Palestinian statehood: a route to international justice? ~ Dearbhla Katharine Minogue – Student Director, Lawyers for Palestinian Human Rights.
On Monday 13 October 2014, the British House of Commons voted overwhelmingly to urge the government to recognise the state of Palestine.1 It is not clear whether or not the British government will comply with this request. If it did, it would add itself to a growing number of states which have formally recognised Palestine, particularly since the overwhelming United Nations (UN) General Assembly vote to recognise it as a non-member observer state on 29 November 2012.2
But what are the important powers, with legal consequences, that Palestine can potentially exercise following state recognition?
And, in particular, how does state recognition affect the possibilities for Palestinian victims of alleged international crimes on Palestinian territory to seek legal redress before the International Criminal Court (ICC)?
Before this blog examines these significant questions, let’s first look at how international law and practice decides when an entity can become recognised as a state.
What is a state?
The force of international law derives from groups of states ratifying international treaties and proceeding to implement the provisions of these treaties within their domestic legal systems. It follows that there must be a way of deciding whether or not an entity is a state in order to be able to join, ratify and implement treaties.
There are two ways of looking at the definition of statehood: the declarative and constitutive approaches. The declarative theory of statehood encompasses the principle that if an entity fulfils certain criteria, it is a state, regardless of whether or not other states recognise it. These criteria are set out in the Montevideo Convention on the Rights and Duties of 19333which require a state to:
Have a permanent population;
Have a defined territory;
Have a government; and
Have the capacity to enter into relations with other states.
The other approach to statehood is the constitutive approach, which defines a state with reference to whether or not it has been recognised by other states.
Some legal commentators suggest that a combination of both of these parameters can result in an entity becoming a state.4 This makes sense, considering that a Montevideo ‘tick-box’ approach would delegitimise many present-day states (notably including Israel on the matter of defined territory). Current practice suggests that recognition ‘cures’ states of any deficiencies in fulfilling the Montevideo criteria.5
To date, Palestine has been recognised as a state by more than 130 countries, and as mentioned above, in November 2012 was given non-member observer state status by the UN General Assembly. It also fulfils at least three of the Montevideo criteria: it has a permanent population, a government and the capacity to enter into relations with other states. While Palestine’s government is not in full effective control over the entirety of its territory, this is not a specific requirement of the Montevideo criteria. Furthermore, other states such as the Democratic Republic of Congo have fulfilled the criteria in spite of not having effective control over their territory at the time of recognition, on the basis that they possess the right to self-determination.
By applying the accepted constitutive and declarative approaches to statehood recognition, it appears uncontroversial to conclude that Palestine has the requisite features and widespread support to be legitimately recognised as a state.
How does being recognised as a state affect the ability of Palestine to act internationally?
Joining international treaties is a significant power which recognised states can exercise. Palestine signed letters of accession to 15 international treaties and conventions, including the ICCPR and the Geneva Conventions, on 2 April 2014.6 This was described in the accompanying press release of the Negotiation Affairs Department of the Palestinian Liberation Organisation (PLO) as ‘an ability which Palestine gained following its upgrade to observer state status at the UN General Assembly in November 2012.’7 This move can be interpreted as a landmark demonstration of the Palestinian government’s willingness to exercise the important state power of entering into international treaties.
The process of a state joining a treaty will include a decision by another international actor whether that state will be admitted to the treaty. The PLO’s prior attempt to join the Geneva Conventions twenty five years ago was rejected by the Swiss Foreign Ministry ‘due to the uncertainty within the international community as to the existence or the non-existence of a State of Palestine.’ 8 Bearing in mind this context, it can be appropriately described as a ‘highly significant development for the recognition of Palestine as a state’ that the accession of the state of Palestine to the Geneva Conventions and Protocols was formally accepted by Switzerland on 10 April 2014.9
One thing Palestine will not be automatically able to do no matter how many states recognise it is become a full member of the UN, which requires Security Council approval. USA has a veto on any Security Council decisions and, bearing in mind the traditionally close relationship between the USA and Israel, it is unlikely that this would happen whilst that relationship exists. However, Palestine can still become a party to the Statute of the International Court of Justice (ICJ), the main court of the UN. The ICJ is not a criminal court. Rather, it settles disputes between states. The obstacle to the ICJ hearing a dispute between Israel and Palestine is that Israel has not accepted the compulsory jurisdiction of the ICJ, and any hearing (as opposed to requesting an Advisory Opinion of the ICJ, which Palestine has already done)11requires both state parties to elect that the dispute be heard by the court.
How does Palestinian statehood recognition affect access to the International Criminal Court?
The simple answer is that Palestinian statehood recognition gives Palestine the significant power to sign and ratify the Rome Statute of the ICC. The ICC is an international court which has prosecution powers and tries cases against individuals suspected of committing serious crimes under international law, such as war crimes and crimes against humanity.
Palestine, has not yet signed and ratified the Rome Statute. Palestinian and international human rights lawyers have strongly called on the Palestinian Authority President, Mahmoud Abbas, to sign an ratify the Rome Statute, which would provide a legal forum for Palestinian victims of alleged serious international crimes in Gaza to pursue accountability and justice.12
If Palestine does make the significant move of ratifying the Rome Statute, a fundamental issue that will then be decided is how far back in time will the ICC have jurisdiction to investigate alleged serious international crimes committed on Palestinian territory: which can be called the ‘retroactive jurisdiction’ issue.
Achieving justice and the critical issue of retroactive jurisdiction
States can request retroactive jurisdiction back as far as the entry into force of the Rome Statute, which was on 1 July 2002. The Palestinian Authority attempted to make this request in 2009 when it submitted a declaration of accession to the Rome Statute to enable the ICC to investigate alleged war crimes committed by Israeli military forces against Palestinian residents of Gaza during ‘Operation Cast Lead’ in 2008-09.13
However the ICC Prosecutor at the time, Luiz Moreno Ocampo, declined accepting jurisdiction, stating that it was not clear whether or not Palestine was a state, and that the issue should be referred to the UN Secretary General and, if necessary, the UN General Assembly.14
This decision of the ICC prosecutor, published in April 2012, was questioned and critiqued by expert legal commentators15and human right organisations,16with many believing that Palestine had the right to join the ICC by the time the decision was made. Some queried why the ICC prosecutor had appeared to ignore that Palestine had by then been accepted as a full member of UNESCO, whose membership is only open to states.17
Now that Palestine has been recognised as an observer state by the UN General Assembly, it has been suggested by legal experts18that retroactive jurisdiction will only extend back to 29 November 2012, which is the precise date that UN General Assembly adopted its resolution 67/19 on Palestinian statehood. This, significantly, appears to be a view shared by Fatou Bensouda, the current ICC prosecutor.19 We will have to watch developments between the ICC and Palestine closely, but this limited scope for retroactive jurisdiction would certainly be unsatisfactory for victims of alleged serious international crimes committed on Palestinian territory prior to 29 November 2012.
So what next?
It appears clear that as a matter of attaining full justice for serious violations of international law and fundamental human rights, ratifying the Rome Statue of the ICC would merely be the first major step in what are a series of significant hurdles that will have to be encountered. The significant retroactive jurisdiction issue is prominent among them. The ICC will have to crucially determine when Palestine ‘became a state’ for the purposes of ICC jurisdiction: was it when the General Assembly passed the landmark Resolution 67/19 on 29 November 2012, or will they decide that General Assembly resolution was merely confirmation of a pre-existing fact based on a combination of the two accepted approaches to statehood described above? Although the current ICC prosecutor has strongly indicated that the former position is the one that will prevail, this will not be known for certain until Palestine finally and critically resolves again to give the ICC jurisdiction over its territory.
It is clear from the above discussion that the issue of whether Palestine is recognised as a state is not decisive on its own in providing access to the ICC. It also requires that the leaders of Palestine recognise the importance of and the appetite for justice of the people they represent, and activate the ICC’s jurisdiction on a retroactive basis to the earlier possible date of time. It will then be for the ICC prosecutor to crucially determine how far back in time she will extend the court’s reach. Joining the ICC has the potential to be a monumental step for the state of Palestine in enabling justice and accountability – surely an essential step on the road to ending conflict and brokering peace. In order for this to be achieved, the legal and international political community will have to work harder than ever to push for respect of the rule of law and the attainment of international justice.
Dearbhla Katharine Minogue – LPHR Student Director
Lawyers for Palestinian Human Rights (LPHR) is a legal charity in the UK that works on projects focused on protecting and promoting Palestinian human rights. Our primary strategic aim is to effect a positive transformation of the urgent and critical human rights situation for Palestinians.