Earlier today, Palestinian Authority President Mahmoud Abbas announced his intention to press ahead with a bid for UN affirmation of the statehood of Palestine. He recalled last year’s unsuccessful application for UN membership, and has chosen instead to seek a General Assembly resolution recognizing Palestine’s Observer Mission as that of a state observer, as opposed to its current status as an observer 'entity,' as I predicted last fall.
Abbas is taking a huge gamble.
While he is very likely to receive the General Assembly affirmation he seeks, he risks losing hundreds of millions of dollars in U.S. aid, particularly having announced this intention prior to November’s U.S. presidential election. He may be able to mitigate that risk by not pushing for the adoption of a resolution by the General Assembly (GA) until after the election. At the same time, he has made clear that he expects a resolution affirming Palestinian statehood to be adopted during the present GA session, which runs until next September.
Major developments have occurred in the past year with respect to the question of Palestinian statehood. The most significant development since the November 2011 admission of Palestine into the United Nations Education, Scientific, and Cultural Organization (“UNESCO”) was the release of a statement earlier this year by the Chief Prosecutor of the International Criminal Court by which he essentially punted the issue of Palestinian statehood to the political organs of the UN and the ICC Assembly of States Parties.
One of the more sensitive issues implicated by Palestine’s UN bid is the question of whether Palestine can consent to the exercise of ICC jurisdiction over conduct that took place in Gaza during Operation Cast Lead – the 2008-09 armed conflict between Israel and Hamas. Article 12(3) of the ICC Statute allows for 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.
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 3, 2012, the ICC Prosecutor released a statement referring, inter alia, to the practice of the UN Secretary-General as treaty depositary. The statement also implied that his office, for the moment, would not be considering allegations of crimes committed in Palestine.
The Prosecutor’s reference to the treaty practice of the United Nations may add some weight to the significance of the UNESCO vote. 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 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 14 December 1973.
In the 1970s, the UN Secretary-General, concerned about purported treaty actions by entities whose status in international law was unclear, brought this issue to the attention of the General Assembly. The General Assembly adopted an understanding that “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 Prosecutor essentially used this understanding as a justification for placing the issue before the political organs of the United Nations.
However, the Summary of Practice of the Secretary‐General as Depositary of Multilateral Treaties, to which the Prosecutor cites, also includes reference to the so-called “Vienna formula.” The Vienna formula is drawn from the Vienna Convention on the Law of Treaties. According to Article 81 of that instrument, “[t]he present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention…”
The Summary of Practice seems to indicate that the Secretary-General will only seek the guidance of the General Assembly where a purported state does not fall within this formula (i.e. that a treaty open to participation by “all states” will presumably be open to any purported state that falls within the Vienna formula). Following its admission into UNESCO, a specialized agency of the United Nations, Palestine arguably falls within the Vienna formula. Admittedly, however, UN practice on this point is somewhat ambiguous.
In any event, if the General Assembly does indeed affirm the statehood of Palestine, it would be very difficult for the ICC Prosecutor to decline to investigate the allegations of international crimes committed during Operation Cast Lead, as alleged, for example, in the Report of the United Nations Fact Finding Mission on the Gaza Conflict.