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The Gaza Jurisdiction Question — Comments

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Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”

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I regret that I do not understand the question. The ICC does not recognize states, and the Palestinian Authority has apparently acceded to the Geneva Conventions. If there is a Palestinian state, it is not 'Hamas'. The Geneva Conventions apply ONLY to states. and the UN Security Council has no 'legal jurisdiction' that I see is relevant. It can, under the ICC Statute, refer a situation to the ICC and thus grant the ICC jurisdiction over a crime committed in the territory of any state, including non-member states.
Whatever 'ICC recognition' means in the question, nothing grants anyone impunity to commit international crimes.

This is in response to the opinions expressed by Professors George Fletcher and John Quigley concerning the Palestinian Authority’s submission of the Situation in Gaza, “Operation Cast Lead,” to the ICC.

Both Professors Fletcher and Quigley are correct, but only up to a certain point. As chairman of the Diplomatic Conference’s Drafting Committee, I can attest to the fact that referrals under Article 12(3) were intended to be by States only. Anyone interested can go to my three volumes on The Legislative History of the ICC (Transnational Publishers, 2005).

Professor Fletcher did not need to refer to Professor Crawford for authority on that point since the legislative history of the ICC is the best evidence. As a historic footnote, the 1994 Draft Statute prepared by the ILC was only used by the Ad Hoc Committee in 1995 and not thereafter. The 1994 ICL Draft was modeled on a 1979 Draft prepared by this writer at the request of the Commission on Human Rights to enforce the Apartheid Convention. That convention is the only international criminal law convention that contains a specific article (Article V) that calls for the establishment of an international criminal court.

Concerning Professor Quigley’s position, there is no doubt that all of the elements of statehood exist for Palestine to declare itself a state. And, indeed it did so in 1988, and some 88 states recognized it. But in the Oslo Accords in 1993, the PLO, which had claimed to be the sole representative of the Palestinian people, withdrew from that position and agreed to have Palestinian statehood subject to a negotiated agreement with the State of Israel. Thus, the PLO, which declared Palestinian statehood, withdrew from that stance. Since 1993, the Palestinian Authority acted in conformity with the Oslo Accords. Negotiations since then, which are ongoing, evidence this legal status.

Moreover, the Palestinian Authority’s declaration of 21 January 2009 does not claim that Palestine is a state. It is clear that if a given entity does not claim the status of statehood, that status cannot be ascribed to it, notwithstanding the existence of all necessary conditions for statehood.

Lastly, the PA requested a number of experts to write a memorandum to the ICC Prosecutor, which was submitted by Alain Pellet and signed by a number of scholars, including this writer, (entitled “The Effects of Palestine’s Recognition of the International Criminal Court’s Jurisdiction”), in which there is no claim of statehood by the PA.

The conclusion is that Article 12(3) does not apply; however, the Prosecutor is properly seized pursuant to Article 15, and should act proprio motu.

M. Cherif Bassiouni
Distinguished Research Professor of Law Emeritus, DePaul University

Prof. Bassiouni makes the important point that all the elements of statehood are present for Palestine and that it declared statehood in 1988. Those same elements continued to be present, so that I see no reason why Palestine should not be regarded to be a state. But Prof. Bassiouni goes on to say that, by virtue of the post-Oslo process, the PLO withdrew from its 1988 position on statehood and agreed to have Palestinian statehood be subject to a negotiated settlement with Israel. I see no such retrenchment on the Palestinian side on the issue of Palestine statehood.

The post-Oslo agreements with Israel do not address the issue of statehood. Statehood is not one of the enumerated final status issues. Borders are to be negotiated as a final status issue, but agreeing to negotiate borders did not mean that Palestine was not a state, any more than it meant that Israel was not a state. Only states negotiate borders. The Interim Agreement of 1995, which is the major post-Oslo agreement, specifies that neither party shall be deemed “to have renounced or waived any of its existing rights, claims or positions” (Art. 31-6). Thus, the Palestinian position on Palestine statehood, far from being renounced, was preserved.

On three occasions—once in 1996, again in 1999, and again in 2000—President Arafat announced his intent to re-declare statehood by a given date. Each time he refrained at the last moment, under pressure from the United States and threats from Israel, or in hopes of coming to an agreement with it. But his stated intent—post-Oslo—to re-declare statehood meant that Arafat considered Palestine still to be a state. The post-Arafat leadership maintains the same view.

The August 2009 Government Program announced by the PNA for building state institutions includes a sentence that reads: “Palestine is an independent Arab state, with full sovereignty over the West Bank and the Gaza Strip on the 1967 borders, with Jerusalem as its capital.” That sentence indicates that the PNA considers Palestine to be a state.

The assertion about independence is accurate, notwithstanding Israel’s control of much of Palestine’s territory, because independence in this context means that a state is not under the sovereignty of some other state. A state whose territory is occupied remains “independent” in this sense. Prof. Bassiouni’s bottom-line point is important and, in my view, correct. That point is that the ICC prosecutor is properly seized of the Gaza situation and has every reason to act on it under the prosecutor’s proprio motu powers.

I am not sure what the significance is of this exchange, particularly as I do not see where in my original opinion I made the statement above, but for what it's worth, I was probably refering to international borders and not intra-state ones.

In his post on the Forum, Prof. George Fletcher argues that the Palestinian Art.12(3) declaration is invalid by virtue of being filed by an entity that is not a state.

Prof. Fletcher asks whether the Palestinian Authority is a state. Of course it is not. The Palestinian Authority is a governing body. If there is a state involved here, it is Palestine, not the Palestinian Authority. So the wrong question is being asked. Prof. Fletcher quotes passages from James Crawford in which Prof. Crawford says that the P.L.O. is not a state. Again, the wrong question.

Prof. Fletcher cites the 1995 Interim Agreement between Israel and the P.L.O., and its provisions placing restrictions on the PA, to prove that the PA isn’t a state. What he recites is accurate about the role of the PA under the Interim Agreement, but that agreement does not limit Palestine as a state. Moreover, its restrictions were expected to endure for only a short time.

Prof. Fletcher recites the oft-cited Montevideo Convention criteria for statehood and asks whether the PA satisfies them. Again, he asks the wrong question. To the extent the issue may be relevant, he should be asking whether Palestine satisfies the criteria. He would then have to acknowledge that the territory of Palestine is held by a foreign army under the regime of belligerent occupation. A state is not deprived of its status as a state when its territory is occupied. Moreover, as Scott McDonald has aptly pointed out in an earlier post, it is debatable whether the Montevideo Convention criteria provide a guide to the actual practice of states in recognizing entities as states. Entities have been accepted as states when compliance with the Montevideo Convention criteria are doubtful.

Prof. Fletcher compounds his error when he asserts that human rights observance is a criterion for statehood. He asks whether the PA, rather than Palestine, meets this criterion. But even if he were to apply this supposed criterion to Palestine, there is scant evidence that human rights observance needs to be assessed before an entity is considered a state. All that Prof. Fletcher cites is a declaration of European states about territorial changes in Eastern Europe as Yugoslavia and the USSR were coming apart. Prof. Fletcher does not assert, moreover, that Palestine fails this supposed criterion. If he were to explore that question, he could certainly cite human rights failures, as one can with all states. But he would have to acknowledge that Palestine is treated as a state by governmental and non-governmental institutions that have been assessing Palestine against the human rights standards applicable to states. The U.N. High Commissioner for Human Rights makes services oriented towards human rights implementation available to Palestine—a service that the High Commissioner is permitted to provide only to states. The High Commissioner apparently considered Palestine a state. So the human rights issue provides better evidence that Palestine is a state, than that it is not.

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Prof. Fletcher says that an Art. 12(3) declaration can, according to Rule 44(1) of the ICC Rules of Procedure and Evidence, be made only by a state that is eligible to become a party to the ICC Statute. He does not indicate how that proposition, were it true, is relevant to determining whether Palestine is a state. In fact the proposition is not true. Rule 44(1) merely lets the ICC Prosecutor ask the Registrar to ask a state if it intends to file an Art. 12(3) declaration in a situation in which such a declaration might be relevant. Rule 44(1) says nothing about the character of states eligible to file an Art. 12(3) declaration.

Prof. Fletcher cites Prof. Otto Triffterer’s treatise for a listing of the supposed total number of states in the world, a listing that does not include Palestine. However, the treatise gives this listing only in a footnote. The status of Palestine was not mentioned or analyzed. A definitive listing of states in any event is a hazardous undertaking. Beyond Palestine, plausible arguments can be made for a number of putative states.

As another argument against statehood, Prof. Fletcher says that the PA was not a participating state at the Rome Conference that drafted the ICC Statute. Again, he asks the wrong question. The entity listed in the official records of the Rome Conference is “Palestine,” not the PA. The two Palestine representatives accredited to the Conference were identified in the records as representatives of Palestine, not of the PA. Prof. Fletcher implies that the manner in which the United Nations handled Palestinian participation at the Rome Conference reflected a determination that Palestine is not a state.

That implication is unfounded. The Rome Conference was held pursuant to a call by the U.N. General Assembly. It was a U.N. conference. Invitations went to U.N.-related entities. In its resolution deciding that the conference would be held in Rome in summer 1998, the General Assembly asked the U.N. Secretary-General to invite organizations entitled to participate in the work of U.N.-sponsored conferences. (GA Res. 52/160, December 15, 1997, para. 8). In that resolution the General Assembly provided a list that referred to the P.L.O. as such an organization, based on the General Assembly’s invitation to the P.L.O. in 1974 to be a U.N. observer. (Res. 3237, November 22, 1974). The General Assembly indicated that the Secretary-General should invite Palestine (which by 1997 was designated by that term at the U.N.) along with other U.N.-related entities.

Prof. Fletcher notes, correctly, that Palestine (and here he uses the correct term) was placed under the category of “Other Organizations” in the official list of delegations participating in the Rome Conference. He implies that the category “Other Organizations” was for entities that were not states. No such conclusion is warranted. According to Res. 52/160, certain non-governmental organizations were to be invited to the Rome Conference. They were to have a lesser level of participation than “delegations.” Palestine was not among them.

The category “Other Organizations” was a sub-category in a list of “delegations.” That list was made up of UN member states and state-related organizations. The category “Other Organizations” included but one entry: Palestine. The category thus was a special sub-category, devised specifically for Palestine, under the larger category of “delegations.” The same differentiation appears in annexes to the Final Act of the Conference. There Palestine was listed as having been an observer along with intergovernmental organizations and UN-related entities (Annex III). A separate listing (Annex IV) named non-governmental organizations that participated as observers. Palestine does not appear on the latter list, precisely because it was not invited as being non-governmental. Palestine participated at the level at which states participated, not at the lesser level accorded to non-governmental organizations.

Prof. Fletcher cites as an indication of Palestine’s supposed non-statehood a report produced in 2009 under the American Society of International Law. The report is ambiguous at best on the point, however. The report refers to the Palestine declaration accepting ICC jurisdiction and states that the declaration “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.” The authors of the report leave the matter with this single sentence, giving no explanation for whatever status they attribute to Palestine. Their suggestion that U.N. membership is required in order validly to confer jurisdiction on the ICC is incorrect. The ICC Statute contains no such requirement. Their statement that Palestine “is not generally recognized” ignores the more than 100 formal recognitions, and implicit recognition by many others, including Israel and the United States. Moreover, the authors merely say that the declaration raises questions about Palestine’s status. They say nothing definitive on the matter.

Prof. Fletcher himself discusses recognition, but the single authority he cites is faulty. Prof. Fletcher’s source is a statement by Prof. James Crawford in his treatise Creation of States in International Law that “quasi-unanimous support would be required” for Palestine to be a state. Prof. Crawford’s only source for that statement is a 1949 advisory opinion of the International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations. That advisory opinion, however, had nothing to do with recognition of states, hence is irrelevant on the issue of how much recognition is needed by a putative state. “Quasi-unanimous support,” in the sense of quasi-unanimous recognition, is not demanded in international practice for an entity to be considered a state. A number of states, prominently Israel in 1949, were admitted to the United Nations (for which statehood is required) when many UN member states had not recognized them. These entities were considered to be states despite sparse recognition.

Prof. Fletcher cites the 2003 Road Map as evidence against Palestine statehood, on the theory that the Road Map contemplates the establishment of a Palestine state only in the future. But the Road Map called on the major powers to recognize Palestine as a state within a few weeks of the adoption of the Road Map, if certain acts were accomplished by both parties. Those acts were not in the event accomplished, but the commitment in the Road Map to recognize Palestine within a matter of weeks could have been undertaken only on the assumption that Palestine was a state. Hence, the Road Map, far from providing evidence that Palestine is not a state, provides evidence that Palestine is.

Finally, Prof. Fletcher argues against ICC jurisdiction based on the Palestine Art. 12(3) declaration by saying that acceptance of jurisdiction would involve the ICC inappropriately in “political issues.” Yet the ICC Statute calls for jurisdiction on criteria to be ascertained by the ICC. It would be a repudiation of its assigned functions for the ICC to opt out on political grounds. Other international institutions have faced the same issue when Palestine was relevant to their functioning and founding instruments. The UN High Commissioner for Human Rights, as noted, did not forego providing human rights advisory services to Palestine, even though those services can be provided only to a state. The European Community concluded a trade deal with Palestine when it determined that such would be useful. EC rules allow for such deals to be concluded only with states. Both the UN High Commissioner and the EC, proceeding with little fanfare, simply carried out their assigned functions, on the assumption that Palestine is a state.

Prof. Fletcher’s arguments against Palestine statehood do not stand up to scrutiny. My own reasons for the conclusion that Palestine is a state were outlined in my own post on this Forum. They are now explained in detail in my book just published by Cambridge University Press, titled The Statehood of Palestine: International Law in the Middle East Conflict (hardback and paperback).

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Dantzerian makes a helpful clarification to my point about Palestine’s participation in the Rome Conference. I wrote that Palestine participated at the same level as states. Dantzerian questions that statement. As I explained in my post, I meant that Palestine participated at the level of inter-state organizations that, like Palestine, were invited as observers. UN General Assembly Resolution 52/160—the resolution that provided for invitations—put Palestine in the same category of invitee as inter-state organizations like the European Community and the Organization of American States (para. 8), rather than in the category of NGOs (para. 9).

Dear Danterzian,

You are right that the 1988 proclamation is a relevant element in the analysis, and I am grateful for your comment as this is an opportunity to highlight that my comment is an extract from a longer piece published in the JICJ, in which I addressed the present implications of the 1988 proclamation. As I see it, the 1988 proclamation of independence had a profound political impact, but its legal significance should not be overstated. First, the proclamation appears to have been largely a symbolic gesture, as implied by the call ‘upon the members of the Arab nation for their assistance in achieving its de facto emergence’.

More importantly, a proclamation of independence, even with limited recognition subsequently, does not suffice to create a state. While statehood is no longer exclusively a factual matter, it is still dependent primarily on fulfillment of factual requisites, namely effective governmental control over a population in a specified territory. Yet until 1994 at the earliest, the Palestinians did not fulfill the factual requisites of statehood, as they had no control over the territory they claimed. Without even a minimum foundation of control, recognition of Palestinian statehood was or would have been premature and legally incorrect.

Again, I do not disagree. It is indeed a peculiarity but a reality that statehood is not a black-and-white concept, but there are shades of gray, the in statu nascendi entities, for example. However, assuming there is a threshold of statehood that must be passed for the purposes of Article 12(3), the question is whether the PA has passed it. I would argue that for the ICC Statute should be read strictly, i.e. setting a high threshold of complete statehood.

The point of the ICC is to get the bad guys, but not under any circumstances. The ICC does not have universal jurisdiction, but a consent-of-states based one. Amongst other things, this requires a ‘state’. As with many other concepts, this requires a decision whether a bright line has been crossed. Wherever the line is, there will always be hard cases to decide. I argue that the line should be at ‘clearly a state’ and not lower because that is what states that have agreed when drafting of the ICC statute are expecting. If they had known that the ICC would exercise jurisdiction based on quasi-state consent, they might well have insisted on other balancing measures within the Statute (e.g. tighter political control, an opting-out provision, etc.). Institutions sometimes outgrow their creators’ intentions, but my opinion is that the ICC should not do so at this time.