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Home EJIL Analysis Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Palestine, UN Non-Member Observer Status and ICC Jurisdiction

Published on May 6, 2014        Author: 

ICCOn 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC) (pictured left) ‘for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002.’ On 3 April 2012, the ICC Office of the Prosecutor concluded that the preconditions to the exercise of jurisdictionwere not met, arguing that Palestine had only been granted ‘observer’, not ‘Non-member State’ status by General Assembly (GA). The Prosecutor considered that the Declaration ‘was not validly lodged’ (Report on Preliminary Examinations Activities 2013, para. 236). However, the Prosecutor also said that ‘allegations of crimes committed in Palestine’ could be considered ‘in the future’ if the ‘competent organs of United Nations … resolve the legal issue relevant to an assessment of article 12 …’. On 29 November 2012 the UN GA – by 138 votes to 9, with 41 abstentions – decided ‘to accord to Palestine non-member observer State status.’ (GA Res. 67/19 of 4 Dec. 2012, para. 2) (see previous EJIL:Talk! Posts here, here and here)

With this decision, the legal issue raised in the Prosecutor’s decision has been resolved. Palestine has been ‘upgraded’ from a mere ‘observer’ to a ‘Non-member State’. The formal declaration of statehood, which some previously considered a missing precondition to Palestine’s status as a State (Ronen, JICJ 8(2010), 26; Shany, JICJ 8 (2010), 337), has been produced by the GA. And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.). The view that Palestine is now a State is not only the prevailing view among scholars (Zimmermann, JICJ 11(2013), 303; Ronen, JICJ 12 (2014) 8; contra still Kontorovich, JICJ 11 (2013), 979), but above all has been confirmed by treaty practice since the GA Resolution, i.e., the accession of Palestine to at least 15 international treaties (accepted by the respective depositaries). This means that Palestine, represented by its government, can now not only trigger ICC jurisdiction by way of a declaration under Article 12(3) of the ICC Statute but also directly accede to the ICC Statute (albeit without retroactive effect, cf. Articles 11(2), 126(2)). While there is no longer a need to overcome the lack of statehood by way of a functional interpretation of Article 12(3) (Shany, JICJ 8 (2010), 329; Pellet, JICJ 8(2010), 981, the new Article 12(3) power suffers from several limitations. Those limitations will be the focus of this post (leaving aside the subsequent ‘ordinary’ obstacles, especially gravity, admissibility and interests of justice, to turn an ICC situation into a formal investigation of a case). Here are the four problems with Article 12(3) that I see.

First, Article 12(3) is premised on a delegation-based theory of jurisdiction (Shany, JICJ 8(2010), 331-2), i.e., the ‘State’ within the meaning of the provision delegates a part of its jurisdiction to the ICC. Of course, this presupposes that the State possesses the jurisdiction it wants to delegate in the first place. Here Annex II of the 1995 Israeli-Palestinian Interim Agreement (‘Oslo II’) comes into play. According to its Article I, the Palestinian criminal jurisdiction is limited to ‘offenses committed by Palestinians and/or non-Israelis in the Territory’. ‘Territory’ refers to the West Bank and the Gaza Strip, in principle including East Jerusalem. Indeed, this is the Palestinian territory internationally recognized as a ‘single territorial unit’ (Art. IV Declaration of Principles 1993 [Oslo I]; Art  XI(1) Oslo II). Of course, on the one hand, Palestinian jurisdiction does not extend to the Area C in the West Bank (including Israeli settlements and military installations). On the other hand, while Israel does not, in principle, claim sovereignty over the West Bank and Gaza, it does so with regard to East Jerusalem. Thus, on the basis of Oslo, Palestinian criminal jurisdiction is severely limited both ratione personae and ratione loci.

To get around these limitations one may argue that Oslo, having been agreed between Israel and the PLO, as the representative of the Palestinian people (GA Res. 67/19, para. 2), can neither bind the PNA, which only came into existence with Oslo, nor, a fortiori, the government of the now formally recognized State of Palestine. This indeed has been argued (Ronen, JICJ 12 (2014), 23), but it seems overly formalistic to distinguish, for the purpose of the representation of the Palestinian people and the underlying right to self-determination, between the PLO, the PNA and the government of Palestine (tripartite approach). Be that as it may, it seems more plausible to question the jurisdictional limitations produced by Oslo II from the perspective of the ICC and the underlying criminal accountability claims. Can the ICC’s jurisdiction really be limited by bilateral accords? Does this not stretch the delegation theory of Article 12(3) too far? Can this theory really limit the Court’s jurisdiction once the door to this jurisdiction, so to speak, has been opened by the, in principle, jurisdictional sovereign, the bearer of the jurisdictional claim, i.e., the State of Palestine?

I would submit that Oslo II cannot limit the ICC’s jurisdiction, even on the basis of the delegation theory, for essentially three reasons. First, Oslo II did not, indeed could not, take from Palestine the (prescriptive) jurisdiction over its territory but only limited the exercise of this jurisdiction. In other words, pursuant to Oslo II, the PNA must not exercise jurisdiction over Israelis but it may delegate this jurisdiction to an international court. Otherwise, Oslo II would operate as a bar to the international prosecution of possible international crimes by Israeli soldiers in the West Bank, a result hardly compatible with the ICC’s mission and the underlying duty to prosecute international core crimes.  Secondly, Oslo was only meant to provide rules for a transitional period not exceeding five years. Because this period has expired and, in addition, the legal situation has radically changed (with the recognition of Palestinian statehood), Oslo can no longer operate as a restriction of Palestinian rights. In any case, should one consider that the triggering of ICC jurisdiction would violate pre-existing third party rights (in casu those of Israel under Oslo), the only limitation arising from the ICC Statute is the one of Article 98 referring to cooperation with the ICC, in particular the surrender of suspects.

Secondly, the PNA would have to file a new declaration, since the 2009 Declaration must be considered void in light of the Prosecutor’s decision and the non-retroactive effect of GA Res. 67/19. In other words, the GA resolution changed the status of Palestine only ex nunc with a view to future Palestinian declarations (Zimmermann, JICJ 11(2013), 308-9). Here another problem with Oslo arises, since Art. IX(5) Interim Agreement severely limits the PNA’s power to conduct foreign relations. However, it is not clear from this provision whether it also prohibits the triggering of international criminal jurisdiction. It is fair to assume that at the time of drafting nobody thought that such a possibility would ever arise. In any case, here again one could argue – with more reason than above – that the government of Palestine cannot be bound by this provision, not having been a party to Oslo. Indeed, if this government can accede to international treaties, as indeed it does, it is, a fortiori, entitled to lodge an Article 12(3) Declaration.

Third, the question arises whether such a (new) declaration can have a retroactive effect. The 2009 Declaration sought retroactive jurisdiction reaching back to 1 July 2002, the date of entry into force of the ICC Statute. I would submit that such a retroactive effect is possible. This possibility follows from the delegation theory underlying Articles 12(3) and 11(2). Article 12(3) implies that it is the sovereign right of the State delegating its territorial jurisdiction to do so within the temporal parameters of the ICC Statute, i.e., going back, in principle, to the Statute’s entry into force. Article 11(2) prohibits a retroactive effect of jurisdiction, but not with regard to (‘unless’) the State that ‘has made a declaration under article 12, paragraph 3.’ Zimmermann’s argument that Article 12(3) is a different, indeed, ad hoc, form of triggering jurisdiction does not prove otherwise, since the very fact that Article 12(3) is such an exceptional channel to jurisdictionimplies that the non-retroactivity rule of Article 11 does not apply.

Further, the possibility of a retroactive effect is also confirmed by the ICC’s practice so far, accepting several Article 12(3) declarations granting retroactive jurisdiction. For example, the Declaration of Ivory Coast of 18 April 2003 referred to events since 19 September 2002, and the recent Declaration of Ukraine of 17 April referred to events from 21 November 2013 to 22 February 2014. Of course, in the case of Palestine, such a declaration cannot go further back than the actual recognition of statehood on 29 November 2012, since the authority to lodge it is premised on the existence of a State of Palestine.

Fourth, if such a declaration can only give jurisdiction with regard to events occurring after 29 November 2012 it will, ratione temporis, have to focus on crimes committed since that date. However, there may be an exception to this temporal limitation with regard to the possible criminalization of the transfer of settlers into the occupied territories. Such a transfer – as one of the Occupying Power’s ‘own civilian population’ – clearly amounts to a war crime in international armed conflict (Article 8(2)(b)(viii) ICC Statute). Indeed, the systematic establishment of settlements creates faits accomplis on the ground, the very facts to be prevented by the primary IHL norms (Articles 49 (6) GC IV and 84(5) (a) AP I). Arguably, the settlement policy is the primary obstacle to the creation of a Palestinian State as a single, homogeneous territorial unit; thus, it touches upon the very essence of the primary IHL prohibition. Against this background, the still-existing dispute on thecustomary character of this provision (Cassese et al., International Law, 3rd ed. 2013, 80-1), apart from putting a heavy burden on the ICC (having to inquire whether Article 8(2)(b)(viii) is in line with customary international law), can hardly be an obstacle to adjudication here.

A more difficult question is raised by the character of the crime as a continuous or permanent crime. Could that imply that transfers anticipating the coming into existence of the State of Palestine would fall within the ICC’s jurisdiction? What is the decisive point in time to sever the jurisdictional link with regard to continuous crimes? There are quite a few theoretical answers to this question. One could focus on the commencement of the transfer and thus exclude all transfers which commenced before 29 November 2012. This is similar to the solution chosen by the State Parties for the crime of enforced disappearance. They required – by footnote 24 to the Elements of Crime to Art 7(1)(i) – that the attack (as the context element of crimes against humanity) must have commenced after the entry into force of the Statute. Of course, the problem of the enforced disappearance approach is that it focuses on the context, not an individual element of the crime, and therefore is too restrictive. The other side of the coin is the question of what has to be ‘continuous’? In other words, what has to reach into the present or even the future? Is it the actual act (as proposed by Art 14(2) of the ILC Articles on State responsibility), i.e., the transfer as such, or do its mere effects or consequences suffice? For reasons of space this cannot be further explored here. In any case, these temporal considerations do not affect the Court’s jurisdiction over the ongoing settlement policy and practice.

This post is the written version of an expert statement given at the ‘Roundtable on Legal Aspects of the Question of Palestine Convened by the Committee on the Exercise of the Inalienable Rights of the Palestinian People’, UNOG, Geneva, 24-25 April 2014.

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20 Responses

  1. Etienne Henry

    Dear Professor Ambos,

    Thank you for this excellent post. I was wondering while reading your discussion of the jurisdiction issue in connection with the Oslo Agreements, if you have considered the possibility that the ICC, which is obviously not a party to the Oslo Agreements, could simply consider them as a “res inter alios acta” (Art. 34 VCLT 1986)?

    This would not entirely solve the eventual conflict between the Oslo Agreements and an hypothetical ICC jurisdiction on Palestine resulting from a declaration under Article 12(3) ICC Statute. But, it turns the issue into a question that has to be solved by the State of Palestine, ie it woud have to choose wich obligation to comply with and assume the consequences.

    Best regards,

    Etienne Henry

  2. Jordan

    For some of the reasons that you both mention, I assume that if the 1995 agreement is still operative in general (1) there may be circumstances that allow a suspension of performance or termination, and (2) if not, the breach of a bilateral agreement would not obviate ICC jurisdiciton but would allow suspension of performance or termination of the bilateral agreement.

  3. Raymond Savadogo

    Thank you Professor Ambos for sharing your informative statement with us. If needed be Bensouda has already made a public statement on this issue, available here (http://www.aljazeera.com/indepth/opinion/2013/04/201341561759725150.html)

    Morever, the Appeals Chamber already discussed the retroactive and prospective aftermath of article 12(3) declarations in Gbagbo case: (http://www.icc-cpi.int/iccdocs/doc/doc1526463.pdf).

  4. Ori

    Thank you for this interesting blog.
    I’m not sure about two points made in relation to the Oslo Accords. First, the underlying point regarding the Oslo Accords is that the Palestinian Authority (or the “State of Palestine”) would have no jurisdiction at all were the Oslo Accords not to exist. Accordingly, it is not a question of Israel and the PLO merely entering into an agreement to limit the PNA’s judicial jurisdiction – it’s a matter of Israel delegating its jurisdiction to the PNA. It thus seems very plausible to argue that the PNA essentially attempted in 2009 to delegate to the ICC jurisdiction it did not have (nemo dat quod non habet). Though one may argue that from a lex ferenda point of view that this would be in contrast to the purposes of the Rome Statute and its underlying rationale, as noted by the ICJ in East Timor (¶29) and DRC v. Rwanda (¶64), jurisdiction and substance are two separate questions.

    Second, it is indeed correct that the aim of the Interim Agreement (Oslo II) was for the interim period to last for five years, it did not state that the Agreement would terminate at that point in time. On the contrary the practice of the parties to the Agreement indicates that they are still in force (see Watson, Watson, “The ‘Wall’ Decisions in Legal and Political Context”, 99 AJIL 6, 23-24 (2005)).

  5. Jordan

    Ori: why would the representative of a people (assuming that it was the legitimate representative) or the people not have “jurisdiction”? Does this conclusion rest on a mistaken belief that “jurisdiction” only pertains with respect to states even though there have been other actors with formal roles in the international legal process other than “the state” for the last few hundred years ( see, e.g., http://ssrn.com/abstract=1701992 )?

  6. Ori

    Jordan, I’m not sure how your comment relates to my point. Regardless of the theory presented in the article you referred to, it does not regard the question of territorial jurisdiction, which was partly transferred by Israel to the PNA. (In fact, it would actually seem what I wrote supports that theory, considering it could be argued that the Oslo Accords essentially recognise the PLO’s legal capacity to enter into an internationally binding agreement, though the precise basis in international law for the binding status of these agreements is disputed; Sabel, “Book Review”, 95 AJIL 248, 250-51 (2001)). It would seem more likely you are referring to nationality jurisdiction, but the Rome Statute does not provide for passive personality jurisdiction, thus rendering this form of jurisdiction irrelevant to this discussion.

  7. Harlan

    Re: The Prosecutor considered that the Declaration ‘was not validly lodged’

    On the most basic level, the Rome Statute is a treaty agreement between states. It falls within the scope of the Vienna Convention on the Law of Treaties. Article 5 of the latter explains:
    “The present Convention applies to any treaty which is the constituent instrument of an international organization and to any treaty adopted within an international organization without prejudice to any relevant rules of the organization.”
    Article 6 provides that “Every State possesses capacity to conclude treaties.” and articles 81 and 83 stipulate that members of UN specialized agencies, like Palestine, are perfect examples of a “category of States” recognized, as such, by all of the contracting state parties. They have an open invitation to file accessions and become State Parties themselves, without the need for the Secretary General to consult the practice of the General Assembly. Those articles create a treaty obligation for the Secretary General to treat Palestine as a state, while acting as a depositary on their behalf. That situation rendered the subsequent opinions of the Prosecutors about Palestine’s observer status irrelevant and immaterial.
    Articles 35 through 37 of the VCLT spell-out the customary/conventional rules that apply when a treaty provides a right for a third state or creates obligations that have been accepted in writing by the third state, like those in Article 12(3) of the Rome Statute. Article 37 of the VCLT, “Revocation or modification of obligations or rights of third States,” requires 1) the consent of the parties to the treaty to modify or revoke an obligation; and 2) The third state’s consent to revoke a right afforded by the treaty.

    The Rome Statute gives third states the right to accept the Court’s jurisdiction by making an Article 12(3) declaration. The Registrar’s letter to Palestinian Justice Minister, Ali Khashan, dated 23 January 2009, advised that Palestine’s Article 12(3) declaration had the legal effect of accepting the Court’s jurisdiction and the application of the provisions of Part 9 of the Statute and any obligations thereunder, concerning State Parties, pursuant to Rule 44 of the Rules for Procedure and Evidence. The Prosecutor can’t unilaterally revoke those rights and obligations to the other parties (and only a state can argue cases involving a VCLT treaty interpretation dispute before the ICJ).

    In both letters the Prosecutors claimed that they were not empowered under the Rome Statute to make any such determination regarding statehood. They certainly had no legal standing to interpret the practice of the General Assembly or the Secretary General. So relocating the problem to the UN and relying on a hypothetical argument from silence doesn’t explain where the Prosecutors obtained the authority that they took upon themselves. It’s also extremely unusual that they asked anyone and everyone for an opinion on the subject of Palestinian statehood for 3 years, but never requested an opinion from the Secretary General or the Assembly of State Parties on the subject.

    Re: And this notwithstanding the possible lack of complete fulfilment of the Montevideo criteria (in particular the effective government criterion; cf. Shaw, JICJ 9 (2011), 307 ff.).

    In fairness, the Montevideo Convention is primarily an agreement between states, not a legal test. The overwhelming majority of High Contracting Parties have long-since recognized the State of Palestine, as such, and established relations with it. There is no compromissory clause that would permit Shaw or the ICC Prosecutor to challenge the legal validity or materiality of those determinations on the grounds of “effectiveness of government”. In the only such case that I’m aware of, the ICTY Appeals Chamber viewed relations with other states as the decisive factor in applying the Montevideo criteria in order to determine when a state had actually come into existence. See The Prosecutor v. Slobodan Milosevic – Case No. IT-02-54-T, Rule 98 bis test – Deportation, forcible transfer and cross border transfer – Definition of a State – Aiding and abetting genocide and complicity in genocide. http://www.icty.org/x/file/Legal%20Library/jud_supplement/supp50-e/milosevic.htm

    In 1932 the Council of the League of Nations decided that “the ability to stand alone” did not require a mandated state to acquire the capability to defend itself against external aggression before its existence as an independent state could be recognized and the protections of the Covenant extended to provide for the mutual defense of its territorial integrity. See “The General Principles Governing the Termination of a Mandate”, Luther Harris Evans, The American Journal of International Law, Vol. 26, No. 4 (Oct., 1932), pp. 735-758 http://www.jstor.org/stable/2189582

    In that connection, the League of Arab States submitted an exhibit to the Prosecutor regarding Palestine’s legal status as a state. It established beyond any doubt that Palestine was a full member state and that its Ministers, exercising full powers, had concluded multilateral treaties on a variety of subjects with several ICC member states. Those treaties included agreements that govern diplomatic immunity and extradition of terrorists. All of those treaties were concluded years before the Rome Statute ever entered into force. Contrary to the view expressed by the Prosecutor, the Assembly of State Parties is just another organ of the Court. It is bound to respect those agreements between members and third party states in accordance with the terms of Article 98.

  8. Harlan

    Re: “It thus seems very plausible to argue that the PNA essentially attempted in 2009 to delegate to the ICC jurisdiction it did not have (nemo dat quod non habet).”

    You can’t eat your cake and still have it too. That attempt and Palestine’s subsequent actions with regard to its applications for membership in the UN and UNESCO, combined with the request for upgraded observer status is certainly contrary to the notion that “the practice of the parties to the Agreement indicates that they are still in force”.

    As of the date of the 1989 nomination of Palestine for full membership in UNESCO: 1) the General Assembly had already acknowledged the proclamation of the State of Palestine; and 2) it had been recognized by 92 UN member states. According to the Oslo DOP, Palestinian statehood was never an issue within the scope of the interim or final status agreements. On the other hand, Article XXXI(6) of the Oslo II agreement stipulated that: “Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions.” Absent an express provision to the contrary, the Oslo Accords seem to have lapsed. The practice of the Secretary General, acting as depositary, also establishes that he had been accepting accessions to multilateral ESCSWA treaties from Palestine, ever since 2003. The ESCWA (a part of the Secretariat itself) continued to publish and catalog official rules on UN letterhead which declared that Palestine was a full member state of that organization:

    ESCWA comprises 13 States, viz., Bahrain, Egypt, lraq, Jordan, Kuwait, Lebanon, Oman, Palestine, Qatar, Saudi Arabia, the Syrian Arab Republic, the United Arab Emirates and Yemen. http://www.escwa.un.org/about/rules-e.pdf

    Re:On 22 January 2009, the Palestinian Minister of Justice, on behalf of the Palestinian National Authority (PNA), lodged a declaration recognizing the jurisdiction of the International Criminal Court (ICC)

    Not exactly. The declaration was filed “on behalf of the government of Palestine”. Among other things, General Assembly resolution 67/19 upgraded the status of Palestine on the basis of 1) the 1988 proclamation of the State of Palestine by the Palestine National Council; and 2) the decision of the Palestine National Council to entrust the Executive Committee of the Palestine Liberation Organization with the powers and responsibilities of “the Provisional Government of the State of Palestine”.

    The other factors mentioned were: 3) full membership of Palestine in UNESCO, ESCWA, the Group of Asia-Pacific States, the League of Arab States, the Movement of Non-Aligned Countries, the Organization of Islamic Cooperation, and the Group of 77 and China; and 4) the fact that 132 States Members of the United Nations have accorded recognition to the State of Palestine (92 of them were listed on Palestine’s 1989 application for membership in UNESCO). Most of those qualifications were mentioned in the previous resolution on Palestine’s observer status. It granted Palestine better rights and privileges than the ones enjoyed by the Vatican.

    The General Assembly has adopted numerous resolutions which stipulate that the option of a Palestinian state is a matter of self-determination. It adopted at least one resolution after the Oslo Accords had expired on September 13, 2000, which clarified that the option of a Palestinian state was not subject to any veto or to the peace process negotiations. http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/55/87

    The Prosecutor admits that the Secretary General is obliged to consult the General Assembly in doubtful cases, but it had already advised him and everyone else that the Palestinians have the necessary discretion to decide the question for themselves. It had already acknowledged their proclamation of statehood and the establishment of their provisional government.

  9. Ori

    Harlan, the mere fact that there have been material breaches of the Accords does not indicate that the Oslo Accords are no longer in force. On the contrary, the fact that both parties call out each other’s alleged breaches just lends weight to the argument that they are still in force.

  10. Jordan

    Ori: I had in mind universal jurisdiction and relevant enforcement jurisdiciton. Since some non-state actors have had formal participatory roles in the international legal process (e.g., when entering into international agreements, having responsibility under international law for violations of international law, and using sanctions against violations) and these non-state actors have included nations, tribes, peoples, etc., one might claim that an entity had the status as a legitimate representative of a given people (i.e., the Palestinian people, who were recognized as a people with observer status, etc.), but this issue of legitimate representative could be subject to disagreement.

  11. Harlan

    Re: the mere fact that there have been material breaches of the Accords does not indicate that the Oslo Accords are no longer in force.

    You’re begging the central question. Palestine cannot be in “material breach” of a lacuna. Palestinian statehood is not mentioned in the Oslo Accords. It’s outside their scope of applicability, since it was not listed as an agreed-upon interim or final status issue and the Accords themselves contained an explicit stipulation that they were without prejudice to the existing rights, claims or positions of the parties.

    The mere existence of an article in the Accords does not make it binding international conventional law. For example, the ICJ rejected the notion that the status of the settlements is “a final status issue” subject to mutual agreement and declared them to be illegal. The terms of Articles 52 and 53 of VCLT and Articles 7 & 8 of GCIV pose almost insurmountable problems with regard to the enforcement of some of the other terms of the Oslo Accords.

    In addition, the PLO only agreed to the exercise of jurisdiction by Israel on a temporary, conditional basis: “To this end, the Israeli military government shall retain the necessary legislative, judicial and executive powers and responsibilities, in accordance with international law.”

    The brief legal analysis performed by the ICJ indicated that Israel was in material breach of its obligations in that regard. It was also in breach of the applicable Chapter 7 UN Security Council resolutions that established the armistice lines, pending a final settlement. Israeli civilians should not be in the occupied territories in the first place in accordance with the applicable laws and customs of war, customary obligations regarding respect for international lines of demarcation, and the explicit terms of Article IV of the armistice agreements themselves.

    The peace treaty between Israel and Jordan contained a safeguarding clause, Article 3(2), which said that the international boundary was without prejudice to the status of the territories that came under Israeli military control in 1967.

    There is a general principle which holds that “No one shall be allowed to benefit by his own wrongdoing, nor enrich himself as a result of his own criminal acts.” We are talking about hundreds of thousand of settlers, including state officials, who have taken possession of more than 2 million dunams of pillaged state and private property or the proceeds of that pillaging in the form of titles or monetary instruments exchanged between the parties of a joint criminal enterprise.

  12. Ori

    Harlan, I don’t think we’re arguing about the same subject. The question I initially posed is where the PNA’s (or any alleged subsequent Palestinian State’s) territorial jurisdiction derives from. The answer would be the Oslo Accords, that are still in force. I’m also unaware how your Article 52 and 53 VCLT and Articles 7 and 8 to GCIV arguments are valid or relate to the subject matter, or about the relevance on ex injuria jus non oritur.

  13. Harlan

    The question I initially posed is where the PNA’s (or any alleged subsequent Palestinian State’s) territorial jurisdiction derives from. The answer would be the Oslo Accords, that are still in force.

    That question deserves its own article, but I’m advocate of popular sovereignty derived from the expressed will of the inhabitants.

    In any event, the government of Israel has consistently maintained in the post-Oslo era that IHRL treaties, to which it is a party, do not apply to the Occupied Palestinian territories, because they are “not subject to its sovereign territory and jurisdiction”. So, you’ll have to tell how its territorial jurisdiction preempts the exercise of the territorial jurisdiction it tansferred to Palestine? At the same time, it claimed that the PNA had assumed powers and responsibilities for human rights protection in all of the occupied Palestinian territories, in line with international norms and the rule of law. See for example, paragraph 8 of CCPR/C/ISR/2001/2, 4 December 2001 http://goo.gl/GX4vuM

    In that connection, the ICJ noted that Israel is under an
    obligation not to raise any obstacle to the exercise of
    such rights in those fields where competence has been
    transferred to Palestinian authorities.

    Regarding the subject of jurisdiction under Article 12, Dov Jacobs commented that: “There is no mention of material jurisdiction here. It’s territory and nationality. Criminal jurisdiction over the crime is actually not a criteria under article 12 which is not a question of transfer of jurisdiction, but acceptance of jurisdiction in relation to territory and nationality. … Making criminal jurisdiction an extra criteria under 12 would mean that the ICC could only prosecute crimes in States which have themselves provided for the prosecution of the crime. Hardly the will of the drafters. … Criminal jurisdiction is only relevant when it comes to complementarity and whoever claims that it is relevant for article 12 needs to show me through what magic the two criteria of 12(2) (territory and nationality) suddenly became three…” http://goo.gl/LbyKLI

    Taking up the issue of the source of Palestine’s jurisdiction, the US State Department’s legal expert, Ernest Gross, noted that the Palestine mandate contained more than one non-Jewish community, including Transjordan, and that the Covenant did not originally envision that each of them would become independent states. Mr. Gross noted that the law of nations recognized the inherent right of the peoples of these communities to organize a state and operate a government by themselves (once they were emancipated from the terms of the mandate). http://goo.gl/z4xFoJ

    When Transjordan tried to join the UN in 1946, it was turned down. The President of the Security Council cited advice from the US Secretary State that Transjordan was considered an integral part of the joint Palestine mandate, which had not yet been legally terminated. He recommended that no action should be taken, until the question of “Palestine as a whole” could be addressed by the UN. See The Minutes of the 57th Session of the Security Council, S/PV.57 pages 100-101 (pdf file pgs 3-4 of 52) http://goo.gl/yP8prn The Jewish Agency had complained that Transjordan was a indivisible part of the Palestine mandate and that the Jewish people still had a secured legal right to it. See “Mandate is Indivisible Jewish Agency Objects to Severance of T.-J.”, Palestine Post Apr 9, 1946, page 3 http://goo.gl/L5A3sy

    I already briefly addressed the question of territorial jurisdiction in the discussion about the armistice lines. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations says:

    Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect.

    The armistice lines were approved in the terms of a written agreement between the parties concerned. It was concluded and formally adopted as part of the Article 40, chapter 7, provisional measures contained in two UN Security Council 7 resolutions, 62 and 73, which required the parties to observe and implement them, pending a mutually agreed upon final settlement.

    When the UN Mediator proposed a union between the Arab territories of the former mandate, the General Assembly and the PCC discussed the idea. But several delegations objected saying that it was up to the inhabitants to decide, and that the General Assembly no longer had any authority to take decisions on their behalf.

    Ben Gurion told the US representative of the UN Palestine Conciliation Commission that the status of Arab Palestine could be recognized through the device of a federal union with Transjordan. See Foreign relations of the United States, 1949. The Near East, South Asia, and Africa, page 927 http://goo.gl/8vuNk1

    Footnote 24 of Yehuda Z. Blum, “The Missing Reversioner: Reflections on the Status of Judea and Samaria” notes that Israel concluded the Armistice Agreement with “Jordan”, not “Transjordan”. http://goo.gl/nQvElE

    Contrary to Blum’s claims regarding the limited extent of the recognition extended to the new entity, the Memorandum of Conversation, between Mr. Stuart W. Rockwell of the Office of African and Near Eastern Affairs and Mr. Abdel Monem Rifai, Counselor, Jordan Legation in Washington, June 5, 1950 documents the US government’s recognition of the union between Arab Palestine and Transjordan. See Foreign relations of the United States, 1950. The Near East, South Asia, and Africa, Volume V (1950), Page 921 http://goo.gl/eyhhhd

    Starting at para 2.19, The “Written Statement of the Hashemite Kingdom of Jordan” that was submitted to the International Court of Justice in the Wall case, discussed: the Jericho Congress, the 1950 national plebiscite, and the fact that by 1966 the UN Security Council had explicitly recognized the Hebron area of the West Bank as Jordanian territory in its resolution 228, of 25 November 1966. That resolution condemned the large scale premeditated Israeli military operation inside Jordan.

    In December of 1948 the mayors of almost all Palestine towns held by the Arabs met in Jericho and declared Abdullah King of Arab Palestine. The government of Transjordan announced that any constitutional changes resulting from the incorporation of Palestine would be made at the same time as the setting of the date for the proclamation of Abdullah as the ruler of the joint kingdom. Contrary to the sources cited by Blum, Marjorie M. Whiteman, Digest of International Law, vol. 2, US State Department (Washington, DC: U.S. Government Printing Office, 1963) pages 1163-68 spells out the steps taken by the Council of Ministers, the Parliament, and the King of Transjordan to acquire sovereignty and establish the joint Kingdom. It notes that the steps were completed in January of 1949. The Digest also explains that the 1950 plebiscite and Act of Union simply ratified those earlier steps. See also The Palestine Post, December 14, 1948, page 1, “Jericho Declaration” http://goo.gl/6dje9X

    During the 62nd Sitting of the first Knesset, 1 August 1949, Prime Minister Ben Gurion acknowledged that Israel had tacitly recognized the borders of the Arab state through the armistice agreements. He explained that the UN and the states that recognized Israel had not yet recognized its expanded borders, but that the Arab States had given in and recognized them through the armistice agreements. He said “I will not go into pointless argument on who gave in to whom. I will admit quite openly and simply that we gave in too.” See pages 541 and 542 of Major Knesset Debates, 1948-1981, Volume 2, Netanel Lorch, University Press/JCPA, 1993. (pdf) http://goo.gl/llJuHx

    During the Security Council’s 433rd meeting, Abba Eban stated that the armistice lines clearly defined the State’s jurisdiction and had the normal legal characteristics of frontiers:

    The armistice lines do not merely separate armed forces. They mark the clearly defined areas of full civil jurisdiction. The Government, the courts, the legislatures, the security authorities of each respective State operate smoothly and unchallenged up to the appropriate armistice line. These lines thus have the normal characteristics of provisional frontiers until such time as a new process of negotiation and agreement determines the final territorial settlement.

    The Armistice Agreements are not peace treaties. They do not prejudice the final territorial settlements. On the other hand, the provisional settlement established by the Armistice Agreements is unchallengeable until a new process of negotiation and agreement has been successfully consummated. (pdf) http://goo.gl/rsg23R

    I noted above that the treaty with Jordan contained safeguarding clauses. Some concerned the continuing role of the Kingdom of Jordan in connection with the City of Jerusalem (Article 9) and others said that the international boundary outlined in the treaty was “without prejudice to the status of any territories that came under Israeli military government control in 1967.” http://goo.gl/5yXDAv

    The Kingdom of Jordan dissolved the constitutional union with Arab Palestine, and recognized Palestine in line with the 1988 Palestinian UDI. The recent treaty between Palestine and Jordan (an ICC State Party) also noted the qualified nature of the 1988 Jordanian disengagement and said that Jordan still exercises territorial jurisdiction over 144 dunums of mosques, buildings, walls, courtyards, attached areas over and beneath the ground and the Waqf properties tied-up to “Al Haram Al Sharif” – based upon continuity of custodianship that dates back to a declaration made by the people of Jerusalem and Palestine in 1924. It notes that the custodianship also encompasses the “Rum” (Greek) Orthodox Patriarchate of Jerusalem that is governed by the Jordanian Law No. 27 of the year 1958. http://goo.gl/7m68Di

    I think that should answer your question.

  14. Harlan

    Re: I’m also unaware how your Article 52 and 53 VCLT and Articles 7 and 8 to GCIV arguments are valid or relate to the subject matter.

    The way that Alan Baker interprets the Olso Accords implies that, absent Israel’s consent in the form of an agreement on final status, they preempt jus cogens norms regarding the use of force, war crimes, and crimes against humanity, like pillage of public and private property, forced displacement, deportation, and population transfers. Many of the Palestinian refugees were displaced by the establishment of the settlement blocks and the Wall. They are entitled to repatriation without undue delay and other protections of family rights and honor, including private property rights under the terms of the Hague rules, the Geneva Conventions, and the Additional Protocols that crystallized the rules of customary international law. I don’t believe that Israel can conclude a valid final treaty or interim special agreement at gunpoint, during a belligerent occupation, that deprives the civilian population of its reversionary rights, jurisdiction, and protections, without violating Articles 28, 43, and 46 of the Hague rules of 1907; Articles 52 and 53 of the VCLT; and Articles 6, 7, & 8 of GCIV.

    In Nicaragua v. United States the ICJ quoted a portion of the General Assembly’s Definition of Aggression which employed the term “State” and said that it reflected a customary rule. It held that the victim state was in the best position to decide whether it had been the target of aggression. The State Parties to the Rome Statute subsequently adopted the General Assembly’s Definition of Aggression, which says that the term “State” is used without prejudice to questions of recognition or to whether a State is a member of the United Nations. it isn’t clear that Article 12 of the Rome Statute allows the Prosecutor to introduce tests that rely on that criteria either.

    Chapter 10 of Palestine’s Written Statement to the Court in the Wall case alleged that many acts committed by Israel, which were subsequently cited in the Courts findings of fact (paragraphs 132-134), were also constituent acts of the crime of apartheid.

    It would be an extremely odd result if a Bantustan victim state could not make a self-referral of its own illegal situation to the ICC, because its inherent territorial jurisdiction and IHL treaty protections were preempted by a special treaty agreement with a belligerent Occupying power that violates the provisions of Articles 52 & 53 of the VCLT and Article 8 of the GCIV. That’s especially true since the commentaries say those rules were adopted to prevent that very sort of thing from happening again and the fact that one of the first treaties that called for the establishment of an international criminal tribunal was the International Convention on the Suppression and Punishment of the Crime of Apartheid.

    Alexander Orakhelashvili explained in this journal that: “Resolution 242 called for ‘a just settlement of the refugee problem’ in Palestine. ‘Just settlement’ can only refer to a settlement guaranteeing the return of displaced Palestinians, and other interpretations of this notion may be hazardous. The Council must be presumed not to have adopted decisions validating mass deportation or displacement. More so, as such expulsion or deportation is a crime against humanity or an exceptionally serious war crime (Articles 7.1(d) and 8.2(e) ICC Statute)

    — EJIL (2005), Vol. 16 No. 1, 59–88 http://goo.gl/QDPKm7

  15. Ori

    Harlan (though I noticed someone called “Hostage” has used the exact same language as yours in other places), Israel’s stance relates to the two conditions (territory and jurisdiction) being cumulative (adopting Roosevelt and Tomuschat’s approach). Regarding your quote from Jacobs, what he wrote regards whether the State’s municipal law provides it with jurisdiction ratione materiae over the crime. This does not relate to the question of whether the State has territorial jurisdiction under international law to begin with.
    Regarding the numerous sources you brought, whatever their context was, it is important to note what the ICJ stated in Malaysia/Singapore: “any passing of sovereignty over territory on the basis of the conduct of the Parties… must be manifested clearly and without any doubt by that conduct and the relevant facts.” This is especially correct if what we are dealing follows an armistice agreement which explicitly stipulates that the armistice line is not a border. Quoting Ben-Gurion in a political discussion, for instance, is not the form of acquiescence which meets the necessary requirements (which in any event do not recognise Jordanian title to the West Bank, or at least does not manifest that clearly). (I also do not see how Eban’s remarks constitute Israeli recognition of Jordanian title over the West Bank which would provide it with the right to exercise its judicial jurisdiction – they merely recognise that Jordan is practising jurisdiction there.)
    I’m unaware of any Israeli “pillage” of public or private property. In any event, the Israeli High Court of Justice struck down attempts to requisite private lands if not done under military necessity. I’m also not sure what Israeli actions that brought about the Oslo Accords were in violation of prohibition of the threat or use of force under Article 2(4). Moreover, Article 8 to GCIV addresses agreements with individuals, whereas Article 7 addresses agreements with High Contracting Parties to GCIV – the PLO being neither of these, hence rendering them irrelevant to our discussion (which I believe has led to places far beyond the purposes of the above blog).

  16. Harlan

    Regarding the numerous sources you brought, whatever their context was, it is important to note what the ICJ stated in Malaysia/Singapore: “any passing of sovereignty over territory on the basis of the conduct of the Parties… must be manifested clearly and without any doubt by that conduct and the relevant.

    In the Wall case, the ICJ explicitly rejected Israel’s claims based upon “the lack of recognition of the territory as sovereign” and inferences that it is “not a territory of a High Contracting Party as required by the Convention”. It also affirmed the Palestinian right of self-determination. Judge Higgins explicitly noted that resolution 242 meant that the Palestinians were entitled to their State and their territory all along.

    Your argument is based on an inapposite quotation from the judgment in Malaysia/Singapore case. The Court was discussing the narrow circumstances, in which sovereignty over territory might pass as a result of the failure of the State (which has sovereignty in the first place) to respond to conduct of another State, i.e. “That is to say, silence may also speak, but only if the conduct of the other State calls for a response.”

    The Security Council record that I cited above said that the representative of Israel had sent a letter requesting permission to come answer questions on the Council’s agenda about the legal situation that had been created by the application of the Article 40 provisional measures and the terms of the resulting armistice agreements. I was citing his verbatim responses in which he said that the organs of government of the respective states, including Jordan, possessed full civil jurisdiction up to armistice line, and that it was unchallengeable, pending a negotiated final settlement. I also noted that the government of Israel has consistently advised the UN treaty monitoring bodies, in writing, that none of the Occupied Palestinian territory is part of its sovereign territory or jurisdiction. So these are not examples of an inference drawn from silence or unanswered conduct by the other state.

    By resolution 62 (1948) of 16 November 1948, the Security Council decided under the auspices of Article 40 of the UN Charter that “an armistice shall be established in al1 sectors of Palestine”, including “the establishment of permanent armistice demarcation lines, beyond which the armed forces of the respective parties may not move.” The agreements acknowledged that provisional situation and stipulated that civilians were also prohibited from crossing the lines. By resolution 73 of 11 August 1949, the Security Council accepted the agreements and affirmed that the parties were bound to implement and observe them pending a final settlement.

    Re: This is especially correct if what we are dealing follows an armistice agreement which explicitly stipulates that the armistice line is not a border.

    That’s an urban legend. The armistice agreement doesn’t actually say that, or prevent anyone from treating the lines as a legally enforceable provisional boundary, pending a mutually agreed upon final settlement. Ben Gurion himself called them “expanded borders” in the Knesset speech I cited above and Israel certainly acquiesced when three members of the Security Council P-5 called them “armistice borders”. See the “Tripartite Declaration Regarding the Armistice Borders : Statement by the Governments of the United States, The United Kingdom, and France, May 25, 1950″ http://avalon.law.yale.edu/20th_century/mid001.asp

    Re:This does not relate to the question of whether the State has territorial jurisdiction under international law to begin with.

    I already explained that the law of nations recognized the inherent right of the peoples of these communities to organize a state and operate a government on their own behalf and cited an article in the Digest of International Law which explained how they established a joint government that acquired sovereignty over their territory through a regional congress and a national plebiscite.

    Re: I’m unaware of any Israeli “pillage” of public or private property. In any event, the Israeli High Court of Justice struck down attempts to requisite private lands if not done under military necessity.

    No, the High Court of Justice gave the government carte blanch to pillage state land for the use of civilian settlement blocs after the Elon Moreh decision. They were all established on pillaged public and private lands. The ICJ rejected the claim that was done under military necessity. “When the occupation began, the land owned by Jews before 1948 and administered by the Jordanian Custodian of Enemy Property in the West Bank was estimated at 30,000 dunums out of a total area of 5.50 million dunums (a dunum is 1,000 sq.m.). These lands were located mainly in the Jerusalem metropolitan area and the Etzion Bloc, situated south of Jerusalem. By 2003, land appropriated, inter alia, for Israeli settlements in the West Bank (including Jerusalem) constituted 2,346,000 dunums i.e. 41.9 percent of the total area of the West Bank.” See the Written Statement submitted by Palestine to the International Court of Justice, 29 January 2004.

    Information from classified records released by the Government of Israel indicates that its officials are aware that at least 32.4 percent of the land occupied by Israeli settlements in the West Bank was illegally expropriated from private Palestinian land owners for the private use of Israeli settlers. See Steven Erlanger, “West Bank Sites on Private Land, Data Shows, New York Times, 14 March, 2007, http://www.nytimes.com/2007/03/14/world/middleeast/14israel.html?pagewanted=print

    The Defense Minister just green lighted the retroactive legalization of the Netiv Ha’avot outpost. The land survey conducted by the state revealed that 60 percent of the outpost was built on privately-owned Palestinian farmland. So even the old Elon Moreh decision has been ignored in actual practice.

  17. Harlan

    Re: Moreover, Article 8 to GCIV addresses agreements with individuals, whereas Article 7 addresses agreements with High Contracting Parties to GCIV – the PLO being neither of these, hence rendering them irrelevant to our discussion (which I believe has led to places far beyond the purposes of the above blog).

    Article 8 explicitly stipulates that it applies to the special agreements mentioned in Article 7. the ICJ noted that the PLO 1988 unilateral undertaking to apply the Geneva Conventions and Protocols was considered valid by the Swiss government. The General Assembly resolution that upgraded Palestine’s status in the UN recognized the PLO Central Committee decision that entrusted the PLO Executive with the role of the provisional government of the State of Palestine at that same time, and that more than 130 countries had recognized the State of Palestine. 92 of them had done so by the time the PLO applied for membership in UNESCO in 1989.

    I’m hardly the only one who thinks Articles 7 and 8 apply to non-renunciation of rights by officials of an Occupied High Contracting Party. The problem was discussed in the SOAS/HSRC study “Occupation, Colonialism, Apartheid?”

    None of my comments have strayed away from the discussion about the ability of Palestine to fulfill the applicable criteria regarding territorial jurisdiction contained in Article 12 of the Rome Statute.

  18. Ori

    Harlan, your interpretation of Article 8 to GCIV is misleading and I do not understand how it vitiates from the interpretation I suggested. Article 8′s reference to Article 7 is merely in regards to the inability of an individual to agree with the occupying power to derogate from his or her rights that were created by a lawful special agreement in accordance with the provisions of Article 7 )(see more at pages 23-25 here: http://ssrn.com/abstract=2364770).
    Even more misleading is your reference to the ICJ’s Wall opinion. This is the entire quote of what the Court said: “Furthermore, Palestine gave a unilateral undertaking, by declaration of 7 June 1982, to apply the Fourth Geneva Convention. Switzerland, as depositary State, considered that unilateral undertaking valid. It concluded, however, that it “[was] not — as a depositary — in a position to decide whether” “the request [dated 14 June 1989] from the Palestine Liberation Movement in the name of the ‘State of Palestine’ to accede” inter alia to the Fourth Geneva Convention “can be considered as an instrument of accession”.” I do not see how it may be inferred that the Palestinians became a High Contracting Party in 1989. The opposite is apparent.
    Regarding your previous arguments, I’m not sure how you have proven that the Palestinians have territorial criminal jurisdiction. Whether Israel is an occupying power or something else (as Israel’s Foreign Ministry holds), its jurisdiction derives from this status. Saying that the Palestinians have a right to statehood is not the same as saying they have this territorial jurisdiction. In any event, from what I understand now, you are no longer arguing that sovereignty was vested in Jordan (which is why I referred to Malaysia/Singapore, as – though, like any judicial precedent, there are difference – it concerns title contrary to legal agreement) and that I can certainly agree with.
    Finally, regarding your argument on “pillage”, I find it misleading that you claim that you claim the ICJ rejected Israel’s military necessity argument when you actually quote the Palestinians’ written statement (which would hardly constitute a balanced source either). Moreover, whatever was said in the Wall opinion, reference should be made to Judges Buergenthal, Higgins, Kooijmans and Owada’s separate opinions that placed doubt on the impartiality of the reports relied upon by the Court. In any event, the NYT article you brought does not prove such lands were ceased unlawfully, and in fact incorrectly summarises the Elon Moreh decision.

  19. Harlan

    Re:Harlan, your interpretation of Article 8 to GCIV is misleading and I do not understand how it vitiates from the interpretation I suggested. Article 8′s reference to Article 7 is merely in regards to the inability of an individual to agree with the occupying power to derogate from his or her rights that were created by a lawful special agreement in accordance with the provisions of Article 7.

    I already discussed the fact that there are almost insurmountable difficulties in accepting the proposition that the Oslo Accords are a lawful special agreement in light of VCLT and GCIV. The ICJ certainly rejected the idea that the provisions regarding the settlements were enforceable. I cited the SOAS/HSRC study “Occupation, Colonialism, Apartheid?” here is a relevant extract:

    e. Implications of the Accords for Protections of the Fourth Geneva Convention
    The Oslo Accords conveyed putative legality to legal and administrative arrangements that Israel had established over the preceding twenty-four years in violation of the laws of occupation.282 For example, retaining jurisdiction in Area C enabled Israel to perpetuate settlement expansion, including by land expropriation or requisitions in violation of the Hague Regulations; destruction of private Palestinian property in violation of Article 53 of the Fourth Geneva Convention; and the continued transfer of its population in violation of Article 49(6). The Interim Agreement explicitly recognised the land rights of Israeli companies and settlers within the occupied territory.283 Similarly, retaining overriding responsibility for security effectively enabled Israel to continue its practices in violation of the Palestinian rights to life, to freedom from arbitrary detention, to freedom of movement, etc. The provisions on infrastructure and water infrastructure and allocation also reaffirmed discriminatory allotments in favour of Israeli settlers and settlements, pending a final status agreement (as discussed in Chapter III).284
    In sum, the Oslo Accords ratified mechanisms of control and discrimination that Israel had instituted within the OPT prior to 1993. As the provisions of these Accords constitute ‘special agreements’ under Article 7 of the Fourth Geneva Convention, and ‘agreements between the authorities of the occupying territory and the Occupying Power’ under Article 47, questions arise as to their legal implications. Article 7 stipulates that no special agreements shall adversely effect the situation of the protected persons, nor restrict the rights which the Convention confers upon them. Article 7 thus prohibits a belligerent from contracting out of its obligations owed to protected persons;285 Article 8 prohibits a protected person from renouncing the protections of the Convention; and Article 47 reaffirms these two articles and the non-derogability of the Convention’s provisions in cases in which the Occupying Power has annexed territory, implemented changes to institutions or the government of
    occupied territory, or entered into agreements with the authorities of the occupied territory.
    Before the Oslo Accords, Israel implemented policies and undertook practices which contravened the protections of the Fourth Geneva Convention, many of which are relevant to a study on practices of colonialism and apartheid. These include Israel’s establishment of settlements and its restrictions on land planning and development; Israel’s measures related to resource allocation and sufficiency of supplies particularly of water; its restrictions on movement and other forms of collective punishment which are largely directed towards the Palestinian population as a whole; and its use of torture and administrative detention. The Oslo Accords do not contain provisions which prima facia amount to violations of the Convention, but they do recognise those unlawful prior practices and, through the allocation of jurisdiction and authorities, enable or ratify a continuation of such violations.
    Article 7, in conjunction with Article 47 and Article 8, renders null and void those provisions of the Accords that ratify past violations of the Convention.

  20. Harlan

    Re: I do not see how it may be inferred that the Palestinians became a High Contracting Party in 1989. The opposite is apparent.

    In most cases, entities are recognized as states when they begin to act like one. Palestine certainly was legally bound by the terms of its 1989 undertaking regarding the Geneva Conventions and Protocols. Individual states have a common interest in obtaining respect for the rules of IHL contained in the Conventions and the Additional Protocols.

    I don’t see how any government that viewed the Palestinian undertaking as valid, could avoid its own obligations under the terms of the conventions and relevant Security Council and General Assembly resolutions. The UN had repeatedly reminded all of the parties that they had undertaken to ensure respect for the Convention in all circumstances. The conventions are open to all states and 92 other countries had formally recognized the state of Palestine, as such, by 1989. Many of them entered into diplomatic relations with it. See for example Annex II of UN Doc. 131 EX/43, 12 May 1989. The Montevideo Convention criteria indicates that recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. That includes the right to conclude treaties and file accessions and the duty to subsequently abide by the terms of an agreement. Many if not most of the High Contracting Parties of the Montevideo Convention have recognized the State of Palestine, as such. Nothing in the Geneva Conventions requires that a state be universally recognized before it can avail itself of the protections of IHL or become a contracting party. I also pointed out that in the only case I’m familiar with, the ICTY employed the Montevideo Convention criteria and relations with other international entities to determine that the state of Croatia existed, despite the fact that its borders and existence were still disputed and it wasn’t a UN member or observer state. Disputes regarding statehood are not one of the grounds for excluding criminal responsibility.

    Re: In any event, the NYT article you brought does not prove such lands were ceased unlawfully, and in fact incorrectly summarises the Elon Moreh decision.

    No, we are talking about an Israeli government database which listed, among other things, illegally confiscated private Palestinian property. The ruling in the Elon Moreh case stood for the proposition that the commander could not make an ad hoc retroactive determination, based upon “military necessity”, after the property in question had already been taken. There’s only one country on Earth which contends that the settlements aren’t illegal, and the majority opinion has just as much to do with the prohibitions contained in Articles 28 and 46 of the Hague Convention rules of 1907 as it does to the ones contained in Article 49 of the 4th Geneva Convention.