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Jerusalem Center for Public Affairs
Strategic Alliances for a Secure, Connected, and Prosperous Region

Averting Palestinian Unilateralism: The International Criminal Court and the Recognition of the Palestinian Authority as a Palestinian State

Filed under: International Law, Israel, Israeli Security, Radical Islam, The Middle East
Publication: Special Reports

Executive Summary

  • The Palestinian Authority’s January 22, 2009, declaration to the Office of the Prosecutor of the International Criminal Court amounts to an official request to confirm that the PA can be considered as a state for purposes of ICC jurisdiction.
  • Yet the 1995 Israeli-Palestinian Interim Agreement which created the PA established a fundamental principle: “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the Permanent Status negotiations.”
  • It is at least doubtful that the ICC would want to become involved in an attempt to effect a material breach of the only valid and legally binding framework that has governed, and continues to govern, the relationship between Israel and the Palestinians.
  • If the Palestinian Authority, acting as a non-state entity, succeeds in achieving standing in the ICC, then any political community contemplating a move to political independence or statehood will be motivated to follow suit. The Chechens, Basques, Tibetans, Sudanese Christians, and Kurds immediately come to mind.
  • While some academics try to argue that a State of Palestine existed following the demise of the Ottoman Empire and the creation of the British Mandate, the Palestinian Arab leadership at the time saw their country as part of Southern Syria and their demand was for the reconnection of Palestine with Syria rather than for an independent Palestinian state.
  • The Principal Allied Powers that drafted the postwar Treaty of Sèvres and the Mandate for Palestine in 1920 did not specifically assign political rights to the local Arab population, but clearly promoted the re-establishment of a Jewish “national home.”
  • To retroactively revise the political status and reinvent the area as an already existing Arab state or as a precursor to a would-be Arab state of Palestine would be tantamount to wiping out the historical and legal roots of the State of Israel and the internationally recognized rights of the Jewish people to a homeland in Palestine.
  • Finally, inserting the issue of ICC jurisdiction into the present environment in IsraeliPalestinian negotiations is likely to fortify Palestinian intransigence at the peace table, since PA negotiators will feel that they can fall back on unilateralist options instead of compromising in order to reach an agreement.

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