Justice, politics and the ICC in Palestine : a normative analysis of the Palestinian declaration to the International Criminal Court

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The Politics of International Law

Justice, Politics and the ICC in Palestine

A normative analysis of the Palestinian Declaration to the International Criminal Court

Fnaan Woldegiorgis University of Amsterdam

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| 1 Front page: Logo of the Palestine Solidarity Alliance (PSA), a South African based solidarity movement

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“The time is always right to do what’s right.” Dr. Martin Luther King Jr.

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University of Amsterdam

GSSS Graduate School of Social Science Political Science | International Relations

Master Thesis | Justice, Politics and the ICC in Palestine June 2014

F. A. Woldegiorgis 10469818

Supervisor: mw. dr. S. (Sara) Kendall Second reader: mw. dr. D. (Daniela) Obradovic

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Acknowledgement

To my parents who have done everything in their capacity to bring me where I am today,

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Abbreviations

IBAN The International Bank Account Number

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice

NGO Non-Governmental Organization

OTP Office of the Prosecutor

PA Palestine Authority

PLO Palestine Liberation Organization

PNA Palestine National Authority

Rome Statute Statute of the International Criminal Court

UN United Nations

UNESCO United Nations Educational, Scientific and Cultural Organization

UNGA United Nations General Assembly

UNHRC United Nations Human Rights Council UNSC United Nations Security Council

UPP UNESCO Programme for Palestine

WHA World Health Assembly

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Chapter 1. Introduction

On 29 November 2012 an overwhelming majority of the UN General Assembly voted -138 in favor to 9 against- to recognize Palestine as non-member observer state. “The moment has

arrived for the world to say clearly: enough of aggression, settlements and occupation,” said

Mahmoud Abbas, President of the Palestinian National Authority, when addressing the General Assembly (General Assembly GA/11317, 2012). In spite of the upgrade detractors have been saying that the change at the General Assembly will not help the Palestine Authority (PA) accomplish their desirable goals, referring to issues like the settlement expansion, restriction on movement by Israel and the division between Gaza and the West Bank. Others have labelled the new status symbolic (BBC, 2012). One thing is certain, the status upgrade will change the legal position of Palestine in terms of state recognition and statehood. In addition it will affect their relationship with respect to organizations like the International Court of Justice (ICJ) and the International Criminal Court (ICC or The Court), who have been struggling with the ‘statehood’ question of Palestine and whether they are not overstepping their jurisdiction as a Court.

After the 22-day Gaza War in 2008-2009, Palestine sought the ICC’s jurisdiction in January 2009 (Human Right Watch, 2013). Palestine Minister of Justice Ali Khashan declared that they would recognize the jurisdiction of the ICC for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002 (ICC, 2009). On 3 April 2012 the Office of the Prosecutor at the ICC however concluded that for the time being, the Court could not consider the declaration made by Palestine because the prosecutor could not decide whether Palestine was a state

(ICC, 2012).

As laid out in the ICC Statute the main preconditions for the Court to exercise her jurisdiction are: 1) that a State becomes a Party to the Statute and thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 51 or 2) that a non-party to the Statute declares to accept the exercise of jurisdiction by the Court with respect to the crime in question (Rome Statute, 1998: art. 12). Because Palestine declared to accept the Rome Statute, the Court started a preliminary examination in order to determine if they could proceed with the investigation. However the ICC encountered their first dilemma when they had to determine if they could exercise their jurisdiction under article 12, or even article 13,

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as these articles referred to ‘states’. The state needs to deliver an instrument of accession with the Secretary-General of the United Nations, which is problematic in the case of Palestine as they were not a member of the United Nations (ICC, 2012). Without knowing if Palestine is a state or not the Court cannot decided if they can exercise their jurisdiction. In addition to that the ICC does not have the power to determine the boundaries of states, and certainly not in this case where the territory is still under dispute (Kontorovich, 2013: 984). The Office of Prosecutor (OTP) therefore decided that the issue of Statehood of Palestine under article 12 of the Rome Statute needed to be determined by the relevant bodies of the United Nations (ICC, 2012).

Now that Palestine has been granted non-member observer status this has shifted their relation with respect to the UN and made Palestine receive collective recognition within the international community. The first question that comes to mind is whether the vote by the General Assembly (GA) has influence on the decision made by the OTP earlier that year regarding Palestine’s declaration. Not only can the GA resolution change the OTP’s determination regarding the preliminary examination, it could also affect possible ratification of the Rome Statute by the State of Palestine. However until today Palestine has not made any movement towards the OTP regarding the decision made in 2012 nor did they give a sign that they want to ratify the Statute. Possible seasons for this could be that leading towards the UN voting in 2012, Palestine received pressure from among others Israel, the United States and Great Britain stating that Abbas should not use the possible new status to pursue legal action against Israel for its conduct in the occupied territories (Al Jazeera, BBC, 2012).

The GA/11317 resolution was adopted after the OTP decision on Palestine in April 2012, however there were other factors that could, and should, have changed the determination of the ICC Prosecutor. Both scholars as (non-governmental) organizations within the field of International Relations and Public International Law have analysed these different factors and argued why these should or should not have been considered by the ICC before coming to a decision. This thesis will follow the arguments produced by both fields before, during and after the declaration by Palestine at the International Criminal Court and try to fill the gap in perspective. Moreover this thesis will argue that the Office of Prosecutor at the ICC should have used a more functional approach when dealing with the ‘statehood’ issue of Palestine.

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1.1 Research Question

This thesis aims to analyse the statehood of Palestine’s through the lens of an international legal organization. The statehood of Palestine in relation with the ICC is an issue that should not only be analysed from an international law or political perspective, but very much needs an overarching view to fully understand the decision making process of the International Criminal Court. Furthermore this research is to look at the dilemma of statehood through both lenses in order to show the difference in approach and moreover to address the gap in literature reviews by both disciplinary. By analysing the statehood issue through these particular frameworks, this thesis aims to answer the following question:

‘In how far should the ICC adopt a functional or traditional approach when it is faced with political laden questions like ‘statehood’ and how could this choice effect their legitimacy as an international legal court?’

What is remarkable in Palestine’s statehood issue is that both legal and political scholars have been looking at the case from the perspective of their own disciplines, depriving themselves of a complete understanding of the issue. By joining both perspectives I hope to present an overarching view that will equally represent both disciplines arguments. This could lead to a better understanding of the legal and political dilemma’s Palestine is facing in their attempt to hold Israel accountable for the committed war crimes, in addition it is certainly a political strategy in their journey to international recognition as a state.

Since 1947 political violence has determined the discourse between both the Palestinian representatives and the Israel government. With the appointment of Mahmoud Abbas however Palestine’s political strategy started changing, the discourse of violence made place for diplomacy. One of the most important goals was receiving international recognition which is a crucial step in order to be accepted as a state. The framework and preconditions within the international legal system however has made it difficult for Palestine to be even admitted and participate in this system. Therefore I hope this research will lead to a discussion supporting a more flexible approach when determining the relevance of the status of an entity for the purpose of participating in international organizations. Especially when it involves international justice and the violation of human rights. While some scholars and NGO’s have been arguing for a flexible approach by these organizations, the truth remains that the system of international organizations is state-centric and that this caused for the

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institutions to lose sight of what is really important which is holding perpetrators accountable for their committed crimes(Kearny & Reynolds, 2013: 429).

The social relevance of this thesis is equally of great importance. Kearny and Reynolds (2013) stated that it will not end the occupation on Palestinian territories nor will it directly lead to statehood. And while that may be true I hope that recognition during the 2012 UN bid has given the Palestinian National Authority the needed confidence to keep following a diplomatic course to recognition and statehood. Indeed the impact on the daily lives of Palestinians and Israelis living in the troubled areas will not be large. However their struggle and moreover the Palestinian exclusion in the international community should give us a feeling of remorse for the civilians and demand change at the address of our own leaders.

1.2 Outline of the thesis

This research is structured as followed. Chapter two consist of the theoretical framework and will explain the standards which scholars from international law and political science disciplinary mainly have used when analysing questions regarding state recognition, and statehood. Chapter three will look at the Palestinian declaration at the ICC through a legal frame and moreover analyse the reaction of the OTP. Chapter four will analyse the same declaration from a political perspective and will moreover argue why the legal framed decision made by the OTP was political determined. The fifth chapter will focus on international institution who have had to deal with the statehood issue in the past and further analyse Palestine’s strategy of receiving recognition through international institution. Finally the conclusion will summarize the thesis and argue why the ICC should use a more functional approach in the future for the purpose of exercising their jurisdiction under article 12 of the Rome Statute.

1.3 Methodology

The thesis engages with the declaration Palestine made at the address of the International Criminal Court in 2009, and with the reply statement given by the Office of the Prosecutor of the ICC in 2012. In the analysis of the chapters multiple perspectives from international law scholars, political scientist, lobby groups and NGO’s are weighted against each other. This information has been detracted from legal documents from among others the United Nations, and the ICC. In addition I have consulted the conventions, manuals, charters and statutes of all mentioned international organizations for a better understanding of their conduct of

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admission.

The reason for bringing the two disciplinary of international law en political science together in a case of the International Criminal Court is because the general opinion is that institutions of justice should stay independent from political disputes. The ICC however has been constructed in a way which makes it impossible not to get involved win the middle of political issues, even though the Court disclaims it is not political bias.

During her existence the ICC has never had a problem of jurisdiction as the cases were referred by state parties or by the United Nations Security Council. During this thesis I will analyse the conclusion of the OTP regarding the Palestinian declaration to the Court and show that scholars from both fields have been discussing this topic, and argued for or against a traditional approach in assessing whether Palestine would fit as a state for the purpose of the Rome Statute.

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Chapter 2. Theoretical Framework

Throughout several centuries of many wars, invasions and colonization 1648 was marked by International Relation scholars as the start of the creation of an international system and diplomatic relations between states. The Peace of Westphalia introduced among others the principle of sovereignty and legal equality between states. Now for a long time the right to exist has been self-evident for many states in the world. However questions regarding statehood are still arising in complex legal and political situation. Think about the dissolution of existing states into new states like happened with Yugoslavia and the Soviet Union, the fusion of states parts like in Germany or the United Arab Emirates, and of course the ending of the occupation in East Timor.

The concept of statehood has a central place in the structure of international law and international relations. Admission to international organizations like for example the United Nations is only allowed to peace-loving states, this makes Palestine’s international legal capacity next to impossible as it has not been recognized by the organization yet as a state (UN Charter, art. 4). It is certain that the difficulties regarding the statehood of Palestine and, as a result of, her international participation cannot be analyzed without deeper understanding of what it takes to be a state (Crawford, 1977: 93-94). This requires among others the explanation of concepts like state recognition and having international legal personality. The examination of these concepts makes it possible to look at the implicit involvement of international organizations when it comes to state creation (Crawford, 1977: 94, Vidmar, 2013: 2). Involvement that, especially in the case of Palestine, has developed into a problem on institutional level and rapidly has become a disputed area both in political and legal discourse (Vidmar, 2013: 3). In the process of Palestine striving to state recognition it has become clear that we find ourselves in a political process ruled by realist principles in an anarchic world while the international legal framework is in need of more clear rules about statehood. This chapter will present an overlapping framework joining both legal and political themes which will be the basis for analyzing the implications in regard to the statehood of Palestine and the. Furthermore I will explain the traditional and functional approach of assessing statehood for the purpose of participating in international organizations.

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2.1 The concept of personality in international law

James Crawford (2007) defined the term ‘international personality’ as ‘the capacity to be bearer of rights and duties under international law’ (Crawford, 2007: 28). Nevertheless this rather broad conception of personality, difficulties arose when the question was asked ‘who has international rights and duties’? It was clear that more clarification was needed in order to define legal personality through the system of international law. Therefore Dixon referred to it as a body or entity recognized or accepted as being capable of exercising international rights and duties (Dixon, 2013: 116). It is still a broad conception of personality, however it gives us the chance to look for the subjects active within international law.

During the beginning of formation of modern international law mid-19th century scholars like Oppenheim thought of the international legal system, as an environment that restricted international personality only to states. Other entities could only, fully, exist as nationals of a state (Portmann, 2010: 42). This international system consisting of only states became a community where you only could participate if you are recognized by the existing members as a state. These states enjoy full and unlimited international legal personality as an inherent attribute of their statehood. Furthermore there is no superior entity above state level (Portmann, 2010: 43). Finally international legal personality could not be established within a national law and because state organs or regional and local entities are part of national law this makes it impossible for them to enjoy international legal personality, and thereby cannot have rights and duties under international law and cannot be held responsible for a breach thereof (Portmann, 2010: 19). For the convenience of explaining international legal personality, let’s not put too much emphasis on the meaning of ‘recognition’ in international law which naturally will be explained in the next paragraph given the importance of the concept.

Important characteristics of an international legal person are firstly, the ability to make claims before international tribunals in order to vindicate rights given by international law. Secondly, these entities can be the subject of international legal obligations. Thirdly, legal personalities have the ability to enter into international agreements, treaty making powers, that are binding under international law. Fourthly and last, entities with legal personality are able to enjoy immunity from national legal instances (Dixon, 2013: 116). Throughout the development of the international law we learned that even today the concept of international legal personality is still not absolute. Within the current legal system we can see that beside states also international organizations like the United Nations have been

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recognised as an entity with full legal capacities. However these entities with legal personality enjoy their rights in different ways and above all enjoy their personality in such a way that it meets their use of purpose and can help them achieve their role within the system of international law. Easily put the extent of the powers, rights and responsibilities of any entity is to be determined only by examination of its actual position (Crawford, 2007: 30).

The listed capacities of entities with international legal personality lead up to maybe an even more relevant question, how does one achieve this status? During international legal matters the question of legal personality has mostly determined the start of an analysis and eventually its outcome (Portmann, 2010: 19). When the United Nations was established in 1948 the questions with respect to the organizations legal personality included if they could bring a claim to itself and others (Crawford, 2007: 29). This question was eventually referred to the International Court of Justice by the General Assembly and concerned the reparation for injuries suffered in the service of the United Nations (ICJ, Reparation for injuries, 1949). The assembly seek an advisory opinion regarding the question:

“I) In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him?”

“II) In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?”

Obviously the importance of this question was whether the United Nations as an international organization would have the capacity to bring an international claim, because customary states were the only entity who have the capacity to bring an international claim to one another. After evaluating the UN’s intentions and characteristics however the ICJ gave an affirmative answer, stating that firstly, the United Nations had the capacity to bring an international claim in respect of the damages caused to the organization and secondly, by 11 votes against 4, that the Organization had the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations (ICJ, Reparation for injuries, 1949). This statement leads to a distinction of international legal personality that Dixon

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(2013) labeled as ‘original personality’ and ‘derived personality’. In this context international legal personality belongs to states ipso facto once they meet the criteria for statehood while derived personality is earned when states give recognition to other entities and that these other entities are legal competent within international law (Dixon, 2013: 116).

Because of these variations it cannot be stressed enough that the concept of international legal personality is one that needs careful approach and remains a relative concept. Especially when it comes to defining the measures of personality the different ‘subjects’ have within international law.

2.2 The criteria for Statehood

The discussion concerning the criteria for statehood in general starts with the basics that are described in article 1 of the Montevideo Convention on Rights and Duties of States. A state, which is one of the subjects 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 the other states (Montevideo Convention, 1933: art. 1). The purpose of article 1 was to make clear that any territorial entity with a population and a government capable of relating to other states should be free from intervention (Quigley, 2010: 207). While these criteria are still highly valued when assessing statehood within International Law I do not want to put too much emphasis on them. I will certainly not argue that we need to completely abandon these criteria for the sake of Palestine fitting within this definition of statehood. However I want to emphasize that times are changing and that our state-centric system of international organizations, and especially organizations dealing with international health and justice, should not put too much weight on criteria like Montevideo but look back to the purpose of the organization and how an entity could be part of this goal. Nevertheless we will look how Palestine is currently fulfilling the conditions under the Montevideo convention.

The most debated Montevideo criteria’s in the case of Palestine have been the factors concerning territory, the control of the Palestine government and whether they have the capacity to enter into relations with others. The ICC stated that in the submissions they received after the Palestine declaration, the only criteria where it was agreed that Palestine met the condition was the population criteria (ICC, 2010). The discussion between scholars and NGO’s on the other criteria is obviously relevant for the recognition and statehood discussion of Palestine, however in this case where we are looking at the declaration of Palestine at the ICC and the arguments from the OTP why it has no jurisdiction the more

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relevant question lies in how did they interpreter the terms of statehood. Discussing about the interpretation of statehood have been divided in two kinds of approaches which have been labelled as the ‘functional’ approach and the ‘traditional’ approach.

2.2.1 The Classical and Functional Approach of Statehood

The classical approach as the word might already tips off uses the 1933 Montevideo Convention as the fundamental criteria for interpreting the statehood of an entity. This contemporary approach has also been referred to by scholars as the traditional, strict or orthodox approach (Kearny and Reynolds, 2013: 421).

On the other hand the functional approach of assessing statehood has argued that the OTP should use a determination of the term state that would fit within the purpose and proceedings of the Rome Statute which is ensuring international justice. They have been arguing over the relevance of the Montevideo criteria at the ICC (Pellet, 2010: 983; Dugard, 2013: 566). The discussion that has kept scholars and relating parties busy is which approach the OTP should adopt when analyzing the Palestinian declaration.

2.3 Recognition and Statehood

Historically the status of statehood was granted when a state or government was recognized. It meant that the state fulfilled the conditions of statehood that are required by international law. The most common definition of recognition is certainly the one stated by Oppenheim (1905) who has defined it as;

“[…] a declaration, on the part of the recognizing State, that a foreign community or authority is in possession of the necessary qualifications of statehood, of government capacity, [..] these qualities are not necessarily enduring for all time. A State may lose its independence; a government may cease to be effective; […] in all these cases withdrawal of recognition is both permissible and indicated.”

The creation of new states is seen as a matter of law, and not fact, and through this recognition the state automatically would become a subject of international law (Oppenheim, 1905: 264; Hillgruber, 1998: 492). However did it not matter how the state had become a state or how it had acquired her territory, this was not of importance to traditional international law (Crawford, 1977: 98-99). In contrast to the conditions used during most of the nineteenth century, modern international law has made a distinction within the terms of recognition which may be either de jure, as of right, or de facto which accepts the fact. While

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a new state would be recognized either way, the term de facto implies that the way the state was created was not conform international law but it should still be treated as an subject of international law (Dixon, 2013: 131).

Over time the act- and legal effects of recognition have been more the subject of analysis rather than the criteria for recognition (Crawford, 2007: 19). This resulted in a distinction between two theories; the declaratory theory and the constitutive theory.

(i) Declarative theory

This theory basically says that the existence of legal personality of a state is not dependent upon its recognition by other states which makes the effects of recognition limited as it is nothing more than an acknowledgment of pre-existing legal capacity (Dixon, 2013: 132). Moreover a state can still have legal international personality as this does not depend on recognition by other states, therefore it is still a subject of international law and entitled to the rights and general duties of the system (Dixon, 2013: 132).

(ii) Constitutive theory

In contrast to the declarative theory, according to the constitutive theory recognition is an essential prerequisite to gain international legal personality as a state (Dixon, 2013: 133). The theory states that the rights and duties pertaining to statehood derive from recognition by other States (Crawford, 2007: 4).

Having explained the main difference between both theories of recognition you could wonder whether this distinction has been practical and is rather not confusing in the practice of daily legal situations. Furthermore the concept of recognition has a political twist and however it is a legal term the act of recognition is a political act although it may well be based on legal criteria (Dixon, 2013: 132).

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Chapter 3. The Palestinian Declaration through a legal frame

After more than three years the Office of the Prosecutor at the ICC replied on the declaration handed in on 22 January 2009 by Ali Khashan, Minister of Justice of the Government of Palestine, who in name of the people of Palestine accepted the exercise of the jurisdiction of the ICC regarding acts committed on the territory of Palestine since July 2002 (ICC, 2009). The outcome after a 39 months wait was anything but satisfactory nor significant. In a two-page update named ‘Situation in Palestine’ former prosecutor of the ICC Luis Moreno-Ocampo concluded that for the time being the Court could not consider the handed declaration of Palestine because the prosecutor could not decide whether Palestine was a state. This determination regarding statehood should be made by the United Nations Secretary-General or even be referred to their General Assembly (ICC, 2012).

The statement by the OTP raised critical questions by primarily scholars and NGO’s who hoped that Palestine’s declaration would be accepted in order to bring claims to the Court for among others the violations of human rights on Palestinian territory. Apart from why it took the OTP so long to come with an answer, question arose regarding the procedure the OTP followed in examining the situation of Palestine. This chapter will analyse the legal aspects of the ICC protocol followed by prosecutor Moreno-Ocampo when deciding on the Palestinian declaration. Thereafter arguments will be presented why these legally framed statements were actually based on political grounds.

3.1 Palestine at the International Criminal Court: “The Statehood Issue”

In 2009 Palestine turned to the ICC in order to seek justice for the Gaza–Israel conflict between 27 December 2008 and 19 January 2009. Nevertheless the short duration of the conflict, Palestine sought justice for the international crimes committed on their territory causing many civilian casualties (Human Right Watch, 2013). According to the report presented by the independent United Nations Fact-Finding Mission on the Gaza Conflict, the Mission found: “numerous instances of deliberate attacks on civilians and civilian objects

(individuals, whole families, houses, mosques) in violation of the fundamental international humanitarian law principle of distinction, resulting in deaths and serious injuries”

(Goldstone Report, 2009: 414). Furthermore the Goldstone report addressed the prosecutor at the ICC recommending to make the legal determination regarding Palestine’s declaration as quick as possible (Goldstone Report, 2009: 424). We can safely argue the recommendation remained unheard given the fact that it took the OTP three years to come to a conclusion.

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According to article 15 of the Rome Statute the first step when an entity makes a declaration is initiating a preliminary examination, this will determine if there is a basis to continue with the investigation (Rome Statute, art. 15). The preliminary examination itself again is composed of a number of steps, the first one being determining if the court has met the preconditions to exercise her jurisdiction as described in article 12 of the Courts Statute. As previously explained there are three ways to bring a case to the ICC: a) become a party to the Rome Statute, b) have a situation referred to the Prosecutor by the Security Council, or c) the Prosecutor can initiate an investigation proprio motu based on the information on crimes which are within the jurisdiction of the Court (Rome Statute, art. 12,13,15). Given the fact that the Palestine declaration was based on article 12, paragraph 3, the OTP was faced with an issue of interpretation the term ‘state’ (ICC, 2012). The OTP’s conclusion therefore came down to the following two points;

1) 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) (ICC, 2012: paragraph 6).

2) The Rome Statute provides no authority for the Office of the Prosecutor to adopt a method to define the term “State” under article 12(3) which would be at variance with that established for the purpose of article 12(1) (ICC, 2012: paragraph 6).

3.1.1 Submissions at the address of the Court

Before the ICC came with an answer on the Palestinian declaration, different concerned parties such as legal and human rights associations, scholars and (non-governmental) organizations submitted their view on the Palestinian declaration, the Court included these submissions as reference in their final statement.

The submissions were all concerned with the question if the Palestinian National Authority meets the requirements laid out by the Rome Statute. Furthermore all parties gave their view on what kind of approach the OTP should use in assessing the admissibility of the Palestinian declaration under article 12(3).

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Scholars reacted to the Court by sending their view that the Palestine Authority is not a state within the meaning of Article 12(3) of the Rome Statute and that the Court should not concern itself with declarations from entities who are not a state and therefore not meet the Rome Statute criteria (Davenport, Anderson, et al., 2009: 1). NGO Monitor argued that the Palestine National Authority did not have the competence to meet the criteria of the Rome Statute. Furthermore they stated that a possible ‘teleological or functional’ approach by the OTP was a bad attempt to push for universal jurisdiction which the Court in its origins is not (Herzberg, 2010: 1). Gregor Puppinck (2010) on behalf of the European Centre for Law and Justice expressed his concern to the ICC over possible consideration to exercises its jurisdiction in the Palestinian case as this would put the Court in the middle of political dispute and could risk to lose it legitimacy in ensuring justice. Michael Kearney (2009) wrote a position paper on behalf of the NGO Al-Haq and demonstrated that Palestine could be considered as a state for the purposes of article 12(3) of the Rome Statute.

The ICC Prosecutor not only received written arguments but also met with various parties concerting the issue, among others with the representatives of the Palestinian National Authority, representatives of the League of Arab States and different NGOs in order to discuss the jurisdiction of the Court (ICC, 2014).

After having consulted with the different stakeholders the OTP issued its decision in relation to its preliminary examination of Palestine in April 2012. The most interesting arguments of the decision were described in paragraph 5 and 6 of the document, here Moreno-Ocampo concluded that he could not determine the interpretation of the word ‘state’ and that this assessment was one to be made by the relevant body at the United Nations. The next paragraphs will argue why the used approach of the term state by the OTP was traditional. Furthermore it will explain why referring this issue of statehood to the United Nations was pointless as the assessment carried out by the UN Secretary-General is one the OTP can carry out for themselves.

3.2 Implications of Traditional and Functional Approach in Statehood

We can agree that the Rome Statute is limited in interpreting the term state and even though it makes several references to this term , the Statute does not further elaborates on the meaning or criteria of the word. Nevertheless should these limitations mean that the conceptualization of the term ‘state’ for the purpose of article 12 should be determined by another organization, in this case the Secretary-General and the General Assembly of the United States? Rather the

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OTP should have looked for internal solutions to make the an appropriate determination in the Palestinian case. Previously I explained the difference between the so called traditional approach and functional approach of the statehood issue. By stating that the determination of the term state should be made by the Secretary-General at the United Nations the ICC Prosecutor confirmed that the recognition practices and statehood criteria carried out by the General Assembly are customary when assessing statehood.

Since the creation of the United Nations the framework of the General Assembly consists of state entities. States who want to become a full member of the organization could apply for admission after a decision of the General Assembly and upon the recommendation of the Security Council (UN Charter, art. 4, paragraph 2). Besides states intergovernmental organizations have participated as observers during the General Assembly sessions and also Palestine and the Holy see have been granted the status of permanent observer (United Nations, 2014). It is however because of this practice of admission and the involvement of the General Assembly in granting entities different levels of status which has made the field of state recognition and statehood more complex. As previously indicated statehood is one of the recruitments for admission to the organization. However if a country is not a member of the United Nations this would for example not automatically mean the entity is not a state. Switzerland did not became a full member of the United Nations until 2002, however is had been recognized as an state prior to that date (Vidmar, 2013: 21).

Let's go back to referral by the OTP to the Secretary-General. The prosecutor thought that the Secretary-General or the General Assembly would be the competent body to determine Palestine’s statehood. However the United Nations has not created new criteria with regard to statehood but merely been using the criteria that have been generated by public international law and more specific the criteria under the Montevideo Convention. Therefore questions related to the definition or applicability of statehood or recognition should remain an issue of international law and the ICC should not depend on UN determination or practice.

3.2.1 Montevideo Convention: The End of the Traditional criteria?

Before I start arguing why the traditional approach used by the OTP was not the right way to go I certainly agree that the ICC as a criminal court is also not the competent body to make a determination about an entities statehood nor should it come in the middle of political disputes. However I also do not agree that practices that have become customary through the voting system at the UN General Assembly should determine statehood. In fact scholars like Crawford (1977) have argued that International Law until today has not produced a legal

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analysis nor framework which gives an entity statehood even though the Montevideo criteria have been regarded as part of customary international law (Mendes, 2010: 13).

While the Rome Statute does not define the term state the OTP should have adopted a more functional approach for the purpose of exercising its jurisdiction in the Palestinian case. Not only have these traditional criteria impeded the Court to carry out her function within the international justice system, as I will explain in the next chapter the Prosecutor stepped right in the political pitfall it wanted to avoid in the first place.

The statehood of Palestine should have been seen more in the context of the Statute. Thus the functional interpretation of the ‘state’ under Article 12 (3) should have been seen in the light of the intentions of Palestine and the purpose and principle of the ICC. This context related practice is even adopted in the 1969 Vienna Convention on Law of Treaties, where article 31(1) states the following:

‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’

This interpretation is a much more nuanced approach that makes you look at the meaning of statehood through a different lens as it here depends on the context in which statehood is in question (Mendes, 2010: 14). Furthermore if the ICC would have used this interpretation it would have prevented itself from entering a dangerous political zone.

3.3 Individual and Collective Recognition

Another interesting reference in the statement presented by the OTP is the one regarding the Summary of Practice of the Secretary-General as Depositary of Multilateral treaties, an agreement made during the 2202nd plenary meeting in 1974. During this GA meeting protocols were laid out for the practices followed by the Secretary-General. This summary also included protocol regarding which states and international organizations may become parties to treaties deposited with him. The OTP and Moreno-Ocampo were hoping that the ‘all states formula’ adopted in this summary would resolve their statehood issue in the case of Palestine (Summary of Practice, 1973: 23).

Before I analyze the enforcement of this principle I first want to devote a part to the recognition of Palestine as a state within the international community for the purpose of conducting bilateral relations with governments. The OTP acknowledged in her statement that Palestine has been recognized as a State by more than 130 governments (ICC, 2012:

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paragraph 7). Also international organizations like IBAN, Group of 77, the League of Arab States and the European Union have each in their own way a bilateral arrangement with Palestine (UN Palestine, 2014). This makes Palestine fulfill one of the most important criteria of having ‘international legal capacity’.

So the OTP is aware of what I personally might call the recognition of Palestine for the purpose of bilateral relations, nevertheless the statement continued by putting an emphasis on the Status of Palestine at the United Nations which during the statement was still that of a ‘observer’ and not of a ‘non-member state’. Because Palestine had been admitted to UNESCO as a full member prior to the OTP’s conclusion, the Prosecutors analysis was still incorrectly as the OTP based her referral to the Secretary-General on the ‘all state formula’ while Palestine clearly was a case that needed to be looked at through the ‘Vienna formula’.

3.3.1 The All State Formula v The Vienna Formula

Let's hypothetically agree with the OTP’s traditional approach which has led the Prosecutor to referrer the question of statehood to the Secretary-General of the United Nations, with guidance from the General Assembly incase even the Secretary-General cannot determine the statehood of Palestine for the purpose of the Rome Statute. It still leaves us curious why the UNESCO admission was ignored by the OTP as it was highly relevant for this case. Especially because the UNESCO admission is relevant when assessing the appropriate practice according to the Secretary-General guidebook.

The ‘all states principle’ was a practice adopted to help the Secretary-General in cases like the ICC refereed a question in connection with the interpretation of the term state, the principle was formulated as following:

‘ [..] "any State" or "all States" formula was adopted, he would be able to implement it only if the General Assembly provided him with the complete list of the States coming within the formula, other than those falling within the "Vienna formula", i.e. States that are Members of the United Nations or members of the specialized agencies, or Parties to the Statute of the International Court of Justice (United Nations, 1973).’

According to this principle which is used by the United Nations Secretary-General, Palestine should be classified under the ‘Vienna formula’ as it already a full member of UNESCO prior to the conclusion of the OTP. So even if it was a way of delaying a possible decision on the case, as this was clearly an assessment the OTP could have made themselves, it should now

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still look at the declaration of Palestine and make an assessment of the substance of the allegations of crimes under the Statute that have been committed in Palestine since 1 July 2002.

This chapter has looked at the arguments of the OTP laid out in their statement regarding the Palestinian declaration. It furthermore looked at the OTP’s approach when assessing the definition of the term state, and the Prosecutor adopting a traditional approach in his determination. This traditional approach was not only incorrectly substantiated as Palestine according to the UN Secretary-General falls under the Vienna Principle, it also puts the Court in an uncomfortable political position where the practice of the Prosecutor now looks bias. The next chapter will show us that the Court and its Statute are framed in a way that it is inevitable to not make political determinations, as has happened now in the case of Palestine.

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Chapter 4. The Politics of the Justice System

When the Palestine National Authority got admitted to the UN specialized agency UNESCO, the United States and Israel described the move led by Mahmoud Abbas as a tragedy and accused Palestine of ‘politicization’ of UNESCO. In their opinion UNESCO decided upon a political subject which was outside of the organizations competence (New York Times, 2011). Their response on the admission was harsh and certainly a power statement, the United Stated withheld their yearly contribution the educational and cultural organization while Israel continued building settlement constructions in the West Bank and East Jerusalem (Al Jazeera, 2011). However Palestine’s determination was also clearly, represent the Palestine people by actively participating within the international community and therewith

come one step closer to collective recognition.

Palestine’s admission to UNESCO was fulfilled in October 2011 which was well before ICC prosecutor Luis Moreno-Ocampo came out with his decision on Palestine’s declaration accepting the Courts jurisdiction. The previous chapter focussed on the argument produced by International Law scholars which mainly focused on the legitimacy of Palestine’s admissibility to the Court. The legitimacy of potential admissibility led to the statehood issue of Palestine, an issue that has been analysed from different legal perspectives with proponents and opponents. This chapter will present the political aspects of the OTPs decision which have been missing during international law discussions, nevertheless are of great importance in order to understand the ICC’s decision on the Palestine request and even future decision if the PA decides to accept the Courts jurisdiction.

The first paragraph will look at the autonomy of the ICC and show us how politics have . The second paragraph discuss the political pitfalls of the Rome Statute. This essay will discuss the statement why IOs like the United Nations and International Criminal Court are primarily instruments in the hand of a hegemonic power.

4.1 The autonomy of the International Criminal Court

For almost a century now states have turned to International Organizations to ensure the fulfillment of different tasks. Institutions like the United Nations started as International Organization to function as a platform to stop wars between countries and make dialogue possible. Because the cross-national interaction between states intensified and became more complex International Organizations became responsible for an array of different tasks. Now

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different IOs are engaged in different subfields within International Relations from international and civil conflicts until the protecting of human rights. In this complex relationship between states and IOs it is hard to asses who is controlling who, who has authority, or if IOs are actors with their own agenda’s and relative autonomy.

The question that is relevant when analyzing the ICC and the relation to states is what kind of power do they have, are they completely autonomous or are they being controlled by the states or maybe even by the United Nations? Barnett and Finnemore use a definition of authority that describes it as: one actor to deploy discursive and institutional resources in

order to get other actors to defer judgment to them (Barnett & Finnemore, 2005: 169). 4.1.1 The backdoor entrance of the ICC system

When the Rome Statute was adopted by 120 states in 1998 it was not only a mile stone for justice and the enforcement of international criminal law. In liberal terms the international community was able to come to an agreement regarding the creation of a complicated international legal instrument and create an institution for the enforcement of it. The influence of the United Nations was significant as they processed the negotiations for the Rome Statute from start to finish (Washburn, 1999: 375). The United Nations involvement during the process of creating the Rome Statute may be the reason they for the rights and jurisdiction in the Courts procedure they enjoy now a days.

The possibility for the UNSC to have an influence within the ICC system is because of the referral procedure laid out in article 13(b) of the Courts statute stating that:

The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if: [..], a situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.

Article 13(b) has given the UNSC a backdoor entrance to the system of the ICC and the capacity to bring cases to the Prosecutor leaving him no other choice then starting a preliminary examination in cases related to states that may not even have signed and ratified the Courts Statute. The controversial part of this procedure is first of all the fact that an external, and highly political, organ can bring cases to the ICC while conventionally admission is only allowed to entities that are qualified as a state. Second of all the political nature of the UNSC, the internal structure of the UNSC and most important the assembly of permanent members of the UNSC make you curious why this article was adopted in the

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Rome Statute in the first place. Moreover it makes you wonder in what extent the ICC is an autonomous institution (Rome Statute, art. 13b).

Since the creation of the ICC in 2002, 122 countries have signed and ratified the Rome Statute. Countries like Russia on the other hand have only signed statute but not ratified it (ICC, 2013). The ICC’s major thorn in the flesh however has been the lack of support by the most powerful countries in the world like the US, China and Russia who have not ratified the Rome Statute. The United Stated moreover said no to financial support, collaboration with the ICC and (further) negation with governments who approve of the ICC. So while three out of the five permanent members of the Security Council are not a state party to the ICC and therefore the OTP has no jurisdiction over crimes committed on their territory, these countries have the ability to refer cases to the ICC through their privileges at the SC.

4.1.2 Structure of the UN Security Council

The council has 15 members, each of these member holds one vote. Of these 15 members ten are non-permanent members and are always elected for a two-year term by the General Assembly (United Nations, 2014). The other five members2 are permanent members and hold a veto power. This so called P5 have been permanent members since World War II and have world's most powerful military forces. As good as the idea of an organ like the Security Council is, the way it has been set up made effective decision making on important issues very hard. When a decision needs to be made on a matter this would require the affirmative votes of nine members, however a proposal is prevented from being adopted if there is a negative vote, or if a permanent member uses her veto power (United Nations, 2013). This veto power, and the way the UNSC has been constructed in general, is what makes the effectiveness of this council so difficult. One veto of a single (powerful) country could have effect on a proposal which could have been internationally supported by many.

The SC would work at is most effective and moreover would be most desirable if it was an authority with an independent agenda, however the way it is constructed makes it a tool that the big five forces can use to their own advantage and moreover against each other. And while this veto is their right as laid out under article 27 of the UN Charter, this special right is politically unjustified and only reaffirms the power these states have within SC. Because of the politics within the SC it has been impossible for Palestine to be admitted as a

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full member to the United Nations as one of the conditions for admission is a referral by the SC to the General Assembly. During a meeting in 2011 between Mahmoud Abbas and Barack Obama in New York, Obama made it clear the United States would veto a possible statehood bid by the State of Palestine as according to them this was only possible in the light of the two-state solution and that the UN is not the right venue to reach the goal of statehood (Haaretz, 2011).

The power of the United States within the SC and her unconditional support to Israel makes it also unlikely for the SC to refer the Gaza Conflict to the prosecutor of the ICC. Without Palestine, and for the same matter Israel, being a member of the ICC a referral by the SC is currently the only way to grant the Court jurisdiction over countries who are not a state party to the ICC (Rome Statute, art. 13b). In 2005 this is how the case of Darfur was brought to the ICC in order to investigate the alleged crimes of genocide, war crimes and crimes against humanity.

The structure of the United Nations SC has made it almost impossible to maintain peace and security in the world. Because of the veto power the organization has been paralyzed to undertake any possible action that could help to protect human rights, instead it is being used as a political tool to protect the interest of allies. With the current construction of the SC and the US as one of the permanent members it can be safely, and sadly, stated that the Palestine question and will not successful pass through the SC. Nor should the State of Palestine hope that the crimes committed during the Gaza war will reach the Prosecutor of the ICC through a SC referral.

4.2 Rome Statute: political pitfalls of the legal framework

Looking back on the ICC system the core of the Statutes problem lie in the way it has been framed, giving politics the opportunity to play a role. In its origin the Statute was designed to prosecute the five crimes that would fall under the jurisdiction of the Court. When a case is referred to the Court it would look if it would have jurisdiction to accept the case as described in article 12 of the Statute. Previous paragraph has already exposed the political dilemma of article 13(b) which gives the UN Security Council the ability to bring cases to the Prosecutor of the Court. Nevertheless the biggest political pitfall of the Rome Statute lies in the reversed ability of power transfer by the Prosecutor who can referrer a case to the Secretary-General of the United Nations when he thinks a certain issue is not within the capacity of the ICC to decide on. In the statement by the ICC, the OTP stated that the Secretary-General should make the determination and referred to Summary of Practice. There are three arguments

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made by Moreno-Ocampo I want to argue why they are political tinted and how the Statute of the Court has created the possibility for the OTP to give a political reply in the case of Palestine produced by this legal frame.

Firstly is the issue why the Prosecutor decided to referrer to the Secretary-General, as this indirectly caused him already to determine that Palestine is not a state. The Rome statute neither has a definition for the term ‘state’ nor does it present any criteria which a state needs to meet. After Palestine acceptance of the Courts jurisdiction the OTP consulted with different representatives and received reports from legal scholars with opposing views on the term state and more importantly how it should be interpreted in this case. These opposing views resulted in two kinds of suggestions for the interpretation, namely a functional interpretation and traditional interpretation (Kearney and Reynolds, 2013: 421). The later interpretations was suggested by among others [..] and suggested that the Prosecutor should use the criteria for a state like the Montevideo Convention have laid out and therefore Palestine did not meet these criteria. The functional approach argued that the State of Palestine was recognized by many within the international community and that for the purpose of international justice and accountability the legal status of Palestine should overshadow the validity of Palestine’s declaration. The interpretation used by the Prosecutor was not only traditional but also made clear that in their perspective Palestine was not a state. Moreover they affirmed that the United Nations was the institution capable of making this determination while the Secretary-General, the GA or SC are also not a legal standard for state recognition nor can they grant an entity statehood. More important the Summary of Practice where Moreno-Ocampo refers to in paragraph 5 is a manual the Prosecutor could have used himself to determine the term state, which brings me to my second point.

In paragraph 7 of the statement of the OTP the Office recognizes that Palestine among others has been recognizes as a state by a United Nations body which we know in this case is UNESCO. Therefore according to the manual of the UN Secretary-General Palestine falls under the Vienna principle and Palestine is a state for the purpose of signing the Statute. The fact that this important factor has been passed as not relevant toward the decision by the OTP showed the practices of the Court are subjective and indeed leaves room for politics to play a role (Summary of Practice, 1973: 23).

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Chapter 5. Institutional Analysis: Palestine’s attempt to Recognition

The Israel-Palestine conflict has been looked at, talked about and analysed through different frameworks over the past decennia. Especially International Organization have had to deal with political and legal questions concerning, directly and indirectly, the states of Palestine, Israel and the ongoing conflict since 1947. Since the Palestine Liberation Organization (PLO) was established in 1964, and recognized as the ‘legitimate representative of the Palestinian people’ by the United Nations in 1974 (General Assembly A/RES/3210, 1974), it has unsuccessfully applied for admission to specialized agencies in order to represent the Palestinian people and impart them with the benefits of the organizations in question.

Despite the request for admission to these organizations was each in regard to a different field, all IO’s encountered the same first problem: how do we address issues of a non-state party like Palestine?

This chapter will analyse the past relationship of Palestine and an IO in three different cases. In addition to the analysis of the cases I will try to link the issues IO’s have encountered through the years, to the difficulties the ICC currently is dealing with.

5.1 World Health Organization: Admission of the P.L.O. (1989)

On April 1 1989 an official request for admission to the World Health Organization was made by the Palestine Liberation Organization. After Yassir Arafat was named as President of the State of Palestine the P.L.O. strived to act like a legitimate government by seeking membership to UNESCO and the World Health Organization (Kassim, 1991: 128). While for the P.L.O. admission would be a step forward in representing the Palestinian people and become an active participant within the international community, members of the agency feared for the stability of the organization if Palestine would become a member (Quigley, 2010: 165).

The World Health Organization (WHO) is the United Nations specialized agency engaging with international public health, and was initiated during the creation of the United Nations. Since the WHOs Constitution came into force on 7 April 1948 the organization has been the directing and coordinating authority for health within the United Nation. The responsibilities of the organization are focused on providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating

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evidence-based policy options, providing technical support to countries and monitoring and assessing health trends (WHO, 2014). In contrast to other international organizations WHO has a flexible policy regarding admission, as membership is open to all States (WHO Constitution, Art. 3). Moreover the application for membership only needs to be approved by a simple majority vote of the Health Assembly (WHO Constitution, Art. 6), while in general other organizations require a reference by an executive board or a two-third vote by the assembly (Kirgis, 1990: 219). Nevertheless WHO’s biddable preconditions for admission, the PLO’s legal and political issues proved to be a challenge in their bid for full membership.

P.L.O. leader Yassir Arafat applied to the WHO taking in consideration the fundamentals of the attainment of peace and security which affirms that the health of all people: ‘[..] it is my pleasure to confirm, on this occasion, the acceptance of the constitution

of the World Health Organization by the State of Palestine, its commitment to the Articles of the Constitution, and its undertaking to fulfil all duties and responsibilities arising from the full membership of the State of Palestine in W.H.O.’ (Request for Admission WHO, 1989).

The United States, during that time led by the Bush administration, reacted disapprovingly and threatened to withhold its contribution to the WHO and other IOs how were willing to admit the P.L.O. as an full member (New York Times, 1989). This situation caused the Director General of the organization, Hiroshi Nakajima, to ask the P.L.O. to withdraw their application as he feared the financial stability of the agency if the United States threatened to withhold her contribution. A contribution that was roughly estimated to $73.8 million for that fiscal year, representing one-quarter of the organizations budget (Kempster, 1989; Quigley, 2010: 165).

Two meetings with P.L.O. representatives and U.S. officials did not result in a solution leaving Director-General Hiroshi Nakajima and the WHO with a political dilemma. The Bush administration would end its contribution immediately if the P.L.O. was admitted (Quigley, 2010: 165), while representatives from the P.L.O. refused to withdraw their application stating that: "It is the Palestinian state's right to become a member of all

international organizations and no one has the right to oppose its application (Kempster,

1989). Finally during a vote by the World Health Assembly a majority of 83 votes, against 47 votes, decided to postpone a decision because of the legal and other issues related to the application of Palestine required further detailed study (WHA Resolution 42.1, 1989; Quigley, 2010: 166).

Justice, politics and the ICC in Palestine : a normative analysis of the Palestinian declaration to the International Criminal Court

The Politics of International Law