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    Palestinian statehood

December 27, 2012

Palestine’s Membership at the International Criminal Court: What It Could Mean for Israel

palestine hillsIntroduction

With Resolution A/67/L.28 on the Status of Palestine at the United Nations having been passed with an overwhelming majority at the General Assembly on November 29, 2012, the Palestinian Authority’s status has been upgraded from a United Nations permanent observer entity to that of a non-member observer State. Although the Resolution does not necessarily mean that all States, including the nine that voted against the Resolution and the forty one that abstained, must now recognize Palestine as a State, it does mean that Palestine will have access to United Nations and agencies, including the International Criminal Court.

For many observers, this has been hailed as a great triumph for Palestine, and some commentators anticipate that Palestine will seek membership at the International Criminal Court in order to file claims against Israeli officials for the Gaza blockade, disproportionate attacks against and collective punishment of Palestinians, and the occupation of the West Bank. However, as will be shown below, seeking membership at the Court will prove to be a double-edged sword for Palestine. Israel will inevitably counterclaim against Palestinian officials, including members of Hamas responsible for intentional attacks against civilian targets in Israel.

Palestine’s Right to File Claims without Israel’s Consent

Under article 12 of the Rome Statute of the International Criminal Court (SICC), in order for the International Criminal Court to exercise jurisdiction, either: (i) the crime must have been committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State; (ii) the nationality of the accused must be with a member State; or (iii) the State in question must agree to jurisdiction. Israel is not a member State of the International Criminal Court. Therefore, the only way that Israeli officials could be tried by the Court would be if either Israel accepted the Court’s jurisdiction, which given Israel’s past conduct would be highly unlikely, or a crime over which the Court exercises jurisdiction is committed in the territory of an International Criminal Court member State or on board a vessel or aircraft registered with a member State. What this means is that if Palestine becomes a member State of the Court, which it may now do as a result of the recognition conferred by Resolution A/67/L.28, it could file claims against Israeli officials at the Court for crimes that occurred on Palestinian territory.

Palestine’s New Right— Robust as It Seems?

This sounds like a major shift in politics and relations of Israel and Palestine, since Palestine may now pursue Israeli officials before the International Criminal Court without Israel’s consent. It is so significant that some nations, including the United Kingdom, sought a commitment from Palestinian leaders that Palestine would not file a claim against Israel before the International Criminal Court as a precondition to voting for Resolution A/67/L.28. When the United Kingdom did not receive this commitment, it abstained from voting on the Resolution.

UN Intl Court of JusticeHowever, while Palestine’s potential International Criminal Court membership appears significant and, according to some commentators, it may significantly derail the Israel-Palestine peace process, the reality is that the Court will not likely play any important role in the relations between the two nations. Palestine is keenly aware if it were to join the International Criminal Court and file a claim against Israel, Israel would immediately retaliate with a counterclaim. Palestine would quickly find its membership with the Court to be a mixed blessing: Palestine would not only enjoy the right to bring actions before the Court but would also be vulnerable to actions brought against it. Of the claims over which the Court holds jurisdiction, one could make the argument that Palestine, through its Gaza Strip arm ruled by Hamas, is far more vulnerable to claims brought against it than is Israel.

For example, it would be difficult to characterize the blockade of the Gaza Strip or Israel’s disproportionate counterattacks as crimes falling under the Court’s jurisdiction, such as murder or extermination “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7.1 SICC). Israel would argue that the blockade and attacks were never aimed at civilians, but rather at Hamas militants who have repeatedly fired rockets into civilian areas of Israel. Other supposed crimes such as collective punishment of Palestinians and the settlements are, in the words of Kevin Jon Heller’s November 29, 2012, Opinio Juris commentary, “fraught with ambiguity and difficult to prove.”

Defending Against Israeli Claims

Palestine, in contrast, would encounter great difficulty defending against an Israeli claim that Hamas fired rockets directed at civilians in Tel Aviv and Jerusalem, thus constituting crimes against humanity. If Israel could prove that rockets were fired indiscriminately at civilian targets, Palestinian leaders could be held guilty of violating the principle of distinction (discrimination), a key precept of international humanitarian law that requires parties to a conflict to distinguish between the civilian population and combatants in order to spare civilian populations and property.

Palestinian Fatah leadership could argue that rockets fired were under the exclusive control of Hamas, a non-state entity that neither represents the Palestinian people nor serves as the legitimate governmental authority of Palestine. However, such an argument would likely be futile. International criminal law over the last century has increasingly recognized non-state actors as potential violators of international law. There has been renewed and increasing interest in assigning responsibility and accountability to them for their actions. There has thus been a trend in both domestic as well as international law to find jurisdiction in such cases. Even the 1945 Charter of the International Military Tribunal (London Charter), which laid out the laws and procedures of the Nuremberg Tribunal that adjudicated crimes against the Nazi regime, could be read to apply to non-state actors. The International Criminal Tribunal for Rwanda made clear that crimes committed by non-state actors could be adjudicated, and the International Criminal Tribunal for the Former Yugoslavia went as far as even convicting a number of non-state actors for crimes against humanity.

Following this trend, the International Criminal Court allows prosecutions of individual non-state actors. In defining crimes against humanity, the Statute of the Court requires that attacks directed against any civilian population involve a course of conduct involving the multiple commission [of murder, extermination, enslavement, etc.] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (art. 7.2 SICC). Thus, by including “organizational policy,” the Statute of the Court can be read to include acts by organizations, such as insurrection movements or other groups such as Hamas that may not have a clear nexus with state action.


The General Assembly’s upgrade of Palestine from observer entity to non-member observer State is more complicated than would seem at first glance. Although the upgrade will grant Palestine new rights under international law, the exercise of at least some of these rights, including the filing of claims against Israeli officials before the International Criminal Court, could be more detrimental to Palestine than to Israel.

palestine sea of galilee

December 2, 2012

The Vote for Palestinian Statehood – More Than Symbolic?

Palestine-requests-recognition at UNThe UN General Assembly voted on November 29, 2012, to upgrade the status of the Palestinian Authority from United Nations permanent observer entity to that of a non-member observer state.

One question looms large over this historic UN General Assembly vote. With an overwhelming majority of 138 States in favor, nine against, and 41 abstentions, does the General Assembly vote have more than symbolic meaning?

The 138 States that voted in favor of Palestinian Statehood eclipsed both the number of States that previously recognized a “State” of Palestine (132) and the simple majority required under article 18 of the Charter of the United Nations to pass the resolution

Do General Assembly resolutions have the force of law?

On the one hand, decisions of the General Assembly are not binding on UN member States, since the General Assembly, unlike the Security Council, only issues binding resolutions in the area of budgetary matters regarding the allotment and collection of dues. Therefore, the General Assembly’s vote will have a largely symbolic effect without any real, immediate impact on the content of international law.

However, while General Assembly resolutions are not per se legally binding, they can contribute to the content of international law. General Assembly resolutions are a means through which States express their opinions about the status of international questions. A resolution that receives widespread support may therefore shape the content of customary international law, a binding source of international law. When a legal principle becomes customary international law, it becomes binding on a State to the extent that the State does not repeatedly and publicly announce its opposition to the principle.

Moreover, the resolutions and declarations of international organizations, including the United Nations, may constitute opinio juris, one of the five sources of international law. While opinio juris is not itself a source of law, it serves as a “subsidiary means for the determination of rules of law” (art. 38 Statute of the International Court of Justice).

Therefore, while General Assembly resolutions are not themselves binding, they may contribute to and shape the content of binding international law.

When is Statehood Recognized under International Law?

A majority vote in favor of Palestine’s state status will not on its own clothe Palestine with Statehood. Rather, Palestine must either meet the elements of Statehood under the declarative theory of State recognition or otherwise achieve widespread and universal acknowledgement as an independent State under the constitutive theory of Statehood.

The declarative theory is the prevailing theory for the recognition of State sovereignty. It holds that an entity is recognized as a State when it satisfies the following objective criteria for Statehood, which were laid down in article 1 of the Montevideo Convention of on the Rights and Duties of States (1933):

  • Permanent population;
  • Defined territory;
  • Effective government; and
  • Capacity to enter into relations with other States.

There is a great deal of controversy as to whether Palestine meets these criteria. In addition to the question of Palestine’s “defined territory,” the element that faces the most objection is the question of effective government. Given the rift between Fatah and Hamas, many critics of Palestine argue that there is no Palestinian government with effective and consolidated control over all of Palestine’s territory.

Yet even if Palestine were to fail the test for Statehood under the declarative theory, Palestine may qualify for Statehood under the constitutive theory, which holds that an entity is a state if recognized as such by the international community. “Recognition” refers to the formal acknowledgement by other states that an entity is a State. This recognition implies a political decision, one that each country takes of its own accord and volition. In this way, the constitutive theory is based on a legal construct and is usually invoked by entities when a majority of the international community recognizes them as States.

The vote of the General Assembly, while not having per se legal force, will demonstrate the extent to which Palestine Statehood holds the support of the international community and is thus instrumental in determining whether the criteria set forth under the constitutive theory of State recognition has been fulfilled.

Will the Recognition of Palestinian Statehood Have any Real Impact?

Many commentators have rightfully pointed out that even if the General Assembly approves Palestine’s application for Statehood, the current state of affairs will remain largely unchanged. For example, Israel, which will not recognize Palestine as an independent State, will continue to occupy the West Bank and build settlements thereon. Nations that oppose Palestine’s Statehood, including the United States and the Czech Republic, will refuse to enter into diplomatic relations with Palestine or recognize Palestinian diplomatic missions or consulates.

However, there is one important consequence that the recognition of Palestinian Statehood will have: it will enable Palestine to initiate claims against Israel at the International Criminal Court. Unlike in the past, where countries could only pursue Israel at the International Criminal Court with Israel’s consent to the Court’s jurisdiction, if Palestine is recognized as a State and becomes a member of the International Criminal Court, the Court would have jurisdiction against Israel as to conduct that occurred on Palestinian territory, even without Israel’s consent as to the Court’s jurisdiction. Under article 12.2 of the Statute of the International Criminal Court, the Court has jurisdiction whenever a State on whose territory crimes occurred is a member, even if the defendant State is a non-member. Therefore, if Palestine claims that Israel committed crimes against humanity or war crimes on Palestinian territory, the Court would have jurisdiction over the matter.

Symbolic but with Real, Far-Reaching Consequences

Although the General Assembly vote is in many ways merely symbolic and carries far less weight than the binding resolutions passed by the Security Council, the recognition of Palestinian Statehood will have far-reaching consequences that will impact negotiations with Israel as well as Palestine’s access to international organizations such as the International Criminal Court.