Palestine
Palestine from the date on which the Court’s juris- diction became effective, namely, July 1, 2002.
Like the two 1989 Palestine applications to UNES- CO and WHO, the 2009 Palestine letter to the ICC Prosecutor set off a political firestorm. Israel de- nounced the filing as a breach on the Palestinian side of the agreements under which Israel had ceded partial control of the Gaza Strip and West Bank. The United States pressed the Palestine government to withdraw the letter.
To date, neither the Prosecutor nor any panel of judges at the ICC has taken action on the Pales- tine letter. No investigation has commenced, but neither has any official indication been given that the Palestine letter is invalid.
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Then in 2011, the Palestine government raised the statehood issue again by submitting an appli- cation for membership in the United Nations. The UN Secretary-General referred the application to the Security Council and General Assembly for action. As with WHO and UNESCO, membership in the United Nations is open only to a state.
Debate swirled anew over the question of wheth- er 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 oc- cupation, resulting from Israel coming into oc- cupation of that territory in the June 1967 war. To that extent, Palestine does not have the feel of entities like, say, Uruguay or Thailand. On the other hand, when territory is under belligerent oc- cupation, the local control that one normally as- sociates with statehood cannot be exercised for lack of military muscle to oust the occupier. For example, Denmark found itself occupied by Ger- many at one juncture during World War II, yet no one said that Denmark had ceased to exist as a state.
To make matters even more ambiguous, there is no agreed definition among the international insti-
tutions of which entities qualify as states. Certain criteria are said to be associated with statehood, as found in an inter-American treaty of 1933, the Montevideo Convention. An entity purporting to be a state should have a territory, a population within that territory, control over the territory and population, and a capacity to enter into relations with other states. Yet these criteria do not apply in any automatic fashion, and no institution is tasked with applying them. If an entity that does not meet these criteria is accepted as a state in the international community, there is no provision for an injunction before any international body to assert the contrary.
Some argue that an entity is a state only if it en- joys independence. But that proposition would seem to be belied by the fact that a state that is under belligerent occupation can nonetheless be a state. At least if by “independence” one means actual control of the entity’s affairs. However, “in- dependence” in this context may not carry that meaning. More properly independence as re- gards a state means that the entity is not under the sovereignty of another state. In this sense, Denmark was independent even while under German occupation. In terms of Palestine, no other state has a legitimate claim to sovereignty over Palestine.
Diplomatic recognition is said to be relevant to whether an entity is a state. Yet there is no nec- essary concordance between considering an entity a state on the one hand and according it diplomatic recognition on the other. Diplomatic recognition is said to have a political or subjective element. A state need not recognize an entity even if it considers it to be a state if it has political objections to the state, or indeed for any other reason. Many of the states in the UN General As- sembly that voted for Israel’s admission in 1949 had not accorded Israel diplomatic recognition. Yet in order to vote for Israel’s admission they had to consider Israel to be a state.
ILSA Quarterly » volume 20 » issue 2 » December 2011
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