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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?”
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? How can international law take no notice of an entity that has international legal personality? & etc.
The U.S. State Department has a web page which explains that blockades have historically resulted in belligerent recognition, because they are "a weapon of war between sovereign states."
There can be no doubt that an international armed conflict exists between Israel and Hamas. The Israeli Supreme Court held "that between Israel and the various terrorist organizations active in Judea, Samaria, and the Gaza Strip (hereinafter "the area") a continuous situation of armed conflict has existed since the first intifada." See the subsection of the ruling under the heading "The General Normative Framework, A. International Armed Conflict"
The Restatement (Third) of The Foreign Relations Law of the United States §201.(h) says “Determination of Statehood: Whether or not an entity satisfies the requirement for statehood is ordinarily determined by other states when they decide whether to treat that entity as a state.”
Wikileaks recently published a classified document which revealed that Israel's former Military Intelligence Director, Amos Yadlin, said that Israel would be “happy” if Hamas took over Gaza because the IDF could then deal with Gaza as a HOSTILE STATE. (emphasis added)
The Foreign Ministry of Israel has consistently maintained that Israel can not be held internationally responsible for observing human rights covenants in Gaza or the West Bank because those areas are not part of Israel's sovereign territory and jurisdiction. Israel claims that the Palestinian Authority has taken on those responsibilities. See for example CCPR/C/ISR/2001/2, para 8 or E/1990/6/Add.32, para 6-7
Prime Minister Netanyahu's spokesmen, Mark Regev, subsequently cited a provision in the San Remo Manual on International Law Applicable to Armed Conflict at Sea and explained that Israel is clearly within its rights to stop aid flotillas, because “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.” (emphasis added) Professor Anthony D'Amato commented that Israel is quoting a provision of the laws of war that is only in force in a situation “between states”. Others have made similar observations. In “Why is Israel’s blockade of Gaza Legal?”, Kevin Jon Heller noted that Israel’s defense of its blockade creates a serious legal dilemma for it.
The applicable rules of law employed by the Court under the terms of the Rome Statute do include the laws and customs of war. The first Goldstone follow-up report from the PA to the UN contains a decree signed by the "President of the State of Palestine" establishing an independent commission to investigate in compliance with General Assembly resolution 64/10 of 5 November 2009. See "Report of the Secretary-General, UN Document A/64/651, 4 February 2010 para 5 and Annex II.
So it certainly could be argued that both Israel and the United Nations are tacitly treating Palestine as a state.