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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?”
danterzian,
You are describing the doctrine of the retroactivity of recognition. It is an accepted practice in the foreign relations law of many countries including the US and the UK. Chapter 13 of Ti-Chiang Chen's "The international law of recognition, with special reference to practice in Great Britain and the United States (1951) is devoted to the subject.
For example the US Supreme Court ruled in Oetjen v. Central Leather Co., 246 U.S. 297 (1918)" that "When a government which originates in revolution or revolt is recognized by the political department of our government as the de jure government of the country in which it is established, such recognition is retroactive in effect, and validates all the actions and conduct of the government so recognized from the commencement of its existence."
Professor Ronen says that Palestine does not claim to be a State, but that is an untenable assertion. Ali Waked, "Abbas: Palestinian state an existing fact", was a YNet News report on November 11, 2009 that said
When the Foreign Minister and Justice Minister of the Palestinian Authority presented the Article 12(3) Declaration to the ICC, that was an "act of State". The Justice Minister said "Today we came to deliver a set of documents that shows that Palestine as a state ... has the ability to present a case to the court and to ask for an investigation into crimes committed by the Israeli army. We will deliver more information about war crimes and crimes against humanity -- not only in Gaza during the last Israeli attack, but also from 2002 until this moment." The Foreign Minister said they had provided proof that Palestine was recognized as a state by 67 countries and had bilateral agreements with states in Latin America, Asia, Africa and Europe. See Today's Zaman, "ICC prosecutor considers ‘Gaza war crimes’ probe", 10 March 2009
In an interview with the Jerusalem Post, Professor Ruth Lapidot said "The Palestinians have already unilaterally declared statehood, and they did not need to do it again. Recognition of statehood is a political act, and every state has the right to decide for itself whether to recognize another state."
In The 1988 Declaration of Independence" Jerome Segal wrote about PM Salam Fayyad's plan for Palestinian statehood. He said lest anyone believe that the 1988 declaration is ancient history, they should read the new Fayyad plan with more care. It cites the 1988 declaration four times, identifying it as having articulated "the foundations of the Palestinian state." Her's a link to the plan "Ending the Occupation, Establishing the State - Program of the Thirteenth Government"
Palestine is a full member State of several international organizations. It has been formally recognized by at least 110 other countries. The United States opposed the request for an advisory opinion in the Kosovo case saying "As a practical matter, Kosovo's independence is an irreversible matter. Forty-eight countries have recognized Kosovo as an independent state, including 22 of the 27 members of the European Union".
The United States and the EU are funding the Palestinian Authority's institutions of State. The Quartet Road map is a joint undertaking to help establish the state. One of the Quartet partners already hosts The Embassy of the State of Palestine in the Russian Federation.The EU Council has stated that "Palestinian statehood is not subject to any veto." The fact that the US and EU say they do not recognize Palestinian statehood (yet) does not mean that it does not exist. When the EU and US finally recognize Palestine, that recognition should validate every act of its government since it came into existence - including the declaration accepting the jurisdiction of the International Criminal Court.
Other international criminal tribunals have employed the decisive factors contained in the Montevideo Convention to resolve genuine disputes regarding statehood and the international nature of a conflict. They have considered participation in negotiations, and recognition by other States or groups of states as sufficient evidence of statehood. See for example paragraphs 85-115 of "The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-T (Rule 98 bis test - Deportation, forcible transfer and cross border transfer – Definition of a State)