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By John Cerone
On November 29, 2012, the United Nations General Assembly voted to accord Palestine the status of Non-Member State observer. As a formal matter, Palestine’s designation has changed from that of an observer “entity” to that of an observer “state.” In terms of Palestine’s rights of participation in the General Assembly, the resolution changes little. The significance of the resolution lies in its broader impact on the question of Palestinian statehood in international law.
This Insight provides follow-up to the 2011 Insight by examining the significance of the vote in the context of the United Nations as it affects the broader issue of statehood. It concludes with a discussion of implications for possible investigation and prosecution by the International Criminal Court (“ICC”).
Statehood, UN Membership & Observer Status
As described in the 2011 Insight, the issues of statehood and UN Membership are distinct. UN Membership is regulated by the UN Charter in conjunction with the practice of the Organization and its Members. Palestine has never been a Member State of the UN.
However, apart from Membership in the Organization, the UN provides for other forms of participation in its activities. Although not provided for in the Charter, the UN has developed a practice of admitting states and certain other entities and organizations to observer status. Observers have various rights of participation in UN deliberations, but may not vote. Until November 29, 2012, Palestine had the status of an observer “entity.” It now has the status of observer state, or in the words of the UN Protocol Office, “Non-member States having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and maintaining permanent observer missions at Headquarters.”
The issue of statehood is regulated by general international law. Recognition of statehood by other states is generally not required for a state to come into being. However, collective recognition or non-recognition by an overwhelming majority of states may influence the question of the existence of a state by influencing the application and appreciation of the Montevideo criteria. Collective recognition could perfect an otherwise imperfect fulfillment of the criteria, and, alternatively, collective non-recognition could effectively prevent the fulfillment of the criteria.
If Palestine is a state, then it is entitled to all of the rights and subject to all of the duties of states under international law. These rights include immunities of the state and its officials, protection from the use of force by other states, the right of self-defense and collective self-defense in the event of an armed attack against it, plenary jurisdiction over its territory, the prohibition of intervention in matters essentially within its domestic jurisdiction, the possibility of membership in other intergovernmental organizations and specialized agencies, and full treaty-making capacity. Statehood could also provide access to international courts and other dispute settlement mechanisms, including the International Court of Justice.
The General Assembly VoteOn September 23, 2011, Mahmoud Abbas, President of the Palestinian Authority, presented to the UN Secretary General an application for Palestine to be admitted to the UN as a Member State. While that effort has not moved forward, blocked in the Security Council, other efforts have. For instance, on October 31, 2011, Palestine was admitted to the United Nations Education, Scientific, and Cultural Organization (“UNESCO”), a specialized agency of the United Nations, as a Member State.
In the resolution adopted on November 29, the General Assembly, inter alia, “[r]eaffirms the right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967” and “[d]ecides to accord to Palestine non-member observer State status in the United Nations, without prejudice to the acquired rights, privileges and role of the Palestine Liberation Organization in the United Nations as the representative of the Palestinian people, in accordance with the relevant resolutions and practice.” The resolution also “[e]xpresses the hope that the Security Council will consider favourably the application submitted on 23 September 2011 by the State of Palestine for admission to full membership in the United Nations” and “[u]rges all States, the specialized agencies and organizations of the United Nations system to continue to support and assist the Palestinian people in the early realization of their right to self-determination, independence and freedom.”The resolution does not enumerate any expanded rights of participation in the UN system. In this sense, the resolution is largely symbolic. Indeed, prior to its designation as an observer state, Palestine already enjoyed rights of participation in the General Assembly comparable to those of an observer state.
Nonetheless, the mere fact that the resolution was adopted constitutes a determination by the UN’s most representative political organ that Palestine is a state. By adopting a resolution that has little concrete significance within the framework of its own work, the General Assembly made clear that in according Palestine the status of an observer “state” it was signifying something beyond rights of participation. The issue of the day was statehood, not enhanced procedural rights in the political organs of the United Nations.
As for the vote, the General Assembly resolution enjoyed broader support than did the UNESCO resolution. Of the Assembly’s 193 Member States, 138 voted in favor of the resolution, nine voted against, forty-one abstained, and five did not record any vote (owing to absence or otherwise). The 138 ‘yes’ votes comprised a broad cross-section of the globe, representing all regions and levels of development. The nine ‘no’ votes consisted of Israel, Canada, the Czech Republic, Panama, the United States, Nauru, the Marshall Islands, Micronesia (Federated States of), and Palau. Thus, the ‘yes’ votes greatly outnumbered the ‘no’ votes, and were representative of all regions. Weighing against these considerations is the significant number of abstentions, constituting just over 20% of the membership. In addition, several of the states that voted in favor of the resolution underscored that statehood could only be achieved through dialogue between the parties, implying that Palestine had not yet achieved statehood.
While this vote certainly bolsters the claim that Palestine is a state, it might not be sufficient to cure any defects in Palestine’s satisfaction of the Montevideo criteria.
As noted above, one sensitive issue is whether Palestine can consent to the exercise of ICC jurisdiction over conduct that took place in Gaza and the West Bank. Article 12(3) of the ICC Statute allows a “State which is not a Party to this Statute” to accept the exercise of the Court’s jurisdiction over crimes committed by its nationals or within its territory. During the Israel–Gaza armed conflict in late 2008 and early 2009 (“Operation Cast Lead”), the Palestinian National Authority lodged a declaration with the ICC Registrar stating that it recognizes “the jurisdiction of the Court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002 [the entry into force date of the Rome Statute, the treaty establishing the ICC].” If Palestine is a state, it can enable the ICC to exercise jurisdiction over crimes committed on its territory, even if those crimes have been committed by nationals of states that are not States Parties to the Rome Statute, such as Israel.
After the Palestinian Authority lodged its declaration with the ICC Registrar, the ICC Prosecutor reported that he was examining “first, whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements, and second, whether crimes within the Court’s jurisdiction have been committed.” The phrase “statutory requirements” presumably includes the question of whether or not Palestine is a “state” for the purposes of Article 12(3).
On April 12, 2012, the Office of the Prosecutor of the ICC (“OTP”) released a statement indicating that it, for the moment, would not be considering allegations of crimes committed in Palestine. The analysis referred, inter alia, to the practice of the UN Secretary-General as treaty depositary and noted in particular that “the current status granted to Palestine by the United Nations General Assembly is that of ‘observer’ (sic), not as a ‘Non-member State’”
The statement concluded that the OTP “could in the future consider allegations of crimes committed in Palestine, should competent organs of the United Nations or eventually the Assembly of States Parties resolve the legal issue relevant to an assessment of article 12 or should the Security Council, in accordance with article 13(b), make a referral providing jurisdiction.”
The Prosecutor’s reference to the treaty practice of the United Nations may add some weight to the significance of the UNESCO and General Assembly votes. As with UN membership, the issue of treaty participation is distinct from the question of statehood. Negotiating states can decide to make treaty participation available to entities other than fully independent or UN Member States. Even where the text of a treaty limits participation to states (as does the ICC Statute), there may be a grey zone in which the treaty depositary is afforded a degree of discretion. On this latter point, the Prosecutor’s statement refers to an understanding adopted by the General Assembly at its 2202nd plenary meeting on December 14, 1973.
According to that understanding, “the Secretary-General, in discharging his functions as depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.” The OTP essentially used this understanding as a justification for punting the issue to the political organs of the United Nations, stating 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....”
In any event, the General Assembly has now determined that Palestine is a state. Given the OTP’s reliance on the practice of the Secretary General as treaty depositary and, in turn, on determinations by the “competent organs” of the United Nations, and by the General Assembly in particular, it would now seem more difficult for the OTP to maintain the position that it may not proceed with an examination of international crimes alleged to have been committed in Gaza and the West Bank. The pressure on the OTP to move forward will further increase if the situation in Palestine is referred to the OTP by a State Party to the ICC Statute.
It should be noted, however, that the ICC has a new Prosecutor and she may reject the approach of her predecessor. The OTP might rely less on the practice of the Secretary General as treaty depositary and political determinations by the General Assembly, and instead frame the issue purely in terms of general international law, assessing the General Assembly vote through the lens of recognition rather than giving it determinative weight.
In addition, even assuming that Palestine is a state for the purposes of Article 12(3), there remain a number of unresolved legal issues. Even if Palestine is now a state, was it a state at the time that it lodged its declaration of consent? Is it necessary that Palestine have been a state at that time, or is it sufficient that it is now a state? Could Palestine now submit a new declaration of consent with respect to past conduct? While Article 12(3) contemplates declaring consent in relation to prior conduct, is it necessary that Palestine have been a state at the time of the alleged conduct?
As a practical matter, these legal ambiguities afford the ICC a degree of latitude in deciding whether to move forward. However, they also allow room for political choices. The challenge for the ICC will be to demonstrate that its decision is not a political choice, but that it is the result of legal analysis. Whatever decision it makes, it will likely be decried as a political choice by the opposing camps (either as yet another example of anti-Israel bias in international organizations or as caving to political pressure exerted by the United States). It will thus be all the more important for the ICC to provide a thorough, well-reasoned legal analysis in support of its course of action.Ultimately, whether or not the General Assembly vote was sufficient to affirm the statehood of Palestine in general or to satisfy statutory requirements in the context of the ICC, it will likely have a snowball effect. The resolution increases the ability of Palestine to act like a state. The more it does so, the more clearly Palestine will satisfy the criteria for statehood. The train to statehood has clearly left the station.
About the Author:
John Cerone, an ASIL member, is Professor of Law and Director of the Center for International Law & Policy at New England Law | Boston.