II. The Definition of Statehood

The most straightforward way of identifying the statehood of a region is to compare its status quo with established academic definitions. Despite the abundance and development of various theories about statehood, this comment mainly discusses the Montevideo Convention because it was extensively referred to and discussed by the ICC Prosecutor in the request to the PTC,6 and these “classical criteria still form the initial and basic normative requirements for assessing statehood.”7 The first article of the Montevideo Convention on the Rights and Duties of States articulates what can be considered the classical criteria for statehood, laying out four fundamental criteria, which are 1) a permanent population; 2) a defined territory 3) government; and 4) capacity to enter into relations with the other states.8 These criteria collectively form the initial and most classical framework for determining statehood under international law.

While each criterion is critical in its own right and deserves close examination, the focus of this comment is predominantly on the second one—a defined territory. This criterion is closely related to the current Palestinian situation since one of the most significant portions of the PTC’s decision was to expand the Court’s jurisdiction geographically.9 Focusing on the defined territory criterion, this comment aims to shed light on one of the most contentious and significant aspects of Palestinian statehood.

A “defined territory” entails a stable and internationally recognized national boundary. However, due to various factors, Palestine’s boundary has been subjected to ongoing changes and international disputes, leading to a fluid and undetermined territory. Firstly, although the G.A. Resolution 67/19 mentioned the existence of “pre-1967 borders”10 to resolve the territorial dispute between Palestine and Israel, the subsequent Oslo Accords of the 1990s created “interim administrative divisions” (Areas A, B, and C) in the West Bank. For instance, Area B was “areas under Palestinian administration but joint Israeli–Palestinian security.”11 Since these areas are jointly controlled by both Palestine and Israel, they do not constitute internationally recognized borders of an independent sovereign state.

When discussing the border issues of Palestine, it is difficult to ignore the continuous Israeli occupation and annexation of lands in the Palestinian region, as these actions significantly challenged the notion of a defined Palestinian territory. According to Amnesty International:

Over the past 50 years, Israel has forcibly evicted and displaced entire Palestinian communities […] These measures allow Israel to maintain control of Palestinian land and resources […] [and] push Palestinians out of certain areas deemed strategic, such as the fertile Jordan Valley or East Jerusalem.12

The incessant Israeli occupation kept altering the territories controlled by Palestine, and as a result, these instances raised substantial doubts about the existence of a defined territory, as required by the Montevideo Convention criteria to define Palestinian statehood.

III. The United Nations Resolutions & International Recognitions

The decision of the ICC chamber was largely based on the G.A. Resolution 67/19, which passed with majority votes and signified a substantial shift in the international community’s stance towards Palestine. The resolution explicitly stated that “the Palestinian territory occupied since 1967, including East Jerusalem”13 should be still considered as inherently belonging to Palestine, despite their current occupation by Israel. Based on the language and the resolution’s conclusion, the PTC therefore decided to extend its jurisdiction to the regions above. Nevertheless, both their reasonings and the resolution itself can be challenged in confirming the statehood of Palestine, as pointed out by Judge Péter Kovács in his dissenting opinion of the PTC’s decision,14 and this comment explores these two sources of problems in detail in the subsequent section.

Firstly, the fact that the PTC relied heavily on the G.A. Resolution 67/19 points to an underlying assumption: it believed the resolution was a legitimate legal source for the ICC to adhere to and refer to. However, this assumption might be factually suspicious because there only exists a non-binding relationship between the ICC and the U.N. resolution in the context of international law, or as Judge Péter Kovács points out in his dissenting opinion, a “soft law.”15 Different from a resolution reached by the Security Council of the United Nations, which is “binding on all member states,”16 the resolution reached and published by other organs of the U.N. might not be legally binding. According to the UN’s official website, “[g]eneral Assembly’s resolutions are recommendations and not legally binding on Member States.”17 Therefore, for the sake of legal bindingness, G.A. Resolution 67/19 should be considered a soft law or a piece of recommendation for the ICC to seek assistance and reference rather than the golden standard to base its decisions on.

When facing a mere opinion or recommendation from the U.N., the ICC Chamber should realize its limited legal power and henceforth refer to the Rome Statute. Article 12 of the founding legal document of the ICC stipulates the criteria under which the Court can exercise its jurisdiction, and one of the most critical conditions is that “The State on the territory of which the conduct in question occurred” or “The State of which the person accused of the crime is a national” of states to the Rome Statute.18 In this article, the pivotal concept is that a sovereign state should exist before these preconditions for jurisdiction can be met. In the case of Palestine, the situation is complicated by its unsettled territory dispute with Israel, but the one thing to be certain about is that the country’s statehood, despite international sympathy and support has not been and should not be determined by G.A. resolution. While the U.N. resolution provides a critical international perspective in a political sense, the ultimate determination of whether to expand the ICC’s jurisdiction to the disputed areas must align and comply with the legal framework established by the Rome Statute. Therefore, The ICC must balance the international opinions represented by the G.A. Resolution 67/19 with the strict legal standard set forth by the Rome Statute.

Moreover, even if one sets aside the problem with the legitimacy of the resolution and assumes that it is a legally valid document for the PTC to rely its decisions on, a closer examination of the resolution’s wording does not conclusively establish the statehood of Palestine.19 The language used in G.A. Resolution 67/19 is carefully crafted, depicting the complexities and uncertainty lying in the statehood of Palestine.

Firstly, the document sought to “[r]eaffirm […] the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.”20 The resolution emphasized the “right to self-determination and to independence,” which is an acknowledgment of a non-existent goal instead of a statement confirming a well-established statehood. The term “independence” is used to imply the fact that the Palestinians have not earned their independence yet. The word “occupied” further indicates the fact that some Palestinian regions are under the control of Israel, implying a lack of Palestinian governmental control or sovereignty over these areas. This adds another shade of ambiguity to the resolution’s implications regarding the statehood of Palestine, and it would be inappropriate to declare the definitive existence of such a state as a sovereign entity under international law.

Moreover, the resolution:

Urge […] all States and the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom.21

The language in this suggestion is more evident in that it explicitly points out that the realization of Palestinian statehood is a work in progress that relies upon international support and recognition rather than the current reality. The phrase “early realization” further emphasizes that the process of achieving statehood and independence is ongoing, and there needs to be further development and efforts, both politically and legally, for Palestine to be fully recognized as a sovereign state in the international community under international law.

After the official publication of G.A. Resolution 67/19, the U.N. continues to use similar phrases and words in its subsequent resolutions. For instance, in resolution 74/11, the G.A. “[u]rge[d] all States […] to support the development and strengthening of Palestinian institutions and Palestinian State-building efforts in preparation for independence.”22 In resolution 73/158, the G.A.:

Urge[d] all States and the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination.23

These resolutions consistently position the statehood of Palestine as a developmental process years after G.A. Resolution 67/19, which indicates that the statehood problem of Palestine is still unresolved today. This perspective from the G.A. itself cast shadows on the validity of using these resolutions as definitive references of Palestinian statehood under a legal context. Henceforth, the reliance of the PTC on G.A. Resolution 67/19 and similar subsequent G.A. resolutions as a legal ground for determining the statehood of Palestine seems to lack a solid foundation.

Objectively speaking, numerous other international organizations and sovereign states fail to acknowledge Palestine’s statehood as an existing fact. Other than the G.A., the United Nations Security Council also considers the independence and statehood of Palestine as a pursuit and objective yet to be realized. In a recent briefing by U.N. Special Coordinator Tor Wennesland, it was explicitly mentioned that:

[He] remain[s] committed to supporting Palestinians and Israelis to end the occupation and resolve the conflict in line with international law, relevant United Nations, resolutions, and bilateral agreements in pursuit of the vision of two States—Israel and an independent, democratic, contiguous, viable, and sovereign Palestinian State.24

By speaking of the independence and sovereignty of Palestine as a “vision” in pursuit, the special coordinator expresses the Security Council’s pessimistic opinion to the current statehood of Palestine. As a collective voice of the Muslim world, the Organisation of Islamic Cooperation’s (OIC) views often reflect the broader opinions of important Islamic countries regarding key regional issues, which rendered their view more significant and convincing.

Additionally, while discussing the issue of Palestine, it is difficult not to refer to the opinions of the Arabic world and the region itself.25 From the perspective of the OIC, a critical representative organization of the Islamic world, spoke in its recent resolution that it urges efforts to “realize” the independence of Palestine.26 Turning to the internal perspective in Palestine, a recent poll conducted by the Palestinian Center for Policy and Survey Research mentioned that “76% believe the prospects for the creation of an independent Palestinian state alongside the state of Israel during the next five years are slim or nonexistent.”27 This finding is particularly striking as it reflects the views of those living in the territories at the heart of the statehood debate. The fact that it was conducted in “West Bank and the Gaza Strip,” the exact territories of controversy in the PTC decision, lends more credibility to the survey and the crucial fact that it aims to express: that Palestine is still not an independent sovereign state.

In short, the statehood of Palestine is a deeply convoluted issue under the context of international law and politics. Although G.A. resolution 67/19 outlines the “statehood” of Palestine, the language used in other U.N. resolutions and the statements of the OIC consistently depict Palestinian statehood as a goal in pursuit instead of an existing fact. This stance is further supported by public opinion in Palestine, where a significant majority express pessimism about the future of establishing an independent state. These factors collectively challenge the validity of using G.A. Resolution 67/19 as a definitive document for important legal decisions regarding Palestinian statehood by the PTC. There should be a more cautious and thorough examination of the issue of Palestinian statehood before discussing whether the ICC has jurisdiction over the occupied territories in the Palestinian region.

IV. Conclusion

Using the dissenting opinion by ICC Judge Péter Kovács as a starting point, this comment analyzes a crucial aspect of international criminal law: the determination of statehood. Adopting a methodical approach, the analysis starts by comparing the academic definition of statehood and Palestine’s status quo. It then examines the objective facts through U.N. resolutions and international recognitions to assess Palestine’s statehood. The discussions lead to a significant conclusion: until the statehood of Palestine is definitively and officially established, it is premature and legally irresponsible for the ICC to extend its jurisdiction to the disputed territories as mentioned in its decision on the Palestine issue.

Furthermore, this comment sheds light on the path for future deliberations on similar cases where the question of statehood comes into play in international law. It emphasizes the importance of a thorough analysis in interpreting statehood under the context of international law, particularly in complicated cases marked by geographical uniqueness and continuous unsettled disputes.

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

1. 1.

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

2. 2.

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

3. 3.

   Territorial Jurisdiction Decision Announcement, supra note 1. ↩

4. 4.

   Dissenting Opinion, supra note 2. ↩

5. 5.

   Rome Statute, Art. 19. ↩

6. 6.

   Dissenting Opinion, supra note 2. ↩

7. 7.

   Chike B. Okosa, Statehood Theory: Current Scholarship on the Various Theories of Statehood in International Law, 1 Nile U. L.J. 107 (2018), available online. ↩

8. 8.

   Montevideo Convention of the Rights and Duties of States, Art. 1, 165 LNTS 19 (Dec. 26, 1933, entered into force Dec. 26, 1934) [hereinafter Montevideo Convention], available online. ↩

9. 9.

   Territorial Jurisdiction Decision Announcement, supra note 1. ↩

10. 10.

    G.A. Res. 67/19, UN Doc. A/RES/67/19, Status of Palestine in the United Nations (Nov. 29, 2012), available online. ↩

11. 11.

    Oslo Accords, Encyclo. Britannica, available online (last visited Dec. 13, 2023). ↩

12. 12.

    Amnesty International, Israel’s Occupation: 50 Years of Dispossession (Jun. 7, 2017), available online. ↩

13. 13.

    Oslo Accords, supra note 10. ↩

14. 14.

    Dissenting Opinion, supra note 2. ↩

15. 15.

    Id. ↩

16. 16.

    S.C. Resolutions, UNRCCA (Sep. 2, 2020), available online. ↩

17. 17.

    How Decisions are Made at the UN, Model UN, available online (last visited Dec. 8, 2023). ↩

18. 18.

    Rome Statute, supra note 5, at Art. 12. ↩

19. 19.

    Dissenting Opinion, supra note 2. ↩

20. 20.

    Territorial Jurisdiction Decision Announcement, supra note 1. ↩

21. 21.

    Id. ↩

22. 22.

    G.A. Res. 74/11, UN Doc. A/RES/74/11, Peaceful Settlement of the Question of Palestine (Dec. 9, 2019), available online. ↩

23. 23.

    G.A. Res. 73/158, UN Doc. A/RES/73/158, The Right of the Palestinian People to Self-determination (Jan. 9, 2019), available online. ↩

24. 24.

    Tor Wennesland, UNSCO, Briefing to Security Council on Implementation of S.C. Res. 2334 (Sep. 27, 2023), available online. ↩

25. 25.

    Dissenting Opinion, supra note 2. ↩

26. 26.

    OIC Adopts Resolution on Annexation, UNISPAL (Dec. 6, 2020), available online. ↩

27. 27.

    Palestinian Center for Policy and Survey Research, Public Opinion Poll No. 89 (Sep. 9, 2023), available online. ↩