Comments on: The ICC prosecutor takes a (preliminary) look at the Gaza Strip

By: Harlan

Harlan — Fri, 19 Jun 2009 10:38:08 +0000

The recognition of the status of statehood depends exclusively on the individual decisions of other existing states.

There is no criteria for statehood that is legally binding on all members of the community of nations. The UN has no organ capable of reaching a decision that is binding on its own members in that regard. For example, many UN member states have never recognized Israel’s statehood.

The real question should be whether or not any other contracting party in the ICC Assembly of States has recognized the State of Palestine and entered into bilateral relations. Once those sort of determinations have been made by another state, the prosecutor has no standing to question or ignore them.

By: Professor Insight

Professor Insight — Sat, 07 Mar 2009 05:50:13 +0000

I’m not sure if I agree with the first part of the analysis in paragraph 4 of this entry about article 11 because it doesn’t take into account the ‘unless’ clause of 11(2). As I read Article 11(2) combined with 12(3), a State accepting jurisdiction can make a declaration that the Court has jurisdiction dating back to July 2002, the date of entry into force of the ICC Statute.

By: Iran Attempting Gaza Investigation « International Law Observer

Iran Attempting Gaza Investigation « International Law Observer — Fri, 06 Mar 2009 09:41:49 +0000

[...] the recent military activities in Gaza. We have previously covered the question and related issues here, here and here. But earlier this week, the NY Times reported that, while the Office of the [...]

By: The ICC and Palestine « International Law Observer

The ICC and Palestine « International Law Observer — Wed, 11 Feb 2009 12:30:35 +0000

[...] ICC and Palestine Posted on February 11, 2009 by olewpedersen Following Dominik’s post below with regard to the Prosecutor of the ICC launching a “preliminary analysis” into the fighting [...]

By: Valentina Azarov

Valentina Azarov — Fri, 06 Feb 2009 22:23:56 +0000

Habtamu,
First of all, the Gaza Strip remains occupied under international law (confirmed by the official position of the UN). I refer you to an older post on this question for further references, here: http://internationallawobserver.eu/2008/10/24/the-occupation-of-the-gaza-strip-and-the-continued-renouncement-of-responsibility/. It’s unilateral statement made by officials from the Israeli government on the day of disengagement from certain areas in the Strip in July 2005 does not hold legal force.

Secondly, the Palestinian territories are presently governed by a belligerent occupant, i.e. the military occupation regime of Israel, and in some areas of public life (mostly in full corroboration with the Israeli military authorities) the interim government of the Palestinian Authority (PA). It should be noted and recalled that the latter does not have de facto authority in the Gaza Strip since following the 2006 democratic elections when the Hamas group was elected to power by the Palestinian people and had since been administrating the Gaza Strip, separately from the PA’s administration in the West Bank. The former, Hamas, is not part of the PA and does not affiliate with them in any way, whether operatively or politically. Therefore, there is no way to attribute responsibility for what is going on in Gaza to the PA.

When the responsibility for what takes place in the Strip today remains for the large part in the hands of the Israeli occupying powers (all subject to the provision of Art 6 of the Fourth Geneva Convention that outlines the parameters and scope of the occupant’s responsibility and obligations towards the occupied territory and population), and the PA has no control de facto and no status de jure in the Strip, the proposition that statehood could be afforded even for the purpose of the specific legal implication that is the invocation of the jurisdiction of the ICC over the Strip is problematic to say the least.

Finally, I would also refer you to a recent report in the EUObserver complimenting some of the information considered above, here: http://euobserver.com/24/27542.

By: Habtamu

Habtamu — Fri, 06 Feb 2009 04:30:20 +0000

Israel withdraw from Gaza in 2006 and announced that ” it has no any international responsibility” over the Gaza strip. This is a good justification to argue that Palastine is a State. In other words, when they said they don’t bear any responsibility concerning Gaza, they are indirectly refering to other State which will take the responsibility of the Strip, that is PALASTINE.

By: Dominik Zimmermann

Dominik Zimmermann — Wed, 04 Feb 2009 21:00:39 +0000

In this I totally agree with you. In my mind it is somewhat odd to have the prosecutor make a decision on Palestine’s statehood. But this only underlines the seriousness in which the prosecutor will find himself when and if he would make a decision for the purpose of determining the court’s ability to exercise jurisdiction. On the other hand, the possible effects of the prosecutor’s potential (!) decision shouldn’t be overstated. The prosecutor hasn’t got the “authority” to recognize states, especially not in the sense that his determination would bind e.g. other states.

By: Guy

Guy — Wed, 04 Feb 2009 20:12:19 +0000

Obviously. But I don’t like that “merely” you have there. It’s a pretty serious matter. I don’t think giving prosecutors the authority to recognize states – even if it’s solely for that “tiny” matter – makes much sense.

By: Dominik Zimmermann

Dominik Zimmermann — Wed, 04 Feb 2009 20:07:53 +0000

Guy,
the Prosecutor (or any of the other entities mentioned above) would obviously determine statehood merely “for the purpose of deciding the court’s ability to exercise jurisdiction” (see the post at para. 5 in fine). Accepting or dismissing statehood does not have any effect beyond this context.

By: Guy

Guy — Wed, 04 Feb 2009 19:58:51 +0000

As opposed to Henning Lahmann, I am not convinced.
Why, exactly, the Prosecutor (and the Registrar, and…) is the one who will determine if Palestine is a state? That doesn’t make a lot of sense. Since when prosecutors have the authority to recognize states? Am I missing something here?