Prof. Fletcher says that an Art. 12(3) declaration can, according to Rule 44(1) of the ICC Rules of Procedure and Evidence, be made only by a state that is eligible to become a party to the ICC Statute. He does not indicate how that proposition, were it true, is relevant to determining whether Palestine is a state. In fact the proposition is not true. Rule 44(1) merely lets the ICC Prosecutor ask the Registrar to ask a state if it intends to file an Art. 12(3) declaration in a situation in which such a declaration might be relevant. Rule 44(1) says nothing about the character of states eligible to file an Art. 12(3) declaration.

Prof. Fletcher cites Prof. Otto Triffterer’s treatise for a listing of the supposed total number of states in the world, a listing that does not include Palestine. However, the treatise gives this listing only in a footnote. The status of Palestine was not mentioned or analyzed. A definitive listing of states in any event is a hazardous undertaking. Beyond Palestine, plausible arguments can be made for a number of putative states.

As another argument against statehood, Prof. Fletcher says that the PA was not a participating state at the Rome Conference that drafted the ICC Statute. Again, he asks the wrong question. The entity listed in the official records of the Rome Conference is “Palestine,” not the PA. The two Palestine representatives accredited to the Conference were identified in the records as representatives of Palestine, not of the PA. Prof. Fletcher implies that the manner in which the United Nations handled Palestinian participation at the Rome Conference reflected a determination that Palestine is not a state.

That implication is unfounded. The Rome Conference was held pursuant to a call by the U.N. General Assembly. It was a U.N. conference. Invitations went to U.N.-related entities. In its resolution deciding that the conference would be held in Rome in summer 1998, the General Assembly asked the U.N. Secretary-General to invite organizations entitled to participate in the work of U.N.-sponsored conferences. (GA Res. 52/160, December 15, 1997, para. 8). In that resolution the General Assembly provided a list that referred to the P.L.O. as such an organization, based on the General Assembly’s invitation to the P.L.O. in 1974 to be a U.N. observer. (Res. 3237, November 22, 1974). The General Assembly indicated that the Secretary-General should invite Palestine (which by 1997 was designated by that term at the U.N.) along with other U.N.-related entities.

Prof. Fletcher notes, correctly, that Palestine (and here he uses the correct term) was placed under the category of “Other Organizations” in the official list of delegations participating in the Rome Conference. He implies that the category “Other Organizations” was for entities that were not states. No such conclusion is warranted. According to Res. 52/160, certain non-governmental organizations were to be invited to the Rome Conference. They were to have a lesser level of participation than “delegations.” Palestine was not among them.

The category “Other Organizations” was a sub-category in a list of “delegations.” That list was made up of UN member states and state-related organizations. The category “Other Organizations” included but one entry: Palestine. The category thus was a special sub-category, devised specifically for Palestine, under the larger category of “delegations.” The same differentiation appears in annexes to the Final Act of the Conference. There Palestine was listed as having been an observer along with intergovernmental organizations and UN-related entities (Annex III). A separate listing (Annex IV) named non-governmental organizations that participated as observers. Palestine does not appear on the latter list, precisely because it was not invited as being non-governmental. Palestine participated at the level at which states participated, not at the lesser level accorded to non-governmental organizations.

Prof. Fletcher cites as an indication of Palestine’s supposed non-statehood a report produced in 2009 under the American Society of International Law. The report is ambiguous at best on the point, however. The report refers to the Palestine declaration accepting ICC jurisdiction and states that the declaration “raises issues about the authority of the Prosecutor, and of the ICC, to treat as a State an entity which is not generally recognized as a State and which is not a U.N. member.” The authors of the report leave the matter with this single sentence, giving no explanation for whatever status they attribute to Palestine. Their suggestion that U.N. membership is required in order validly to confer jurisdiction on the ICC is incorrect. The ICC Statute contains no such requirement. Their statement that Palestine “is not generally recognized” ignores the more than 100 formal recognitions, and implicit recognition by many others, including Israel and the United States. Moreover, the authors merely say that the declaration raises questions about Palestine’s status. They say nothing definitive on the matter.

Prof. Fletcher himself discusses recognition, but the single authority he cites is faulty. Prof. Fletcher’s source is a statement by Prof. James Crawford in his treatise Creation of States in International Law that “quasi-unanimous support would be required” for Palestine to be a state. Prof. Crawford’s only source for that statement is a 1949 advisory opinion of the International Court of Justice, Reparation for Injuries Suffered in the Service of the United Nations. That advisory opinion, however, had nothing to do with recognition of states, hence is irrelevant on the issue of how much recognition is needed by a putative state. “Quasi-unanimous support,” in the sense of quasi-unanimous recognition, is not demanded in international practice for an entity to be considered a state. A number of states, prominently Israel in 1949, were admitted to the United Nations (for which statehood is required) when many UN member states had not recognized them. These entities were considered to be states despite sparse recognition.

Prof. Fletcher cites the 2003 Road Map as evidence against Palestine statehood, on the theory that the Road Map contemplates the establishment of a Palestine state only in the future. But the Road Map called on the major powers to recognize Palestine as a state within a few weeks of the adoption of the Road Map, if certain acts were accomplished by both parties. Those acts were not in the event accomplished, but the commitment in the Road Map to recognize Palestine within a matter of weeks could have been undertaken only on the assumption that Palestine was a state. Hence, the Road Map, far from providing evidence that Palestine is not a state, provides evidence that Palestine is.

Finally, Prof. Fletcher argues against ICC jurisdiction based on the Palestine Art. 12(3) declaration by saying that acceptance of jurisdiction would involve the ICC inappropriately in “political issues.” Yet the ICC Statute calls for jurisdiction on criteria to be ascertained by the ICC. It would be a repudiation of its assigned functions for the ICC to opt out on political grounds. Other international institutions have faced the same issue when Palestine was relevant to their functioning and founding instruments. The UN High Commissioner for Human Rights, as noted, did not forego providing human rights advisory services to Palestine, even though those services can be provided only to a state. The European Community concluded a trade deal with Palestine when it determined that such would be useful. EC rules allow for such deals to be concluded only with states. Both the UN High Commissioner and the EC, proceeding with little fanfare, simply carried out their assigned functions, on the assumption that Palestine is a state.

Prof. Fletcher’s arguments against Palestine statehood do not stand up to scrutiny. My own reasons for the conclusion that Palestine is a state were outlined in my own post on this Forum. They are now explained in detail in my book just published by Cambridge University Press, titled The Statehood of Palestine: International Law in the Middle East Conflict (hardback and paperback).