Abstract
On December 19, 2008, the six-month ceasefire mediated by Egypt between Israel and leaders of Hamas in the Gaza Strip expired. Shortly thereafter, Hamas and other Palestinian groups resumed indiscriminate rocket and mortar attacks from the Gaza Strip against Israeli settlements and territory. In response, Israel launched ‘Operation Cast Lead’, a military incursion into the Gaza Strip, which lasted approximately three weeks. In the wake of Cast Lead, the Palestine Authority (PA) lodged a declaration (Declaration) with the Registrar of the International Criminal Court (ICC) accepting ICC jurisdiction in the “territory of Palestine,” retroactive to July 1, 2002. The PA cited Article 12(3) of the ICC Statute as the legal basis for its Declaration. Article 12(3) reads as follows: “If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question….”
Senior Litigation Counsel for National Security Law, American Center for Law and Justice (ACLJ). This article was first published in 36 Rutgers Law Record (2009), 186–201.
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Notes
- 1.
Reuters 2009.
- 2.
Id.
- 3.
Makovsky 2009.
- 4.
Ali Khashan, Minister of Justice, Palestinian National Authority Declaration Recognizing the Jurisdiction of the International Criminal Court (Jan. 21, 2009), available at http://www2.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf.
- 5.
Id. Note that Article 11 of the Rome Statute limits ICC jurisdiction to States that become Parties after the Rome Statute came into force (i.e., July 1, 2002) to those crimes committed after entry of the new State Party, “unless that State has made a declaration under Article 12, para 3”. Rome Statute of the International Criminal Court, Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Article 11(2), U.N. Doc. A/CONF.183/9 (17 July 1998) [hereinafter “Statute” or “Rome Statute”] (emphasis added).
- 6.
Rome Statute Article 12(3) (emphasis added).
- 7.
- 8.
Id. p. 3 (emphasis added) [citing Rome Statute Article 12(3)].
- 9.
Id. p. 4 [citing Palestine National Council: Political Communique and Declaration of Independence, Nov. 15, 1988, U.N. Doc. A/43/827, S/20278, Annex III, Nov. 18, 1988, reprinted in 27 I.L.M. 1668 (1988)].
- 10.
Id. pp. 4–5 (citations omitted).
- 11.
Id. p. 5 (citing Lewis 1989), 7.
- 12.
Id. p. 5 (citations omitted).
- 13.
See Id. pp. 8–9 (citations omitted).
- 14.
See Id. pp. 4–5 (citations omitted).
- 15.
Yasser Arafat 2002 (emphasis added). Note that Mr. Arafat did not speak as if Palestine were already an independent state, despite the Palestine National Council’s 1988 publicly announced Declaration of Independence for Palestine—a declaration made while the PLO was in exile in Tunisia. See Arafat 1988. Hence, even Mr. Arafat discounted the importance and effect of the 1988 Declaration.
- 16.
Abbas 2005a (emphasis added).
- 17.
Abbas 2005b (emphasis added).
- 18.
Abbas 2008 (emphasis added).
- 19.
Id. Admittedly, in his UN address, President Abbas does refer to 1988, when the Palestine National Council issued a Declaration of Independence while in exile in Tunisia. Nevertheless, when taken in context with his repeated statements concerning a future independent state made in that same speech, it is apparent that even current Palestinian officials do not take the 1988 Declaration seriously.
- 20.
Id. (emphasis added).
- 21.
See Abbas 2009b (emphasis added).
- 22.
See Abbas 2009a (emphasis added).
- 23.
Id. (emphasis added).
- 24.
Schneider 2009 (emphasis added). It is obvious that one does not call for establishing a State “within two years” (or any other time limit) when such a State already exists.
- 25.
Id. (emphasis added).
- 26.
See AGI News 2009. Abu Mazen is an alias of Mahmoud Abbas. See Biography of Abu Mazen, available at http://www.answers.com/topic/abu-mazen. In the portion of the quotation replaced by the ellipsis, Mr. Abbas discussed using resistance to achieve Palestinian independence. Since that was a possible means to the end sought, it did not refute the fact that Palestinian statehood has not yet been achieved.
- 27.
McCarthy 2009 (emphasis added). In a letter addressed to the same conference, Saudi King Abdullah likewise acknowledged the absence of a Palestinian state: “I can honestly tell you, brothers, that even if the whole world joins to found a Palestinian independent state, and if we have full support for that, this state would not be established as long as the Palestinians are divided.” Toameh 2009. Such a statement clearly shows that the Saudi King (a prominent figure in the greater Arab community) also acknowledges that Palestine is not a State.
- 28.
See PLO Negotiations Affairs Department, http://www.nad-plo.org/
- 29.
PLO Negotiations Affairs Department, 2009 (emphasis added).
- 30.
Id. at 12 (emphasis added).
- 31.
PLO Negotiations Affairs Department 2008 (emphasis added).
- 32.
Id. at 3 (emphasis added).
- 33.
Id.
- 34.
Note that the PA was not created by Palestinians acting independently; rather, the PA was established by virtue of a series of Israeli-Palestinian agreements (the Oslo Peace Process) as an initial step to an eventual two-state solution. Palestine Facts, Israel 1991 to Present: PA Origins, What is the Palestinian Authority and How Did it Originate? http://www.palestinefacts.org/pf_1991to_now_pa_origin.php.
- 35.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 167 (July 9). Among the agreements signed between the two parties are the following: Declaration of Principles on Interim Self-Government Arrangements, Isr.-PLO, Sept. 13, 1993, 32 I.L.M. 1525; Agreement on the Gaza Strip and Jericho Area (“Cairo Agreement”), Isr.-PLO, May 4, 1994, 33 I.L.M. 622; Interim Agreement on the West Bank and Gaza Strip, Isr.-PLO, Sept. 28, 1995, 36 I.L.M. 551 [hereinafter “Interim Agreement”].
- 36.
Interim Agreement, Article 9(5). The Palestinians were permitted, however, to interact internationally with respect to “economic agreements,” “agreements with donor countries,” “cultural, scientific and educational agreements,” and the like. Id. Article 9(5)(a)–(b).
- 37.
Convention on the Rights and Duties of States Article 1, Dec. 26, 1933, 49 Stat. 3097 [hereinafter “Montevideo Convention”], available at http://avalon.yale.edu/20th_century/intam03.asp. Article 1 of the Montevideo Convention established four prerequisites to statehood: a permanent population; a defined territory; a government; and a capacity to enter relations with other States. Id.
- 38.
Interim Agreement, Article 12.
- 39.
Montevideo Convention, Article 1.
- 40.
Interim Agreement, n. 35, Article 31(7).
- 41.
Id. Articles 17(1)(a), 31(5).
- 42.
Quigley 2009, p. 7.
- 43.
Id.
- 44.
Id. p. 4.
- 45.
Id. p. 5 (citing Lewis 1989).
- 46.
Executive Office of the Secretary General, Protocol & Liaison Serv., Publication of Permanent Missions to the United Nations , at 311, U.N. Doc. ST/SG/SER.A/299 (emphasis added).
- 47.
Supra n. 14 and accompanying text.
- 48.
- 49.
Id. (citations omitted).
- 50.
Id. (emphasis added). But see Crawford 2006 [“Applying the Montevideo Convention in accordance with its terms, Palestine before 1993 could not possibly have constituted a State. Its whole territory was occupied by Israel which functioned as a government there and claimed the right to do so until further agreement. The PLO had never functioned as a government there and lacked the means to do so, given strong Israeli opposition.” (emphasis added)].
- 51.
Quigley 2009, pp. 6–7 (citations omitted).
- 52.
U.N. Charter Article 4, para 1 (noting that membership is available to “peace-loving States” (emphasis added)).
- 53.
Publication of Permanent Missions to the United Nations,supra n. 46, p. 310.
- 54.
Id. at 311 (emphasis added).
- 55.
As noted above, Professor Quigley was correct in stating that the UN adopted “Palestine” to replace the prior designation “Palestine Liberation Organization” in 1988. “Palestine” has thus enjoyed observer status since that time. However, the PLO began enjoying observer status in 1974. Observer Status for the Palestine Liberation Organization, G.A. Res. 3237 (XXIX), U.N. Doc A/RES/3237 (Nov. 22, 1974). The important thing to note is that, throughout its history, the PLO and “Palestine” have never been regarded as anything but ‘entities’ by the UN.
- 56.
Quigley 2009, p. 4. At best, Palestine can be considered an ‘incipient’ or ‘emerging’ State—not a full-fledged State—whose ultimate statehood depends on the outcome of the ongoing Israeli-Palestinian peace process, one of the goals of which is the eventual establishment of a Palestinian State.
- 57.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, June 15 to July 17, 1998, Official Records, at 5, 44, U.N. Doc. A/CONF.183/13 (vol. II) (2002), available at http://untreaty.un.org/cod/icc/rome/proceedings/E/Rome%20Proceedings_v2_e.pdf.
- 58.
Id. p. 44.
- 59.
United Nations Preparatory Commission for the International Criminal Court, New York, Apr. 8–19, 2002, List of Delegations, at 10, U.N. Doc. PCNICC/2002/INF/6 (Apr. 30, 2002) (emphasis added), available at http://daccessdds.un.org/doc/UNDOC/GEN/N02/401/72/IMG/N0240172.pdf?OpenElement.
- 60.
International Criminal Court, Assembly of States Parties, New York, Feb. 9–13, 2009, Delegations to the Second Resumption of the Seventh Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, at 50, U.N. Doc. ICC-ASP/7/INF.1/Add.2 (Mar. 26, 2009), available at http://www.icc-cpi.int/iccdocs/asp_docs/ICC-ASP-7-INF.1-Add.2.pdf.
- 61.
Rome Statute Article 12(3).
- 62.
2004 I.C.J. 136. This opinion is quite controversial and has been extensively criticized. Nevertheless, it is noteworthy for confirming that no Palestinian State existed in 2004, despite the 1988 declaration of statehood by the Palestinian National Council.
- 63.
Id. p. 194.
- 64.
Id. (emphasis added).
- 65.
Id.
- 66.
Id. p. 251, Elaraby, separate opinion (citations omitted) (emphasis added). Judge Elaraby’s concurrence is especially significant for noting that no Palestinian state has existed since 1948, when the British Mandate ended and British troops departed Palestine. That conclusion also contradicts Professor Quigley’s assertions about the importance and impact of the 1988 declaration of statehood. See Quigley 2009, pp. 4–5.
- 67.
See Quigley 2009, p. 3.
- 68.
Id. (quoting Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field Article 60, Aug. 12, 1949, 75 U.N.T.S. 31; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Article 59, Aug. 12, 1949, 75 U.N.T.S. 85; Convention Relative to the Treatment of Prisoners of War Article 139, Aug. 12, 1949, 75 U.N.T.S. 135; Convention Relative to the Protection of Civilian Persons in Time of War Article 155, Aug. 12, 1949, 75 U.N.T.S. 287).
- 69.
Quigley 2009, pp. 3–4 (quoting Note of Information, Government of Switzerland, Berne, Sept. 13, 1989).
- 70.
Id. p. 4.
- 71.
Id.
- 72.
Id.
- 73.
Id. p. 7.
- 74.
Supra n. 69 and accompanying text.
- 75.
E.g., supra nn. 46–56 and accompanying text.
- 76.
- 77.
Professor Quigley fails to mention the fact that the PA has acceded to the terms set forth in the various arrangements which form the centerpiece of the ongoing peace process; terms by which Israel retains the key indicia of sovereignty over the West Bank and the Gaza Strip. See Supra Sect. 11.2.3.
- 78.
Quigley 2009, pp. 8–9.
- 79.
E.g., Mandate for Palestine Article 7, League of Nations Doc. C.529 M.314 1922 VI (1922), available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/The+Mandate+for+Palestine.htm.
- 80.
If one were to argue that the Palestinian Jews’ acceptance of the partition plan constituted the waiving of any future legal claim of sovereignty over any remaining portions of Palestine, it would logically follow that the Palestinian Arabs’ rejection of sovereignty over the portions allocated to them by the plan would likewise have a legal effect on their sovereign rights over such territory.
- 81.
Quigley 2009, p. 5 (“The normal requirement of effective control over territory is applied less strictly if no competing entity claims title. With Gaza and the West Bank, there were no competing claimants.” [citing Crawford 2006, p. 59)]. Professor Quigley’s assertion that there were no competing claimants is simply incorrect. Recall that Israel (the Jewish Palestinian successor State to the British Mandate) claims the City of Jerusalem (including East Jerusalem, which is part of the West Bank) as its historic capital, see Friedland and Hecht 2000, and that UN Security Council Resolution 242 foresees that final territorial questions (including the issue of establishing defensible boundaries) will be resolved as part of the final negotiations to resolve the Israeli-Palestinian conflict, including acquisitions of land by Israel on the West Bank. See Rostow 1990 (responding to Roberts 1990 ) (“The right of the Jewish people to settle in Palestine has never been terminated for the West Bank.”). See generally Rosenne 2008, http://www.defensibleborders.org/db_rosenneb.pdf. Further, there have been—and continue to be—segments of Israeli society that continue to view “Judea and Samaria” as areas promised to the Jews by the Balfour Declaration (which was, in turn, made part of the World War I peace treaties as well as part of the British Mandate). See, e.g., Arens 2009 (“[A] reading of that convention and an acquaintance with the history of Palestine since the Balfour Declaration and the League of Nations Mandate for Palestine, as well as with the circumstances of the occupation of Judea and Samaria by the Jordanian army in the years between 1948 and 1967, make it clear that that Geneva Convention is not applicable to Israel's presence in these territories.”).
- 82.
See supra n. 80.
- 83.
Even noted Palestinian supporter, Professor Avi Shlaim, admitted as much. See, Attapatu 2004 (“[T]he Palestinians have never exercised sovereignty over the land in which they lived…”). For further support, see supra nn. 34–35 and 38–39, and accompanying text.
- 84.
Sayigh 1999.
- 85.
Id. p. 16.
- 86.
See, e.g., Sharon 2009 (noting that “saying that the territories were occupied by Israel ‘could conceivably be interpreted as a renunciation of sovereign rights by Israel to the areas [since] one does not “occupy” one’s own territory’”). An additional Israeli concern is that saying that the territories were occupied by Israel “could be construed as acceptance of the 1949 ceasefire lines as international borders.” Id. at 155. This latter point, once again, refutes Professor Quigley’s assertion that there is no other claimant to “Palestinian territory,” since Israel will doubtless seek to negotiate “defensible boundaries” (meaning boundary adjustments that will modify the 1949 ceasefire line in Israel’s favor) pursuant to UN Security Council Resolution 242. See also Arens 2009.
- 87.
For an interesting, in-depth discussion of this topic, see generally Sharon 2009.
- 88.
Sharon 2009, pp. 153–54. Sharon continues:
“Upon assumption of control of the territories, Israel had to make a decision as to the applicable law. There were several reasons for Israel not to wish to view the captured territories as occupied, and therefore subject to the provisions of the Fourth Geneva Convention. From a legal standpoint, Israel took the view that in the absence of a prior sovereign, Israel’s control of the West Bank and Gaza did not fall within the definition of “occupation” inasmuch as a fundamental premise of the law of occupation—a prior legitimate sovereign—was lacking.
Israel’s argument concerning de jure application of the law of occupation did not, however, deter it from declaring its intention to act in accordance with customary international law and the humanitarian provisions of the Fourth Geneva Convention… This intention seems consistent with the view of [Yehuda Z.] Blum:
The conclusion to be drawn from all this is that whenever, for one reason or another, there is no concurrence of a normal “legitimate sovereign” with that of a “belligerent occupant” of the territory, only that part of the law of occupation applies which is intended to safeguard the humanitarian rights of the population”. Id. (citations omitted).
- 89.
SupraSect. 11.2.3.
- 90.
A specific example that is included under the Interim Agreement should serve to illustrate this point. The West Bank is divided into three types of Areas, designated A, B, and C. Interim Agreement, supra n. 35, Articles 3(1), 9(2). The degree of PA control varies in each area, with the most control in Areas A and the least control in Areas C. See Id. Even in Areas A, where the PA exercises the most control, the PA still does not control individual Israelis in such areas, and it does not control the airspace or external security. Id. Articles 5(2)(a), 8(1)(a), 13(4). In Areas B, the PA controls public order and civilian affairs of Palestinian residents, but Israel retains control of Israelis and all airspace, security, and so on. Id. Article 5(3). In Areas C, Israel continues to exercise control over most governmental fields. Id. Taken together, Areas A and B constitute approximately 40% of the entire West Bank; Areas C constitute the remainder, which remains under virtually total Israeli control. The Gaza Strip is currently under total Hamas (not PA) control, and the Hamas leaders who govern Gaza openly oppose the PA and its authority. Erlanger 2007; see also BBC News 2009 (detailing Hamas’s restoration of order following an insurrection in southern Gaza).
- 91.
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Ash, R.W. (2011). Is Palestine a “State”? A Response to Professor John Quigley’s Article, “The Palestine Declaration to the International Criminal Court: The Statehood Issue”. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_11
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