Palestinian Statehood and Retroactive Jurisdiction

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive:

The first fact considered by the Prosecutor, which is the widespread recognition of Palestine and its membership in international organizations, including United Nations bodies, is obviously favourable to the claim that Palestine is a State. The third fact – the refusal of the Security Council to authorize Palestine’s membership in the United Nations – should be of very limited relevance, because it tends to conflate United Nations membership with the existence of a State. The entire debate would be simple enough if the way to assess whether an entity was a “State” was to check whether it was a member of the United Nations.

But very clearly, the Rome Statute was drafted quite specifically in order to accommodate States that are not members of the United Nations. There was one very important State on everybody’s mind in 1998: Switzerland, which only joined the United Nations some years later. The Rome Statute might have been drafted to apply to United Nations Member States as well as to Switzerland, on an exceptional basis, but that is not in fact what it does. It applies to all States, whether or not they are members of the United Nations. So determining whether something is “a State which is not a Party to this Statute” by asking whether it is a member of the United Nations is purely tautological. It is the dog chasing its tail.

This is a critically important point.  Although international law’s requirements for statehood are notoriously vague, they do not include the UNGA’s imprimatur.  Thursday’s vote was “necessary” for one reason, and one reason only: the OTP demanded it.  That demand was never reviewed, much less approved, by the Court itself.  So it is entirely possible that the Court, if presented squarely with the issue, would conclude that Palestine qualified as a state under international law well before the UNGA vote (and thus could accept jurisdiction retroactive to that date).

Let me be clear: I am not saying that the Court would reach that conclusion.  It is entirely possible, perhaps even likely, that the judges would be extremely cautious and refuse to make an independent determination concerning when Palestine became a state.  But they would certainly be well within their rights to determine that issue for themselves.

I do not want to turn this post into an argument about when Palestine became a state.  My basic point is that it is incorrect to assume that Palestine could not have been a state before the UNGA’s vote last Thursday.  That said, would it be irrational for the Court to conclude that Palestine existed as a state at least prior to Operation Cast Lead in December 2008?  After all, by that time more than 125 states had recognized Palestine — far more than the 95 or so that currently recognize Kosovo (a list that includes the United States).  Moreover, a strong case can be made that Palestine has long satisfied the objective requirements for statehood provided by the Montevideo Convention — population, defined territory, government, and the capacity to enter into relations with other states. That list of requirements is obviously controversial, and subsequent developments may well have tightened the customary requirements for statehood.  As this article for the Middle East Policy Council nicely lays out, though, Palestine may well satisfy even those tighter requirements — which focus on the absence of contestation over defined territory and “effective control” over government and population — at least since Israel withdrew from Gaza.

Again, I am not claiming to know exactly when Palestine became a state.  That would be for the Court to decide should the Palestinians make the (likely ill-fated) choice to try to accept the Court’s jurisdiction retroactively.  But it is a mistake to assume, as Jennifer and others do, that any such claim would necessarily fail because Palestine was not a state prior to last Thursday.