An ability to facilitate reconciliation, reduce violence, and help construct a new narrative around the conflict hinges on strong social legitimacy, and the ICC has reduced its legitimacy among both States Parties and non-States Parties, like the United States and Israel, by allowing a non-State entity to accede to the Statute in direct violation of its terms. The ICC’s assertion of jurisdiction over Palestine was misguided because Palestine is not yet a “State” and thus cannot accede to the Rome Statute. Even if the Court now attempts to use this jurisdiction to hold Hamas leaders accountable for the attempted genocide and crimes against humanity perpetrated on October 7, it is unlikely to serve as an effective peacemaking body in the conflict going forward. By making a seemingly political decision to undermine the plain language of the treaty and accepted state practice, the ICC has weakened its image as a neutral, non-political arbiter. Additionally, because Palestine does not have the ability to prosecute Israelis for actions occurring in Palestinian-controlled territory, the Palestinian government cannot impart that authority to the ICC. Because a further unequal investigation will likely doom any chance the ICC had to gain legitimacy as a non-political actor in the international community, and because there is no basis on which to investigate Palestinian actions in Israeli territory, Prosecutor Khan should not attempt to launch an investigation into October 7th and its aftermath.

This comment begins by examining the language of the Rome Statute and arguing that only “States” can accede to the treaty, and then contends that establishing a single definition of “statehood,” rather than a separate definition of the term just for the purposes of the Statute, is essential for predictability, legitimacy, and customary reasons. Further, the language of the Rome Statute implies that states can only impute authority which they possess to the Court. The comment analyzes the language of the 1993 and 1995 Oslo Accords to show that Palestine gave up its jurisdiction over Israelis in Palestine and thus cannot confer that authority to the Court. Next, the comment examines the two primary definitions of statehood and argues that the classic declaratory theory, or a hybrid of the two primary theories, is preferable. It then argues that under such a theory, and arguably even under the constitutive theory advanced by some scholars, Palestine has not yet attained statehood. Because the only significant change in Palestine’s status between the 2012 assertion of no jurisdiction and the 2021 launch of an investigation was the elevation of Palestine from “non-member observer entity” to “non-member observer State” at the U.N., the comment argues that Palestine has not attained sufficient “State” status to be able to legitimately become a State Party to the ICC. Finally, the comment examines the theory of social legitimacy, arguing that a lack of such legitimacy will prevent the Court from effectively serving as a peacemaking body in the Israeli–Palestinian conflict going forward.

I. Procedure and Jurisdiction of “States” in the Rome Statute and the Oslo Accords

Modern international law is understood to be based on the principle that States cannot be bound by any particular organ of international law without their consent to be so bound.10 Treaties, such as the Rome Statute that created the International Criminal Court, are one of the most important expressions of such consent. The rules surrounding treaty-making and the applicability of treaties were laid out in the 1967 Vienna Convention on the Law of Treaties (VCLT), which explains that treaties are written agreements “between States.”11 While the exact role state consent plays in international law is disputed by scholars, it is generally accepted that there is some flexibility within this definition: treaties can be agreements between multiple “States” or between “States” and international organizations. Such a definition is advanced by virtually all states as well as by most scholars and academics.

Many organizations which allow for non-“State” entities to join, such as UNESCO and the World Trade Organization, define the procedure for those entities to become members within the plain language of the treaty itself.12 Many others use a standard formulation of treaty-making ability. Article 81 of the Vienna Convention lays out what is known as the “Vienna Formula” for ability to accede to a treaty. The Formula states that United Nation members, “States Members” of a U.N. specialized agency, or “States” invited by the G.A. have the ability to make binding treaties.13 Many treaties explicitly use the Vienna Formula to determine which entities can become signatories. The Rome Statute does not.14 Article 125 of the Rome Statute says that it is open to accession “by all States” and that instruments of accession will be deposited with the Secretary-General of the U.N.15 Thus, in order to determine whether an entity can accede to the Rome Statute, it is necessary to determine first what “all States” means and then to evaluate whether a particular entity fulfills that definition.

A. Palestine cannot accede to the Rome Statute if it is not a “State” under international law because it cannot be a “State” for procedural purposes without a ruling on its “State” status for general international law purposes.

Treaties generally define their scope, enforcement mechanisms, and conditions for consent to be bound within their terms so that all parties concerned understand what they are agreeing to. When they do not, general state practice is typically the guide for which disputed entities are able to join. Many treaties explicitly use the Vienna Formula, and some, such as the Marrakesh Agreement that created the World Trade Organization, explicitly use a more expansive definition which allows non-State entities to become signatories.16 Article 125 of the Rome Statute, however, allows “all States” to accede to the treaty.17 Because the Vienna Formula is not mandated in Article 125, state practice provides the guide to determining to what entities the “all States” terminology applies. However, what that state practice is must be evaluated. An unequivocal indication from the G.A. can also establish that an entity is considered a “State” for the purposes of joining “all States” treaties.18

Prosecutor Bensouda’s Request to the Pre-Trial Chamber acknowledges that Palestine is not a “State” for the purposes of international law, but nonetheless advocates for a separate, procedural definition of “State” for the purposes of the Rome Statute.19 She advances two reasons for this position. The first argument, that Palestine acceding to the Rome Statute creates a condition of statehood sufficient to allow the Court to assert that Palestine can accede to the Rome Statute, is a seeming tautology discussed in Section II. Her second reason is equally troubling. Bensouda contends that the Court should address questions of international law “when necessary to address its functions and mandate,” but does not seem to believe that such necessity with regard to international law has arisen in the case of Palestine.20 Her sole reason for advancing this procedural argument is that the U.N. has recognized the Palestinian right to self-determination and an independent state and that it has connected those rights to the Occupied Palestinian Territory (oPt).21 Article 21 of the Rome Statute explains that the law to be applied by the Court is defined within the Statute; matters of law not provided for within the Statute’s terms should be derived from national laws which are consistent with the Statute and international law or from internationally recognized norms and customary standards.22 University of Leicester Professor Malcolm N. Shaw explains that because “State” is not defined within the Statute, the definition that must be used is the general definition as understood by international law.23 While the Prosecutor’s argument may be appealing, accepting such a claim would require Palestine to be treated like all other, non-disputed States for the purposes of the Statute. In her Response to Amici Curiae, Bensouda acknowledges that statehood does not derive from treaty accession nor from any G.A. Resolution.24 Shaw contends that, while States Parties may identify entities that can accede to the Statute in theory, they cannot simply by virtue of doing so create a separate procedural “State” status that overcomes jurisdiction or territorial control issues.25

The Prosecutor’s contention that Palestine is a state “for the purposes of the Statute” is a controversial and ultimately meaningless claim. Her request that the Pre-Trial Chamber decide that the Rome Statute has its own exceptional definition of “State” misunderstands the difference between “self-determination” and “statehood.” While this distinction is discussed more fully in Section II, it is important to note here to show that “self-determination” and “statehood” are not interchangeable when it comes to defining statehood for the purposes of accession to treaty instruments. While the Prosecutor states early in her response to the Observations of Amici Curiae that the G.A. cannot turn self-determination into statehood, she directly contradicts that statement in Paragraph 47.26 Additionally, the Prosecutor’s categorical statement in the Request to the Pre-Trial Chamber argues that G.A. Resolution 67/19, which elevated Palestine to “non-member observer State” status, allowed Palestine sufficient “procedural statehood” for it to be allowed to accede to the Rome Statute is both conclusory and contradictory to her own professed position.27 Her reasoning blurs the line between the argument of statehood for the purpose of the Statute and the tautological statehood by virtue of accession, which is further discussed in Section II. The distinction between “statehood” and self-determination in the context of jurisdiction is discussed in Section II(B).

Jure Vidmar clarifies Bensouda’s idea, which he accepts, and explains why it does not apply in this case.28 Vidmar contends that “all States” language in a treaty which does not explicitly mandate the use of the Vienna Formula, such as the Rome Statute, nonetheless implies that the Formula should apply.29 He explains that in the U.N. Summary of Practice, the Vienna Formula informs the Secretary-General’s approach to “statehood” for treaty-making purposes. Vidmar argues that, in practice, membership in any of the specialized agencies of the U.N. allows an entity to use the Vienna Formula for treaties open to “States” or “all States.”30 However, he draws a distinction between what this comment calls “procedural” statehood—to Vidmar, a version of “statehood” that allows an entity to accede to a particular treaty—and what this comment calls “legal” statehood, which creates all the rights and obligations that come with being a state in the international community generally. He does not, however, address what happens when a disputed entity is able to join an organization like UNESCO as a “State” when it has not yet acquired such a status.

UNESCO allows for “States” that are not members of the U.N. to join the organization as Members and for “territories” to join as Associate Members.31 When Palestine attained membership in UNESCO in 2011, it joined as a full State rather than an Associate Member.32 However, its accession to UNESCO is a classic example of “procedural statehood” which did not require resolution of the jurisdictional issues present in allowing Palestine to accede to the ICC. When Palestine applied for admission to the ICC, seven states, two of which had voted in favor of Palestinian membership of UNESCO, filed amicus briefs arguing that Palestine was not yet a state for the purposes of the Court’s jurisdiction.33 While these states may have believed that Palestine met the specific procedural requirements to join UNESCO, it does not follow that they also believed it possessed sufficient “statehood” to accede to an “all States” treaty. While Vidmar contends that joining UNESCO puts Palestine into the Vienna Formula for treaty purposes, there is a weakness in his argument—namely, that it assumes either that all U.N. specialized agencies use the same formula for accession or that accession to the easiest of these agencies to join will automatically create treaty-making authority. If either of these is so, Vidmar’s fundamental argument—that no element of recognitive statehood is necessarily satisfied by “procedural statehood”—merges with advocacy for a constitutive theory of statehood, as discussed in Section II.

Shaw rejects both Bensouda and Vidmar’s entire premise of “procedural statehood,” arguing that the contention that “statehood” can be defined outside the accepted international definition of “State” when a treaty has no specific definition of the term, “contorts” the purpose of defining statehood.34 He explains that because “State” is not defined within the Statute, the definition that must be used is the general definition as understood by international law.35 This definition is not procedural but legal, requiring the determination of issues such as territorial jurisdiction. Article 31(1) of the VCLT explains that treaties are to be interpreted in line with the ordinary meaning of their terms, in light of the context, object and purpose of the treaty instrument.36 Interpretation, Shaw argues, must be subject to the words used by the treaty, rather than some new interpretation created solely for this purpose.37 He cites several examples used by commentators who argue that the reinterpretation of “State” is acceptable in the context of the Rome Statute, arguing that their examples are not apposite because those treaties contained specific alternative definitions of “State” within their plain language. Shaw contends that, while the political decision to agree that a disputed entity is competent to accede to a treaty may be made by the States Parties, bestowing attributes of statehood—territorial sovereignty and jurisdiction—which it does not possess in reality upon that entity is problematic.38 This is so because such a definition would require what Shaw calls a “jump” from the capacity to accede to a treaty, which is a political question, to self-determination, territorial rights, and the like, which are fundamentally legal issues.39 His claim that the Prosecutor’s definition would ultimately forestall discussion of international disputes on what constitutes the territory or jurisdictional rights of a disputed entity once it has been allowed to accede to a treaty is persuasive. Vidmar acknowledges these issues in the case of Palestine, ultimately concluding that the unique legal questions surrounding the issues of territorial and jurisdictional rights, discussed further in Section II(B), may be fatal to his own reasoning in Palestine’s case.40

When then-Prosecutor Luis Moreno Ocampo declined to extend the Court’s jurisdiction to Palestine in 2012, he ruled that the ICC could not assert jurisdiction over Palestine because the G.A. had not yet made an indication that it considered Palestine to be a state.41 While Ocampo came to the correct conclusion, his reasoning was flawed. In such a situation, the Prosecutor would not need “an indication,” as he worded it in his statement, but an “unequivocal” indication that the G.A. believes Palestine to have achieved statehood.42 This is clearly not the case. In his dissenting opinion at the Pre-Trial Chamber, Judge Péter Kovács highlights the issue with an expansive view of G.A. Resolution 67/19. He, too, highlights a number of “pre-sovereign” entities admitted to the Rome Statute.43 In addition, he introduces a compelling point: nearly half of the votes in favor of elevating Palestine to “non-member observer State” status came from non-States Parties to the Rome Statute.44 A number of states that officially recognize Palestine abstained from voting.45 Perhaps many states wanted to reflect their support for eventual negotiations. It is not clear that there was an unequivocal indication of support for current Palestinian statehood; it is troubling that Prosecutor Bensouda reads such definiteness into G.A. Resolution 67/19.

In addition to the fact that several of the states which voted for Palestinian elevation to “non-member observer State” status, achieving such a status is not necessarily an indication of statehood. Vidmar argues that “non-member observer State” is itself a category outside the purview of the U.N. Charter and needs to be read as a whole rather than with a heavy emphasis on the word “State.”46 He explains that entities have joined the U.N. as non-member observer States in the past when there was no indication those entities had attained statehood. Austria after World War II, Bangladesh, and three different Vietnams were granted “non-member observer State” status before full membership, although the international community acknowledged the “State” status of those entities had not yet been fully resolved.47 On the other hand, Switzerland maintained its non-member observer State status until 2002 in the interest of preserving its neutrality despite unequivocally being a “State.”48 Vidmar explains that “non-member observer State” status is a wide-ranging criteria with no definition laid out in the U.N. Charter and a variety of past uses.49 Thus, it is not reasonable to argue that such a status is “State-creating.” The use of G.A. Resolution 67/19 in the Pre-Trial Chamber’s reasoning that the G.A. had given an “unequivocal indication” of Palestinian “Statehood” was flawed.50 Vidmar argues that the resolution admitted Palestine to the “politically created extra-Charter club of non-member observer States. Nothing more and nothing less.”51

Shaw argues that, ultimately, allowing the Prosecutor’s argument that “State” means something different in the context of the Rome Statute exclusively will lead to conflicts with other international entities which do not accept exceptional definitions of statehood.52 This argument is compelling. Firstly, one of the reasons to restrict an exceptional definition of “State” in a particular “all States” treaty is predictability. It is important that all states have the same understanding of the rights and obligations that result from joining or not joining the treaty or the international organization it creates. That states have not invoked the inter-State dispute settlement provisions in Article 119 of the Rome Statute in this case to challenge Palestine’s initial accession does not mean the Court can rule on territorial jurisdiction with impunity.53 It is quite possible that those States did not object to Palestinian accession in general but would now object to what Shaw terms “an exaggerated and manufactured definition of relevant substantive provisions of the Statute” to assert jurisdiction before territorial issues are resolved.54

The second reason to require consistency between legal and procedural “statehood” is accountability. If entities can choose to be “States” when they benefit from that status and not to be when it does not benefit them, the entire system of rights and obligations that come from statehood must go out the window. It can be seen from the way various states spoke about G.A. Resolution 67/19, which elevated Palestine to non-member observer State status, that those states view the acquisition of “State” status as a significant change in position, which Palestine has not yet made.55 While Yaël Ronen points out that there is no set limit on the ICC Prosecutor’s jurisdiction over what to consider a “State” for the purposes of the Rome Statute, it is fundamental to a consent-based conception of treaty acquiescence that all treaties which do not otherwise define “statehood” must be assumed to use the same definition of the term “State.”56

The Prosecutor conceded that the joint action of the state parties cannot, as Shaw says, “render meaningless the deficiencies in Palestinian adherence to the essential conditions of statehood.”57 Shaw contends that, while the Rome Statute places no explicit limits on the competence of the Prosecutor to derive a variable indication of “statehood,” a court like the ICC must abide by the clear meaning of terms within its constituent instrument.58

B. Palestine cannot convey to the ICC legal authority that the Palestinian government does not possess, and a legitimate assertion of jurisdiction by the Court in this case would require a determination of territorial issues beyond the Court’s competency.

Articles 11 and 12 of the Rome Statute define the Court’s jurisdiction: Article 12, which explains that “a State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court,” is particularly significant.59 Article 12(2) mandates that the “State” in question be either the “State” of which the accused is a national or the “State” in whose territory the alleged crime occurred.60 Vidmar acknowledges that his territorial requirement for jurisdiction is where the separation of “legal” and “procedural” statehood falls apart in the case of Palestine at the ICC.

Kovács highlights this issue with the Pre-Trial Chamber’s ruling that the territory of the “State of Palestine” is the West Bank, Gaza, and East Jerusalem. He argues that the Prosecutor’s reliance on the idea of “occupation” is flawed, since the idea that Israel is “occupying” comes from non-binding U.N. resolutions. Additionally, the Prosecutor’s claim that sovereignty reverts to the pre-colonial possessor is not relevant here—there was no sovereign Palestine before Israeli “occupation.”61 Kovács provides another compelling example: the previous possessor was an occupying power over territory previously belonging to a sovereign state.62 Unless the Prosecutor is advocating the return of the Ottoman Empire, her logic is flawed. Kovács also brings up the Oslo Accords, whose relevance the Prosecutor downplays. She appears to have decided Oslo is irrelevant based on her apparent belief that G.A. resolutions calling Israel an “occupier” are legally binding.

Kovács highlights the problem of shared competencies and limited jurisdiction, while Eugene Kontorovich points out the problem with Palestinian conveyance of jurisdiction over Israelis to the ICC. He explains that a referral of jurisdiction to the ICC is a delegation of some of the jurisdiction a State Party possesses. Kontorovich lays out two essential elements that must be met for a State Party to convey jurisdiction: the State must actually have territorial sovereignty over the areas on which the crimes were allegedly committed and it must not have previously given up such jurisdiction.63 “In other words,” Kontorovich writes, “a state cannot delegate what it does not have,” exactly what Palestine is attempting to do on both counts.64 He explains that the limits of Palestinian territory are not established—Israel has negotiated borders with Jordan and Egypt, but not yet with Palestine.65

Firstly, the actual territory of “Palestine” is not clear. Kovács argues that, currently, the Prosecutor may be able to negotiate in PA-controlled territory in the West Bank.66 Vidmar cites the Pre-Trial Chamber’s holding with regard to the territory of Palestine, which it said had to be interpreted in line with international human rights law. However, the Chamber took that too far and, as Vidmar compellingly argues, went beyond its competence to rule on Palestinian territorial rights.67 Vidmar acknowledges a right of Palestinian self-determination, but he explains that such a right does not mean that Palestine has a self-executing territorial entitlement.68 In other words, he says, self-determination of Palestinians undisputedly applies in Palestine, but the fundamental question is where “Palestine” is. The Pre-Trial Chamber effectively said that Palestine is a state party and the oPt is a place where Palestinians have a right to self-determination. This is accurate. What is not accurate is the Chamber’s conflation of those two ideas to argue that the “Palestine” over which the ICC supposedly has jurisdiction has the same borders as the oPt. Vidmar and Kovács point out that borders of Palestine are not currently settled. As is discussed in Section II of this comment, the PA, the government with the power to possibly accede to the Rome Statute, does not govern in the Gaza Strip. Thus, as Vidmar explains, the Chamber should explain why the territory of the procedural entity that is the “State Party Palestine” is the same as the oPt.69 To determine whether an action took place on the territory of a “State Party” would require a holding regarding Palestinian territorial competence beyond that on which the Pre-Trial Chamber can rule. The fundamental issue is that the Pre-Trial Chamber problematically reads “statehood” into self-determination by holding that Palestine is supposedly a procedural, rather than legal, entity, but that the territory of the procedural “Palestine” must be the area in which Palestinians possess legal self-determination.70 As the sole legal government of Palestine, the PA may have an argument that its territory is the same as that of “procedural Palestine.” However, it has no governmental control over Gaza and thus should not be able to argue that Gaza is “its” territory. “Can it be assumed that a State party to a treaty also has to have a geographical dimension, or is ‘State party’ purely a concept of treaty law?,” Vidmar asks.71 He explains that the fundamental issue with detaching the treaty law idea of procedural statehood from the general international law of “States” is that there can be a disconnect between the area of the procedural and legal “State,” which in turn can undermine the territorial effectiveness of any treaty to which the “procedural State” applies. Such is the case with Palestine, rendering Vidmar’s statehood for procedural purposes arguably irrelevant in this case. The effect of this divide on Palestinian statehood is further discussed in Section II.

While Mutaz M. Qafisheh raises a counterpoint to this issue, his categorical statement that actual governmental control over an area is not necessary for the area to be part of a “State’s” territory, only an arguably legally-supported claim, sets a dangerous precedent.72 If Qafisheh is correct, any disputed entity can make a unilateral claim of borders over which it holds no control but which it has some relationship to (for example, the Palestinian state under this theory could feasibly claim that all of Israel, or for that matter, all of Jordan, is Palestine) and, as long as it has some territory, be justified in its claim. John Quigley argues that Israel’s “belligerent occupation” of Palestinian territory is preventing Palestine from exerting the territorial sovereignty that Kontorovich argues should be required, while Prosecutor Bensouda echoes this argument in her Request to the Pre-Trial Chamber.73 A problem with Quigley’s argument is that he does not distinguish between the right to eventual control and current territorial sovereignty. Additionally, Quigley’s downplaying of the requirement for independence as an element of territorial control is also problematic—if he is correct, a disputed entity that is yet to gain legal independence can claim territory over which it never ultimately gains control and subject the State from which it secedes to ICC jurisdiction.74 His distinction ignores the meaning of the term “independence.” After all, the right to legally exert force is one of the mandates of a government. If a nominal “State” does not have to be independent to exert legitimate territorial control, then, implicitly, the “State” from which it is seceding is exerting power illegally. Such a holding would effectively eliminate the need for any territorial element in the conveyance of jurisdiction, essentially rendering borders meaningless for the purposes of the ICC.

As Prosecutor Bensouda concedes, the borders of the “Occupied Palestinian Territory” are disputed, and Israel has potentially valid competing claims over parts of the West Bank.75 In addition, the PA, recognized by the international community as the sole legitimate government of the “State of Palestine,” undisputedly does not have control over the Gaza Strip.76 Finally, under the Oslo Accords signed in 1995, the Palestinian government has no territorial or functional jurisdiction over Israeli citizens in its territory.77 Although the Rome Statute does not explicitly provide that States Parties can only convey jurisdiction that they possess, the ICC is not a court of universal jurisdiction. It must have authority legitimately conveyed to it by member states. The most compelling argument that Palestine cannot convey jurisdiction over Israelis is Article 12(2)(a)’s reference to “the State on the territory of which the conduct in question occurred.”78 Shaw explains that, because the Court does not have jurisdiction over Israel, a non-state party, the Court may only have jurisdiction if the alleged crimes were committed on the territory of a “State.”79 Shaw highlights the difference between the Geneva Convention, which allows a non-state entity to join the treaty and thus obviates the territorial jurisdiction issue, and a treaty like the Rome Statute, which makes no such provision.80 Thus, Palestine must presumably be a “State” with actual territory for the assertion of jurisdiction to be valid. This requires a finding that Palestine, as a state, is a legal, not a procedural, entity.

Regardless of Palestine’s status as a “State” and resulting ability to accede to the Rome Statute, the Oslo Accords present a territorial jurisdiction issue fatal to Palestine’s ability to convey authority to the Court. Under Oslo II, the Palestinian government has fully renounced criminal jurisdiction over Israelis in the section of the West Bank called “Area C,” where Israel holds full territorial control.81 It is essential to note that neither Israel nor the Palestinian government has abrogated the Oslo Accords, and, in fact, Palestine has alleged Israeli violations of the Accords in recent years.82 Shaw is critical of the argument that the PA possesses the authority to delegate jurisdiction to the Court. Contrary to what some commentators appear to believe, the Accords are neither one-sided, with all the benefits going to Palestine and burdens to Israel, nor are they meaningless pieces of paper that are not binding under international law. Certain criminal jurisdictional rights are reserved for the PA under the Accords. The PA has the right to exercise criminal jurisdiction for crimes committed by Palestinians and non-Israelis, but does not have those rights when Israelis are the alleged victims or perpetrators.83 Palestine cannot convey jurisdiction over Israelis to the Court because it does not possess the right to try them itself. This argument should be virtually impossible to refute, but that has not stopped various groups from trying. There has been a problematic argument raised that “self-determination” rights within the oPt automatically convey comprehensive criminal jurisdiction.84 In addition to the lack of state practice to automatic conveyance of comprehensive jurisdiction, the argument similarly confuses “self-determination,” a right to determine future political status, with “statehood,” which is the actual conferral of jurisdictional powers. If such an argument were allowed to succeed, any disputed entity could sign away any right it wanted to as part of treaty negotiations before arguing that some aspect of international human rights law mandates that it retains that right, resulting in routine meaningless promises in treaty negotiations.

Because the Oslo Accords remain relevant and present insurmountable issues to Palestinian territorial jurisdiction over Israelis, the Court cannot assert jurisdiction over the oPt.

II. Definitions of Statehood Under International Law

As established in Section I, Palestine can accede to the Rome Statute only if it is a “State” under international law because its territorial jurisdiction is inherently bound up with its legal statehood. Thus, it is essential to determine whether Palestine is a “State” when deciding whether the ICC can exercise its jurisdiction. To do so first requires defining a “State” in international law, then clarifying whether Palestine meets such a definition. If Palestine is not a “State” under the international law definition of the term, it cannot legitimately accede to the Rome Statute or become a State Party to the ICC. As this Section demonstrates, Palestine has not yet attained statehood regardless of which theory is used to define the term, unless a case-specific definition purpose-built to account for its deficiencies as a potential “State” is utilized. “Palestine” as a unified entity does not meet the requirements for statehood under any reasonable interpretation of the objective declaratory theory, which Prosecutor Bensouda concedes is the theory used by the ICC.85 In addition, Palestine has arguably not gained sufficient recognition as a current legal “State,” rather than procedural entity or self-determining future “State,” to allow for it to have achieved statehood under the relational constitutive theory. As discussed in Section II(B), neither the right to self-determination nor G.A. Resolution 67/19, which elevated Palestine to the status of non-member observer State at the U.N., truly communicates unequivocal recognitive practice by the international community. Because theories that argue for current Palestinian statehood conflate future rights with present status, it is important to highlight the differences in legal rights granted by current statehood versus self-determination.

A. There are two primary theories of statehood under international law, the declaratory and constitutive theories. Of these, the declaratory theory is used in international legal definitions of “States.” The Prosecutor believes that the declaratory theory is the defining theory for the purposes of the Rome Statute.

The classic declaratory theory, as embodied in the 1933 Convention on the Rights and Duties of States (Montevideo Convention), holds that statehood is an objective legal status created by the operation of certain verifiable legal criteria.86 As Brownlie’s Principles of Public International Law explains, recognition under a declaratory theory is a “declaration or acknowledgement of an existing state of law.”87 Actual “Statehood” is conferred by the achievement of the objective factors laid out in Article 1 of the Montevideo Convention: a single government, a defined territory, a permanent population, and an ability to enter binding international agreements.88 Article 3 of the Montevideo Convention clarifies explicitly that recognition has no role to play in legally defining statehood under this theory—an entity is or is not a “State,” regardless of the opinion of other members of the international community.89 As Stefan Talmon puts it, under a declaratory theory, recognition is “status-confirming.”90 The declaratory theory has been supported by substantial state practice and is the generally-accepted theory of statehood under international law.91 Objective tribunals like international courts typically use the declaratory view.92 The International Court of Justice is an example of an international court that has accepted this theory, holding that in the case of the Bosnian genocide, the fact that the parties to the dispute had not recognized each other at the time of the crimes in question did not prevent one party from bringing allegations against the other.93 The declaratory theory is often used by states to bring claims against states which they do not recognize.94 Ironically, Israel is a classic example of this trend, frequently being accused of crimes under international human rights law by Arab states that do not recognize it as a state.95

The constitutive theory takes a different approach, arguing that the very act of recognition, rather than any objective criteria, is what creates statehood. As Talmon puts it, under a constitutive theory, recognition is “status-conferring.”96 Constitutive statehood argues that when a disputed entity is treated in the same way that the international community treats entities that are undisputedly “States,” that entity has attained statehood. This theory, advanced by Hersch Lauterpacht in the 1940s, holds that states are the arbiters of the international community. Lauterpacht contends that, fundamentally, it is a violation of the principle of a consent-based legal system if existing “States” are bound by objective factors beyond their own will.97 Building on this idea, John Quigley states categorically that an entity is a state if it is accepted as a state, arguing that, in the case of Palestine, being pressured to treat Israel as a state and negotiate with respect to territory implies recognition of statehood.98 However, the constitutive theory has been criticized for ignoring certain objective elements of international law. For example, states cannot by their own judgment provide territorial or governmental competencies that an entity does not have in reality.99 One of the most significant problems with the constitutive theory arises when recognition is contested. How many existing states must recognize the “statehood” of a new entity before it becomes a “State?” Given that constitutive theorists argue that statehood is fundamentally relational, is it enough to possess “procedural statehood” in terms of treaty-making capacity? George Kyris lays out a further nuance: there is a difference between the collective recognition of a right to statehood and recognition of current statehood.100 While a right to eventual Palestinian statehood has been widely recognized, there is not yet equal recognition of a current Palestinian State. This confusion will be discussed later in this section. Eva Erman argues that, rather than a truly relational system, constitutive statehood may introduce a fifth element—wide-ranging recognition—into the declaratory scheme.101

B. Palestine has not yet achieved statehood under either the declaratory or a reasonable interpretation of the constitutive theory. Palestine has only achieved statehood under a definition purpose-built to accommodate its deficiencies.

While normative claims about what is the “better” theory of statehood are all well and good, for the moment, the declaratory theory dominates state practice. Prosecutor Bensouda has acknowledged that Palestine cannot meet the typical requirements of the Montevideo Convention.102 Firstly, there is no single government. The PA, recognized as the sole legitimate government of Palestine in the international community, has no governmental control over Gaza. In fact, articles came out in November of this year explicitly calling for the creation of a new unity government in Palestine, presumably so that Palestine can meet this Montevideo Convention factor.103 Although most international organizations discuss “Palestine” as a monolithic entity, with Hamas in power in the Gaza Strip and the Fatah government in the West Bank, what the single government of “Palestine” consists of is unclear. Secondly, while there are permanent populations in the West Bank, Gaza, and East Jerusalem, the divide between the areas, as well as the lack of negotiated borders and the institutionalized divisions of jurisdiction negotiated within the Oslo Accords, make it difficult to define the permanent population of “Palestine.”

The final two points, however, are the most problematic for the possibility of Palestinian statehood under the Montevideo Convention, motivating scholars and the prosecutor to derive alternative explanations for Palestinian statehood. The first of these barriers is the idea of a “defined territory.” Kovács and Kontorovich argue compellingly that the definition of a “territory” of the state of Palestine has yet to be decided.104 Kontorovich argues that, even if Israel is occupying the West Bank for the purposes of international humanitarian law, such occupation does not automatically make the occupied territory Palestinian.105 He concedes that the areas of the West Bank containing settlements are not necessarily legally Israeli territory.106 Even so, it is not clear who the territory belongs to because the Oslo Accords say such territories are yet to be negotiated and borders are not yet defined. To assume, as Bensouda does, that the right of self-determination means that all such territories will be negotiated to be Palestinian assumes an outcome of the negotiations that is by no means guaranteed.

Prosecutor Bensouda acknowledges that the Montevideo Convention criteria are the criteria used for a determination of statehood at the ICC.107 However, since Palestine cannot meet the criteria, Bensouda calls for a “case-specific” application of the Montevideo Convention. She contends that, in the context of self-determination, the Montevideo Convention criteria can be relaxed.108 While she argues that there are examples of such a relaxed application, she notably does not name any, merely quoting a number of theoretical examples.109 Bensouda argues that, firstly, the bilateral recognition of Palestine by 138 states must be given strong weight.110 Secondly, she contends that the right of the Palestinian people to self-determination and the eventual right to statehood of a state on the oPt must be enough for a current holding of statehood.111 Finally, and maybe most controversially, Bensouda argues that Palestine has failed to meet the Montevideo Convention criteria solely because of Israeli actions.112 She argues for the inapplicability of all international agreements giving Israel control of the territories it occupied in 1967, before contending that the supposed illegality of the Israeli settlements in the West Bank is a fundamental violation of international law. (Whether or not these settlements are illegal was what the prosecutor was asked to investigate).113 She does not, however, address the history of such claims, which explicitly did not define borders and, indeed, cites a G.A. resolution that called on parties not to acknowledge any change to pre-1967 borders without negotiation.114 While Prosecutor Bensouda seems to see this provision as applying only to Israel, Palestine should also not be able to unilaterally claim authority over those areas in question. Otherwise, any group that has been promised “self-determination” would be able to unilaterally claim whatever territory it wants before arguing that borders are yet to be determined because, under this theory, a right to self-determination would negate the need to negotiate territorial rights before conferring jurisdiction over territory.

Quigley’s categorical statement that entities treated as states are states is appealing to constitutive theorists, but does not reflect reality.115 Some constitutive theorists contend that G.A. Resolution 67/19 signified wide-ranging acknowledgement of Palestinian statehood, but this is a misstatement of the resolution’s intent. While Yaël Ronen contends that a G.A. resolution admitting a new State to the U.N. is typically perceived as confirming the objective State status of that entity, she argues that even a resolution which recognizes statehood but does not admit that entity to the U.N. would still probably fulfill the requirements because admission or non-admission is a procedural status that does not indicate the merits of the case for statehood.116 William Thomas Worster argues that admission as an observer State has long been “a preliminary gesture” before attaining actual statehood, yet he simultaneously contends that Palestine’s non-member observer State status is indicative of current statehood.117 However, Vidmar disagrees. In fact, Vidmar contends that even full U.N. admission does not necessarily confirm statehood.118 Palestine is not a full member of the U.N.—it is a “non-member observer State.” Such a status does not exist in the U.N. Charter, but is derived from state practice.119 Vidmar explains that non-member observer State status cannot provide the same benefits as those derived from full U.N. membership.120 As previously discussed, he does not believe that a finding of an entity’s procedural treaty-making power bears any relation to a recognition of its actual “State” status. Whether or not Vidmar’s theory is correct, it is important to note the difference between non-member observer States and U.N. Member States.

Vidmar cites Austria and Bangladesh as examples of non-member States that had not yet attained statehood.121 Austria in the 1950s is a surprisingly apposite example with regard to supposed Palestinian statehood. Austria was occupied by the Allies after World War II and joined the U.N. as a non-member observer State in 1952.122 One of the limits on Austrian governmental competence was a restriction on its treaty-making capacity—it was only allowed to enter treaties with the four occupying powers.123 During its years as a non-member observer State, Austria’s legal status had not yet been settled, but once that legal status was successfully negotiated, Austria was seen as a true “State” and thus admitted to the U.N. as a full member.124 Vidmar contends that those who see non-member observer State status as equivalent to full membership focus too much on the last word—“State”—rather than reading the status as a whole, which communicates a different legal position entirely. Otherwise, the U.N. Charter should be updated to allow full membership based on a majority vote of the G.A. and remove the “non-member” aspect of observer State status. After all, if the constitutive theorists are correct, non-member observer and member State status are identical.

Ronen, too, pushes back against the idea of current constitutive Palestinian statehood. She clarifies that recognition under a constitutive theory must be unequivocal.125 G.A. Resolution 67/19 is not. Ronen explains that the resolution discusses a “permanent two-State solution” as a future goal and makes no clear statement that the PA fulfills the requirement of effective government.126 Because the resolution is ambiguous as to its recognitive effects, Ronen draws attention to explanations of the votes that took place on the floor of the United Nations. A number of states who voted in favor clarified that they did not see the resolution as creating “State” status. Of these, New Zealand stated that its vote represented a commitment to an eventual two-state solution and did not impact New Zealand’s recognition of Palestine.127 Belgium and Finland both explicitly stated that their votes in favor of the resolution did not represent recognition of a full state.128 Ronen argues that the resolution was intentionally written with sufficient vagueness that states which did not support current recognition of a Palestinian state but which believe in the eventual creation of Palestine would be comfortable joining.129 In the relational, consent-based system favored by constitutive theorists, it would seem that Member States should be taken at their word that the resolution did not communicate full acceptance of Palestinian statehood.

Worster’s examples of constitutive recognition of Palestine, which include the Olympics, FIFA (soccer’s world governing body), and the American Academy of Motion Picture Arts and Sciences, are deeply troubling. None of these are legal organizations, and each has its own means of determining recognition. FIFA, for example, has separate teams for England, Scotland, Northern Ireland, and Wales, which is probably not a statement of political recognition by the organization.130 Palestine’s recognition by the League of Arab States and other Muslim international organizations is not a compelling argument for widespread recognition either. Additionally, Prosecutor Bensouda’s primary argument for recognition in her Request to the Pre-Trial Chamber goes as follows: the Court only has jurisdiction over States, and only “States” can accede to the Rome Statute. By virtue of Palestine’s accession, then, it is sufficiently a “State” to be able to accede to the Statute. If this tautological logic is valid, then any entity can attain statehood by being voted into any organization that permits only “States,” regardless of the legitimacy of that perception or range of recognition.131

C. Even if Palestine has achieved statehood under a constitutive approach, it cannot convey jurisdiction to the ICC which it does not possess. Due to jurisdictional limitations put in place by the Oslo Accords, Palestine cannot convey authority to the ICC.

While it seems clear that a hybrid theory in which recognition plays some role may be promising in the future, Quigley’s claim that a Palestinian state could exist with no territory at all is troubling.132 Quigley argues that a majority of countries treat the PA as akin to a state and that, thus, nothing else in the statehood formula matters.133 Apparently, what Quigley sees as a state is not the government, territory, or citizens, but whatever nominal authority (without requiring any actual power beyond that which it has declared) can get enough votes at the G.A. to rule that it can be an observer. What, then, would be the difference, if any, between full U.N. membership and the easier to acquire non-member observer State status? Quigley’s formulation would mean that the PA can sign away any territory or rights it wants in a treaty with Israel, but such signing would ultimately mean nothing because Palestine, for Quigley, is apparently wherever Palestine wants to be. Few of the States that Quigley cites as recognizing “Palestine” have opined on where they believe Palestinian territory ends and Israeli territory begins, because such negotiations are to be completed as part of eventually creating a Palestinian state.

Ronen contends that G.A. Resolution 67/19 is an acknowledgement of both effective Palestinian control in Area A of the West Bank—she sets aside the question of control of Gaza—and the legal right of Palestinians to statehood in the West Bank and Gaza based on self-determination.134 However, she conflates the recognition of a right to future territorial control over some territory with actual, current control of that territory. Quigley goes one step further, arguing that the 1988 declaration of independence by Palestine was the birth of a state.135 However, he does not address the territorial concerns raised above. Neither argument addresses the Montevideo Convention requirement of a “defined territory” which the “State” must presumably control.

The Oslo Accords also present a potentially insurmountable issue when it comes to the fourth Montevideo Convention factor, the ability to enter into binding international agreements. This factor also undermines the claims to Palestinian accession to the Rome Statute laid out elsewhere in this Section. Under Oslo, the PA does not have “powers and responsibilities in the sphere of foreign relations” and any relationships between the PA and foreign states are not considered to be foreign relations.136 There are four exceptions: economic agreements; agreements to arrange assistance for the PA; regional development plans; and cultural, scientific, and educational agreements.137 However, the ICC falls into none of the four aforementioned categories. As a cultural organization, UNESCO falls into one of the four permitted Oslo categories; however, to imply that Palestinian accession to an organization within one of these categories overcomes the limitation for an organization outside of that category is problematic. Additionally, the limitations on the PA’s foreign relations mean that its ability to enter binding international agreements is not equivalent to that of a “State.” Those limitations were not created by illegal Israeli action, but by a mutually agreed roadmap for negotiations. Given that neither side has repudiated Oslo, the limitations to the PA’s competence to enter binding international agreements are still in place, preventing the PA from meeting the fourth Montevideo Convention factor. Additionally, it is troubling that such a range of theorists ignore the agreed-upon limits from Oslo and argue that Palestine can enter into the Rome Statute.

While some theorists dismiss the legitimacy of any potential Israeli legal claims to parts of the oPt despite Prosecutor Bensouda’s acknowledgment of the potential legitimacy of such claims, Kontorovich and Abraham Bell take the opposite approach. They explain that, under the decolonizing principle of uti possidetis juris, a post-colonial state has a legitimate legal claim to all the territory it possessed when it was a colony.138 The principle of uti possidetis juris has been applied to all states emerging from Mandates, as Israel did, with the borders of the Mandates in every case becoming the borders of the new state.139 Curiously, as they point out, several scholars have contended that a future Palestinian state should inherit the borders of the British Mandate under the uti possidetis juris doctrine or that uti possidetis juris should influence only the borders of future Palestine.140 None of these scholars mentions the impact of the doctrine, which has had wide applicability throughout decolonial movements, on Israel’s claims to territory; in fact, more than one contends that the only state to emerge out of the British Mandate with a claim to its borders was “Palestine.”141 These claims ignore the very real fact that the State of Israel exists. If Israel does have colorable legal claims to parts of the oPt, then it is essential for these territories to be negotiated before Palestinian jurisdiction is treated as a given.

Finally, Prosecutor Bensouda argues that, if Palestine is not admitted to the Court, a number of alleged crimes may potentially go unpunished.142 This may be true. It is also irrelevant. There are many entities, States and non-States, in which war crimes, crimes against humanity, or other violations of international law are allegedly taking place. The Court cannot automatically assert jurisdiction over such entities just because alleged crimes might go unpunished if it does not do so. That is, the possibility that an alleged crime might go unpunished if Palestine is not allowed to join the Court does not mean the Court can overlook the other areas in which Palestine is lacking the capacity to accede to the Rome Statute and confer jurisdiction. Otherwise, the ICC would become a court of universal jurisdiction at the Prosecutor’s discretion, regardless of what status an entity possesses and whether or not it has acceded to the Rome Statute.

III. The Social Legitimacy of the ICC

Social legitimacy of international organizations can be understood as the recognition of their right to be obeyed.143 Because international organizations like the ICC have no coercive power, they depend on the cooperation of governments to exert authority.144 Social legitimacy is based on the belief by its citizens that “an actor, rule or system is morally or legally legitimate.”145 “Legitimation” is the process by which an international organization causes the actors within the organization to believe in its justification for exerting authority.146 In his book After Anarchy, Ian Hurd discusses the social legitimacy of the U.N. to its “citizens,” the Member States. Similarly, the ICC must be regarded as legitimate by States Parties in order to exert power. Hurd argues that states obey the authority of the Security Council because doing so enhances their social position in the community of states.147 In turn, states use the perception of the Security Council as “socially legitimate” among their peer states to exert pressure for the international community to act in a certain way. At this point in its history, the U.N. has successfully achieved social legitimacy within the international community—the fact that a U.N. resolution on Palestine has so much potential effect on the recognition of a Palestinian state is a comment on the UN’s social legitimacy in and of itself. That states put so much effort into winning over the U.N. in order to show that their concerns are just reflects the significant social legitimacy the U.N. possesses within the international community.148

The “power” of the ICC is different than that of the Security Council. It has also had much less time to engage in legitimation and been less successful than the U.N. at doing so. For the first several years of the ICC’s existence, all the prosecutions it brought were against perpetrators based in Africa. This led to a view that the ICC was biased and unwilling to bring prosecutions against European powers.149 Some African states no longer saw the Court as the objective arbiter of international law that it aspired to be, and some threatened to withdraw their cooperation.150 Once the Court had been socially delegitimized in this way, it had to re-legitimize itself in order to continue playing a major role in international law. Prosecutor Bensouda worked hard to re-legitimize the Court in the eyes of African and other non-Western countries, particularly by increasingly investigating situations outside of Africa, even if she had to devise new jurisdictional theories to do so.

However, the ICC is already unpopular with, and seen as illegitimate by, non-States Parties like the United States and Israel. President Trump made it illegal to cooperate with the Court.151 Any chance the ICC has to become as significant as the U.N. or International Court of Justice relies on it increasing its legitimacy among those nations which are not currently States Parties as well as preserving its social legitimacy among those current States Parties who opposed Palestine’s accession. Under current international law, it is clear that Palestine is not yet a State and thus cannot accede to the treaty as a “State Party.” By asserting jurisdiction anyway, the Court is delegitimizing itself. This delegitimization has hurt its ability to play a role in peacemaking after the current Israel–Hamas war. Ironically, when current Prosecutor Karim Khan vowed to investigate both the Israeli and Palestinian sides in an attempt at re-legitimation, a number of Palestinian groups refused to meet with him.152 Since a balanced investigation that would help legitimize the Court in the eyes of Israel and the United States is not possible, despite Prosecutor Khan’s assertions to the contrary, he should not pursue a prosecution of Israelis or Palestinians based on the current or past conflicts. Otherwise, the ICC risks being seen as an organization at the whims of politics rather than a legal organ.

IV. Conclusion

The International Criminal Court is unlikely to serve as an effective peacemaking body after the current Israeli–Palestinian war because it delegitimized itself among both States Parties and non-States Parties by incorrectly asserting jurisdiction over Palestine in 2021. Only “States” can accede to the Rome Statute and become States Parties to the ICC. Arguing that there is a separate definition of “State” for the purposes of the Rome Statute when such a status is not defined within the treaty would require a finding that the Vienna Formula applies to Palestine in the current situation.153 Even if there is such a thing as a “State” for procedural purposes under the Vienna Formula, the ICC Pre-Trial Chamber’s holding that Palestine can be a “State” for the purposes of the Rome Statute is incorrect because a ruling on such a status requires decisions on territorial issues beyond the Chamber’s competence. Thus, even if Palestine is a “State” for the purposes of the Statute, it cannot accede to the ICC unless it is a “State” under international law.

The primary theory of statehood under international law is the objective declaratory theory as defined in the Montevideo Convention. Under such a theory, which Prosecutor Bensouda conceded is the theory used by the ICC, Palestine is not a state because it does not fully control its territory and is limited in its ability to enter international agreements. Applying a “context-specific” version of the Montevideo Convention is incorrect because there is no reason to do so unless the outcome of achieving Palestinian statehood is assumed. Even under a relational constitutive theory of statehood, Palestine has not gained sufficient unequivocal recognition to be a “State” under international law. G.A. Resolution 67/19, which elevated Palestine to “non-member observer State” status, did not imbue it with statehood.

Finally, even if Palestine is a state, it cannot convey authority to the ICC that it does not possess. Because of the Oslo Accords, which it has not repudiated, Palestine has no criminal jurisdiction over Israelis and its territorial boundaries have not yet been negotiated. Because of territorial uncertainty, it cannot be said that any alleged crimes took place “on the territory” of a State Party; because of jurisdictional limitations, Palestine cannot convey authority over Israelis to the ICC. Thus, the Pre-Trial Chamber was incorrect in its holdings to the contrary.

If Prosecutor Bensouda had not incorrectly asserted jurisdiction over Palestine in 2021, the ICC would potentially be a far more valuable tool in reconciliation and punishment of perpetrators after the current Israel–Hamas war. Because the ICC has been delegitimized by the misguided decision to launch an investigation in Palestine, it will not serve as an effective tool for reconciliation and other forms of peacemaking in the current conflict.

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

1. 1.

   Aaron Boxerman, What We Know About the Death Toll in Israel from the Hamas-Led Attacks, N.Y. Times, Nov. 12, 2023, available online; see also Israeli Authorities Identify Gaza Hostages Dead in Captivity, Reuters, Dec. 1, 2023, available online. ↩

2. 2.

   Israel has Been Warned Against “Collective Punishment” of Palestinian People—But What Does This Mean?, Sky News, Oct. 26, 2023, available online. ↩

3. 3.

   Israel Demands UN Chief Resign After He Says Hamas Attacks “Did Not Occur in Vacuum”, Times of Israel, Oct. 24, 2023, available online; for an example of U.S. support, see Ed Pilkington, US Increasingly Alone in Israel Support as 153 Countries Vote for Ceasefire at UN, The Guardian, Dec. 12, 2023, available online. ↩

4. 4.

   Karim A. A. Khan, ICC Prosecutor, Statement: “We Must Show That the Law Is There, on the Front Lines, and That It Is Capable of Protecting All” (Dec. 3, 2023), available online. ↩

5. 5.

   Office of the Prosecutor, ICC, Situation in Palestine (Apr. 3, 2012) [hereinafter 2012 Decision], available online. ↩

6. 6.

   Id. at 2. ↩

7. 7.

   Press Release, ICC, ICC Welcomes Palestine as a New State Party (Apr. 1, 2015), available online. ↩

8. 8.

   Press Release, ICC, ICC Pre-Trial Chamber I Issues its Decision on the Prosecutor’s Request Related to Territorial Jurisdiction Over Palestine (Feb. 5, 2021), available online. ↩

9. 9.

   Situation in the State of Palestine, ICC-01/18, Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine, ¶ 112 (ICC PTC I, Jan. 22, 2020) [hereinafter Prosecution Request], available online.

   (Bensouda claims that Palestine has been able to accede to the Rome Statute but does not speak to any intent to prosecute Palestinian nationals, over whom she concedes the Court has jurisdiction, for their crimes in Israel. Such a prosecution is clearly possible under the terms of the Rome Statute. Bensouda only requests jurisdiction over Palestinian territory and does not discuss the possibility of prosecuting Palestinian nationals for crimes in Israel after Palestine’s accession to the Statute);

   see Rome Statute, Art. 12.

   (If Bensouda’s claim of Palestinian statehood for the purposes of the Statute is correct, however, the Court can prosecute Palestinian nationals for their crimes committed even on the territory of a non-State Party pursuant to Art. 12). ↩

10. 10.

    Matthew Lister, The Legitimating Role of Consent in International Law, 11 Chi. J. Int’l L. 663 (Jan. 1, 2011), available online. ↩

11. 11.

    Vienna Convention on the Law of Treaties, Art. 1, May 23, 1969, 1155 U.N.T.S. 331, available online, archived. ↩

12. 12.

    Jure Vidmar, UN Membership and the State Requirement: Does “State” Always Imply “Statehood”?, 24 Max Planck Y.B. U.N. L. 201, 214 (2021), paywall, doi. ↩

13. 13.

    Id. at 215. ↩

14. 14.

    Id. at 220. ↩

15. 15.

    Rome Statute, supra note 9, at Art. 125. ↩

16. 16.

    Vidmar, supra note 12, at 214. ↩

17. 17.

    Rome Statute, supra note 9, at Art. 125. ↩

18. 18.

    Vidmar, supra note 12, at 230. ↩

19. 19.

    Prosecution Request, supra note 9, ¶ 43. ↩

20. 20.

    Id. ¶ 42. ↩

21. 21.

    Id. ¶ 43. ↩

22. 22.

    Rome Statute, supra note 9, at Art. 12. ↩

23. 23.

    Malcolm N. Shaw, A State is a State is a State? Some Thoughts on the Prosecutor’s Response to Amici Briefs on Territorial Jurisdiction—Part I, EJIL Talk (Jun. 4, 2020), available online. ↩

24. 24.

    Situation in the State of Palestine, ICC-01/18, Prosecution Response to the Observations of Amici Curiae, Legal Representatives of Victims, and States (Apr. 30, 2020) [hereinafter Response], available online. ↩

25. 25.

    Shaw, supra note 23. ↩

26. 26.

    Response, supra note 24, ¶ 47; but see Response, supra note 24, ¶ 14. ↩

27. 27.

    Prosecution Request, supra note 9, ¶ 7; see also G.A. Resolution 67/19, UN Doc. A/RES/67/19, Status of Palestine in the United Nations (Nov. 29, 2012), available online. ↩

28. 28.

    Vidmar, supra note 12, at 215. ↩

29. 29.

    Id. ↩

30. 30.

    Id. at 218. ↩

31. 31.

    UNESCO Constitution, Art. II (Nov. 16, 1945), available online. ↩

32. 32.

    UNESCO Votes to Admit Palestine as Full Member, UN News, Oct. 31, 2011, available online. ↩

33. 33.

    ICC & Palestine: Amicus Submissions on Jurisdiction, Israel Legal Advoc. Proj., available online (last visited Dec. 31, 2023). ↩

34. 34.

    Shaw, supra note 23. ↩

35. 35.

    Id. ↩

36. 36.

    Vienna Convention, supra note 11, at Art. 31. ↩

37. 37.

    Malcolm N. Shaw, The Article 12(3) Declaration of the Palestinian Authority, the International Criminal Court and International Law, 9 J. Int’l Crim. Just. 301, 311 (May 2011), paywall, doi. ↩

38. 38.

    Shaw, supra note 23. ↩

39. 39.

    Id. ↩

40. 40.

    Vidmar, supra note 12, at 242. ↩

41. 41.

    2012 Decision, supra note 5. ↩

42. 42.

    United Nations Office of Legal Affairs, UN Doc. ST/LEG/7/Rev.1, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, 23 (1994), available online. ↩

43. 43.

    Situation in the State of Palestine, ICC-01/18-143-Anx1, Judge Péter Kovács’ Partly Dissenting Opinion, ¶ 218 (ICC PTC I, Feb. 5, 2021) [hereinafter Kovács Dissent], available online. ↩

44. 44.

    Id. ¶ 222. ↩

45. 45.

    Id. ¶ 226. ↩

46. 46.

    Vidmar, supra note 12, at 221. ↩

47. 47.

    Id. at 209–11. ↩

48. 48.

    Id. at 211. ↩

49. 49.

    Id. ↩

50. 50.

    Situation in the State of Palestine, ICC-01/18-143, Decision on the “Prosecution Request Pursuant to Article 19(3) for a Ruling on the Court’s Territorial Jurisdiction in Palestine,” ¶ 96 (ICC PTC I, Feb. 5, 2021) [hereinafter Palestine Decision], available online. ↩

51. 51.

    Vidmar, supra note 12, at 221. ↩

52. 52.

    Shaw, supra note 37, at 323–24. ↩

53. 53.

    Response, supra note 24, ¶ 24; see also Rome Statute, supra note 9, at Art. 19. ↩

54. 54.

    Shaw, supra note 23. ↩

55. 55.

    See Yaël Ronen, Recognition of the State of Palestine—Still Too Much Too Soon?, in Sovereignty, Statehood and State Responsibility: Essays in Honour of James Crawford 229, 240 (Christine Chinkin & Freya Baetens eds., 2015), available online. ↩

56. 56.

    Id. at 246. ↩

57. 57.

    Shaw, supra note 23. ↩

58. 58.

    Id. ↩

59. 59.

    Rome Statute, supra note 9, at Art. 12. ↩

60. 60.

    Id. ↩

61. 61.

    Kovács Dissent, supra note 43, ¶ 271. ↩

62. 62.

    Id. ¶ 272. ↩

63. 63.

    Eugene Kontorovich, Israel/Palestine—The ICC’s Uncharted Territory, 11 J. Int’l Crim. Just. 979 (2013), paywall. ↩

64. 64.

    Id. at 990. ↩

65. 65.

    The G.A. seems to believe that “Palestine” has already been established as the Occupied Palestinian Territory. ↩

66. 66.

    Kovács Dissent, supra note 43, ¶ 372. ↩

67. 67.

    Vidmar, supra note 12, at 224. ↩

68. 68.

    Id. at 225. ↩

69. 69.

    Id. ↩

70. 70.

    Palestine Decision, supra note 50. ↩

71. 71.

    Vidmar, supra note 12, at 242. ↩

72. 72.

    Mutaz M. Qafisheh, What is Palestine? The De Jure Demarcation of Boundaries for the ICC’s Ratione Loci Jurisdiction and Beyond, 20 Int’l Crim. L. Rev. 908, 931 (2020), paywall. ↩

73. 73.

    John Quigley, The Palestine Declaration to the International Criminal Court: The Statehood Issue, 35 Rutgers L. Rec. 1 (2009), available online. ↩

74. 74.

    John Quigley, Palestine is a State: A Horse with Black and White Stripes is a Zebra, 32 Mich. J. Int’l L. 749, 757 (2011), available online. ↩

75. 75.

    Response, supra note 24, ¶ 53. ↩

76. 76.

    Id. ¶ 46. ↩

77. 77.

    Israeli–Palestinian Interim Agreement on the West Bank and the Gaza Strip, UN Doc. S/1997.357 Annex (Sep. 28, 1995) [hereinafter Oslo II], available online. ↩

78. 78.

    Shaw, supra note 23. ↩

79. 79.

    Shaw, supra note 37, at 304. ↩

80. 80.

    Id. at 305. ↩

81. 81.

    Oslo II, supra note 77; see also Prosecution Request, supra note 9, ¶ 68. ↩

82. 82.

    Kovács Dissent, supra note 43, ¶ 306. ↩

83. 83.

    Shaw, supra note 23.

84. 84.

    Vidmar, supra note 12, at 224–25. ↩

85. 85.

    Prosecution Request, supra note 9, ¶ 137. ↩

86. 86.

    Convention on Rights and Duties of States Adopted by the Seventh International Conference of American States, 165 U.N.T.S. 19 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩

87. 87.

    James Crawford, Recognition of States and Governments, in Brownlie’s Principles of Public International Law 135 (9th ed. 2019) [hereinafter International Law], paywall, doi. ↩

88. 88.

    Montevideo Convention, supra note 86, at Art. 1; see also Prosecution Request, supra note 9, ¶ 140. ↩

89. 89.

    Montevideo Convention, supra note 86, at Art. 3. ↩

90. 90.

    Stefan Talmon, The Constitutive Versus the Declaratory Theory of Recognition: Tertium Non Datur?, 75 British Y.B. of Int’l L. 101 (2004), paywall. ↩

91. 91.

    International Law, supra note 87, at 136. ↩

92. 92.

    Id. ↩

93. 93.

    Id. ↩

94. 94.

    Id. ↩

95. 95.

    Id. ↩

96. 96.

    Talmon, supra note 90. ↩

97. 97.

    Hersch Lauterpacht, Recognition of States in International Law, 53 Yale L.J. 385 (1944), available online, doi; see also International Law, supra note 87, at 136. ↩

98. 98.

    Quigley, supra note 74, at 753. ↩

99. 99.

    International Law, supra note 87, at 137. ↩

100. 100.

     George Kyris, State Recognition and Dynamic Sovereignty, 28 Eur. J. of Int’l Rel. 287 (2022), available online. ↩

101. 101.

     Eva Erman, The Recognitive Practices of Declaring and Constituting Statehood, 5 Int’l Theory 129 (2013), available online, doi. ↩

102. 102.

     Prosecution Request, supra note 9, ¶ 138. ↩

103. 103.

     See, e.g., Neil Quilliam, Why the Time is Now for a Palestinian National Unity Government, Chatham House (Nov. 28, 2023), available online. ↩

104. 104.

     Kovács Dissent, supra note 43, ¶¶ 189, 190; see also Kontorovich, supra note 63, at 994. ↩

105. 105.

     Kontorovich, supra note 63, at 985. ↩

106. 106.

     Id. ↩

107. 107.

     Prosecution Request, supra note 9, ¶ 137. ↩

108. 108.

     Id. at 141. ↩

109. 109.

     Id. at 146. ↩

110. 110.

     Id. at 179. ↩

111. 111.

     Id. at 150.

     (Bensouda does not address the territorial overlap of the self-determining entity of Palestine and the oPt). ↩

112. 112.

     Id. at 176. ↩

113. 113.

     Id. at 179. ↩

114. 114.

     Id. at 151. ↩

115. 115.

     Quigley, supra note 73, at 7. ↩

116. 116.

     Ronen, supra note 55, at 232. ↩

117. 117.

     William Thomas Worster, The Exercise of Jurisdiction by the International Criminal Court Over Palestine, 26 Am. U. Int’l L. Rev. 1153, 1173 (2011), available online. ↩

118. 118.

     Vidmar, supra note 12, at 243. ↩

119. 119.

     Id. at 203. ↩

120. 120.

     Id. at 213. ↩

121. 121.

     Id. at 209–10. ↩

122. 122.

     Id. at 210. ↩

123. 123.

     Id. ↩

124. 124.

     Id. ↩

125. 125.

     Ronen, supra note 55, at 235. ↩

126. 126.

     Id. at 237. ↩

127. 127.

     Id. at 240. ↩

128. 128.

     Id. at 240–41. ↩

129. 129.

     Id. at 241. ↩

130. 130.

     Worster, supra note 117, at 1171. ↩

131. 131.

     Prosecution Request, supra note 9, ¶ 103. ↩

132. 132.

     Quigley, supra note 73, at 6. ↩

133. 133.

     Id. at 7. ↩

134. 134.

     Yaël Ronen, Israel, Palestine and the ICC—Territory Uncharted but Not Unknown, 12 J. Int’l Crim. Just. 7, 11 (2014), paywall, doi. ↩

135. 135.

     Quigley, supra note 74, at 751. ↩

136. 136.

     Oslo II, supra note 77, at Art. VI. ↩

137. 137.

     Id. ↩

138. 138.

     Abraham Bell & Eugene Kontorovich, Palestine, Uti Possidetis Juris, and the Borders of Israel, 58 U. Ariz. L. Rev. 633, 635 (2016), available online. ↩

139. 139.

     Id. at 637 n.26. ↩

140. 140.

     Id. at 637 n.26, 637–38. ↩

141. 141.

     Id. ↩

142. 142.

     Prosecution Request, supra note 9, ¶ 180. ↩

143. 143.

     Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council 30 (Jul. 21, 2008), paywall. ↩

144. 144.

     Ian Hurd, Legitimacy, Power, and the Symbolic Life of the UN Security Council, 8 Global Governance 35 (2002), available online. ↩

145. 145.

     Christopher A. Thomas, The Uses and Abuses of Legitimacy in International Law, 34 Oxford J. Legal Stud. 729, 741 (2014), paywall, doi. ↩

146. 146.

     Id. at 742. ↩

147. 147.

     Hurd, supra note 143, at 43. ↩

148. 148.

     The seeming importance of G.A. Resolution 67/19 highlights the success of this legitimation. ↩

149. 149.

     Is the International Criminal Court Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online. ↩

150. 150.

     Id. ↩

151. 151.

     Presidential Executive Order 13928: Blocking Property of Certain Persons Associated with the International Criminal Court, 85 FR 115 (Jun. 11, 2020), available online, archived. ↩

152. 152.

     JP Leskovich, ICC Prosecutor Concludes First Ever Trip to Israel and Palestine as Palestine Rights Groups Allege Bias, Jurist, Dec. 4, 2023, available online. ↩

153. 153.

     See Vidmar, supra note 12. ↩