Muddying the Waters: A Reply to Kay and Kern on the Statehood of Palestine and the ICC – Part II

[Victor Kattan is a Senior Research Fellow of the Middle East Institute at the National University of Singapore where he heads the Transsystemic Law Cluster. He is also an Associate Fellow of NUS Law. This is the second part of a two-part post.]

Recognition of Palestine’s Statehood

Since 1988, 138 states (72 per cent of UN members) have recognised a Palestinian state in the territories occupied by Israel on 4 June 1967. The UN General Assembly has also adopted resolutions acknowledging the existence of that state. The difference between the General Assembly resolution adopted in 1988 and the resolution adopted in 2012, is that by 2012, the Palestinian people had long been exercising self-governing powers in substantial sectors of the West Bank, and the General Assembly resolution explicitly recognised a Palestinian state.

Whereas the effect of the 1988 resolution was to acknowledge the proclamation of a Palestinian state, thereby validating the Palestinian people’s exclusive title to the territories occupied by Israel in 1967, the effect of the 2012 resolution was to accord Palestine observer state status in the UN, which gave it plenary powers, for example, to sign and ratify treaties.

UN General Assembly Resolutions can have dispositive effects   

While UN General Assembly Resolutions are normally only recommendations, they can have dispositive effects, especially when the resolutions concern territory over which the UN has a special responsibility (such as trust territories and former mandates). Several organs of the UN were engaged by the 1947 UN Partition Plan, including the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, and the Secretariat. Resolution 181 (II) was not only directed at the mandatory power but “to all other Members of the United Nations” that were expected to adopt and implement the plan.

The UN Partition Plan represented a special agreement between the United Nations and the Mandatory Power that sought to alter the status of the mandate by transforming it into two independent states linked by an economic union with Jerusalem set aside as a corpus separatum. Where there has been an agreement between the UN and a mandatory power, obligations may arise, as the International Court of Justice (ICJ) conceded in its 1950 Advisory Opinion on the status of South West Africa. To quote a former ICJ Judge, the UN Partition Plan “constituted a valid measure of a high organ of the United Nations acting in the full plenitude of its rightful jurisdiction”. (See Hersch Lauterpacht, “Declaration on the Assumption of Power by the Provisional Government of the Jewish Republic” 84(1) The British Yearbook of International Law (2014), pp. 47-51 at p. 48). In the words, of the ICJ concerning another administered territory, the resolution arguably had “definite legal effect”.

The obligation to eradicate colonialism

The UN General Assembly also has a special responsibility to eradicate colonialism. This arises from the principle of self-determination in the Charter of the United Nations, in UN General Assembly Resolution 1514 (XV), and state practice. As the ICJ recently observed in its Chagos opinion, “the General Assembly has a long and consistent record in seeking to bring colonialism to an end”. “So long as decolonization remains incomplete” observed Vice President Judge Xue, “this mandate has no temporal limitation under the Charter”.

Decolonization is one of the main subjects of the Special Political and Decolonization Committee (Fourth Committee) of the General Assembly. This includes responsibility for ending the occupation in Palestine. Therefore, contrary to the claim made by Kay and Kern, the former ICC Prosecutor was correct in his 3 April 2012 assessment that: “In interpreting and applying article 12 of the Rome Statute, the Office has assessed that it is for the relevant bodies at the United Nations or the Assembly of States Parties to make the legal determination whether Palestine qualifies as a State for the purpose of acceding to the Rome Statute and thereby enabling the exercise of jurisdiction by the Court under article 12(1)”.

The Territory of the State of Palestine

Kay and Kern claim that the exercise of ICC jurisdiction would “require the OTP to demarcate a border for jurisdictional purposes”. They argue that Palestine’s sovereign legal title is “indeterminate” and “presents a fundamental and immutable jurisdictional obstacle” with respect to a potential settlements case, for example, because it is not clear that the settlements have been established in the territory of the State of Palestine.

What is unclear to Kay and Kern has been clear to the UN Security Council. Consider Security Council Resolution 2334, which reaffirmed that: “the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace” (emphasis added). Remember that the Security Council adopted this resolution knowing that Palestine had been given observer state status in the organization.

The same Security Council resolution also made it clear that it would “not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”. Evidently, Palestine’s borders are the 4 June 1967 lines.

Another Red Herring

The argument that Palestine cannot purport to be a state because it lacks effective control over all of its territory is another red herring, when it is Israel that is preventing the Palestinian people from being able to exercise self-determination over its territory. The Latin maxim ex injuria jus non oritur (a right does not arise from injustice) is frequently invoked, but it has never been more apposite to invoke it in relation to current Israeli policy.

In assessing the criterion of governance under the Montevideo convention, it is necessary to make a distinction between the existence of title to territory and the exercise of authority over territory. As John Dugard and David Raič explained: “An exclusive right to exercise authority without necessarily an actual exercise of authority may occur where there has been a transfer of sovereignty (as in many cases of decolonisation) or in cases of the exercise of an applicable right to external self-determination”. They add: “Such a title may compensate for a lack of effective governmental power during the process of the state’s empirical establishment, especially when the lack of effective governmental control is a result of unlawful conduct by the central authorities of the parent state”. (See John Dugard and David Raič, “The role of recognition in the law and practice of session” in Marcelo G. Kohen (ed.), Secession: International Law Perspectives (Cambridge University Press, 2006), p. 136.

Israel is not Palestine’s parent state. However, an argument could be made that Palestine’s title to the territories occupied since 4 June 1967 compensates for the lack of effective governmental power over all its territories (such as Area C) given that the lack of such control is the result of unlawful conduct by Israel. For five decades, the Government of Israel has persistently refused to abide by UN Security Council and General Assembly resolutions demanding that it withdraw from the territories that it occupied on 4 June 1967 and to desist from altering the demographic composition, character and status of that territory.

It has been argued that title to the territories occupied by Israel on 4 June 1967 had already belonged to the Palestinian people who had formed a political union with Jordan in 1950. In 1993, after Jordan had acknowledged the Palestinian people’s exclusive title to those territories by recognizing a Palestinian state, Israel agreed to allow the PLO, their political representatives, to establish institutions to exercise self-governing powers in the West Bank and Gaza. This was pursuant to the Declaration of Principles (DoP), in which Israel and the PLO agreed that the aim of the negotiations was to establish a Palestinian Interim Self-Government Authority for the Palestinian people in the West Bank and the Gaza Strip, “for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338”. It was also agreed that the negotiations would “lead to the implementation of Security Council Resolutions 242 and 338”.

It was no secret that the PLO wanted to establish an independent state at the end of the interim period.  Just as the implementation of Resolutions 242 and 338 in the Camp David Accords led to a complete withdrawal of Israel’s armed forces and installations from the Sinai Peninsula, it was expected that the implementation of Resolutions 242 and 338 following the Oslo Accords would lead to a full withdrawal from the territories Israel occupied on 4 June 1967 – at the end of the interim period scheduled for 4 May 1999. The final contours of the establishment of that state was of course, subject to agreement, but it did not mean that one side could postpone those negotiations indefinitely or make claims to the territories that it had already agreed to withdraw from when it signed the DoP.

The Futility of Talking for the Sake of Talking

In 2011, when the State of Palestine applied for membership of the UN, it had become clear to the Palestinian leadership that the negotiations had reached an impasse. Moreover, they had been told by the IMF and the World Bank that their institutions were ready for independence. It was therefore reasonable for them to apply for UN membership, which they did. Yet Kay and Kern, and those whom they advise, repeatedly insist that “the question of sovereign legal title to the disputed territories is a matter than can only be resolved by agreement with the relevant parties”. But the territories are not disputed in the legal sense as the question of sovereign legal title is clear. They remain occupied territories as the ICJ explained in paragraph 78 of its Wall Advisory Opinion. What has changed is the recognition that Israel is occupying a Palestinian state.

Finally, the claim by Kay and Kern that a resolution over the status of the territories can only be resolved in an agreement between Israel and the Palestinian leadership is not incontestable. When South Africa argued that negotiations had not been exhausted in the UN before the General Assembly purported to terminate the mandate over South West Africa in 1966, the ICJ explained that: “In practice the actual length of negotiations is no test of whether the possibilities of agreement have been exhausted; it may be sufficient to show that an early deadlock was reached and that one side adamantly refused compromise”.