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 "Vienna formula".

In accordance with the terms of Article 125, the Secretary General acts as depositary for the Rome Statute. It is open for accession under the least strict "All States formula" . The Vienna formula was developed in response to the misuse of the veto by permanent members of the Security Council. A small number of States have always exploited weaknesses in the discredited declarative and constitutive theories of statehood to virtually control the existence of unrecognized communities and peoples. Ambassador Christian Wenaweser, president of the ICC Assembly of State Parties, said in an interview that a vote by a simple majority to recognize Palestine as an observer state would allow it to join the ICC and ask the court to investigate any alleged war crimes and other charges against Israel committed on Palestinian territory after July 2002, including Israel's 2008-09 assault on the Gaza Strip.

Despite remarks to the contrary from some of the guest experts here, many, if not most of the High Contracting Parties to the Montevideo Convention have recognized the 1988 Declaration of the State of Palestine in line with the criteria contained in Article 1 of the Convention. In "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)", the Montevideo Convention criteria were part of the test used by the Court to establish the statehood of Croatia during a period of time when its status was hotly disputed. The most decisive factor is the existence of relations with other States.

One of the official submissions in the "Background on Gaza" section here is "League of Arab States, Documents on the status of Palestine", October 14, 2009. It contains a table of treaties that should have been dispositive. Palestinian Authority Ministers had signed the "The Arab Convention for the Suppression of Terrorism, adopted by the Council of Arab Ministers of the Interior and the Council of Arab Ministers of Justice, Cairo, April 1998 and the Convention on Privileges and Immunities of the League of Arab States. Those are international agreements between members of the ICC (Jordan, Djibouti, Comoros Island, and Tunisia) and a "third State", as defined in Article 98(1) of the Rome Statute. The Court is bound to respect or take into account those agreements regarding immunity and extradition for crimes falling within the jurisdiction of the Court.

Palestine can't logically be a "third State" for the purpose of Article 98(1) and, at one and the same time, be considered a non-State actor for the purposes of Article 12(3). The inclusion of a reference to United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974 in the new amendments regarding the crime of aggression is also a decisive factor. The General Assembly adopted a broad definition of the term State in that resolution. It can be employed without regard to recognition or UN membership in order to extend the protection of the UN Charter to unrecognized communities. That's in line with the principle of self-determination and the provisions of the Montevideo Convention that, prior to recognition by others, a State has the right to defend its integrity and independence.

Professor Fletcher said that the Courts have no business making determinations of statehood. However the International Law Commission said

“An individual cannot incur responsibility for the crime of aggression in the absence of aggression committed by a State. Thus, a court cannot determine the question of individual criminal responsibility for this crime without considering as a preliminary matter the question of aggression by a State.”

Motions based upon disputes concerning the existence of statehood and challenges to jurisdiction based upon state sovereignty have come up in the other international criminal tribunals. Those questions will inevitably have to be answered during criminal proceedings in the ICC. The Court is bound to treat any entity as a State if it has entered into treaties on immunity and extradition with other State Parties to the Rome Statute.