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<p><strong>Related: ▣ FAQ ▣ <a href="https://occupiedpalestine.wordpress.com/2011/09/08/faq-on-palestinians-statehood-bid/" target="_blank">Palestine Statehood Bid</a></strong></p>
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<p>1</p>
<h4 style="text-align:center;"><strong>Human Rights in the Occupied Territories:</strong></h4>
<h3 style="text-align:center;"><strong>Possible Implications of the Recognition of Palestinian Statehood</strong></h3>
<p><strong>Written by: Atty. Anne Suciu and Atty. Limor Yehuda</strong><strong>1 </strong><strong>(ACRI)</strong></p>
<p>September 2011</p>
<p><strong>Introduction</strong></p>
<p>The Palestinian initiative planned for September 2011, in which a request will be</p>
<p>made to admit Palestine to the UN as a state within the 1967 borders, or to be</p>
<p>recognized as a state by the UN members, is a political and diplomatic move whose</p>
<p>implications in general and for the human rights of those in the region are hard to</p>
<p>foresee. These implications will largely depend upon decisions made by the Israeli,</p>
<p>Palestinian, and international political echelons as well as activity on the ground.</p>
<p>Although chances appear slim that Palestine will be accepted for UN membership, in</p>
<p>light of the United States veto in the Security Council, the very recognition of</p>
<p>Palestinian statehood by a decisive majority of UN Member States would have</p>
<p>significant repercussions.</p>
<p>If Palestine is recognized as a state, this would open the way for it to become party to</p>
<p>international conventions and international courts. Becoming a state party to these</p>
<p>could provide Palestine with new tools <em>to enforce Israel’s obligations to uphold</em></p>
<p><em>Palestinian human rights</em>. In addition to the rights afforded by international</p>
<p>recognition of Palestinian statehood, this new status would obligate it to meet</p>
<p>standards of international law, <em>deepening the obligation of Palestinian governing</em></p>
<p><em>authorities to uphold human rights</em>, and heightening its duty and responsibility to</p>
<p>prevent terrorism and threats that originate from within its territory.</p>
<p>In this paper, we outline issues that will arise as a result of this initiative, focusing on</p>
<p>those with potential repercussions for the human rights of those living in the region.</p>
<p>As a human rights organization, ACRI does not take a position on peace process</p>
<p>policy questions. However, since the political changes in the region may have</p>
<p>significant implications with regard to specific human rights questions, we have</p>
<p>created this briefing to outline some of the expected impacts on human rights issues.</p>
<p>1 Our thanks to Atty. Eliav Lieblich for his assistance in preparing this document.</p>
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<p>2</p>
<p><strong>Recognition of a Palestinian State</strong></p>
<p><strong>Conditions for Recognition of a State</strong></p>
<p>According to the traditional formulation of customary international law, an entity</p>
<p>must meet four criteria set out in the Montevideo Convention of 19332 for it to be</p>
<p>considered a state: a permanent population, a defined territory, effective government</p>
<p>over the population, and the capacity to enter into relations with other states.</p>
<p>The Montevideo Convention reflects the <em>declarative model </em>of the recognition of</p>
<p>states, in which the act of recognition acknowledges the existence of the state, but is</p>
<p>not what bestows statehood upon it. The existence of a state is, thus, a matter of fact:</p>
<p>An entity that meets the four criteria is a state, and does not require the recognition of</p>
<p>other states. The difficulty, of course, is that without an act of recognition by other</p>
<p>states, it cannot fully realize its sovereignty.3 According to the <em>constitutive model</em>, on</p>
<p>the other hand, the act of recognition by other states is what bestows statehood.4</p>
<p>Already today, no significant argument appears to counter the claim that the</p>
<p>Montevideo criteria have been met by the Palestinian entity. But even in the case that</p>
<p>a dispute does arise over the question of whether Palestine meets the Montevideo</p>
<p>criteria, particularly the doubt raised by Israel about the existence of effective</p>
<p>government,5 this does not eliminate the possibility that Palestine would receive</p>
<p>widespread recognition. In modern international law, the Montevideo criteria are not</p>
<p>the only criteria of statehood. In current practice, <em>political and moral principles </em>are</p>
<p>key to the guidelines for recognition, and these include the right to self-determination,</p>
<p>protection of the rights of minorities, and others.6</p>
<p>Considering the broad international support for the Palestinian right to selfdetermination,</p>
<p>and the fact that the territories in the West Bank and Gaza are not part</p>
<p>of the sovereign state of Israel, there is a real possibility that most UN Member States</p>
<p>will support recognition of Palestinian statehood even in the absence of perfect</p>
<p>fulfillment of the formal criteria of the Montevideo Convention.</p>
<p>Nevertheless, in light of the fact that Israel, as well as other states, are not expected to</p>
<p>recognize Palestinian statehood at this stage, the question of the existence of a</p>
<p>Palestinian state will not remain free of doubts, and its ability to realize its</p>
<p>sovereignty will be limited.</p>
<p>2 Convention on the Rights and Duties of States (Montevideo Convention), 26 December 1933.</p>
<p>3 As in the case of Somaliland, which meets the criteria of the Montevideo Convention, but is</p>
<p>not recognized by the international community.</p>
<p>4 Thomas D. Grant, <em>The Recognition of States</em>, 2-12 (1999).</p>
<p>5 Israel’s position as stated in the Foreign Ministry website (dated 30 June 2011) is that the</p>
<p>Palestinian Authority does not have effective control over most areas of the West Bank, and no</p>
<p>effective control whatsoever over the Gaza Strip, where Hamas governs.</p>
<p>6 James Crawford, <em>Recognition of States in International Law</em>, 99-101 (2007).</p>
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<p>3</p>
<p><strong>Admission to the UN</strong></p>
<p>Admission to the United Nations confers various advantages upon the Member States,</p>
<p>but membership in the UN is not a condition for the existence of statehood.7</p>
<p>According to Article 4(2) of the UN Charter, membership in the UN is effected by a</p>
<p>two-thirds majority vote in the General Assembly upon the recommendation of the</p>
<p>Security Council. In the absence of a Security Council recommendation, the General</p>
<p>Assembly is not empowered to admit Palestine to UN membership.8 In light of the</p>
<p>United States’s position on this unilateral action by the Palestinian Authority, and</p>
<p>American veto power in the Security Council, it appears that the Palestinian</p>
<p>Authority&#8217;s chances of becoming a UN member are slim.</p>
<p>An alternative possibility is winning the support of the General Assembly. A General</p>
<p>Assembly vote is an opportunity for the international community to express, in a</p>
<p>coordinated way, a collective view about the status of Palestine, which would carry</p>
<p>significant weight in international discourse. This means that even if Palestine does</p>
<p>not gain UN membership, it could be recognized as a state according to international</p>
<p>law, and the General Assembly could invite it to be party to various international</p>
<p>conventions.9</p>
<p><strong>The Normative Framework that Would Apply to the West Bank and</strong></p>
<p><strong>Gaza</strong></p>
<p><strong>Application of the Laws of Occupation</strong></p>
<p>According to the laws of occupation, statehood is irrelevant in determining whether a</p>
<p>territory is occupied or not, and therefore recognition of a Palestinian state per se</p>
<p>would not affect Israel’s standing in international law as an occupying power.</p>
<p>The accepted interpretation of international law is that the laws of occupation apply to</p>
<p>territories in which <em>a foreign military force is able to exercise effective control </em>over</p>
<p>the lives of the local population. Occupation is not a function of a permanent military</p>
<p>presence, but of the ability to control the territory in the sense that a conquering power</p>
<p>is able to engage in governance activity of a territory.10</p>
<p>7 The state of Taiwan, for example, is not a member of the UN; Switzerland joined the UN only</p>
<p>in 2002, although it was a recognized state and functioned in every respect as a state for many years</p>
<p>prior.</p>
<p>8 According to an Advisory Opinion of the International Court of Justice (1950), “The</p>
<p>admission of a State to membership in the United Nations, pursuant to paragraph 2 of Article 4 of the</p>
<p>Charter, cannot be effected by a decision of the General Assembly when the Security Council has made</p>
<p>no recommendation for admission…” (“Advisory Opinion: Competence of the General Assembly for</p>
<p>the Admission of a State to the United Nations,” ICJ Reports, 3 March 1950, p. 4, <a href="http://www.icjcij" rel="nofollow">http://www.icjcij</a>.</p>
<p>org/docket/files/9/1883.pdf).</p>
<p>9 Such as the International Covenant on Civil and Political Rights (see Article 48), the</p>
<p>International Covenant on Economic, Social, and Cultural Rights (see Article 26), and the Convention</p>
<p>on the Elimination of All Forms of Racial Discrimination (see Article 17).</p>
<p>10 Orna Ben-Naftali and Yuval Shany, <em>International Law between War and Peace</em>, pp. 138-139</p>
<p>(2006) (Hebrew); HCJ 102/82 <em>Tsemel v. Minister of Defense</em>, PD 37 (3), 365, 372-374; von Glahn, <em>The</em></p>
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<p>4</p>
<p>In the current situation, Israel controls the territory of the West Bank and many</p>
<p>aspects of life in the Gaza Strip. With regard to the West Bank, subject to specific</p>
<p>powers that Israel transferred to the Palestinian Authority and allows it to exercise in</p>
<p>the framework of an Interim Agreement, it is Israel that holds all governing powers,</p>
<p>including full control over Area C (62% of the West Bank), Jerusalem, water sources,</p>
<p>civil and military control over the airspace, civil and military control over all border</p>
<p>crossings, entry to and exit from the West Bank, and more.</p>
<p><strong>Gaza</strong></p>
<p>Following Israel’s disengagement from the Gaza Strip in the summer of 2005, the IDF</p>
<p>regional commander declared the end of Israeli military rule over Gaza. The official</p>
<p>Israeli position is that ever since this disengagement, Israel has no control over what</p>
<p>transpires in Gaza and therefore the Israeli occupation of the Gaza Strip has ended, as</p>
<p>have Israel’s legal obligations toward the Gaza population in accordance with the</p>
<p>laws of occupation.11</p>
<p>However, the question of whether Israel is an occupying power of Gaza is a matter of</p>
<p>controversy. Many in the international community, as well as international jurists,</p>
<p>reject Israel’s official stance, as exemplified in the position of the UN Secretary-</p>
<p>General,12 the views of jurists,13 and reports by human rights organizations.14 Others</p>
<p>claim that after the disengagement, Israel no longer has the ability to exercise</p>
<p>effective control on which the status of an occupying power is predicated.15</p>
<p>It is possible that, with regard to the status of the Gaza Strip, recognition of a</p>
<p>sovereign Palestinian state could lead to a re-examination of this position.</p>
<p><em>Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation</em>, p.</p>
<p>28-29 (1957).</p>
<p>11 For details of this position, see the website statement of the Military Advocate General,</p>
<p>“Legal Aspects of IDF Operations in the Gaza Strip,” online at <a href="http://www.law.idf.il/935-4489-" rel="nofollow">http://www.law.idf.il/935-4489-</a></p>
<p>he/Patzar.aspx (Hebrew). According to HCJ 9132/07 <em>al-Bassiouny v. the Prime Minister </em>(2008), ever</p>
<p>since Israel’s disengagement from Gaza, the law of occupation no longer applies to Israel’s relationship</p>
<p>to Gaza, although Israel bears obligations there by virtue of the law of armed conflict, the degree of</p>
<p>control Israel exercises over Gaza’s border crossings, and the fact that Gaza is almost entirely</p>
<p>dependent on Israel in the wake of many years of military occupation.</p>
<p>12 “Situation of human rights in the Palestinian territories occupied since 1967: Note by the</p>
<p>Secretary-General,” UN Doc. A/61/470, 27 September 2006, para. 7. Available online at</p>
<p><a href="http://domino.un.org/UNISPAL.NSF/22f431edb91c6f548525678a0051be1d/2e64a5d7f563f546852572" rel="nofollow">http://domino.un.org/UNISPAL.NSF/22f431edb91c6f548525678a0051be1d/2e64a5d7f563f546852572</a></p>
<p>0a0052603d.</p>
<p>13 Nicholas Stephanopoulos, &#8220;Israel’s Legal Obligations to Gaza after the Pullout,&#8221; <em>Yale Journal</em></p>
<p><em>of International Law</em>, vol. 31, 524 (2006); Mustafa Mari, &#8220;The Israeli Disengagement from the Gaza</p>
<p>Strip: An End to Occupation?&#8221; <em>Yearbook of International Humanitarian Law</em>, vol. 8, 356 (2005). This</p>
<p>position was also adopted by Prof. John Dugard, the UN Special Rapporteur for the Occupied</p>
<p>Palestinian Territories, in “Report of the Special Rapporteur on the Situation of Human Rights in the</p>
<p>Palestinian Territories Occupied since 1967,” Implementation of G.A. Res. 60/251 of Mar. 15, 2006,</p>
<p>U.N. Doc. A/HRC/4/17 (2007).</p>
<p>14 Gisha, <em>Disengaged Occupiers: The Legal Status of Gaza</em>, January 2007.</p>
<p>15</p>
<p>Yuval Shany, “The Law Applicable to Non-occupied Gaza: A Comment on Bassiouni v. the</p>
<p>Prime Minister of Israel,” <em>Israel Law Review</em>, vol. 42, 2009; Yuval Shany, “Binary Law Meets</p>
<p>Complex Reality: The Occupation of Gaza Debate,” <em>Israel Law Review</em>, vol. 41, 2008; Yuval Shany,</p>
<p>&#8220;Faraway, so Close: The Legal Status of Gaza after Israel&#8217;s Disengagement,&#8221; <em>Yearbook of International</em></p>
<p><em>Humanitarian Law</em>, vol. 8, 2005.</p>
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<p>5</p>
<p>We note that regardless of whether Gaza is still under Israeli occupation or not, Israel</p>
<p>bears legal responsibility for what takes place in the Gaza Strip from various</p>
<p>perspectives, both in light of its current control over the Gaza border crossings (with</p>
<p>the exception of the Rafah crossing), airspace, and territorial waters, and in light of its</p>
<p>previous control and neglect.</p>
<p><strong>Area A</strong></p>
<p>Israel has previously expressed the view that the territories transferred to the control</p>
<p>of the Palestinian Authority, namely Area A, are no longer its responsibility, and</p>
<p>therefore it is no longer responsible for safeguarding the human rights of Palestinians</p>
<p>living in these areas.16 However, unlike the situation in Gaza, Israel has not, to this</p>
<p>day, declared the end of the occupation of Area A territories.</p>
<p>According to the Interim Agreement, Israel continues to be responsible for security in</p>
<p>all areas of the West Bank, including Area A. Even in practice, Israel demonstrates its</p>
<p>control in various ways, including search and arrest operations within Area A,</p>
<p>adjudication in Israeli military courts of Palestinian residents of Area A suspected of</p>
<p>security offenses,17 and exclusive jurisdiction of Israelis within the territories</p>
<p>(including Area A18) who are suspected of offenses.</p>
<p>The Military Court of Appeals has reiterated that the entire territory, including Area</p>
<p>A, remains under the belligerent occupation of Israel.19 The court ruled that the entire</p>
<p>region constitutes “a single territorial unit,” that the regional commander has authority</p>
<p>over the entire area, and that the military commander’s authority for Area A was</p>
<p>never comprehensively revoked, only limited by the Interim Agreement. In another</p>
<p>case, it stated that:</p>
<p>“Also de facto, the IDF’s continuous control over Area A cannot be denied, as</p>
<p>even when IDF soldiers were not physically present in the area, they controlled it</p>
<p>to a large extent through other means. In light of this, according to international</p>
<p>law, the military commander of the area retains security powers pursuant to his</p>
<p>basic obligation to ensure the public order in areas under his control.”20</p>
<p>16 Second Periodic Report of the State of Israel under the International Covenant on Civil and</p>
<p>Political Rights, para. 8, UN Doc. CCPR/ISR/2001/2 (2001); Second Periodic Report of the State of</p>
<p>Israel under the International Covenant on Economic, Social and Cultural Rights, para. 6-8, UN Doc.</p>
<p>E/1990/6/Add.32 (2001).</p>
<p>17 According to Article 7(d) of the Order Regarding Security Provisions, a military court has</p>
<p>jurisdiction over cases in Area A in which Palestinians are suspected of an offense that harmed or was</p>
<p>intended to harm the security in that area. The IDF commander has the authority to rule that a specific</p>
<p>act constitutes an offense even if it took place in Area A, if it affects the security of the area or of the</p>
<p>State of Israel (2533/07 <em>Military Prosecutor v. Ahmad Issa</em>, 27 September 2007).</p>
<p>18 According to the Interim Agreement (Chapter 1, Article 3), Israel retained exclusive</p>
<p>jurisdiction over offenses carried out by Israelis in Area A. The Palestinian Authority has no authority</p>
<p>to arrest Israelis even if they are suspected of carrying out an offense in Area A, but only to detain them</p>
<p>until the arrival of a joint patrol.</p>
<p>19 Military Prosecutor Appeal – Judea and Samaria 2016/07 <em>Issa (Ajouli) v. Military Prosecutor</em>,</p>
<p>16 May 2007; Appeals – Judea and Samaria 3924/06 <em>Sa’adi v. Military Prosecutor</em>, 17 October 2007.</p>
<p>20 Appeals – Judea and Samaria 3924/06 <em>Sa’adi v. Military Prosecutor</em>, 17 October 2007.</p>
<p>Ruling by Military Court Vice-President, Lt. Col. Benichou.</p>
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<p>6</p>
<p>In summary, the question of the recognition of a Palestinian state itself has no effect</p>
<p>upon the degree of Israeli control over the West Bank, or upon Israel’s status as the</p>
<p>occupying power. In light of the small size of Area A territories and their noncontiguity,</p>
<p>like islands within Area C under Israel’s full control, even if Israel changes</p>
<p>its patterns of activity in these territories and even if it declares the “end of</p>
<p>occupation” in them, we believe they still cannot be viewed as independent territories.</p>
<p><strong>The Oslo Accords (the Interim Agreement)</strong>21</p>
<p>A Palestinian initiative to achieve recognition of Palestine as an independent state is a</p>
<p>unilateral measure that contravenes this agreement, and opens the door to a</p>
<p>declaration of the non-validity or revocation of the accords. However, the absolute</p>
<p>revocation of the accords is not a necessary outcome. Despite repeated violations of</p>
<p>the Interim Agreement, neither party to the agreements to this day has announced</p>
<p>their revocation. The website of the Military Advocate General presented this view:</p>
<p>“The question of the validity of the Interim Agreement first arose soon after the</p>
<p>outbreak of the armed conflict in Judea, Samaria, and the Gaza Strip […]</p>
<p>Despite the great question mark that has hovered over this issue ever since, no</p>
<p>side so far has officially declared that it views the Interim Agreement, or parts</p>
<p>of it, as null and void. In fact, both sides have by and large continued to uphold</p>
<p>some of the provisions of the Interim Agreement and to implement them in</p>
<p>practice.”</p>
<p>And following the disengagement from Gaza, it noted, “[…] With the exception of</p>
<p>arrangements that became irrelevant or inapplicable as a result of the changes in the</p>
<p>factual and legal reality, attention should continue to be paid to the Interim Agreement</p>
<p>as a legal source [defining] relations between the two parties.”22</p>
<p>Thus, it appears that the validity of the agreements and the existence of relevant</p>
<p>arrangements based on them continues to be contingent upon the decisions and</p>
<p>actions of the two sides. Of course, any decision made by either side about this would</p>
<p>have significant ramifications for many matters currently regulated by the agreements.</p>
<p>Another critical point in this context relates to the status of the Palestinian Authority.</p>
<p>Since its founding, the PA has drawn its authority from the Interim Agreement. If</p>
<p>Palestinian statehood is recognized, the source of this authority will change, and the</p>
<p>Palestinian government will draw its authority from the existence of the state.</p>
<p><strong>Changes in the Legal and International-Institutional Framework</strong></p>
<p><strong>Becoming a Party to International Conventions</strong></p>
<p>If Palestine is recognized as a state, this will allow it to become party to various</p>
<p>international conventions, including human rights covenants and trade agreements,</p>
<p>21 The Interim Agreement on the West Bank and the Gaza Strip, from 1995.</p>
<p>22 “Legal aspects of IDF operations in the Gaza Strip,” Military Advocate General, available</p>
<p>online at <a href="http://www.law.idf.il/935-4489-he/Patzar.aspx" rel="nofollow">http://www.law.idf.il/935-4489-he/Patzar.aspx</a> (Hebrew).</p>
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<p>7</p>
<p>and to join international organizations. The main human rights conventions do not</p>
<p>require UN membership as a condition for becoming party to them. Many are open to</p>
<p><em>any state invited by the UN General Assembly</em>:</p>
<p>The <strong><em>International Covenant on Civil and Political Rights (ICCPR) </em></strong>– This covenant</p>
<p>does not require UN membership as a condition for ratification, but does require an</p>
<p>invitation from the General Assembly (para. 48)</p>
<p>The <strong><em>International Covenant on Economic, Social, and Cultural Rights (ICESCR)</em></strong></p>
<p>(Article 26)</p>
<p>The <strong><em>Convention on the Elimination of All Forms of Racial Discrimination</em></strong></p>
<p><strong><em>(ICERD) </em></strong>(Article 17)</p>
<p>Other conventions allow states to become party to them on easier terms (without an</p>
<p>invitation from the General Assembly): the Convention on the Rights of the Child</p>
<p>(CRC); the Convention on the Elimination of All Forms of Discrimination against</p>
<p>Women (CEDAW); the Convention against Torture (CAT); and the Geneva</p>
<p>Conventions and additional Protocols.</p>
<p>The consequences of a Palestinian state becoming party to these conventions are,</p>
<p>above all, the obligations that these would impose on the Palestinian state vis-à-vis</p>
<p>those under its authority, and its becoming subject to UN monitoring mechanisms,</p>
<p>such as the committees that monitor implementation of these conventions. Becoming</p>
<p>party to these conventions could also affect its relations with Israel and the settlers.</p>
<p><strong>Becoming a Party to International Courts of Law</strong></p>
<p>Another channel of activity that would be open to Palestine, if it is recognized as a</p>
<p>state, is joining various international organizations, including international courts of</p>
<p>law:</p>
<p><strong><em>International Court of Justice in The Hague (ICJ) </em></strong>– The ICJ addresses the</p>
<p>responsibility of states, not of individuals. It is the leading and most important</p>
<p>international judicial body, both in terms of prestige and of jurisdiction.23 According</p>
<p>to Article 35 of the Statute of the Court, UN membership is not a condition for access</p>
<p>to the ICJ. Thus, even if Palestine does not gain UN membership, it can become a</p>
<p>party to the Statute of the Court and join it.</p>
<p>ICJ jurisdiction is not obligatory, in the sense that the default is that both sides must</p>
<p>agree that a dispute be brought before it.</p>
<p><strong><em>International Criminal Court (ICC) </em></strong>– The International Criminal Court deals with</p>
<p>individual responsibility for acts defined as international crimes (war crimes, crimes</p>
<p>against humanity, and genocide). The ICC was established in order to prevent a</p>
<p>situation in which an individual suspected of an international crime will not be</p>
<p>brought to justice because the state linked with that crime avoids prosecuting it.</p>
<p>23 M. Shaw, <em>International Law</em>, p. 960 (2003).</p>
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<p>8</p>
<p>Hence, the ICC does not prosecute a case when the relevant state actor exercises</p>
<p>appropriate jurisdiction.</p>
<p>The ICC may exercise jurisdiction in any of three cases:24 (a) when the said act took</p>
<p>place in the territory of a state party; (b) when the act was committed by a citizen of a</p>
<p>state party; or (c) when the Security Council referred the matter to its Prosecutor.</p>
<p>Article 125(3) of the Rome Statute states that the ICC is open to all states that ratify</p>
<p>and submit the Rome Statute to the UN Secretary-General. Here, too, nonmembership</p>
<p>in the UN does not prevent a state from becoming party to this court.</p>
<p>Switzerland, for example, was admitted to the UN only in 2002, but ratified the Rome</p>
<p>Statute in 2001. <em>Given broad-based recognition of statehood, Palestine will be able to</em></p>
<p><em>ratify the Rome Statute and become party to the International Criminal Court.</em></p>
<p>The <em>innovative aspect </em>entailed by Palestine becoming party to the ICC is that this</p>
<p>court would now have jurisdiction over actions carried out in the context of the</p>
<p>Israeli-Palestinian conflict: First, on Palestinians suspected of committing</p>
<p>international crimes; and, second, on Israelis suspected of offenses within the territory</p>
<p>of the Palestinian state. As noted, the ICC would not prosecute a case if the relevant</p>
<p>state exercised appropriate jurisdiction, i.e., properly investigated the case and</p>
<p>brought it to trial when required.</p>
<p><strong>The Issue of Settlements</strong></p>
<p>One of the dramatic repercussions that will ensue from recognition of a Palestinian</p>
<p>state concerns its becoming a party to the International Criminal Court. In this</p>
<p>context, special attention should be given to the article in the Statute of the Court</p>
<p>stating that the transfer, whether direct or indirect, of the population of the occupying</p>
<p>power into occupied territory constitutes a war crime.25 This means that the issue of</p>
<p>settlements would become an issue of an international criminal tribunal, which would</p>
<p>open the door to the prosecution of Israelis responsible for establishing or expanding</p>
<p>settlements.</p>
<p>Bear in mind that the Advisory Opinion of the International Court of Justice</p>
<p>concerning the Separation Barrier states that, as an act that strengthens the settlements</p>
<p>and makes them permanent, the construction of the barrier in the segments that</p>
<p>surround the settlements constitutes an illegal act and violates Article 49(6) of the</p>
<p>Geneva Convention.26</p>
<p><em>24 ICC Statute, Article 12-13.</em></p>
<p><em>25 ICC Statute, Art. 8(2)(b)(viii). In the document “Elements of Crimes” of the International</em></p>
<p><em>Criminal Court, the following note was introduced concerning Article 8: “The term ‘transfer’ needs to</em></p>
<p><em>be interpreted in accordance with the relevant provisions of international humanitarian law” (footnote</em></p>
<p><em>44).</em></p>
<p><em>26 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,</em></p>
<p><em>Advisory Opinion, para. 122, 9 July 2004; para. 9 of Justice Buergenthal’s judgment.</em></p>
<hr align="left" size="1" width="100%" />
<p>9</p>
<p><strong>East Jerusalem</strong><strong></strong></p>
<p>Published information indicates that the planned initiative for recognition of a</p>
<p>Palestinian state will also relate to the borders of the Palestinian state, to be defined</p>
<p>according to the 4 June 1967 boundaries (the “Green Line”). This area includes East</p>
<p>Jerusalem.</p>
<p>The territory of East Jerusalem, as distinct from other parts of the West Bank, was</p>
<p>annexed to Israel, and the “law, jurisdiction, and administration of the state” were</p>
<p>applied to it.27 However, although internal Israeli law defines East Jerusalem as part</p>
<p>of the state, this has been rejected by the international community, which views this</p>
<p>territory as part of the area held by Israel as an occupying power.28</p>
<p>The significance of this is that, from an international perspective, the laws that apply</p>
<p>to East Jerusalem are the same laws that apply to the rest of the West Bank. This</p>
<p>means, for example, that the authority of the International Criminal Court will also</p>
<p>extend to Israel’s actions in East Jerusalem (such as the construction of new</p>
<p>neighborhoods).</p>
<p><strong>Launching Military Operations</strong></p>
<p>As noted, Israel’s status as the occupying power of the West Bank territories is not</p>
<p>expected to change as a result of the act of recognition itself. As an occupying power,</p>
<p>Israel will continue to have the option for use of force, within the bounds of what is</p>
<p>permissible and not permissible according to the laws of occupation.</p>
<p>This is not the case, however, with respect to territories where it is claimed that Israel</p>
<p>has ended its role as an occupying power. In these territories, to justify the use of</p>
<p>force and prior to launching a military operation, it appears that Israel would have to</p>
<p>prove that all conditions of self-defense apply: a significant armed attack has occurred</p>
<p>(which was interpreted as the use of force significant in scale29); there is an immediate</p>
<p>necessity to use force and there is no possibility to use alternative means; and the</p>
<p>response is proportionate and relative.</p>
<p><strong>Prisoners of War</strong></p>
<p>Recognition of Palestinian statehood and its becoming party to the Geneva</p>
<p>Conventions could obligate Israel to modify its treatment of Palestinian combatants,</p>
<p>who are part of the regular forces or acting in the name of the state, and to recognize</p>
<p>them as entitled to prisoner-of-war status according to the Third Geneva</p>
<p><em>27 In accordance with para. 11B of the Law and Administration Ordinance 1948. This provision</em></p>
<p><em>was added to the Law and Administration Ordinance 1967 (in Amendment of the Law and</em></p>
<p><em>Administration Ordinance (no. 11) 1967). Also see para. 5 of the Basic Law: Jerusalem, Capital of</em></p>
<p><em>Israel; and HCJ 1661/05 Gaza Coast Regional Council v. Israeli Knesset, PD 59 (2), 481, 512-513</em></p>
<p><em>(2005).</em></p>
<p><em>28 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,</em></p>
<p><em>Advisory Opinion, para. 70-78, 9 July 2004.</em></p>
<p><em>29 Nicaragua v. United States, 1986, ICJ 14 paras. 187-201.</em></p>
<hr align="left" size="1" width="100%" />
<p><em>10</em></p>
<p><em>Convention.</em></p>
<p><em>30 This status carries with it various protections, above all legal immunity</em></p>
<p><em>from criminal charges because of their participation in combat.</em></p>
<p><em>31</em></p>
<p><em>Until now, Palestinians who are apprehended are treated as if they are civilians</em></p>
<p><em>unlawfully engaged in combat,32 and they are detained or imprisoned by Israel in a</em></p>
<p><em>criminal proceeding in the framework of administrative detention or the Incarceration</em></p>
<p><em>of Unlawful Combatants Law.</em></p>
<p><strong>Responsibility of a Palestinian State for Human Rights Violations</strong></p>
<p>Recognition of a Palestinian state and its becoming party to international conventions</p>
<p>and courts of law will impose obligations on it and subject it to international</p>
<p>mechanisms that monitor the implementation of the human rights conventions. These</p>
<p>obligations apply first and foremost to the citizens under its rule, but there are also</p>
<p>implications for its obligations toward Israelis, including settlers.</p>
<p>The a Palestinian state will be obligated – both according to the rules of state</p>
<p>responsibility (“Responsibility of States for Internationally Wrongful Acts”) and by</p>
<p>virtue of its obligations to uphold human rights – to take the necessary steps to</p>
<p>prevent human rights violations by governmental bodies and official organizations. It</p>
<p>may also bear responsibility for threats by organizations and citizens who operate</p>
<p>from within its territory against Israelis or settlers, subject to the extent of its control</p>
<p>and the means of action at its disposal.</p>
<p>One outcome of its becoming party to international conventions and international</p>
<p>courts is that claims regarding violations of human rights by the Palestinian state</p>
<p>could be adjudicated in various international forums. Among other things, should the</p>
<p>Palestinian state not take the necessary measures to investigate and prosecute</p>
<p>individuals suspected of perpetrating international crimes, the matter could be referred</p>
<p>to the International Criminal Court. Thus, for example, the suspicion of torture</p>
<p>conducted by Palestinian governmental bodies or on their behalf, the arbitrary killing</p>
<p>of civilians, the shooting of rockets toward a civilian population in Israel, and the</p>
<p>holding hostage of Gilad Shalit, could be submitted for deliberation both in the</p>
<p>relevant UN committees and in the International Criminal Court.</p>
<p><em>30 Only a combatant is entitled to prisoner-of-war status. Article 4 of the Third Geneva</em></p>
<p><em>Convention lists two categories of combatants – (1) members of all the armed forces of a party to the</em></p>
<p><em>conflict; or (2) members of an irregular army, provided they fulfill four conditions: (a) they are</em></p>
<p><em>commanded by a person responsible for his subordinates; (b) they have a fixed, distinctive sign</em></p>
<p><em>recognizable at a distance; (c) they bear arms openly; and (d) they conduct their operations in</em></p>
<p><em>accordance with the laws and customs of war. Upon fulfillment of these conditions, they too would be</em></p>
<p><em>entitled to prisoner-of-war status.</em></p>
<p><em>It should be emphasized that for combatants to be recognized in this category, they must</em></p>
<p><em>distinguish themselves from the civilian population by an identifying sign and bearing arms openly.</em></p>
<p><em>31 Orna Ben-Naftali and Yuval Shany, p. 162 (2006).</em></p>
<p><em>32 Orna Ben-Naftali and Yuval Shany, p. 164 (2006). According to the Kassem ruling in Israeli</em></p>
<p><em>Military Court (1969), the combatants of the Popular Front for the Liberation of Palestine do not</em></p>
<p><em>represent the government of Jordan or any other state, and therefore are not entitled to protection under</em></p>
<p><em>the Third Geneva Convention (Ramallah Military Tribunal 4/69 Military Prosecutor v. Kassem</em></p>
<p><em>(Selected Rulings of the Military Courts in the Administered Territories, vol. 1, 1969-1970, 402)). The</em></p>
<p><em>High Court of Justice also stated that the organizations operating in the West Bank should not be</em></p>
<p><em>deemed organizations to which the Third Geneva Convention applies (HCJ 2967/00 Batya Arad v.</em></p>
<p><em>Israel Knesset, 54 (2), 188, 190 (2000)).</em></p>
<p><strong><a href="http://www.acri.org.il/en/wp-content/uploads/2011/09/ACRI-Implications-of-September-ENG.pdf?utm_source=ACRI+-+Contacts&amp;utm_campaign=08b2c3698b-Palestinian-Statehood-Document" target="_blank">Link for download full PDF</a></strong></p>
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