I believe that the risk of a decision being “too politically charged” should not be a deterrent to tackling the issue of jurisdiction head on and reaching the correct conclusion.

There seems to be two main issues: first, does the Palestinian National Authority (“PNA”) quality as a “State” under the Statute of Rome? And second, can the PNA legitimately lay claim to the Gaza territory as its own? I will only address the first of these issues.

Professor George P. Fletcher argues that the International Criminal Court (“ICC”) does not have jurisdiction to investigate alleged crimes in the PNA’s territory, including the Gaza territory, partly because the PNA was not a participating State at the Rome Conference of 1998 and is not a party to the Statute of Rome. The problem with this argument is that under Article 12(3) of the Statute of Rome, a State which is not a party to the statute may voluntarily accept the court’s jurisdiction with respect to a particular crime in question. By the plain meaning of the text, Article 12(3) expands the possible jurisdiction of the court to more states than just those which are parties to the Statute of Rome. Moreover, Article 12(3) seems to at least slightly open the door to a more flexible meaning of a “State” under the Statute of Rome.

Given this expandable definition of a “State,” Professor John Quigley argues that in international law, the recognition of a state may be implied from practice. In the case of the PNA, he explains that the main United Nations (“UN”) organs treats it as a state. For example, he mentions that the General Assembly gives the PNA’s representatives the right to reply to statements made by other state representatives, the Security Council allows the PNA to participate in its debates, the Economic and Social Council admitted the PNA as a member of the Economic Commission for Western Asia, and, most significantly, the International Court of Justice invited the PNA to participate in its proceedings regarding the Israel’s construction of a barrier in the West Bank of the Jordan River. Each and every one of these instances involve authority that is granted exclusively to states. For these reasons, the PNA has a convincing case that it qualifies as a State under the Statute of Rome.

On January 22, 2009, the ICC received a written declaration accepting jurisdiction of the ICC under Article 12(3) from the PNA, on whose territory the alleged crimes were committed. As a result, I believe that the Prosecutor of the ICC has the authority to open an investigation into alleged crimes committed in the 2008-2009 Gaza conflict.