present non-statehood of Palestine. It is rather a way of calling for peaceful relations.

Several of the submissions cited the deferrals in 1989 by UNESCO and the World Health Organization of Palestine’s applications for membership as indications that the international community does not regard Palestine as a state. These submissions failed to mention the threats of financial reprisal, as noted above, that precipitated the deferrals.

Several of the submissions mistakenly referred to the Palestinian National Authority as the entity their authors said was not a state. The PNA is a governing authority for the state. It need not appear that the PNA controls Gaza for Palestine to be a state.

One of the submissions urging the invalidity of the Palestine declaration was sent by the Israel-based International Association of Jewish Lawyers and Jurists, which attached an opinion letter from Professor Malcolm Shaw QC. Shaw focused on the current Gaza-West Bank split and claimed that the control criterion for statehood was not met because of the fact that from 2007 the Palestinian National Authority did not control Gaza. But Shaw did not explain why a split of authority in two parts of Palestine territory reflects negatively on statehood. Other states—Vietnam after 1954 being an example—have had split administrations yet were states.

With regard to the level of control exercised, Shaw argued that Palestinian administrative powers are limited by the post-Oslo agreements. Shaw cited a clause in the 1995 Interim Agreement (Israel-PLO) that says that the PNA is not to exchange ambassadors with other states or conduct diplomatic relations. Shaw overlooked the fact that it is the PLO that conducts diplomatic relations for Palestine. Palestine’s foreign relations are conducted primarily by the PLO, not by the PNA.

Shaw also pointed to various ways in which the PNA lacks full control, for example, that under the post-Oslo agreements Israel controls the airspace. Shaw omitted the fact that Palestine territory is under belligerent occupation, a circumstance that limits its ability to exercise control.

Shaw wrote that any assertion of statehood, as reflected in the Palestine Declaration to the ICC, would violate a provision of the 1995 Interim Agreement stipulating that, pending agreement between them, neither side shall change the status of Gaza or the West Bank. Shaw ignored a provision of the same Interim Agreement that says that nothing in the Interim Agreement precludes either party from maintaining its positions on any issue. Given that Palestine statehood was asserted prior to 1995, an assertion of Palestine statehood after that date is no violation.

Another of the four submissions was on the letterhead of the Hoover Institution at Stanford University, signed by two fellows of the Institution and four international law professors. In one of its main points, the Hoover letter focused on the invitation to Palestine by the International Court of Justice, as mentioned above, to participate in its proceedings in the advisory opinion case concerning the construction of Israel’s West Bank barrier. The Hoover letter argued that this invitation did not imply Palestine statehood. It said that in contentious proceedings in the Court (a case by one state against another) only states participate, but that in advisory proceedings the Court, under its Statute, may, under Article 66 of its Statute, invite not only states but “international organizations.”

The Hoover letter supplied no documentation but implied that the “international organizations” could be non-state entities. That implication has no basis. The term “international organizations” as used in Article 66 refers to organizations of states. The Court does not invite NGOs. Moreover, even if the Court did invite NGOs, Palestine could hardly be characterized as an “international organization.” The invitation to Palestine could have been issued only under the category of “state.”

The Hoover letter made one other attempt to negate the Court’s acceptance of Palestine as a state. The letter recited: “Although Palestine was allowed to participate in arguments before the ICJ, it was not as a State. Indeed the court referred to its observer status at the United Nations.” The Hoover letter thus sought to juxtapose “state” to “observer,” implying that the Court, by calling Palestine a UN “observer,” put it in a category other than “state.” However, the Court’s reference to Palestine as an observer did not reflect a view that it was not a state. The Court referred to Palestine’s observer status, along with its having co-sponsored the resolution requesting an advisory opinion, as a way of providing a rationale for its invitation to Palestine. The Court did not refer to Palestine as an observer in order to distinguish it from a state.

On another point, the Hoover letter challenged the validity of the Palestine declaration to the ICC on the basis that it was filed by the PNA, whereas the entity that represents the Palestinian people at the international level is the PLO. This argument lacks merit. In the 1988 Palestine declaration, the PLO was declared to be the government of Palestine. The PNA was set up by the PLO in 1993 to administer territory on the basis of the Oslo agreements. It matters not which one submits a document of this sort. The declaration to the ICC implicates issues that the PNA, in its governing role, might handle, such as the surrendering of suspects to the court. It would be the PNA that would need to interact with the ICC at a practical level.

Daniel Benoliel and Ronen Perry, two members of the law faculty at the University of Haifa, submitted a draft law review article that, as originally posted by the Office of the Prosecutor, carried a notation that it was to be published in the Boston University International Law Journal, although that notation was later removed. A large segment of this draft article is devoted to criticizing points made in an article of mine that was published in the Rutgers Law Record (‘The Palestine Declaration to the International Criminal Court: The Statehood Issue,’ Spring 2009). Arguing against Palestine statehood, Benoliel and Perry cited the fact, which is true, that most western European states did not recognize Palestine in the wake of the 1988 Palestine declaration. They took this omission as an indication of Palestine non-statehood. They recited, as is also true, the fact that some of the states that declined to recognize “did so on the grounds that they wanted a more definite indication of Palestine’s positive attitude towards Israel, such as an explicit act of recognition of Israel.” Benoliel and Perry missed the implication of that view of the European states. If a state declines to recognize a particular putative state but says that it will do so if the putative state takes an action that could be taken at any time, then the former necessarily regards the entity as a state. Otherwise, it would make no sense to say that it will recognize upon performance of the desired action.

Benoliel and Perry sought to refute my argument that the statehood declared for Palestine in 1988 was not of a new state, but of a state that already existed. Benoliel and Perry disputed my position that Palestine, as a Class A mandate under the League of Nations, had been constituted as a state. However, they gave no documentation for their view and failed to reference any state practice of that era in relation to Palestine. Their only contention in support of their view related to the ethnic aspect of the Palestine mandate. They said that Palestine was being “reserved exclusively for the Jewish people to establish a future independent state,” as if that meant that it was not at that time a state. That characterization of the Palestine mandate is inaccurate, given that the Balfour Declaration of 1917, as incorporated into the Palestine mandate, called for protection of the existing population, which overwhelmingly was not Jewish. But even if their characterization were accurate, it missed the point that Palestine’s status in the mandate period had nothing to do with the ethnic question. What is critical is that the states of the international community regarded Palestine under mandate as a state and dealt with it as such in their interactions with it.

In sum, the four submissions contain no valid points to refute Palestine statehood. The weakness of the counter-arguments only reinforces the conclusion that Palestine is a state.

1. Suggested Citation for this Comment:

   John Quigley, The ICC Prosecutor has Authority to Investigate, and the ICC has Jurisdiction, Because the Prosecutor has in Hand a Consent Declaration from the State on Whose Territory the Alleged Crimes were Committed, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza#Quigley.

   Suggested Citation for this Issue Generally:

   Should the ICC Investigate War Crimes in Gaza?, ICC Forum (Sep. 1, 2010), available at https://iccforum.com/gaza.