On May 6, the Office of the Prosecutor of the International Criminal Court (OTP) published a summary of various papers submitted to it concerning the declaration lodged by the Palestinian National Authority (PA) pursuant to Article 12 of the Rome Statute. Article 12(3) of the Statute enables a State not party to the Statute to accept the exercise of jurisdiction by the Court. The Summary includes an annex with links to a number of papers arguing both for and against the OTP's acceptance of the declaration. The key arguments advanced in these submissions are that 1) Palestine is not a state and therefore cannot submit a valid declaration, 2) Palestine is a state, 3) Palestine can be considered a state for the purposes of the Rome Statute and submit a valid declaration.
Several distinct themes recur throughout the submissions, with the core of the debate revolving around the question of the status of Palestine and the powers of the Court. Whilst Palestine is not universally recognized as a sovereign and independent state, there is nonetheless widespread recognition that it has a special status under international law, which differentiates it from other actors seeking independence. According to the latest UN Development Program's Human Development Index Rankings, the Occupied Palestinian Territories are graded above many of the world's established states, including Egypt, India, Indonesia, Namibia, Pakistan, South Africa, and Sudan. Palestine is effectively being kept in limbo until Israel agrees to end its occupation, yet no state accepts that the occupation can continue indefinitely. If one had to invent a category of state, one might call Palestine an "occupied state." Accordingly, we concur with the view of those submissions that argue that Palestine can be considered a state for the purposes of the Rome Statute even though its territory is occupied and that the declaration lodged on 21 January 2009 by the Minister of Justice of the PA should be deemed valid.
The international community as represented by the Quartet, through its prioritization of the political peace process, has deemed it appropriate to withhold recognition of a Palestinian state until such time as Israel signals its approval by ending its occupation. Meanwhile, the Palestinians are urged to establish and to shore up state institutions in preparation for the awarding of such recognition. To this end, the PA is receiving substantial political and financial support from the EU and US, which declared the emergence of an independent Palestinian state a policy priority and inevitability.
Meanwhile, Israel consistently asserts that it can never cede its control over Jerusalem, the Jordan Valley, and the major settlement blocks, and that the future Palestinian state that it will recognize must remain demilitarized and subject to Israeli oversight. Such a contradictory situation appears to be accepted by the Quartet, as well as by the major powers that can offer the Palestinians the recognition they claim.
Thus, should future negotiations follow the well traveled route of previous efforts, and subordinate Palestinian legal rights to political expediency, what will emerge as a Palestinian state will be a fragmented and politically castrated entity, whose claim to sovereignty and independence will be hollow in light of the right of the Palestinians to self-determination on all of the territory occupied in 1967. This right has been recognized by the UN in many resolutions, in numerous international instruments, and by the International Court of Justice in its Wall opinion of 2004.
There is little doubt that such an outcome can only lead to further violence and rebellion, since the core Palestinian right will remain frustrated. We would suggest that, given the vacuous nature of the ongoing political process and a clear failure of negotiations, it is imperative that international law be brought to bear against all parties in order to secure a just and lasting end to the conflict. The recognition of the Palestinian state for the purposes of the Rome Statute would be a key step in this direction.
Whereas we believe that the recognition and emergence of a Palestinian state and an end to the occupation is a prerequisite for peace in the region and the guarantee of full and equal rights for all, such a suggestion is not made for purposes of political expediency. A clear, forceful, and persuasive case has been made in several of the submissions annexed to the OTP's summary that Palestine can, and should be, accepted as a state for the purposes of the Rome Statute. In the first instance, Palestine fulfills all of the criteria set out in the Montevideo Convention, including the capacity to enter into international relations with other states. Palestine has signed many treaties with states and international organizations. It has its own Basic Law, its own nationality laws, legal system and courts, and exercises authority over its territory, albeit subject to the Israeli military control. Palestinians can travel abroad on PA issued travel documents, and Palestinian embassies, consulates, and representative offices are hosted all over the globe.
According to Palestinian Foreign Minister Riad al-Malki, Palestine has been recognized as a state by at least 67 countries and has signed bilateral treaties with states in Latin America, Asia, Africa, and Europe. As the Permanent Court of International Justice observed in the Case of the S.S. "Wimbledon", "the right of entering into an international engagement is an attribute of State sovereignty." Al-Malki's conservative estimate of state recognition (others put the figure at over 100) is similar to the number of states that have recognized Kosovo. The recognition that has been granted Palestine is manifested not just in the traditional manner of state recognition, but has developed in line with the increasing engagement of Palestine with international law over the past decade. Thus, when considering whether Palestine is a state or not, the ICC must look not only to the quantity of states that have recognized Palestine, but also to the practice of international organizations and states in recognizing Palestine as an actor that is willing and able to engage with international institutions. For instance, in 1998, in an often overlooked and little reported event, Palestine was admitted as a member of the Federation Internationale de Football Association (FIFA), whose Statute defines a member country as "an independent state recognized by the international community." Palestine was also given standing before the ICJ by being allowed to submit written and oral pleadings prior to the ICJ rendering its Advisory Opinion on the Wall in June 2004, a privilege that is normally reserved for states and international organizations.
Another key development was the UN General Assembly Resolution 64/10 of November 2009, reaffirmed in February 2010, which called upon Palestine to conduct investigations "that are independent, credible and in conformity with international standards into the serious violations of international humanitarian and international human rights law." Many of these breaches of humanitarian law amount to grave breaches of the Geneva Conventions that fall within the jurisdiction of the ICC, and this resolution must be acknowledged as having been a recognition that Palestine exercises adequate state-like powers such that it is expected to follow through upon and implement obligations, which otherwise only fall to states. Despite opposing the Resolutions, the US also recognized this Palestinian capacity and urged the Palestinians to conduct such investigations and prosecutions. Given this combination of explicit and implicit recognition it would be incongruous to claim that Palestine is just another non-state actor on par with armed guerrilla groups. Furthermore, there is no doubting that Palestine is recognized as exercising jurisdiction over crimes set forth in the Rome Statute, and thus, in light of all other factors, must be permitted to transfer such jurisdiction to the Court.
To characterize Palestine as a non-state actor is to adopt a manifestly unreasonable interpretation rooted in a backward-looking approach that is blind to the factual and legal situation that exists today. Such a characterization serves only to continue to hold Palestine to act in accordance with obligations reserved to states, while at the same time denying Palestine the corresponding rights of states. The OTP must not repeat the mistakes of the ICJ in the South/South-West Africa dispute of 1966 that led to the Court being depicted as the "white man's court" by the developing nations.
Claims that acceptance of the Palestinian declaration by the OTP would be ultra vires are without foundation. The OTP has the discretion to accept the Palestinian declaration by reference to the legal and factual evidence before it. In any case, a positive decision by the OTP will be subject to review by the bench of the Court itself, which will have the opportunity to rule as to whether the decision was in keeping with the Court's Statute.
That a positive decision and the acceptance of the Palestinian declaration would be controversial is undeniable. The political ramifications would no doubt be enormous. Recent steps towards the application of international law to the Israeli-Palestinian conflict, such as the General Assembly's endorsement of the Goldstone Report and the issuance of an arrest warrant against the leader of the Israeli opposition, Tzipi Livni, on war crimes charges by a London magistrate court, have led to diplomatic outrage.
Charges of politicization, and even of the subversive use of international law, have followed each Palestinian step towards engagement with the international legal framework. Such a situation is unlikely to change, but it should be of no concern to the OTP or to the International Criminal Court, which is charged with acting independently and in line with the Rome Statute and the precepts of international law, regardless of the political offence it causes to states.
Palestine is widely recognized as being a state, in many respects Palestine acts and is treated as a state, and Palestine is almost universally recognized as sharing the obligations of states when it comes to the suppression, investigation, and prosecution of crimes within the jurisdiction of the Rome Statute of the ICC. Given the ICC's purpose of exercising jurisdiction wherever it may legitimately do so, to deny the Palestinian declaration on the basis that certain powers continue to obstruct Palestine's full political recognition of statehood would be to do a disservice not only to the Israeli and Palestinian people, caught in a region where impunity has for too long been permitted to prevail, but to the very Statute of the ICC itself.
Dr. Michael Kearney, author of The Prohibition of Propaganda for War in International Law (OUP, 2007), lectures in public international law in the UK at the University of York.
Victor Kattan, author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (Pluto, 2009), is a Teaching Fellow at the School of Oriental and African Studies, University of London. His e-mail is firstname.lastname@example.org