II. Background

For the ICC to prosecute or otherwise substantially intervene in the situation in Israel and Gaza after Hamas’s terrorist attacks on October 7th, the ICC must have territorial jurisdiction. One of the fundamental issues in this jurisdictional analysis is whether Palestine is a State.5 To make a very complex issue simple, the ICC will have jurisdiction if Palestine is a State, and the ICC will not have jurisdiction if Palestine is not a State.6

In 2021, the Pre-Trial Chamber of the ICC ruled that Palestine was a “’State’ for the purposes of [territorial jurisdiction] of the [Rome] Statute.”7 The Chamber went on to clarify that its ruling was made “without prejudice to any matters of international law arising from the events in the Situation in Palestine that do not fall within the Court’s jurisdiction.”8 The Chamber further limited its ruling to the “Prosecutor’s investigation in accordance with the Statute” and asserted that the Chamber would “examine further questions of jurisdiction” when they arise in later proceedings.9 Together, the limitations the Chamber placed on its ruling leave many issues open. Chief among these is whether Palestine is actually a State under international law or was merely being treated as a State for purposes of the investigation stage of the 2021 Situation in Palestine. In other words, the question of Palestinian Statehood for purposes of prosecuting perpetrators after the events of October 7, 2023, has not been resolved.

The four elements of the Montevideo Convention “form the minimal requirements that [an] entity must meet to be considered a State.”10 Notably, the Chamber’s decision did not consider the Montevideo Convention factors at all and made only one reference to the Montevideo Convention in the middle of footnote.11 This represents a significant departure of the ICC from other international criminal courts, like the ICTY. In the Milošević case, the Trial Chamber of the ICTY called the Montevideo Convention factors the “best known definition of a state” and stated that:

[T]he formation of states is a matter that is regulated by law […][and] [t]hat law, in the Trial Chamber’s view, is reflected in the four criteria set out in the Montevideo Convention.12

III. Argument

As such, applying the Montevideo Convention to Palestine seems a good place to start establishing the ICC’s territorial jurisdiction over Palestine in the current conflict. It will become clear that the Oslo Accords prevent the PA from satisfying the Montevideo Convention. This is because the Oslo Accords have tied the PA’s hands in regard to three of the Montevideo Convention’s four factors. Hamas, by contrast, is not bound by the Oslo Accords. Palestine therefore has a stronger case for Statehood under a Hamas government than it does under the PA.

A. First Element: Permanent Population

The first and most straightforward element of the Montevideo Convention requires that a State needs to have a “permanent population.”13 This element requires that the population of a State is stable and not transitory. In other words, it only requires that the population not be temporary. Notably, there does not seem to be a minimum number of permanent residents needed to satisfy this element.14 Because there are permanent Palestinian populations in both Gaza and the West Bank, Palestine should be able to satisfy this element regardless of the Oslo Accords or which entity governs.15

B. Second Element: Defined Territory

Second, the Montevideo Convention requires that a state have a “defined territory.” This element poses a number of problems for Palestinian Statehood. In order to claim dominion over a territory, a State must be able to “rightfully claim the territory as a domain of exclusive authority.”16 Neither the PA nor Hamas can claim exclusive authority over the territory of Gaza because of the influence Israel has over the region.

Another problem lies in the West Bank’s three sub-divisions. It is clear that Area A would be a territory of a Palestinian state under the PA because Area A is controlled completely by the PA and is populated almost exclusively by Palestinians.17 In Area B, meanwhile, the PA exercises administrative control but shares security control with Israel which makes it less clear that Area B would be part of a Palestinian state.18 Finally, Area C is completely controlled by Israel, administratively and in terms of security, even though around 300,000 Palestinians live there. Even if it is assumed that the PA has “exclusive authority” over Gaza and Area A of the West Bank, therefore, it is not obvious that Palestine’s territory as a whole is “defined.”19

Boundary disputes are not always dispositive, however. For example, Israel was recognized as a State and was admitted to the United Nations in 1949 when its own borders were not yet completely delimited.20 Andorra was also recognized by many States “despite its lack of settled frontiers.”21 Therefore, under a more liberal reading of the Montevideo Convention, Palestine’s territory might be sufficiently defined to pass muster.

The above notwithstanding, the Oslo Accords directly negate the PA’s ability to satisfy this element. Article 5(3) of the Declaration of Principles on Interim Self-Government Arrangements, also known as the Oslo Accords, clarifies that the borders of the would-be Palestinian State were to be determined in the future.22 Because the Palestine Liberation Organization (PLO) agreed that Palestine’s borders were to be determined by agreement at a later date, and because there has not yet been such an agreement, it must also be the case that Palestine’s borders are not yet defined. Necessarily, then, Palestine cannot satisfy the second element of the Montevideo Convention while the PA, which is bound by the Oslo Accords, is still the controlling government.

Hamas, by contrast, would not be bound by the Oslo Accords. Someone treating Hamas as the controlling government could, therefore, rely on the analysis in the previous paragraphs. Namely, they could argue that Palestine’s territory is defined enough to satisfy a liberal application of the second Montevideo Convention factor if Hamas was the controlling government instead of the PA.23 Therefore, if either, a Palestine under Hamas has a better chance of satisfying the second Montevideo Convention factor than does a Palestine under the PA.

C. Third Element: Government

The third Montevideo Convention factor requires that a State have a “government.”24 Under the traditional theory, a State can satisfy this factor when it has an “effective government.”25 Governmental effectiveness is defined as governance that

1. has “power to assert [a] monopoly over the exercise of legitimate physical violence within a territory” and

2. one “strong enough to assert themselves throughout the territories of the state without assistance of foreign militaries.”26

It appears that this definition is intertwined with, and dependent on, the “defined territory” analysis. As a result, a number of the issues for the PA raised above will also apply here. This factor will be very difficult for either group to establish due to Israel’s influence over Gaza and the West Bank. But, if either of them, Hamas is more likely to satisfy it.

First, it is not at all clear that the PA has a monopoly over legitimate violence in Gaza. This is because both Hamas and the Israeli conduct violence within its borders, and the PA cannot stop either. What is a monopoly on violence if it is not holding the biggest stick within a State’s own borders? Moreover, the PA appears to need Israel’s help to combat Hamas’s savagery, which undermines the second part of the effective government definition.27

Conversely, Hamas claims it is the rightful government of Palestine in its founding Covenant and argues that it intends to liberate Palestine through jihad.28 Hamas has also been the de facto government of Gaza for many years.29 The PA, therefore, cannot claim to be the “effective government” of Gaza that is required to satisfy the traditional theory of government under the Montevideo Convention.

Like boundary disputes in the defined territory analysis, however, internal strife does not preclude the finding of an effective government under this element. The Democratic Republic of Congo, for example, was recognized as a State independent of Belgium during a period of vast internal strife and the Congo Crisis.30 The PA could rely on this to argue that Hamas’s control over Gaza is a part of that internal strife and that the PA is the effective government of Gaza. And was Hamas the only one who infringed on the PA’s control of Gaza, the PA would have a stronger case for effective governance there. The additional need for Israeli assistance to combat Hamas, however, is likely too much for the PA to overcome when viewed in the aggregate.

Next, in the West Bank, the PA only has a claim of effective governance over Area A. In Area A, the PA has total control of security as well as administration. Therefore, the PA is likely an effective government over Area A. However, Israel has security control and, as a result, a monopoly on legitimate violence in Areas B and C. This means that the PA, between Gaza and the West Bank, can only be an effective government under the Montevideo Convention over Area A.

Another issue is that the PA is only an interim government that possesses limited powers under the Oslo Accords. The formal name of the Oslo Accords, the Declaration of Principles on Interim Self-Government Arrangements, makes clear that the PA is only meant to be a temporary government. Additionally, the PA agreed in the Oslo Accords that all powers not granted to it were retained by Israel.31 More specifically, the Oslo Accords set out that the PA’s “jurisdiction will apply with regard to the agreed powers, responsibilities, spheres and authorities transferred to it.”32 This must mean that all governmental functions not specifically transferred to the PA were retained by Israel, giving Israel “[o]verriding[,] [r]esidual” control over the PA.33 Therefore, recognizing the PA as the permanent and effective government of Palestine would undermine the understanding of the Oslo Accords.34

By contrast, if Hamas were treated as the government, it would face far fewer problems establishing that it is the effective government of Palestine. First, the PA’s case is subverted by the fact that they need Israel’s help to fight Hamas. Hamas by definition is not receiving Israel’s help and has been the de facto government in Gaza for many years.35 Hamas’s terrorist forces are also stronger than the PA’s forces. This means that Hamas, if either of the two, is closer to having a monopoly on violence in Gaza. Additionally, Hamas is not limited by the fact that the PA is only supposed to be a temporary government.

Hamas does have one big problem under this element, however. Namely that Hamas has virtually no control over the West Bank, even though it does exist there.36 This means that the PA has a stronger argument for effective governance in the West Bank. As mentioned above, however, internal strife is not preclusive of finding an effective government. There is no reason to think this cannot cut both ways. Hamas could equally rely on this to argue that the PA’s control over the West Bank is a result of internal strife and that Hamas should be deemed the effective government of the West Bank.

On balance, though, Hamas has a more defensible position that it is the effective government of Palestine as a whole under the Montevideo Convention. This is because Hamas controls Gaza and is at least present in the West Bank. Meanwhile, the PA only controls Area A, has no power in Gaza, and only possesses some governmental powers in the remaining West Bank subject to the overriding, residual authority of Israel.37

D. Fourth Factor: Capacity to Enter into Relations with Other States

The fourth and final Montevideo Convention factor is that a State has to have the “capacity to enter into relations with the other states.”38 Critically, this factor cannot be satisfied by showing the capacity to enter into any individual agreement with foreign States. If this factor could be satisfied by such a showing, it would provide very little descriptive value. Instead, the fourth Montevideo Convention factor must mean that the State has a general, independent authority to enter into foreign relations.39

Commentators have noted that the capacity to enter into relations with other States “is rather the consequence of Statehood than its condition and is, for this reason, quite paradoxical.”40 The present analysis does not require a deeper investigation of this, however, because the PA could not satisfy this condition regardless of if the chicken or egg came first. This is because the Oslo Accords specifically state that the PA “will not have powers and responsibilities in the sphere of foreign relations” apart from a few specifically enumerated exceptions.41 Therefore, the PA explicitly renounced its general, independent authority to enter into relations with other States.42

Importantly, the Office of the Prosecutor disagrees with this categorization. In its 2020 Request on this matter, the Office of the Prosecutor noted that the PA has “acceded[ed] to numerous multilateral treaties, many of them under the auspices of the United Nations, and others with national governments as depositaries” and that “the UN OLA expressly recognized Palestine’s capacity [under the PA] to accede to treaties bearing the “all States” or “any State” formula.”43 From this, the OTP concluded that “[t]he Oslo Accords thus appear not to have affected Palestine’s ability to act internationally.”44 This conclusion, at core, is drawing a distinction between the binding language of the Oslo Accords, which flatly prohibits these accessions, and the actual practices of the PA.45 However, it does not necessarily follow that because the PA has acceded to these treaties, it must also have a general, independent authority to do so. Signing a treaty is not the same as having the authority to do so. In fact, the Oslo Accords, which no one denies are still binding, clearly state that the PA does not have this authority.

Because Hamas was not a party to the Oslo Accords, Hamas is not limited by any agreement that bars its general authority to enter into foreign relations. Critically, the Montevideo Convention does not treat theocratic autocracies differently than other forms of government, and the desire of other States to engage in relations with a government is immaterial here. As a result, Hamas’s authority to enter into foreign relations is theoretically unlimited. Therefore, because the PA’s capacity to enter into foreign relationships is more limited than Hamas’s, Hamas is more likely to satisfy the fourth element of the Montevideo Convention.

E. The Four Montevideo Convention Factors Taken Together

In the aggregate, it is clear that the Oslo Accords bind the PA’s hands in ways that they do not bind Hamas’s. Palestine is therefore more likely to be a State under the Montevideo Convention if Hamas is considered the government instead of the PA. First, Palestine would satisfy the first element of the Montevideo Convention regardless of which group governs because Palestine has a permanent population. The second element of Statehood, a “defined territory,” is impossible for the PA to satisfy because it agreed in the Oslo Accords that the borders of Palestine were not yet defined. Hamas is not bound by the Oslo Accords which means that it can argue that Palestine’s borders are sufficiently defined, even though satisfying this element would be difficult for either group. As for “effective government,” the third Montevideo Convention factor, the PA also has the weaker argument. If either Hamas or the PA is an effective government with a monopoly on violence, Hamas is. Finally, Palestine has a better chance at satisfying the fourth Montevideo Convention factor of Statehood under Hamas because the PA has explicitly disclaimed its general authority to enter into foreign relations, while Hamas has not. Taken together, Palestine has a better case for Statehood under Hamas than under the PA.

F. Barriers for Hamas Under the Montevideo Convention

It is critical to note that even if Hamas were considered the government of Palestine, the issue would not be completely resolved even under the Montevideo Convention. The first problem has to do with the West Bank under the third Montevideo Convention factor, effective government. Even though it was established that the PA is only an effective government over Area A, Hamas has almost no power in the West Bank. This poses a problem for Hamas because of the previously mentioned connection between the second and third Montevideo Convention factors. It would be very difficult for Hamas to argue that it is the effective government of a defined Palestinian territory that includes the West Bank.46 One potential argument for Hamas to make, though, is that the PA is merely occupying Area A. Ironically, the PA made an argument to the Pre-Trial Chamber in 2021 that is very applicable to this situation. The PA argued that “the occupation of Palestine has not affected its territorial integrity” and that “the inability of a State to exercise the full extent of its sovereignty over parts of its territory […] does not result in a loss of sovereignty.”47 One could imagine Hamas using the very same argument against the PA.

The final barriers relate to the reality of the situation. First, it seems very unlikely that Hamas would agree to anything that would expose itself to prosecution by the ICC for its atrocities on October 7th. Therefore, in yet another counterintuitive twist, Hamas likely does not want Palestine to be recognized as a State under the jurisdiction of the ICC despite that Hamas’s Covenant is littered with calls for Palestinian Statehood.48 Next, it seems equally improbable that the international community, or Palestinians for that matter, would recognize a terrorist organization as the rightful government of Palestine.

IV. Conclusion

For the foregoing reasons, Palestine has a better argument for Statehood under the Montevideo Convention if Hamas was considered the government of Palestine instead of the PA. This is because the PA is limited by the Oslo Accords, which directly negate three of the four Montevideo Convention factors. Because Hamas is not bound by the Oslo Accords, there is a stronger argument for Palestinian Statehood for a Palestine governed by Hamas.

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

1. 1.

   See generally Situation in the State of Palestine, ICC-01/178, Decision on the “Prosecution request pursuant to article 19(3) on the Court’s territorial jurisdiction in Palestine” (ICC PTC I, Feb. 5, 2021) [hereinafter Pre-Trial Decision], available online

   (answering the question of Palestinian Statehood to determine whether the ICC has territorial jurisdiction over Palestine for the 2021 Situation in the State of Palestine). ↩

2. 2.

   Montevideo Convention of the Rights and Duties of States, Art. 1 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩

3. 3.

   Id. ↩

4. 4.

   It is worth noting here that Hamas would almost certainly refuse this categorization because it would open Hamas leaders up to liability under the Rome Statute for the atrocities they have committed. ↩

5. 5.

   See generally Pre-Trial Decision, supra note 1. ↩

6. 6.

   See id. at 13–14. ↩

7. 7.

   Id. at 50. ↩

8. 8.

   Id. ↩

9. 9.

   Id. at 58, 59. ↩

10. 10.

    Sascha Dov Bachmann & Marinas Prazauskas, The Status of Unrecognized Quasi-States and Their Responsibilities Under the Montevideo Convention, 52 Int’l Law. 393, 410 (Dec. 19, 2019), available online. ↩

11. 11.

    Pre-Trial Decision, supra note 1, at 40 n. 266. ↩

12. 12.

    Prosecutor v. Slobodan Milošević, IT-02-54-T, Decision on Motion for Judgement of Acquittal, ¶¶ 85, 87 (ICTY TC, Jun. 16, 2004), available online. ↩

13. 13.

    Montevideo Convention, supra note 2, at Art. 1. ↩

14. 14.

    Holy See (Vatican City), CIA World Factbook (updated Nov. 14, 2023), available online.

    (Vatican City, for example, is a State and only has a permanent population of about 1000 people). ↩

15. 15.

    See Office of International Religious Freedom, U.S. Dept. of State, 2022 Report on International Religious Freedom: Israel, West Bank and Gaza (2022), available online.

    (According to the U.S. State Department, there are around two million people in Gaza, almost all of whom are Palestinian, and about three million people across the three areas of the West Bank). ↩

16. 16.

    Bachmann & Prazauskas, supra note 10, at 405 quoting Malcolm D. Evans Ed., International Law 217 (2014), paywall. ↩

17. 17.

    What are Area A, Area B, and Area C in the West Bank?, Anera, available online (last visited Nov. 26, 2023). ↩

18. 18.

    Id. ↩

19. 19.

    Disputed Israeli settlements in the West Bank, as well as the pressure that Israel exerts in Gaza and all over the West Bank, muddle this issue further, making it even less clear that Palestine has a “defined territory.” Therefore, under a strict reading of the Montevideo Convention, it is not clear that Palestine could become a State regardless of who the government is. ↩

20. 20.

    G.A. Res. 273 (III), UN Doc. A/RES/273 (III), Admission of Israel to Membership in the United Nations (May 11, 1949), download. ↩

21. 21.

    Bachmann & Prazauskas, supra note 10, at 405. ↩

22. 22.

    Declaration of Principles on Interim Self-Government Arrangements, UN Doc. A/26560 Annex, Art. V (Sep. 13, 1993) [hereinafter Oslo I], available online. ↩

23. 23.

    It should go without saying that there are innumerable issues regarding the boundaries of Palestine that are beyond the scope of this comment. Instead of providing a comprehensive detailing of those issues, almost all of which are deeply contested, this comment focuses on two or three “surface level” issues necessary to address the issue presented by the Montevideo Convention factors. ↩

24. 24.

    Montevideo Convention, supra note 2, at Art. 1. ↩

25. 25.

    Bachmann & Prazauskas, supra note 10, at 405. ↩

26. 26.

    Id. (internal quotations omitted). ↩

27. 27.

    Israel’s operations in Gaza and the lack of substantive response by the PA after the terrorist attacks by Hamas on October 7th provide further evidence of this. ↩

28. 28.

    The Covenant of the Islamic Resistance Movement (Aug. 18, 1998) [hereinafter Hamas’s Covenant], available online (trans.). ↩

29. 29.

    Kali Robinson, What Is Hamas?, Council on Foreign Rel. (Oct. 31, 2023), available online. ↩

30. 30.

    The Congo Crisis, Encyclo. Britannica, available online (last visited Nov. 26, 2023). ↩

31. 31.

    Declaration of Principles on Interim Self-Government Arrangements, at Agreed Minutes, Art. 4 (Sep. 13, 1993), available online; Oslo I, supra note 22, at Art. 9. ↩

32. 32.

    Oslo I, supra note 22, at Art. 9. ↩

33. 33.

    Tal Becker, International Recognition of a Unilaterally Declared Palestinian State: Legal and Policy Dilemmas, JCPA, available online (last visited Nov. 29, 2023). ↩

34. 34.

    Oslo I, supra note 22, at Art. 1.

    (In fact, the PA’s original name under the Oslo Accords was the “Palestinian Interim Self-Government Authority”). ↩

35. 35.

    See Joby Warrick, Ellen Nakashima, Shane Harris & Souad Mekhennet, Hamas Received Weapons and Training from Iran, Officials Say, Wash. Post, Oct. 9, 2023, available online.

    (It should be noted that Hamas is likely being funded and supported by Iran);

    Robinson, supra note 29.

    (However, this is a much different situation than Israel coming in to fight Hamas on the ground, presumably on behalf of the PA). ↩

36. 36.

    Robinson, supra note 29. ↩

37. 37.

    Bachmann & Prazauskas, supra note 10, at 406.

    (Notably, the fact that Hamas is an effective government through cruelty to and oppression of citizens is not preclusive. According to Bachmann and Prazauskas, “Authoritarian and dictator regimes […] would be recognized under traditional [Montevideo Convention] theory” and “requiring compliance with democratic principles as a criterion of Statehood would not be appropriate.”). ↩

38. 38.

    Montevideo Convention, supra note 2, at Art. 1. ↩

39. 39.

    Bachmann & Prazauskas, supra note 10, at 409–10. ↩

40. 40.

    Id. at 408. ↩

41. 41.

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

42. 42.

    One may argue that by entering into the Oslo Accords in the first place, the PA demonstrated its capacity to enter into relations with foreign States. This is possible. It is also possible, however, that Israel was not considered a foreign State at all and that the PA was considered an extension of Israel. This reading is supported by the fact that Israel still possesses a number of powers over Gaza and the West Bank and that the PA and Israel have made agreements since the Oslo Accords despite the Accords’ binding nature. This reading would be disastrous for Palestinian Statehood under the PA because it would further undermine its sovereignty and independence. ↩

43. 43.

    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, ¶ 184 (ICC PTC I, Jan. 22, 2020), available online. ↩

44. 44.

    Id. ↩

45. 45.

    See also Michael Kearney & Stijn Denayer, Al-Haq Position Paper on Issues Arising from the Palestinian Authority’s Submission of a Declaration to the Prosecutor the International Criminal Court under Article 12(3) of the Rome Statute, 13 (Dec. 14, 2009), available online.

    (“The reality is indeed that the capacity of and ability of the PLO and PA, to engage in foreign relations has consistently been recognized and interpreted broadly in practice.”). ↩

46. 46.

    Another potential “out”—which would certainly draw ire from most supporters of Palestinian Statehood—could be to limit the borders of Palestine to just Gaza. This would solve the problem of Hamas’s absence in the West Bank while preserving the ICC’s territorial jurisdiction over the area where these conflicts are occurring. ↩

47. 47.

    Pre-Trial Decision, supra note 1, at 18. ↩

48. 48.

    See generally Hamas’s Covenant, supra note 28. ↩