Prof. Bassiouni makes the important point that all the elements of statehood are present for Palestine and that it declared statehood in 1988. Those same elements continued to be present, so that I see no reason why Palestine should not be regarded to be a state. But Prof. Bassiouni goes on to say that, by virtue of the post-Oslo process, the PLO withdrew from its 1988 position on statehood and agreed to have Palestinian statehood be subject to a negotiated settlement with Israel. I see no such retrenchment on the Palestinian side on the issue of Palestine statehood.

The post-Oslo agreements with Israel do not address the issue of statehood. Statehood is not one of the enumerated final status issues. Borders are to be negotiated as a final status issue, but agreeing to negotiate borders did not mean that Palestine was not a state, any more than it meant that Israel was not a state. Only states negotiate borders. The Interim Agreement of 1995, which is the major post-Oslo agreement, specifies that neither party shall be deemed “to have renounced or waived any of its existing rights, claims or positions” (Art. 31-6). Thus, the Palestinian position on Palestine statehood, far from being renounced, was preserved.

On three occasions—once in 1996, again in 1999, and again in 2000—President Arafat announced his intent to re-declare statehood by a given date. Each time he refrained at the last moment, under pressure from the United States and threats from Israel, or in hopes of coming to an agreement with it. But his stated intent—post-Oslo—to re-declare statehood meant that Arafat considered Palestine still to be a state. The post-Arafat leadership maintains the same view.

The August 2009 Government Program announced by the PNA for building state institutions includes a sentence that reads: “Palestine is an independent Arab state, with full sovereignty over the West Bank and the Gaza Strip on the 1967 borders, with Jerusalem as its capital.” That sentence indicates that the PNA considers Palestine to be a state.

The assertion about independence is accurate, notwithstanding Israel’s control of much of Palestine’s territory, because independence in this context means that a state is not under the sovereignty of some other state. A state whose territory is occupied remains “independent” in this sense. Prof. Bassiouni’s bottom-line point is important and, in my view, correct. That point is that the ICC prosecutor is properly seized of the Gaza situation and has every reason to act on it under the prosecutor’s proprio motu powers.