The Politics of International Law Justice, Politics and the ICC in Palestine A normative analysis of the Palestinian Declaration to the International Criminal Court Fnaan Woldegiorgis University of Amsterdam Front page: Logo of the Palestine Solidarity Alliance (PSA), a South African based solidarity movement | 1 “The time is always right to do what’s right.” Dr. Martin Luther King Jr. | 2 University of Amsterdam GSSS Graduate School of Social Science Political Science | International Relations Master Thesis | Justice, Politics and the ICC in Palestine June 2014 F. A. Woldegiorgis 10469818 Supervisor: mw. dr. S. (Sara) Kendall Second reader: mw. dr. D. (Daniela) Obradovic | 3 | 4 Acknowledgement To my parents who have done everything in their capacity to bring me where I am today, how hard their journey may have been through life. | 5 | 6 Abbreviations IBAN The International Bank Account Number ICC International Criminal Court ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice NGO Non-Governmental Organization OTP Office of the Prosecutor PA Palestine Authority PLO Palestine Liberation Organization PNA Palestine National Authority Rome Statute Statute of the International Criminal Court UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly UNHRC United Nations Human Rights Council UNSC United Nations Security Council UPP UNESCO Programme for Palestine WHA World Health Assembly WHO World Health Organization | 7 Table of contents Acknowledgment………………………………………………………………………………5 Abbreviations…………………………………………………………………………...….….7 Chapter 1 Introduction………………………………………………………...……… 10 1.1 Research Question………………………………………………………........12 1.2 Outline of the Thesis…………………….………………………...................13 1.3 Methodology…………………………………………………………………13 Chapter 2 Theoretical Framework…………………………………………………….15 2.1 The Concept of Personality in International Law……………...…………….16 2.2 The Criteria for Statehood…………………………………….......................18 2.2.1 The Classical and Functional Approach of Statehood ………………………19 2.3 Recognition and Statehood……………………….. ………………………...19 Chapter 3 The Palestinian Declaration Through a Legal Frame……………………21 3.1 Palestine at the International Criminal Court: “The Statehood Issue”………21 3.1.1 Submissions at the Address of the Court…………….………………………22 3.2 Implications of Traditional and Functional Approach in Statehood………...23 3.2.1 Montevideo Convention: The End of the Traditional Criteria……………....24 3.3 Individual and Collective Recognition………………………………………25 3.3.1 The All State Formula v The Vienna Formula………………………...……26 Chapter 4 The Politics of the Justice System…………………………………………28 4.1 The Autonomy of the International Criminal Court………….……………..28 4.1.1 The Backdoor Entrance of the ICC System…………………………………29 4.1.2 Structure of the UN Security Council……………………………………….30 4.2 Rome Statute: Political Pitfalls of a Legal Framework……………………...31 Chapter 5 Institutional Analysis: Palestine’s attempt to Recognition………………33 5.1 World Health Organization: Admission of the P.L.O. ..................................33 5.2 International Court of Justice: The Wall Case………………………………35 5.3 UNESCO: Palestine’s road to membership since 1989…………………….36 | 8 Chapter 6 Conclusion…………………………………………………………………39 Bibliography…………………….………………………………………………………… 41 Appendix…………………………………..………………………………………………..47 | 9 Chapter 1. Introduction On 29 November 2012 an overwhelming majority of the UN General Assembly voted -138 in favor to 9 against- to recognize Palestine as non-member observer state. “The moment has arrived for the world to say clearly: enough of aggression, settlements and occupation,” said Mahmoud Abbas, President of the Palestinian National Authority, when addressing the General Assembly (General Assembly GA/11317, 2012). In spite of the upgrade detractors have been saying that the change at the General Assembly will not help the Palestine Authority (PA) accomplish their desirable goals, referring to issues like the settlement expansion, restriction on movement by Israel and the division between Gaza and the West Bank. Others have labelled the new status symbolic (BBC, 2012). One thing is certain, the status upgrade will change the legal position of Palestine in terms of state recognition and statehood. In addition it will affect their relationship with respect to organizations like the International Court of Justice (ICJ) and the International Criminal Court (ICC or The Court), who have been struggling with the ‘statehood’ question of Palestine and whether they are not overstepping their jurisdiction as a Court. After the 22-day Gaza War in 2008-2009, Palestine sought the ICC’s jurisdiction in January 2009 (Human Right Watch, 2013). Palestine Minister of Justice Ali Khashan declared that they would recognize the jurisdiction of the ICC for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002 (ICC, 2009). On 3 April 2012 the Office of the Prosecutor at the ICC however concluded that for the time being, the Court could not consider the declaration made by Palestine because the prosecutor could not decide whether Palestine was a state (ICC, 2012). As laid out in the ICC Statute the main preconditions for the Court to exercise her jurisdiction are: 1) that a State becomes a Party to the Statute and thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 51 or 2) that a non- party to the Statute declares to accept the exercise of jurisdiction by the Court with respect to the crime in question (Rome Statute, 1998: art. 12). Because Palestine declared to accept the Rome Statute, the Court started a preliminary examination in order to determine if they could proceed with the investigation. However the ICC encountered their first dilemma when they had to determine if they could exercise their jurisdiction under article 12, or even article 13, 1 a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression (Rome Statute, art. 5) | 10 as these articles referred to ‘states’. The state needs to deliver an instrument of accession with the Secretary-General of the United Nations, which is problematic in the case of Palestine as they were not a member of the United Nations (ICC, 2012). Without knowing if Palestine is a state or not the Court cannot decided if they can exercise their jurisdiction. In addition to that the ICC does not have the power to determine the boundaries of states, and certainly not in this case where the territory is still under dispute (Kontorovich, 2013: 984). The Office of Prosecutor (OTP) therefore decided that the issue of Statehood of Palestine under article 12 of the Rome Statute needed to be determined by the relevant bodies of the United Nations (ICC, 2012). Now that Palestine has been granted non-member observer status this has shifted their relation with respect to the UN and made Palestine receive collective recognition within the international community. The first question that comes to mind is whether the vote by the General Assembly (GA) has influence on the decision made by the OTP earlier that year regarding Palestine’s declaration. Not only can the GA resolution change the OTP’s determination regarding the preliminary examination, it could also affect possible ratification of the Rome Statute by the State of Palestine. However until today Palestine has not made any movement towards the OTP regarding the decision made in 2012 nor did they give a sign that they want to ratify the Statute. Possible seasons for this could be that leading towards the UN voting in 2012, Palestine received pressure from among others Israel, the United States and Great Britain stating that Abbas should not use the possible new status to pursue legal action against Israel for its conduct in the occupied territories (Al Jazeera, BBC, 2012). The GA/11317 resolution was adopted after the OTP decision on Palestine in April 2012, however there were other factors that could, and should, have changed the determination of the ICC Prosecutor. Both scholars as (non-governmental) organizations within the field of International Relations and Public International Law have analysed these different factors and argued why these should or should not have been considered by the ICC before coming to a decision. This thesis will follow the arguments produced by both fields before, during and after the declaration by Palestine at the International Criminal Court and try to fill the gap in perspective. Moreover this thesis will argue that the Office of Prosecutor at the ICC should have used a more functional approach when dealing with the ‘statehood’ issue of Palestine. | 11 1.1 Research Question This thesis aims to analyse the statehood of Palestine’s through the lens of an international legal organization. The statehood of Palestine in relation with the ICC is an issue that should not only be analysed from an international law or political perspective, but very much needs an overarching view to fully understand the decision making process of the International Criminal Court. Furthermore this research is to look at the dilemma of statehood through both lenses in order to show the difference in approach and moreover to address the gap in literature reviews by both disciplinary. By analysing the statehood issue through