Palestine or the land mass of Gaza, at this point and time,
cannot legally be considered a state under international law.
The ICC and ICJ have made a political not legally binding
decision on Israel, Palestine, or Gaza. The ICC and ICJ have ignored the
requirements for granting statehood and have made decisions based solely on
political ideologies and not international legal grounds.
The ICJ is known, as the World Court, a UN body for hearing
disputes between states and Gaza and or Palestine are NOT States under
international law.
1. Palestine/Gaza
does not meet the de facto requirements of statehood as it lacks independent
control over its population, territory, government, and foreign relations.
While it has some recognition and a degree of self-determination, it does not
achieve de jure statehood under international law. For the ICC and ICJ to recognize Palestine/Gaza as a state/statehood prematurely it shall continue
to destabilize the region further.
2. For Gaza or
Palestine to meet the legal requirements for a state/statehood first a group i.e.
Hamas that is or has been designated as a terrorist organization, as a
legitimate government under international law, it must “unequivocally renounce
terrorism and cease all terrorist activities.” Hamas’s stated Mission is “Murder
Jews; “Obliteration” of Israel. “
3. Hamas and
the Palestinian Authority must both disarm, and demobilization of all armed
terrorist factions are crucial steps for even being legally considered for
statehood/state and further have demonstrated significant shifts in both the
group's behaviour and the perceptions of the international community.
4. Compliance
with International Law: The group must commit to and comply with international
humanitarian and human rights laws and not be a terrorist organization or
supporter of terrorism.
5. While the
PLO transitioned through peace processes, recognized Israel's right to exist,
and gained recognition as the representative of the Palestinian people under
Article 3 of the Draft United Nations Declaration on the Rights of Indigenous
Peoples defines self-determination as the right of an entity to “freely
determine their political status and freely pursue their economic, social and
cultural development. Nowhere is it stated that the right to self-determination
equals a right to statehood. Israel has
granted Palestine numerous powers in which it has obtained a great degree of
self-determination.
6. Palestine/Gaza
is an autonomous entity, not a state.
7. The UN
considers Palestine an international organization rather than a state. States may individually recognize Palestine,
but the international community as a whole does not recognize Palestine as a
state. Therefore, Palestine is not a
state by de jure standards as well.
8. A state must
have the ability to engage in diplomatic and foreign relations with other
states. The DOP Article XI creates an Israeli-Palestinian Economic Cooperation
Committee to promote the development of the West Bank and the Gaza Strip.
Palestine therefore cannot enter into economic
agreements with other states without the approval of Israel.
9. Section 2 of
Article IX on Laws and Military Orders reiterates this point: “Both parties
will review jointly laws and military orders presently in remaining spheres.”
Under the terms of both the Interim Agreements and the Declaration of
Principles, it is clear that the powers Palestine possesses do not extend to the
realm of foreign relations. By signing
these agreements, Palestine acknowledged and accepted its inability to conduct
foreign relations. Without this fourth
component, Palestine has not achieved de facto statehood.
10. Palestine’s
ability to enter foreign relations is severely limited by the Interim Accord of
1995. Article IX, Section 5, which lays
out the Powers and Responsibilities of the Palestinian Council, states that: “…the
Council will not have powers and responsibilities in the sphere of foreign
relations, which sphere includes the establishment abroad of embassies,
consulates or other types of foreign missions and posts or permitting their
establishment in the West Bank or the Gaza Strip, the appointment of or
admission of diplomatic consular staff and the exercise of diplomatic relations
[emphasis added].”
11. Furthermore,
the 1994 Agreement of the Gaza Strip and Jericho calls for the creation of a
joint committee called the Civil Affairs and Cooperation Committee to handle
civil affairs in the region. Members from both Israel and Palestine are to meet
once a month to discuss civil matters including infrastructure, licensing,
hospitalization, transportation and other such matters. In this agreement, Israel also states it has authority over “the Settlements, the Military
Installation Area, Israelis, external security, internal security and public
order” and “shall exercise its authority through its military government” in
the region. This again shows that it is Israel who has the overriding authority
of the area.
12. An entity
must have a government to be considered a state. The Encyclopedia of Public International Law
states that “the government, in exercising its power, must be capable of acting
independently of foreign governments.” Palestine does not possess such
independence for it rules under the overarching authority of Israel. The Declaration of Principles (DOP), which
was signed by both sides, gave limited powers to the Palestinian National
Authority.
13. In UN General
Assembly Resolution 181, the United Nations called for a partition of the land
into both a Jewish State and an Arabic State.
Resolution 181 is often used as evidence of Palestine’s sovereign title
over the West Bank and Gaza Strip, though this remains unfounded. The United
Nations tried to create a state, which goes well beyond the powers granted to
it by the UN Charter. As stated in
Chapter IV, Article 10, UN resolutions are only recommendations and not binding
laws. Furthermore, the UN abandoned Resolution 181 with the passing of Security
Council Resolutions 2428 and 3389.
14. Palestine’s
rejection of Resolution 181 that prevented its adoption. In the Palestine
National Charter, Article 19 states that “The Partition of Palestine, which
took place in 1947, and the establishment of Israel, are fundamentally invalid.”
For decades Palestinians have declared the partition void, therefore rejecting
sovereign title to the area.
15. By signing
the Declaration of Principles (DOP) in 1993, Palestine acknowledges that the sovereign title of the West Bank and Gaza Strip had not yet been resolved. Article V of the DOP states that future
permanent status negotiations shall cover the issue of borders in the future,
but as of right now, Palestine does not have sovereignty over the land. The DOP
and latter agreements granted certain powers to Palestine but never sovereign
title over the land.
16. As stated by
the Third U.S. Restatement of the Law, the population must be “under the
control of its own government.” While Palestine has been granted many powers
over its people, it is still not independent of Israeli control.
17. Palestine
does not have sovereign title over the West Bank or the Gaza Strip. The area was granted to Israel as early as
1917 by the British in the Balfour Declaration. In the Balfour Declaration,
Britain recognized the need for a Jewish state and granted the Palestinian land
for this purpose. Later Britain turned
the issue of a Jewish state over to the League of Nations, but the Balfour
Declaration was upheld through the Mandate for Palestine.
18. The Permanent
Court of International Justice, the UN Special Commission on Palestine, and the
Council of the League continue to uphold the Mandate for Palestine.
19. Palestine/Gaza
is not officially recognized as a fully independent country by the United
Nations.
20. The Balfour
Declaration, issued by the British government in 1917, did not directly address
the issue of a Palestine homeland or self-determination for the people of
Palestine.
21. The
Sykes-Picot Agreement, as outlined in the correspondence between Sir Edward
Grey and Paul Cambon, did not specifically guarantee a homeland or nation for
Palestine. And the Sykes-Picot Agreement did not directly address the issue of
a Palestine homeland or self-determination for the people of Palestine or grant
the people of Palestine, or any other specific region, the right to determine
their future.
22. The letters
exchanged between Husayn and McMahon hinted at possible future arrangements and
cooperation between the Arab leaders and the British, there were no explicit
assurances of independence for the Arabs, particularly regarding Palestine.
There was no explicit indication of an agreement or commitment by the Allies to
grant the people of Palestine, or any other specific region, the right to
determine their future. Therefore, it cannot be assumed from these letters
alone that there was an international commitment by the Allies to grant such
rights to the people of Palestine.
23. The refusal
by the Arab population of the mandate territory to accept Resolution 181
demonstrated that they were not interested in establishing their own state if
it meant allowing the existence of a Jewish state. This opposition to
acknowledging the right of a Jewish state to exist still lies at the core of
the conflict.
24. How can there
be between Palestine and Israel or advance peace when none of the Arab
universities has a center for teaching the thought, practice, and study of
peace? When most of the publications focus on conflict rather than
peacebuilding? When the educational curriculum teaches hatred, enmity,
antisemitism, and death rather than celebrating life, moderation, and
reconciliation? When Hamas terrorists and extremists are celebrated, and
peacemakers and moderates are labelled traitors? We need to change our mindset
and culture to achieve peace.
Therefore, for Gaza or Palestine to meet the legal requirements for a state/statehood first a group i.e Hamas that is or has been designated as a terrorist organization, as a legitimate government under international law, it must “unequivocally renounce terrorism and cease all terrorist activities.” Hamas’s stated Mission is “ Murder Jews; “Obliteration” of Israel. “
The ICC/! CJ in their decision was Ultra Vires under law. The Montevideo Convention of 1933 outlines the criteria for statehood, which include a permanent population, defined territory, government, and the capacity to enter into relations with other states. Palestine meets some of these criteria, but its full status remains contentious due to ongoing territorial disputes and the lack of a universally recognized government.
While some countries recognize Palestine as a state and has a certain level of recognition at the UN, it does not have universal recognition or full legal status as a sovereign state in the eyes of all international law or actors.
The panel overstepped its legal authority when it stated and based its ruling on agreeing with Khan’s assessment that the ICC has jurisdiction over the case since Palestine is a state party as per the ICC statute.
Palestine is NOT a State or a country therefore the ruling was Ultra Vires. (beyond the legal power or authority of the person performing an action)
Summary and
Analysis
Historical
Context
Post-Ottoman
Empire: Following World War I, Palestine came under British rule along with
other Arab nations.
British
Withdrawal: Unlike other Arab states that gained independence, Palestine did
not.
Balfour
Declaration (1917): Britain supported the establishment of a Jewish homeland in
Palestine.
UN
Involvement: The United Nations proposed a partition plan in 1947, calling for
separate Israeli and Palestinian states. Israel accepted the plan and declared
independence in 1948; Palestine rejected it and remains without recognized
statehood.
Criteria for
Statehood (Montevideo Convention)
Permanent
Population:
Palestine has
a permanent population with a shared culture and history residing in the West
Bank and Gaza Strip.
Controversy
exists over whether this population is sufficiently governed independently, as
per the Third U.S. Restatement of the Law.
Defined
Territory:
Palestine
does not have sovereign title over the West Bank or Gaza Strip.
The Balfour
Declaration and subsequent mandates supported a Jewish state, complicating
Palestinian claims to the land.
UN General
Assembly Resolution 181 proposed a partition, but this was not binding and was
later abandoned.
Palestine’s
land is fragmented and lacks clearly defined borders, similar to other
unrecognized entities historically.
Government:
Palestine has
limited self-governance but operates under Israeli authority.
Agreements
like the Declaration of Principles (DOP) and Interim Accord outline the limited
powers of the Palestinian Authority, granted by Israel.
Palestine
lacks independent control over security, economy, and infrastructure.
Capacity to
Enter into Relations with Other States:
Palestine
cannot independently engage in foreign relations without Israeli cooperation,
as outlined in the Interim Accord.
Diplomatic
limitations and the inability to form an army hinder its status as a fully
independent state.
De Facto vs.
De Jure Statehood
De Facto
Statehood: Requires actual control over a permanent population, defined
territory, government, and foreign relations.
Palestine
does not meet these criteria due to Israeli authority and lack of independent
control.
De Jure
Statehood: Involves legal recognition by other states and international
organizations.
Despite
recognition by some states, Palestine has not achieved broad international
recognition.
Organizations
like the UN, WHO, and EU do not recognize Palestine as a state, only granting
it Observer Status.
Right to
Self-Determination
UN
Recognition: The right to self-determination is acknowledged by the UN but does
not equate to statehood.
Autonomy vs.
Statehood: Palestine has autonomy in areas like education, health, and social
welfare, but this does not fulfill the criteria for statehood.
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