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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?”
Few agree, aside from professor Quigley, that Palestine is a State and that is definitely the minority position. Currently, we have both the President Abbas and Prime Minister Fayyad speaking quite openly of a “prospective” state. To wit, to argue that Palestine is a State is contrary to the position to the PNA.
The argument made that Palestine is a state by virtue of the declaration in 1988 of the PLO has been treated by the international community is symbolic in nature. Regardless of the approach taken, even based on a teleological approach one is hard pressed to find Palestinian statehood especially based on Casesse’s commentary. It is not even a close call and reminds one of the parable of the emperor wearing no clothes.
From going back in time to the negotiation of the Rome Treaty 12(3) as stated by the first President of the Court, Kirsch, 12(3) was the most hotly contested issue in the negotations. Of all the submissions the most impassioned is that of Pellet which is a damning admission that Palestine is not a State for he argues the functional approach. His position is that for the core crimes under Article 5 there is universal jurisdiction regardless of nationality and territoratility. This was the German position in the 1998 negotiations, this position was rejected in the legislative history by the compromise reached under 12(3). Thus the teleological approach by Pellet must be rejected.
Of all the issues and submissions no one has raised the issue of standing. The PNA unequivocally has no standing to raise the issue of war crimes in Gaza, as it does not represent Gaza. Hamas controls and represents Gaza. The people of the West Bank carry Jordanian documents and it is quite unclear what nationality those of Gaza have. They do not carry Egyptian documents, and in order to determine their nationality one has trace their lineage.To state that Gazan’s are Palestinians puts the horse before the cart as nationality is determined by lineage and State recognition but of course there is no State.
Another issue of interest is that it is ultra vires for Moreno-Ocampo to determine Statehood and if he was struggling with the issue as he pretends he has the ability to put this issue before the Appeals Chamber under Article 19.
As mentioned by many publicists Palestine does not meet the criteria of Montevideo of 1933. Further as raised in the submission by Al Haq there is no criminal prosecution over the Israeli population at all thus a prime purpose of the Rome Statute, that of complementarity fails.
To find statehood where none exists turns the ICC into a political body which is not the role of a judicial organ. Palestine has not been recognized as a State by the ICJ, the UN, the Quartet, WHO, ICRC and of course the ICC where the palestinian delegation was lumped with the “other groups”.
This is actually not a difficulty legal conundrum, Palestine is not a State, and the dragging out of this issue by Luis Moreono-Ocampo is ill advised for his own agenda.