Palestinian Statehood and Retroactive Jurisdiction

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/12/01/palestinian-statehood-and-retroactive-jurisdiction/

9 Responses

  1. Not being a diplomaed int’l legalist, I may be mistaken here but from what I have learned from this is that there may be an inconsistency in the reasoning. 

    What is essentially being argued is that “Palestine” is a state because the traditional rules (the so-called Montevideo criteria) are not what makes you a state, but rather, it is the determination of a UN body that makes an entity a state. Therefore, “Palestine” is a state even though it does not satisfy the Montevideo criteria, because the general assembly has determined it to be. on the other hand, the GA has no power to create a state; it can merely recognize that one already exists, because whether an entity is a state or not depends on whether it satisfies the <ontevideo criteria. therefore, since “Palestine” is a state, and it was not created by the General Assembly, it must already have been a state, and it can therefore accept ICC jurisdiction retroactively.

    Have I got that straight? 

  2. As I specifically argued that the UNGA vote did not establish a Palestinian state, I think it is safe to say that, no, you did not get it straight.

  3. Kevin, While I appreciate the the fact that you “do not want to turn this post into an argument about when Palestine became a state,” I want to reiterate your unassailable point “that it is incorrect to assume that Palestine could not have been a state before the UNGA’s vote last Thursday.” Indeed, you’re absolutely right that Palestine may have long satisfied any number of criteria for statehood. A nice discussion of many of these criteria is found in John Quigley’s The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press, 2010). Quigley well argues that the view that

    “Palestine is not a state suffers from four errors. It disregards historical facts that show Palestine statehood dating from the mandate period. It applies criteria for Palestine statehood that are more stringent than those actually followed in the international community. It fails to account for the fact that Palestine’s territory is under belligerent occuation. It fails to account for facts showing the implied recognition of Palestine.”

    And thanks for the link to John Whitbeck’s essay.

  4. Response… Isn’t there a clue in the UNGA Resolution itself that tells us when we should regard Palestine as “a state” i.e. the reference in that resolution to the 1988 Declaration of the State of Palestine by the PLO?

    It’s in the resolution, and that resolution was overwhelmingly passed, so doesn’t that provide us with an an authoritiative statement that Palestine has been a state since at least 1988?

    And if that is true then it must also be true that this state can refer any allegation of war crimes committed since 2002 to the ICC.

  5. Response… Johnboy4546 I believe you are correct. Customarily recognition is considered retroactive in effect and treats the actions and conduct of the government in question as either the rightful or wrongful acts of a state from the commencement of its existence. In “The international law of recognition, with special reference to practice in Great Britain and the United States” Ti-chiang Chen explained that the practice of states to consider recognition retroactive can only be explained by the fact that the entity has always had existence prior to recognition, and independently of it.

    The latest UN GA resolution not only cited the 1988 UDI, it also noted that the PLO Executive Committee had been named as the Provisional Government of the State of Palestine at the same time. This, and the 1998 resolution on Palestine’s observer status, noted that Palestine is a full member of a number of international intergovernmental organizations that only admit states in that capacity.

    Kevin, I’ve always thought that the State Parties agreed to create a Court that is bound to respect their treaties with third states. Several members of the ICC, including Jordan, Comoros, Tunisia, and Djibouti are members of the League of Arab States. That organization provided the former ICC Prosecutor with a list of multilateral treaties between the other member states and the State of Palestine regarding a variety of subjects. Here is a link to the pdf file:

    http://uclalawforum.com/media/background/gaza/2009-10-14_League_of_Arab_States-Documents_(English).pdf

    Several of those agreements might be relevant to surrender and extradition of persons suspected of committing the acts of terror described in the Goldstone report, e.g. Arab Anti-Terrorism Agreement, 22/04/1998 signed by the Councils of the Arab Justice and Interior Ministers.

    There are other treaties that deal with the subject of diplomatic privileges and immunity. If entities become States through the operation of law, and the Court is bound to respect agreements between members and third states, then it has no other choice but to acknowledge that Palestine was a state when it signed those undertakings that pre-date the existence of the ICC itself.

    Of course some of those agreements would be moot if the Court decides to go ahead and accept Palestine’s article 12(3) declaration. The Registrar had advised Palestine that its declaration had triggered its responsibilities to cooperate under Part 9 of the statute, pending a decision by the Judges. 

  6. Hostage,

    I don’t think that’s quite right.  Article 98, to which I believe you are referring, provides only that the Court may not proceeding with a request for surrender or cooperation that would require a state to act in a manner inconsistent with one of its treaty obligations.  So I don’t think the Court would be under any obligation to honor an agreement between one of the League of Arab States and Palestine unless it concerned surrender or cooperation.

  7. The new state of Isreal exercised its competence (which exists with every state) under customary international law with respect to universal jurisdiction over violations of customary international law even though the new state of Isreal was created after the Holocaust and, therefore, had new courts, new procedures, new substantive laws that incoporated or applied customary law, such as the customary laws of war, over direct perpetrators and abettors of the Holocaust– e.g., re: Eichmann, the extradition and trial of Demjanjuk, etc.
    A new state of Palestine could certainly do the same and I have no doubt that Art. 12 of the Rome Statute of the ICC could apply with respect to crimes within the jurisdiction of the ICC that had been committed after July 2002 in the territory of the new state or by its nationals (assuming that a new state of Palestine ratifies the Rome Statute), and don’t forget The Prosecutor proprio motu — as in the case of other new states from the former Yugoslavia perhaps.
    Since international law has NEVER been merely state-to-state and has included several formal actors for several hundred years (such as “nations,” “belligerents,” tribes, and, more recently, “peoples”), the matter is potentially more complex.  Re: non-state actors, please see http://ssrn.com/abstract=1701992
    And, of course, a new state could agree with certain other states to set up an ad hoc tribunal to exercise the universal jurisdictional competence that each possesses — rather like the IMTs at Nuremberg and for the Far East.

  8. ooops, told y’all I can’t type well — Israel
    but maybe my mind was controlling my fingers in other ways, b/c Is real is what is being discussed, right?

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