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- Harlan: The parties to the Statute have agreed to give third states the right to accept the jurisdiction of the Court. The recent decision of the Prosecutor to reject the Article 12(3) Declaration of the State of Palestine was ultra vires in accordance with the rules governing the rights and obligations of third states under treaties contained in Articles 35-37 of the Vienna Convention on the Law of Treaties. English [PDF] The Prosecutor can't revoke or modify an obligation under the Statute after it... (more)
- Harlan: Hi Souheir, The rules by which States are granted permission to deposit treaty instruments after joining one of the UN specialized agencies, like UNESCO, are contained in The Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties under the heading The "Vienna formula"; the,"all States formula"; the practice of the General Assembly. As a member of UNESCO, Palestine unambiguously satisfies the criteria to accede to multilateral treaties opened under the most strict "... (more)
- Souheir: Hi everyone, I understand this debate is still open for contribution despite the fact it has become dormant. Given Palestine's recent admission to UNESCO, I thought it was important to say something about this and also to pick up on some of the comments that have already been made. Palestine’s admission to UNESCO reflects an emerging state practice favouring recognition of Palestinian state The admission of Palestine to UNESCO as a Member State (subject to its signing and ratifying the UNESCO... (more)
- Rosette Bar Haim: A Reply to Mr. Harlan’s Position1 It is necessary to relocate the debate in order to clearly perceive the legal questions at stake in the matter of the PNA Acceptance of Jurisdiction. I firmly believe that this action by the PNA is inherently intermingled with public law, and while public law and politics can coexist, criminal justice and politics cannot. The Statute is the result of a political legal compromise aimed at individual criminal liability,... (more)
- Harlan: Danterzian, I thought that all of Ms. Herzberg's arguments were unconvincing. *The “principles of international law recognized in the Charter of the Nürnberg Tribunal established that certain acts result in international criminal liability when they are "directed against any civilian population." - even stateless Jewish and Roma peoples. Many of the comments here reintroduce the dangerous concept that a State enjoys the freedom to commit criminal acts against an... (more)
- danterzian: I find part of Herzberg's argument troubling. She essentially argues that because (1) the Rome Statute must not allow grave crimes to go unpunished and (2) the PNA and Arab League frequently commit grave crimes, therefore (3) the ICC should not exercise jurisdiction over the grievous crimes committed in Palestine. Although I agree that there are other reasons for the Court to not exercise jurisdiction, I don't believe the above argument is one of them. The Rome Statute's preamble states that... (more)
- Herzberg: The PNA declaration should be rejected for several reasons, particularly because it is part of a soft power political war—also known as the “weaponization” of human rights—that has exploited international legal frameworks in order to avoid a negotiated solution to the Arab-Israeli conflict.1 However, the most compelling reason for its rejection is that the PNA and its supporters have “unclean... (more)
- Harlan: danterzian, I believe that Professor Quigley is correct. In 2004 the General Assembly adopted a resolution, A/RES/58/292, on the status of the Occupied Palestinian territory which noted that Palestine was an observer pending its attainment of full membership in the United Nations. That same year, the non-member Permanent Observer.State of the Holy See launched a bid to apply for full membership in the United Nations. When its efforts were unsuccessful, it asked to be granted upgraded observer... (more)
- Harlan: The United States is not a State party to the Rome Statute. I was just illustrating some points made by Professor Quigley - that the United States had recognized the State of Palestine in accordance with the provisions of conventional international law & that it customarily treats States as continuing to exist if their territory is under foreign occupation. The Baltic States provide an example of an undertaking that lasted for many decades. In cases like Kletter, those routine... (more)
- Harlan: Ti-Chiang Chen's classic "The International Law of Recognition:With Special Reference to Practice In Great Britain and United States has a chapter on the Laws of Recognition of Belligerency and Insurgency which discusses the customary rules and the internal inconsistency of the logic of some scholars on the very point you've raised here. How can an entity have the duties and responsibilities of a State under international law, yet still not possess the necessary legal personality of a State?... (more)
Comment on the Gaza Question: “Does the Prosecutor of the ICC have the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict?”
The Palestinian National Authority does not have the requisite control of the Gaza territory for statehood and thus cannot submit the Gaza territory to ICC jurisdiction. The International Criminal Court has jurisdiction where (a) the accused is a national of a state party, (b) the alleged crime took place on the territory of a state party, or (c) the acceptance of jurisdiction by a state which is not a party to the Rome Statute (Rome Statute, Art. 12). As a non-state party, the Palestinian National Authority has attempted to confer ICC jurisdiction by lodging a declaration with the ICC Registrar pursuant to Art. 12(3); however, the Palestinian National Authority has not attained a level of statehood sufficient for the exercise of ICC jurisdiction under the Rome Statute.
Insofar as the Palestinian National Authority has submitted a declaration accepting the International Criminal Court’s jurisdiction in the Palestinian territory, whether the ICC has jurisdiction over the Gaza conflict turns on whether the territories administered by the Palestinian National Authority, including the Gaza Strip, constitute a state as recognized by international law. To be recognized as a state under international law, an entity has to be sovereign: It needs a defined territory and a permanent population under the control of its own government that engages in or has the ability to engage in foreign relations with other such entities (Restatement 3rd of International Law). Thus, the territories administered by the Palestinian Authority do not meet the definition of a state under international law.
The main bar to Palestinian statehood is the Palestinian National Authority’s lack of effective control over the territory of Gaza. The Gaza Strip has a defined territory; its borders were defined by the Armistice Line following the creation of Israel in 1948 and the subsequent war between the Arab and Israeli armies. For the next 19 years Gaza was administered by Egypt. It was captured by Israel during the 1967 Arab-Israeli war. In 2005, Israel pulled out its troops along with thousands of Jews who had settled in the territory. However, Israel still exercises control over most of Gaza’s land borders, as well as its territorial waters and airspace. Gaza’s southern border is controlled by Egypt. In January 2006, the Islamist militant organization, Hamas, won parliamentary elections in Gaza and in June 2007 the organization took over the Strip, ousting the forces of Fatah, the faction led by Palestinian National Authority President Abbas. This effectively split Gaza from the West Bank in terms of its administration. Because of this, the Palestinian National Authority does not have the requisite control of the Gaza territory for statehood and thus cannot submit the Gaza territory to ICC jurisdiction.