ICC and Palestine Symposium: General Assembly Resolution 67/19 and Palestine as a State before the ICC

[John Quigley is Professor Emeritus at the Moritz College of Law, The Ohio State University.]

In her Request to the Pre-Trial Chamber for a ruling on territorial jurisdiction, the Prosecutor raises the issue of Palestine’s statehood as a matter to be determined by the Pre-Trial Chamber. She writes, persuasively, that Palestine is a state. The matter was conclusively determined already by the General Assembly in its Resolution 67/19 of 29 November 2012. Palestine had long had an observer mission at the United Nations. Entities that have observer missions can be states, or they can be other entities. Until 2012, the General Assembly had never said whether the observer mission of Palestine was, or was not, that of a state. In Resolution 67/19 the General Assembly said that Palestine’s observer mission was that of a state.

Resolution 67/19 showed the broad international consensus on Palestine’s status as a state. Such consensus is what determines statehood. The Resolution indicated that the existing mission, a mission of long-standing, was that of a state. The General Assembly was saying that the statehood of Palestine pre-dates the adoption of Resolution 67/19, though the General Assembly did not indicate a point in time for Palestine becoming a state.

The Prosecutor’s Office at the time erroneously took Resolution 67/19 to mean that Palestine’s statehood dated only from 29 November 2012. That error is not a problem for purposes of the current investigation, as the situations the Prosecutor has in mind to investigate post-date 29 November 2012. Palestine filed a declaration in 2015 under Rome Statute Article 12(3) giving the Court jurisdiction for the Gaza war of Summer 2014. At that time as well, Palestine acceded to the Rome Statute, thereby giving the Court jurisdiction from that time forward.

The Prosecutor, in her Request to the Pre-Trial Chamber, asks the Pre-Trial Chamber to confirm that Palestine is a state. She argues that it is. She is able to proceed with an investigation without any such determination by the Pre-Trial Chamber, but out of an abundance of caution she is seeking one.

By the time of Resolution 67/19, Palestine was recognized as a state by well over one hundred countries. Palestine’s statehood dates from the Treaty of Lausanne (1923), which determined that the Arab entities over which sovereignty was being renounced by Turkey became states. In a number of  its provisions the Treaty of Lausanne refers to these these entities, including Palestine, as states.  A provision on the Ottoman public debt was one such provision:

Article 46. The Ottoman Public Debt . . . shall be distributed under the conditions laid down in the present Section between Turkey, the States in favour of which territory has been detached from the Ottoman Empire after the Balkan wars of 1912-13 [and certain other states].

The Treaty of Lausanne included a number of protocols. In Protocol XII, relating to continuity of obligations under concessions granted by the Ottoman Empire, reference was made to the “state” that “acquires” the territory:

Article 9. In territories detached from Turkey under the Treaty of Peace signed this day, the State which acquires the territory is fully subrogated as regards the rights and obligations of Turkey towards the nationals of the other Contracting Powers, and companies in which the capital of the nationals of the said Powers is preponderant, who are beneficiaries under concessionary contracts entered into before the 29^th October, 1914, with the Ottoman Government or any local Ottoman authority.

The Treaty of Lausanne’s provision on nationality referred to the territories detached from Turkey as “states”:

Article 30. Turkish subjects habitually resident in territory which in accordance with the provisions of the present Treaty is detached from Turkey will become ipso facto, in the conditions laid down by the local law, nationals of the State to which such territory is transferred.

Palestine inhabitants were made nationals of Palestine, as the “state” referenced in Article 30.

The Prosecutor does not refer to the Treaty of Lausanne. For her purposes, what is relevant is Palestine’s status currently. In analyzing that issue, she appropriately declines to assess Palestine by the Montevideo Convention of 1933. She tells the Pre-Trial Chamber that the attributes of statehood listed in that Convention criteria must be applied flexibly. In taking this position, the Prosecutor is responding to an assertion made in the past by the Government of Israel that Palestine does not meet what have come to be called the Montevideo criteria. Israel’s Foreign Ministry has argued that Palestine lacks a population within a territory, that it does not exercise control, and that it has no capacity to engage in international relations.

The Montevideo criteria derive from an inter-American treaty concluded in 1933 at Montevideo, Uruguay, the Convention on the Rights and Duties of States. This Convention is usually called the Montevideo Convention.

In its Article 1, the Montevideo Convention recites:

The state as a person of international law should possess the following qualifications:

a. a permanent population;

b. a defined territory

c. government; and

d. capacity to enter into relations with other states

These items were not listed, however, in the context of a project to ascertain the meaning of statehood. They were formulated in the context of political struggle in the Americas. States in the region were trying to end the practice of the United States of refusing to recognize governments it deemed illegitimate, or even of intervening militarily against them. This intent behind the Montevideo Convention is seen in Article 8, which proclaims, “No state has the right to intervene in the internal or external affairs of another.” The items listed in Article 1 were written to describe features typically found in states. Prominently omitted from Article 1 was any mention of legitimacy. Article 1 was written to say that so long as a government existed and was functioning, the United States could not intervene militarily to affect the character of its government.

The Montevideo Convention was promoted by Latin American states resentful of domination by the United States. US Secretary of State Cordell Hull said that the Montevideo conference, which produced the Convention, was a product of a new policy on the part of the United States that it called its “good neighbor” policy.

The purpose of the Montevideo Convention is apparent from the content of its remaining provisions. Article 4 declared that all states are equal:

States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

The aim was to make clear that the United States is not superior to other states.

Article 5 proclaimed: “The fundamental rights of states are not susceptible of being affected in any manner whatsoever.” The aim was to make clear that the United States has to respect whatever internal political order emerges in the other states of the region.

The US delegation to the Montevideo conference, in a report on the drafting of the Convention, said nothing about the Convention’s definition of statehood – a clear indication that defining statehood was not the aim of the Montevideo Convention. The United States entered a reservation to the Montevideo Convention in which it denied any intention of interfering in the internal affairs of the Latin states.

The Prosecutor in her Request does not explain this background on the Montevideo Convention. She does, however, appropriately decline to be confined by it. She says that the Article 1 items cannot be mechanically applied in a situation in which a state’s territory is under belligerent occupation. She appropriately puts more weight on the acceptance of Palestine by the other states of the world. In the final analysis, it is that acceptance that determines whether an entity is a state. An entity that satisfies the Montevideo points is not necessarily a state. Only the acceptance by others constitutes it as a state.

The Treaty of Lausanne, which made Palestine a state, was concluded at a time when self-determination of peoples was becoming accepted. Self-determination was reflected in the League of Nations Covenant. 

Article 22, paragraph 4 of the Covenant referred to Palestine and the other formerly Turkish areas in the Arab world as “independent nations,” albeit they were to be administered for a time by an outside power. Palestine functioned as a state while under administration of Britain. Palestine had an identity as a state. Treaties were concluded in the name of Palestine.

The Palestine Liberation Organization referred to League Covenant Article 22 and to the Treaty of Lausanne in 1988, when it declared itself to be the Government of Palestine. Palestine was not being declared as a new state in 1988. Rather, the PLO was putting itself forward as the government of a state dating back to the 1920s.

The fact that the State of Palestine dates back to 1923 reinforces the Prosecutor’s analysis that Palestine is a state. The Pre-Trial Chamber need not avert to this earlier time. It can confine itself to referring to General Assembly Resolution 67/19 and to the contemporary acceptance of Palestine to conclude that Palestine is a state. If it does so, it will be on solid legal ground.