Palestine at the United Nations: What Does It Take to Be a State?
by John B. Quigley
submitted membership applications to the World Health Organization (WHO) and to the United Na- tions Economic, Social and Cultural Organization (UNESCO). In both institutions, membership is open only to a state. In both instances, the institu- tion declined to act favorably on the Palestine application, instead post- poning it and not coming back to it. In each institution, the sentiment was expressed by some member states that Palestine was not a state, hence should not be admit- ted. However, neither institution gave a clear answer to that ques- tion, because in each the issue of principle – whether Palestine was a state – was secondary in the de- cision. The primary consideration was that the United States made threats to all but eliminate these institutions if Palestine were to be admitted. These threats were made not only by the executive branch, but by the United States Congress as well. It adopted as part of its budget legislation a proviso that no United States funds would go to any international organization that admitted Palestine. The issue was drawn most sharply in the WHO, where Director-General Hi- roshi Nakajima pleaded with the membership to postpone the Palestine application, lest WHO die for lack of funds. WHO did put the Palestine ap- plication on hold.
T
For the next 20 years, the Palestine government did not apply for membership to any other inter-
he question of Palestine’s status has be- deviled international lawyers for many years. The issue came before two interna- tional institutions in 1989, when Palestine
national organization. Then in 2009, an external event led Palestine to take action and raised the statehood issue before yet another international institution. After Israel sent a military force into the Gaza Strip in late 2008, an UN-appointed in- quiry commission found reason for investigation of Israeli officials for acts that might constitute war crimes.
Debate swirled anew over the question of whether Palestine qualifies as a state. Palestine is not in control of its territory in the way one normally finds
in the international community. Palestine’s territory is under the
regime of belligerent occupation, resulting from Israel coming into occupation of that territory in the June 1967 war.
The only international institution with power to investigate and prosecute is the International Criminal Court (ICC). However, the ICC’s jurisdiction is limited, in particular as relates to jurisdic- tion over the person. In terms of subject matter, the ICC has ju- risdiction over crimes against humanity, genocide, and war crimes. But jurisdiction over the person obtains only if there is a connection with some state. One basis for jurisdiction over the person is the circumstance that the offender is a national of a state party to the Rome
Statute of the ICC (ICC Statute). Another is that the act was committed in the territory of a state party, or on an aircraft or vessel registered to a state party. Still another is that a state not party to the ICC Statute may confer jurisdiction over acts committed by its nationals or in its territory if that state, by declaration to the Court, confers jurisdic- tion. That is what the Palestine Government did in January 2009, just as the Gaza war was end- ing. Palestine is not a party to the ICC Statute, but Palestine’s Minister of Justice delivered a letter to the ICC Prosecutor conferring on the Court juris- diction over any act committed in the territory of
ILSA Quarterly » volume 20 » issue 2 » December 2011
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