The Exercise of Jurisdiction by the International Criminal Court Over Palestine

The Palestinian National Authority has recently accepted the jurisdiction of the International Criminal Court and requested an investigation into the situation in Gaza. The ICC has replied that it must consider whether Palestine has the capacity to accept the jurisdiction of the Court before the ICC may begin any investigation. This paper will argue that the ICC may assert jurisdiction to investigate allegations of international criminal law violations in the territory based on this communication.The Rome Statute provides that it is open for ratification by any of the original States Parties to its negotiation and is also “open to accession by all States.” Throughout the Rome Statute reference is made to “States” or “States Parties.” In the alternative to joining the ICC, the Rome Statute also provides that non-members of the ICC may accept the jurisdiction of the Court on a case-by-case basis. In such a situation, the Rome Statute also appears to require that the entity be a “State.” At this point we might quickly conclude that Palestine, not being a state, can neither become a member nor accept the jurisdiction of the Court; however, the conclusion is not so easy.In terms of statehood, the effective triumvirate of the PNA, PLO and people of Palestine do not appear to fully and conclusively satisfy the objective requirements for statehood, and certainly have not garnered subjective recognition from an overwhelming majority of the states in the world. In no true sense could we argue that the territory and its international relations are fully independent or that it has full capacity to enter into international relations. It acts internationally in many ways and in many situations, but it does not enjoy the degree of freedom in international relations that other states do. We cannot honestly conclude that Palestine is a state for all purposes, though it appears to be incrementally exerting increasing independence. That being said, it would appear that it has been regarded as a state at certain times by certain actors in certain contexts. Indeed, Palestine is a quasi-state.The quasi-statehood that Palestine has is sufficient for it to accede to the Rome Statute or otherwise accept the jurisdiction of the ICC. International law does not require an international organization to interpret the word “state” in its constitutive document in a restrictive fashion. Given that the Vienna Convention permits interpretation of language with consideration for the object and purpose of the treaty, and the object and purpose of the Rome Statute is to end impunity, we can conclude that international law does not require a narrow interpretation of the word “state” for purposes of Palestinian accession or an Article 12(3) acceptance of jurisdiction.


INTRODUCTION
On January 21, 2009, the Minister of Justice of the Palestinian National Authority ("PNA"), Ali Khashan, faxed a declaration to the International Criminal Court ("ICC" or "the Court") on behalf of the then any state may prosecute the alleged criminals.1 2 Given the long standing animosity between Israel and Palestine, however, it seems unlikely that either party could accept the other's assertion of jurisdiction, investigation, or criminal prosecution as unbiased and legitimate." An assertion of universal jurisdiction by a third state would be equally problematic, as many states are perceived as having clear political preferences in the Palestinian situation. These considerations have given rise to calls for a truly neutral international tribunal or commission, such as the ICC, to take jurisdiction over the dispute. 4 From the very beginning, the Palestinian declaration sparked a public debate over whether Palestine constitutes a "state" for the purposes of ICC jurisdiction." Since then, the Prosecutor of the ICC, Luis Moreno-Ocampo, has received hundreds of requests to investigate allegations in Gaza. 16 The Prosecutor is currently 12. See WILLIAM A. SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES 354-55 (2000) (discussing the specific crimes for which universal jurisdiction may be invoked by any state regardless of whether that state has a territorial relationship to the crime or alleged criminal).
13. See Israel: Military Investigations Fail Gaza War Victims, HUM. RIGHTS WATCH (Feb. 7, 2010), http://www.hrw.org/en/news/2010/02/06/israel-militaryinvestigations-fail-gaza-war-victims (explaining that both Israeli and Hamas authorities failed to conduct impartial investigations); see also Gaza: Hamas Report Whitewashes Crimes, HUM. RIGHTS WATCH (Jan. 28, 2010), http://www.hrw.org/en/news/2010/01/28/gaza-hamas-report-whitewashes-warcrimes (highlighting Hamas's inability to conduct a legally and factually accurate self-assessment of its attacks against Israel), 14. See Goldstone Report, supra note 8, TT 1760, 1763 (noting that resorting to international justice mechanisms is appropriate "where domestic authorities are unable or unwilling to comply with" their legal obligations "to investigate violations of international human rights and humanitarian law," and considering that the violations committed in Gaza fall within the subject-matter jurisdiction of the ICC).
15. Compare John Dugard, Op-Ed., Take the Case, N.Y. TIMES, July 22, 2009, http://www.nytimes.com/2009/07/23/opinion/23iht-eddugard.html (contending that the ICC prosecutor should adopt an expansive approach to statehood determination, and that under such an approach, Palestine qualifies as a state for the purpose of the Court), with George P. Fletcher, Op-Ed., Don't Go There, N.Y.

TIMES,
July 22, 2009, http://www.nytimes.com/2009/07/23/opinion/23ihtedfletcher.html (arguing that only "full-blooded states" can accept the jurisdiction of the ICC under the Rome Statute, and asserting that Palestine is " [no]where near the status of a state").
16. See Int'l Crim. Court, Office of the Prosecutor, Situation in Palestine: Summary of Submissions on Whether the Declaration Lodged by the Palestinian considering whether Khashan's acceptance of jurisdiction can be honored, and if so, whether the Prosecutor would accordingly have jurisdiction to investigate. 17 To that effect, the Prosecutor is also proceeding with a preliminary investigation to ascertain whether the alleged crimes fall within the Court's subject matter jurisdiction.II It appears that Khashan's declaration constitutes acceptance of the Court's jurisdiction for events falling within the designated time period rather than an attempt to permanently join the ICC. This paper argues that Palestine may accept the Court's jurisdiction, in part because Palestine could accede to the Rome Statute as a state party.

I. THE REQUIREMENTS OF THE ROME STATUTE
The ICC is an international organization with legal personality separate from the United Nations. 19 The Court's subject matter jurisdiction is limited to crimes of genocide, crimes against humanity, war crimes, and crimes of aggression, 20 which have been committed since the Rome Statute entered into force on July 1, 2002. 21 The ICC can only exercise its jurisdiction over crimes committed within the territory, or by a national, of States Parties to the Rome Statute, 22  In addition, the Prosecutor may certainly exercise jurisdiction over any Israeli or Palestinian who also has the nationality of a State Party to the Rome Statute. See Rome Statute, supra note 2, art. 12(2)(b). This alternative basis for jurisdiction appears to be the most likely strategy for the Prosecutor to exercise jurisdiction over Gaza in the near future.
18. See Report on the Activities of the Court, supra note 2, para. 61. 19. See Rome Statute, supra note 2, arts. 2, 4(1) (acknowledging that the ICC has a relationship with the UN but also maintains its own legal personality). 20. Id. art. 5(1). But see id. art. 5(2) (suspending the ICC's jurisdiction over the crime of aggression until the crime is defined). 21. Id. art. 11(1). 22. Id. art. 12(2). jurisdiction with respect to a particular crime. 23 Further, the ICC's jurisdiction only extends to designated crimes that are committed after the state has become party to the Rome Statute, unless the state consents to an earlier date, not to precede the entry into force of the Statute generally. 24 In addition, the ICC is complementary in the sense that it can only assert its jurisdiction when a situation has been referred to it by a State Party or the UN Security Council, or when the ICC Prosecutor initiates an investigation on his or her own accord. 25 Similarly, cases will only be admissible where a state with jurisdiction over a particular crime is itself "unwilling or unable to genuinely to carry out the investigation or prosecution." 26 The Rome Statute provides that it is open for ratification by any of the original States Parties to its negotiation and is also "open to accession by all States." 27 Throughout the Rome Statute, reference is made to "States" or "States Parties", without providing a specific definition for purposes of the statute. 28 Alternatively, the Rome Statute provides that non-members of the ICC may accept the jurisdiction of the Court on a case-by-case basis. 2 9 To date, C~te d'Ivoire is the only state to accept this case-specific jurisdiction. 3 0 In 23. Id. art. 12(3). 24. Id. art. 11(2). 25. Id. arts. 13-15. The hundreds of communications received with respect to the situation in Gaza constitute requests for the Prosecutor to exercise powers under Article 15. See id. art. 15 (delineating the Prosecutor's power to begin investigations on his own initiative, which includes the power to seek additional information from states, the United Nations, NGOs, and "other reliable sources").
26. Id. art. 17(1)(a); see also id. art. 17(1)(b)-(d) (requiring the ICC to find a case inadmissible where the case has already been investigated by a state with jurisdiction, and the state made a genuine decision not to prosecute; where the accused has already been subject to prosecution; or where "the case is not of sufficient gravity" to warrant "further action by the Court"). sites/default/files/reports/cotedivoire0506webwcover.pdf (lamenting that the ICC Prosecutor had yet to send an investigative delegation to the C6te d'lvoire more such alternative jurisdiction situations, the language of the Rome Statute appears to require that the entity accepting jurisdiction be a "State." 1' Indeed, many have argued that Palestine can neither become a member nor accept the jurisdiction of the Court because it lacks statehood. 3 2 This conclusion is not so easy.

II. PALESTINIAN QUALIFICATIONS
For the purpose of analyzing whether Palestine fulfills the requirements of statehood under international law, an important initial observation is that three entities currently represent Palestine: the people of Palestine," the Palestinian Liberation Organization

32.
See, e.g., Fletcher, supra note 15 (arguing that statehood must be a precondition to acceptance of the ICC's jurisdiction under article 12(3) of the Rome Statute because otherwise non-state groups can use the procedure to embarrass or threaten states without opening themselves up to reciprocal scrutiny). (arguing that the Rome Statute guarantees a "state-based system," and dismissing six different "theoretical and practical" arguments for recognizing a Palestinian state); Confidential Communication Regarding the Palestinian Declaration and ICC Jurisdiction from Dave Davenport et al., to Luis Moreno-Ocampo, Prosecutor, Int'l Crim. Court 8-14 (Nov. 19, 2009) [hereinafter Davenport Communication], available at http://www.icc-cpi.int/NRlrdonlyres/D3C77FA6-9DEE-45Bl-ACCO-B41706BB41E5/281873/Paldeclandiccjurisd.pdf (arguing that Palestine is not a state under "broad principles of international law" or, in the alternative, that the PNA has failed to establish territorial jurisdiction in the criminal law context and, therefore, cannot delegate jurisdiction to the ICC).
33. Cf Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141, 101-09 (July 22) (distinguishing between the identity of the Government of Kosovo and ("PLO"), and the PNA. First, both the League of Nations and the United Nations have recognized that the people of Palestine have the right to self-determination under international law. 34 The PLO represents the Palestinian people at the international level, including by controlling the observer seat for "Palestine" at the United Nations." The PNA was created by the Oslo Accords, an agreement concluded between Israel and the PLO. 36 In the Accords and subsequent interim agreements, the parties agreed that the PNA would incrementally obtain jurisdiction over the West Bank and Gaza, and that the Palestinian people could establish a permanent the competent representatives of the people of Kosovo for purposes of the declaration of independence, and concluding that the declaration was made by the latter even though the representatives were largely the same individuals as those serving in the Government).
34. See League of Nations Covenant art. 22 (declaring that "certain communities formerly belonging to the Turkish Empire" could be provisionally recognized as an independent nations, "subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone"); see also settlement following a transition period and negotiations." While the PNA is responsible for local governmental functions, Israel and the PLO, in connection with the Accords, exchanged letters wherein Israel recognized "the PLO as the representative of the Palestinian people," at least for the purpose of negotiating peace in the Middle East."

A. STATEHOOD
The question of whether an entity claiming to be a state is indeed a state is a classic problem of public international law; this analysis resists easy and conclusive determination, especially in questionable cases such as Palestine. 39 Most readers will be familiar with the competing constitutive and declaratory theories of statehood. 40  The statehood analysis traditionally begins with the Convention on Rights and Duties of States ("Montevideo Convention"), which established the objective criteria required for statehood including: a permanent population, a defined territory, a government, and the capacity to act in the international realm. 45 The additional or substitute criteria of "independence" is often asserted as well. 4 6 In the case of Palestine, both territory and population appear to be satisfied. Although Palestine's external borders are not entirely clear, perfectly fixed borders may not be a hard requirement for statehood, as evidenced by Israel's designation as a state despite its unclear borders. The requirements of government and capacity to enter into international relations will be addressed separately. the statements of Palestinian authorities as admissions that Palestine is not a state, in spite of the fact that the state's position on the matter constitutes a subjective belief rather than an objective criterion. 4 8 A similar argument has been made in the case of Taiwan. 49 The Palestinian statements on which these authors rely are, however, less clear than they submit. For example, the authors base their argument on statements by Palestinian authorities referencing "the establishment of an independent Palestinian state" in the future. so These types of statements could equally reflect Palestine's acknowledgement that it needs to secure long-term economic viability, independence from military occupation, and declaratory recognition of its statehood. 1 Further, given the necessity for cautious diplomacy in the Israel-Palestine conflict, the position of the PNA on Palestinian statehood is probably deliberately vague.
It has also been argued, both in the Palestine situation and in the ICJ's advisory opinion on Kosovo, 5 2 that recognizing certain entities as states presents a slippery slope problem. The argument's logic is that recognizing an entity or ethnic minority opens the door for other similarly situated groups to seek recognition, thereby undermining the stability of the entire inter-state system. 5 It is far from clear that allowing the handful of entities that currently remain outside the state-based system to join the system on equal terms would necessarily result in a catastrophic, domino collapse of the entire state system, especially in light of the principle of territorial integrity. Moreover, even if recognizing those entities as states resulted in such a collapse, it is similarly uncertain whether international law would consider this policy concern to be relevant in the statehood analysis.

B. GOVERNMENT
Two of the objective Montevideo criteria-the existence of a government and the capacity for international relations-demand more detailed consideration in a discussion about the Israeli-Palestinian conflict. This article argues that the PNA has constituted a government for the purposes of establishing Palestinian statehood sihce the conclusion of the Oslo Accords, and that Palestine's capacity to act internationally, though limited, is also sufficient for the purposes of accepting the ICC's jurisdiction.
Prior to the Oslo Accords, Israel occupied the Palestinian territory and exercised government functions. Then, as stated previously, the PNA was established pursuant to the Oslo Accords, as an autonomous sub-organ of the PLO. 54 In the Accords and subsequent interim agreements, Israel consented to implementation of Security Council Resolutions 242 and 338, which included the transfer of jurisdiction over the West Bank and Gaza to the newly created PNA for a transitional period of five years followed by a permanent settlement." Both Israel and the PLO agreed that the West Bank and the Gaza Strip would be considered "a single territorial unit," 5 6 over which the PNA would have sole jurisdiction.
The Accords and subsequent interim agreements provided that the PNA would have broad legislative, executive, and judicial authority," which would extend to "education and culture, health, social welfare, direct taxation, and tourism." 59 In addition, the agreements specified that the PNA would operate its own police force. 60 These agreements also stipulated that Israel could continue to exercise "powers and responsibilities not transferred to the [PNA]," notwithstanding their military's withdrawal from the West Bank and Gaza .6' Israel specifically reserved that it "will continue to be responsible for external security, and for internal security and public order of settlements and Israelis." 62 With regards to foreign relations, Israel and the PLO agreed that the PNA "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 . . . , the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions." 63 Under the agreements, however, the PLO was permitted to conclude international agreements with states or international organizations "for the benefit of the [PNA],"" in narrow circumstances related to economic and

60.
Id. art. VI(2); see also Wye River Memorandum, supra note 377, § II(C)(1) (setting forth rules to ensure that the Palestinian police force complies with the agreements between Palestine and Israel). 61. Interim Agreement, supra note 37, art. 1(5); see also id. art. XVII(l)(a)-(b) (excluding from the PNA's jurisdiction "issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis" as well as any other powers not expressly transferred to the PNA). While dissenters make much of these limitations, 6 overall, the competencies transferred to the PNA permit the conclusion that Palestine has a government. Under the Accords and related agreements, the PNA is responsible for two of the most fundamental government services: a judiciary and a police force. 67 As for external security and diplomatic relations, international law does not necessarily require that an entity exercise these powers in order to satisfy the governmental criterion. Several small states, such as Liechtenstein, Monaco, and San Marino, which are widely regarded as states, do not substantively exercise powers of external security and diplomatic relations, yet their institutions satisfy the governmental criterion. Even without the microstate example, the PLO is capable of undertaking some international relations, a point discussed in greater depth below. 68 The fact that Palestine's governing bodies have limited powers and a potentially fractured existence does not mean that it is not a government and cannot satisfy this criterion for the purpose of establishing its statehood.

C. CAPACITY TO ACT INTERNATIONALLY
The criterion of capacity to act internationally demands further discussion. To begin, scholars debate whether such capacity is, in dealings with foreign states and international organizations "shall not be considered foreign relations" if conducted for the purpose of implementing the Oslo Accords and subsequent agreements). Opinion], available at http://www.icc-cpi.int/NR/rdonlyres/D3C77FA6-9DEE-45B 1 -ACCO-B41706BB41 E5/281883/OTP2009000036046Informationreceivedfromlntemation. pdf (contending that the transfer of limited powers to the PNA is not sufficient to establish the independence of the PNA for purposes of statehood, but failing to identify which powers are essential for a government to have and failing to consider that the transfer of powers from an occupying force to a people with the right to self-determination does limit the people from exercising other powers).

See infra Part III(C).
fact, a consequence of statehood, rather than a criterion. 69 If that is the case, then capacity to act internationally is evidence of statehood, rather than a criterion. This argument will not be addressed directly here since in either case, capacity to act internationally is significant for statehood. This section explores the ways in which Palestine has acted internationally. While these manifestations constitute evidence of statehood, this author ultimately concludes that Palestine's inconsistent capacity to act internationally does not rise to the level enjoyed by other states.
The entity that purports to be the "Arab State of Palestine" in fact declared itself to be a state in 1988, though that declaration may be somewhat lacking in content. 7 0 This declaration of statehood has been recognized by approximately ninety-seven states, including many Arab, African, and Eastern European states, but also by such significant world powers as Russia, China, India, and Indonesia," two of which sit as permanent members on the UN Security Council. All of Palestine's neighbors, except Israel, have recognized its statehood. 72 These recognizing entities comprise approximately half of the world's states and a significant percentage of the world's population. 7 3 Many of these states are also States Parties to the Rome Statute, although admittedly Russia, China, India, and Indonesia are not. 74  as a state, it has expressed its intention to do so in the near future. 7 5 It is unclear, however, what actual changes in the situation on the ground (aside from a negotiated peace with Israel) will prompt this recognition. Palestine has been admitted as a member to the League of Arab States, 7 6 the Organization of the Islamic Conference," and the Arab League Educational Cultural and Scientific Organization, among others.78 Admittedly, these are all Arab organizations and most fall under the umbrella of the League of Arab States. Palestine has also signed several international conventions, including investment and trade treaties with Egypt, 79  as those on international roads, 82 railways, 83 and maritime transport cooperation. 8 4 Regarding the latter agreements, each was accepted for deposit by the Secretary-General of the United Nations, a privilege generally reserved for UN members. 85  available at http://www.fifa.com/mm/document/affederation/ administration/01/09/75/14/fifa statutes_072008_en.pdf (providing that "[a]ny Association which is responsible for organising and supervising football in its country may become a Member of FIFA" and clarifying that a country is defined as "an independent state recognised by the international community") (emphasis added). state, we might expect it to receive more confidence from the international community.

See Oscars
Turning to United Nations practice specifically, the UN has expressed an intention for Palestine to be independent and selfgoverning since 1947.0 To date, Palestine has been admitted as an observer to the United Nations and its documents are circulated freely by the Secretariat. 9 1 Admission as an observer has long been regarded as a preliminary gesture prior to attaining actual statehood. 92 Although formally an observer, Palestine's substantive status is, in fact, something more. Palestine is accorded more privileges than a mere observer, such as "the right to co-sponsor resolutions." 93 Yet, both the UN General Assembly and Secretary-General have declined to definitively say whether the entity is a state. 94 Based on the foregoing, Palestine undeniably has capacity to act internationally, though this capacity is limited. If capacity is a consequence of statehood, then Palestine must necessarily have some aspects of statehood to exercise this capacity. If capacity to act internationally is a criterion of statehood, then the question of whether the PLO's letter "constituted an instrument of accession"). 1998) (granting Palestine the "right to participate in general debate of the General Assembly," the "right of reply," the "right to co-sponsor resolutions," the right to raise points of order on issues affecting Palestine or the Middle East generally, and the privilege of seating in order "immediately after non-member states, but before the other observers"). 94. See e.g., G.A. Res. 43/177, supra note 91, 1-3 (acknowledging the Palestine National Council's 1988 declaration of statehood and noting "the need to enable" Palestinian sovereignty over occupied territory while reaffirming Palestine's observer status within the UN system).
whether Palestine satisfies this criterion is one of degree. Palestine satisfies the criterion only partly, and not to the same degree as other states.

D. CONCLUSION ON PALESTINIAN STATEHOOD
This article argues that Palestine has attained some recognition as a state, exhibits the essential features of a government, and manifests some capacity to act internationally. Nevertheless, the effective triumvirate of the PNA, PLO, and people of Palestine does not fully and conclusively satisfy the objective Montevideo requirements for statehood, and has not garnered subjective recognition from an overwhelming number of the states in the world. Although Palestine acts internationally in many ways and in many situations, it does not enjoy the same degree of freedom in international relations as other states. In other words, Palestine is not a state for all purposes, though it appears to be incrementally exerting increasing independence. 9 5 Rather, Palestine has been regarded as a state at certain times by certain actors in certain contexts. Palestine is most appropriately categorized as a quasi-state.

E. QUASI-STATEHOOD
Entities can be recognized as states for certain purposes or in certain contexts without being considered states for all purposes. There have been many examples of such "relative" statehood. 96 These include the "A" Mandated Territories, 97 the Free City of Danzig," the Holy See, 99   103. See Crawford, supra note 46, at 288-89 (prescribing a general rule "that the exercise of delegated powers pursuant to protectorate arrangements is not inconsistent with statehood if the derogations from independence are based on local consent, do not involve extensive powers of internal control and do not leave the local entity without some degree of influence over the exercise of its foreign affairs," and noting that Bhutan and San Marino both satisfy these basic criteria); Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 4, at 27 (Feb. 7) ("The extent of the powers of a protecting State in the territory of a protected States depends, first, upon the Treaties between the protecting State and the protected State establishing the Protectorate, and, secondly, upon the conditions under which the Protectorate has been recognized by third Powers as against whom there is an intention to rely on the provisions of these Treaties.").
104. See generally CRAWFORD, supra note 40 (outlining the key characteristics of associated states, which in some cases closely approximate statehood, and noting the increased willingness of international organizations to admit associated 105. Dissenters of Palestinian statehood often take an all or nothing approach, ignoring the concrete steps Palestine has taken towards becoming a state. See, e.g. Davenport Communication, supra note 32, at 8 (arguing that Palestine is "in the midst of a process that may lead to statehood, but is not a state at this time"). Even further, this situation is not dissimilar to that of the status of international organizations. Some organizations have absolute legal personality, such as the United Nations. 112 Other organizations have relative legal personality, meaning they have legal personality only in relation to those members that accept the international organization as such." 1 Consequently, international law tolerates the international and regional organizations as legal personalities in the twentieth century, and examining potential bases for the international legal personality of new entities such as "nongovernmental organizations, multinational corporations and to some extent, subnational governments" in the twenty-first century).
113. See CRAWFORD, supra note 40, at 30 (distinguishing between entities with objective legal personality, which exists "wherever the rights and obligations of an entity are conferred by general international law," and those cases where an entity is created "by particular States for special purposes," and only those states are bound). recognition of certain entities as states for certain purposes and not for others.
Many factors suggest that Palestine has some form of relative statehood status that could be sufficient to satisfy the requirements of the Rome Statute. 1 14 First, in certain contexts, Palestine is regarded as a state. I" In addition, even those states that have not recognized Palestine as a state have accorded its envoys a form of diplomatic relations and privileges and immunities. 116 Others have expressed their hope or expectation that Palestine will be recognized as a state in the future.'" Finally, scholars of international law have likened Palestine to other entities that have some degree of capacity to act internationally, including the Cook Islands, Greenland, Puerto Rico, and Taiwan.I" 1 Perhaps one day, the international community will universally and conclusively recognize Palestine as a state, most likely following a negotiated peace settlement. If that happens, the present period is analogous to the transitory phase that marked Canada's long process of achieving independence.
Accession to the Rome Statute will not be enough to constitute Palestine as a state. A single act of accession to a treaty cannot 114. The PNA's attempt to accede to the ICC need not be considered a request for recognition of an absolute Palestinian statehood. It makes no request of that gravity in its application, though it does presuppose statehood. Thus, arguments that PNA officials themselves doubt whether Palestine is a state are not relevant here. See supra notes 54-56 and accompanying text.
115. See, e.g., Case C-386/08, Brita GmbH v Hauptzollamt Hamburg-Hafen, Judgment, 44-53 (Eur. Ct. Just., 4th Ch., Feb. 25, 2010) (recognizing that the European Communities entered into trade agreements with Israel and the PLO separately, and noting that each agreement "has its own territorial scope" with the EC-PLO agreement applying to the West Bank and Gaza Strip). Moreover, even Israel occasionally treats the PNA as a quasi-foreign entity for certain purposes. See also, Israel: Prohibition Against Bribery ofForeign Public Officials, LIBRARY OF CONG. (Mar. 8, 2010), http://www.loc.gov/lawweb/servlet/lloc news? disp3_1205401855 text (publicizing an amendment to an Israeli statute that "prohibits bribery of public officials of foreign countries, and of international and political entities, including the Palestinian Authority"). establish that an entity is a state for all purposes, just as one act of recognition by one state would not render an entity a state.' 19 In his work on recognition, Hersch Lauterpacht opined that a supranational organ might one day be empowered to make conclusive statehood determinations.1 2 0 John Dugard took this thesis one step further and concluded that the United Nations had effectively become that organ.121 This author is reluctant to go so far. It is far from clear that the negotiating parties intended for the United Nations to serve such a function. 122 Further, subsequent practice rebuts the argument that membership in the United Nations is synonymous with statehood. At its inception, the United Nations excluded some entities from membership, even though it acknowledged them as states. 123 Also, in practice, a UN member is not obliged to recognize another member as a state, even though it acknowledges the entity's membership in the United Nations. Further, states are not obliged to join the UN merely because they are states. 125 In any event, even if some supra-national organization was competent to determine conclusively which entities are states, it would most likely be the United Nations, not the ICC. Therefore, Palestine's accession to the Rome Statute could be evidence of statehood, but it would not impose a collective recognition obligation on the other States Parties.

International
In conclusion, Palestine's statehood status is uncertain. It is, quite frankly, a difficult case. Until its status becomes more defined, Palestine is best classified as a quasi-state in acknowledgement of the facts that it has been recognized by some states and that it has some capacity to act internationally. If Palestine is a quasi-state, it may be considered a state for specific purposes even though it has not attained absolute statehood. For example, China and Russia, among others, have recognized Palestine as a state, and presumably Palestine must be treated as a state in its relations with those countries. Indeed, extending the logic of this observation to its conclusion suggests that China and Russia may be estopped from denying Palestinian statehood. On the other hand, the United Nations has so far reached the opposite conclusion, so Palestine need not be treated as a state in UN matters for the time being. Quasi-state status, however, means that Palestine's relations with the ICC are an open question. The ICC should not conclude that international law demands that it refuse to recognize Palestine as a state. Rather, international law may permit the ICC to recognize it as a state for the limited purposes of jurisdiction or accession.

F. THE ROME STATUTE AND NON-STATE ENTITIES
As a quasi-state, this article contends that Palestine may accede to the Rome Statute or otherwise accept the jurisdiction of the Court. As observed above, the Rome Statute appears to limit membership to Israel's lack of recognition by many Middle Eastern states, Liechtenstein's lack of recognition by Czechoslovakia, and Belize's lack of recognition by Guatemala.  states by its express terms. 126 Some authorities have stated that the ICC must determine whether Palestine is a state before it may be permitted to join the Court. 127 This article suggests a different possibility; namely, that the Rome Statute's definition of "state" can be interpreted to include quasi-states such as Palestine.
International organizations may limit membership to states but international law does not require them to do so.1 28 Indeed, some organizations expressly provide that members need not be states, including, inter alia, the African, Caribbean, and Pacific Group of  18, 125(1), 125(3), 127(1).
127. See Rotella, supra note 17 (quoting the Israeli Foreign Minister's belief that "[tihe ICC charter is adhered to by sovereign states, and the Palestinian Authority has not yet been recognized as one, so it cannot be a member . . . [the Palestinian declaration] doesn't mean anything except that it's a good propaganda stunt"); Puppinck Memorandum, supra note 48, at 11 (stating categorically that "non-state entities" are not permitted to accede to the Rome Statute).    July 7,  2007), available at http://multimedia.olympic.org/pdf/en report122.pdf (creating National Olympic Committees, which exclusively represent their respective countries, and defining "country" as "an independent state recognized by the international community"); see also CRAWFORD . 3(d), Oct. 11, 1947, 77 UNT.S. 143 (allowing any territory, group of territories, trust territory, or group of trust territories maintaining its own meteorological service to join under specified conditions); see also id. at Annex II (including Palestine).
145. See Constitution of the UN Food and Agric. Org. art. 11, available at http://www.fao.org/docrep/009/j8038e/j8038e00.htm (amending the constitution to permit any regional economic integration organization to join); Rachel Frid, The European Economic Community: A Member of a Specialized Agency of the United Nations, 4 EuR. J. INT'L L. 239, 253-54 (1993) (discussing the unique "mixed membership" status of regional economic integration organizations, such as the European Economic Community, in the FAO and other international organizations); see also FAO   shall be open to other countries at such times and in accordance with such terms as may be prescribed by the Board of Governors. These terms, including the terms for subscriptions, shall be based on principles consistent with those applied to other countries that are already members."); see also Erik Denters, Representation of the EC in the IMF, in afford full voting rights to non-independent states because of their special status, 53 and the constitutive instruments of many of these organizations appear to limit membership to states. For example, many organizations mention "states" only in their founding instruments, but have nonetheless accepted non-states as members. The admission of non-state entities may be accomplished by amending the founding instrument, but in many cases, non-states are simply accepted based on a functional understanding of the term "state" in the constitutive instrument.1 5 4 In fact, the United Nations itself has applied a liberal, functional approach to the statehood requirement. The UN Charter contemplates that only states can be members,'1 5 that only states may bring matters involving peace and security to the attention of the United Nations, 5 6 and that states are the only non-member entities which may "participate, without a vote" in discussions before the Security Council.I" These statehood requirements stand in stark contrast to the original inclusion of the Byelorussian and Ukrainian Soviet Socialist Republics ("the S.S.R.s"), as they were not independent states.' The INTERNATIONAL MONETARY LAW: ISSUES FOR THE NEW MILLENNIUM 211, 219-21 (Mario Giovanoli ed., 2000) (arguing that although the IMF Articles use the word "country" and do not provide specifically for non-state members, its provision for "countries" could be read to permit an entity such as the EC/EU); Press Release, World Bank, Kosovo Joins World Bank Group Institutions (June 29, 2009 case of the S.S.R.s is not easily distinguished on the basis of the fact that they were "original" rather than "subsequent" members. First, there is no clear legal basis for an exception for original members in the UN Charter because the Charter assumes that original members are also "states." Even accepting the argument that an exception for original membership exists as valid, it still does not explain why the S.S.R.s would be considered qualified to join as original members when they were unquestionably constituent republics of the U.S.S.R., which was also itself a member of the United Nations. This is comparable to permitting California and New York to join the United Nations as members in their own right, even though the United States is already a member.
An alternative explanation for the S.S.R.s' membership is that the drafters of the UN Charter contemplated that Ukraine and Belarus would be members from the outset. This explanation suggests a liberal intent behind the original meaning of the term "state." This interpretation is supported by the later admission of India and the Philippines, as well as the admission of other entities that were not widely considered states at the time of accession. 159 As it pertains to the rule that only states may bring matters to the attention of the Security Council or participate in Security Council discussions, this interpretation of "state" has also been liberally applied. Both Indonesia and Hyderabad, as well as Tunisia and Kuwait, have either brought matters to the attention of the Security Council or been invited to participate in discussions, 160 despite widespread dispute over the status of their statehood at the time of the invitation. 161 Not all of these entities received widespread recognition as states following their participation in Security Council discussions, particularly Hyderabad.
Admittedly, this interpretation of "state" might be an aberration; otherwise, the procedural consequences of statehood could supersede an effort to answer the substantive question of whether statehood exists. For instance, in debates before the Security Council regarding whether an entity could be a "state" for council purposes even if it lacks total sovereignty, some UN members have contended that both sides to a dispute ought to be heard because the whole purpose of the Security Council is to resolve disputes. 162 Crawford argues that, while this is not a definitive argument, "[tihis is a reasonable position provided the entity [presenting its side of the dispute] has some status as a putative State." Crawford adopts a cautious stance as to the meaning of "state" in Article 32 of the UN Charter in light of the "variable practice" of the Security Council. 163 While some delegations were refused on the basis that they did not represent "states,"l 64 practice illustrates that the United Nations considers the term "state" liberally in certain circumstances, provided the entity has some degree of statehood. 165 Palestine confirms this 160. See UN SCOR, 2d Sess., 180th mtg. at 1940, UN Doc. S/447 (Aug. 12, 1947) (voting to invite representatives of Indonesia to discuss its admission to the United Nations with the Security Council, and emphasizing that this invitation "would not bind any State to recognize the independence or sovereignty of the Indonesian Republic"); UN SCOR, 3d. Sess., 357th mtg. at 11, UN Doc. S/988, S/998, S/1000 (Sept. 16, 1948) (inviting the representative from Hyderabad to make a statement regarding prior communications sent to the UN Security Council).
161. See, e.g., UN SCOR, 2d. Sess., 184th mtg., at 1984-5 (Aug. 14, 1947) (noting the U.K. delegate's "grave doubts" over the Security Council's invitation to Indonesia, and his belief that "[the Security Council had] taken a wrong step" in the matter). In addition, although Tunisiaand possibly Kuwaitarguably had international legal personality prior to invasion that was simply dormant until independence, neither were de facto independent operating entities at the time when they addressed the Security Council.
162. CRAWFORD The Vienna Convention on the Law of Treaties ("Vienna Convention") also supports this reading of the Rome Statute. Under the Vienna Convention, a term's "ordinary meaning" controls, which is deduced by looking at the term's meaning in context and in consideration of the treaty's overall "object and purpose." 167 However, when interpreting their constitutive instruments, recourse is usually had to teleological interpretation. 16 8 The language of the Rome Statute clearly limits membership to "states;" however, this article points to past and current international practice as evidence of a flexible approach to the "ordinary meaning" of "state." For this reason, the object and purpose of the Rome Statute becomes even more important. Simply stated, the object and purpose of the Rome Statute is to end impunity for international crimes that are "of concern to the international community as a whole."l 6 9 The ICC does not merely aim to end impunity for international crimes that are of concern to states. In light of that purpose, permitting territorial entities that have some, but not all, of the attributes of states to accede to the Rome Statute would further the purpose. In fact, fixed meaning, but rather varies slightly in meaning according to the claim for which it is being used, then it is likely that entities which would not be considered states for the purposes of a claim for comprehensive participation in the United Nations might nevertheless satisfy the requirements of statehood where the claim is for limited participation."). prohibiting such an entity would frustrate the ICC's purpose: the perpetrators of many alleged international crimes could escape responsibility based on the simple fact that they are stateless (Palestinian "nationals") or because the statehood status of the area of the world in which they committed their acts is less than absolutely clear. As a basis for comparison it is interesting to recall that Interpol permits the participation of non-state members based on the pragmatic pursuit of the organization's objective to combat transnational crime.1 7 0 Although not all international crimes have a transnational component, the analogy is apt insofar as the ICC's ability to successfully combat impunity for serious crimes worldwide depends on its ability to extend its jurisdiction widely. Given the vague nature of the term state and the need for an object and purpose interpretive approach, the term "state" may be interpreted broadly and functionally within the rules of the Vienna Convention.

Accord
This interpretation is also necessitated by the law binding all of the organs of the Court. The applicable law of the ICC consists of the Rome Statute, Court regulations, and other sources of international law.171 Further, the ICC must apply and interpret the law, regardless of its source, in a fashion that is "consistent with internationally recognized human rights." 72 In the case of Palestine, it is worth mentioning that this last requirement arguably applies to all of the organs of the Court, including the Registry. The language of the Rome Statute refers to the law applicable to "the Court,"' 73 which is in turn defined as a "permanent institution" comprised of four separate organs, of which the judiciary is just one. 17 4 The Registrar is 170. See INTERPOL Constitution, supra note 147, arts. 1, 4. 171. See Rome Statute, supra note 2, art. 21(1)(a)-(b) (recognizing "applicable treaties," "the principles and rules of international law," and "the international law of armed conflict" as binding on the ICC). Secondarily, the ICC may extract and apply "general principles of law" based on national laws from around the world. Id. art. 21(1)(c) , 218-19 (2006) (describing the procedural rules that apply to declarations lodged with the ICC registrar and stating that the ICC rules are unclear as to the exact course of action the Registrar must take regarding such a creation of the Rome Statute and is empowered under the Rome Statute to accept registrations of accession and declarations of acceptance of jurisdiction. 115 It therefore makes sense that the Registrar would also be bound by the Rome Statute. If that is the case and the Registrar is bound by the requirement that the Rome Statute be interpreted and applied consistently with human rights obligations, this perhaps also obliges the Registrar to apply a liberal reading of the term "state" when evaluating Palestine's declaration if doing so will achieve its humanitarian goals of ending impunity."' It appears that the ICC has already taken the liberal approach. The list of States Parties to the Rome Statute includes entities widely acknowledged to be states.' 77 Still, many prominent states, such as the United States, China, Russia, India, and Indonesia, and a number of countries from the Middle East, Central Asia, and South Asia, are not members of the ICC." 78 This author is aware of only one possible case in which a State Party to the ICC has not recognized another State Party as a "state"; until 2009, Lichtenstein did not recognize the Czech and Slovak Republics. 17 9 Currently, however, one State Party to the ICC is not widely regarded as an independent state-the Cook Islands. 8 0 The Cook Islands is a self-governing entity in free association with New Zealand."' Residents of the islands are considered New declarations).
176. It appears that the Registrar has taken this position because the Registrar's office acknowledged receipt of Mr. Khashan's letter, but stated that the ICC judges must make the final determination of  . 1, 2011)

18, 2008.190
The ICC's decision to accept the accession of the Cook Islands generated no controversy. In practice, therefore, the ICC already exercises a degree of flexibility in how it interprets the term "state" for the purposes of the Rome Statute, and states and other interested parties seem to have accepted such interpretation in those instances.
The same argument holds for acceptance of the Court's jurisdiction on a case-by-case basis. Article 12(3) of the Rome Statute employs the term "state" like the articles discussing membership. 191 As the above discussion demonstrates, international law does not require an international organization to interpret the word "state" in its constitutive document in a restrictive fashion for membership purposes. It therefore follows that international law also permits a liberal interpretation of the same term in other sections of the instrument. As discussed previously, in the case of Hyderabad, the entity was permitted to bring a matter to the attention of the Security Council even though it was not a member of the United Nations or widely regarded as a state (or even later regarded as such).1 92 The Security Council read the UN Charter to allow the broadest interpretation of the term "state" based on its purpose of providing a forum for each party in a dispute to have its views heard.19 In the Gaza situation, there is an imbalance in the ability of the two parties to submit the situation to ICC jurisdiction because of Palestine's uncertain status. The Vienna Convention instructs that treaty terms should be interpreted with consideration for the object and purpose of the treaty, and the object and purpose of the Rome Statute is to end impunity for war crimes. In addition, international law does not require a narrow interpretation of the word "state" for purposes of an Article 12(3) acceptance of jurisdiction. Thus, in order to fulfill the Rome Statute's purpose of promoting justice for victims and perpetrators of war crimes, the ICC should recognize that Palestine is at least a quasi-state, and interpret the Rome Statute 192. See UN SCOR, 3d Sess., 357th mtg., supra note 157, at 11. It is unclear whether Hyderabad was ever truly recognized as an independent state.
liberally to allow for its accession or acceptance of the Court's jurisdiction.

INTERNATIONALLY
Palestine is arguably a state for the purposes of the Rome Statute, but in order to ascertain whether the ICC can exercise its jurisdiction over Gaza, it is necessary to examine whether the PNA, specifically, has the capacity to accept the Court's jurisdiction on behalf the "state." As discussed earlier, the people of Palestine, the PLO, and the PNA all currently represent the Palestinian entity. 1 9 4 Admittedly, it is unclear in which of these capacities the PNA Justice Minister accepted the Court's jurisdiction-Minister Khashan made his declaration in the name of the "Government of Palestine," 1 and based on the ICC's response, the Registrar apparently interpreted this to mean the PNA. 1 9 6 Some have observed that Palestine cannot join the ICC if it does not have the capacity to do so, 19 7 and that the refusal of Hamas in Gaza to recognize the PNA restricts the PNA's capacity over Gaza.1 98 This section first explores whether the PNA has the capacity to accede to the Rome Statute or otherwise accept the Court's jurisdiction under the Oslo Accords, and concludes that it may, based on its power to establish a judiciary. Even if the PNA does not have this capacity under the Oslo Accords, as a quasi-state, Palestine might have the inherent capacity to do so notwithstanding the Oslo Accords. 197. See Rotella, supra note 17 (reporting that the ICC prosecutor must determine whether the Palestinian Authority can legally recognize the ICC's authority). See generally Benoliel & Perry, supra note 32, at 79-127 (considering the many reservations to allowing Palestine to join the ICC, and arguing that it must be recognized as a State in order for the ICC to have jurisdiction).
198. See Rotella, supra note 17 (noting Israeli officials' concern that the residents of Gaza do not recognize the jurisdiction of the PNA); Davenport Communication, supra note 32, at 9-10 (asserting that Hamas controls civil administrative agencies to the exclusion of the PA, and that Hamas in fact persecutes supporters of the PNA and the PLO in Gaza).

A. CAPACITY TO ACT UNDER THE OSLO ACCORDS
A preliminary consideration is whether the Oslo Accords have, in fact, lapsed. If they have, then the terms governing jurisdictional competence are no longer in effect. The Accords were specifically provided to put a system of governance in place for a term of five years, beginning upon the withdrawal of IDF forces in June 1994.199 Some argue that Israel's failure to engage in Gaza since the end of the five-year period constitutes a relinquishment of any criminal jurisdiction over the territory. 200 This argument is rather weak because the actions of the parties since the end of the five-year period suggest their understanding that the Accords have not lapsed, and that the agreement is being continued on an ad hoc basis. It does not appear that the Accords have lapsed, so we turn next to the question of capacity.
Whether or not the PNA has the capacity to accede to the ICC depends on whether a state's accession to the Rome Statute is better characterized as an act of foreign relations or as a judicial capacity building measure. Under the Accords, only the PLO, not the PNA, has competence over foreign relations. 2 01 The PNA is specifically competent, however, to establish and operate a judiciary and police force. 202 Accession to the Rome Statute or acceptance of jurisdiction is arguably more comparable to a judicial function than a foreign relations function, such as the establishment of a diplomatic mission, and thus better classified as an exercise of the PNA's judicial power. In fact, the PNA has already exchanged letters with the European Union to form an EU Police Mission in the Palestinian Territories 199. Oslo Accords, supra note 36, arts. I, V(1). and open the European Union Coordinating Office for Palestinian Police Support. 203 This act was not viewed as a violation of the Accords. Although a PNA accession or acceptance of jurisdiction involves an international organization, this act is substantively a means of adjudicating certain international crimes that the PNA is unable or unwilling to prosecute itself. A state's self-referral to the ICC, based on its own assessment that it is unable to prosecute those responsible, seems to exemplify a judicial capacity building measure. But even if accession to the Rome Statute does not fall within the PNA's power to establish a judiciary, under the Accords, the PLO still retains a wide-ranging competence to engage in foreign relations and could apply for the accession of Palestine if the PNA communication fails. 2 0 Still, in any event, there is a good argument that accession to the ICC falls within the powers of the PNA as agreed under the Oslo Accords.

See REPORT OF THE INDEPENDENT FACT FINDING COMMITTEE ON
The conclusion is also the same if the PNA merely accepts the jurisdiction of the ICC, rather than accedes to the Rome Statute. The PNA has competence to establish and operate a judiciary-that is, it has adjudicative jurisdiction over the territory. Under the Accords, Israel has only exempted from the PNA's competence responsibility "for external security, and for internal security and public order of settlements and Israelis." 2 05 While some argue that this means that Israel retains sole judicial authority of its own citizens in Gaza, 2 06 this "responsibility" exemption could also be read narrowly to mean that 204. Interim Agreement, supra note 37, art. IX(5)(b).

See
Oslo Accords, supra note 36, at Agreed Minutes, Annex II; see also id. art. IV ("Jurisdiction of the [PNA] will cover West Bank and Gaza Strip territory, except for issues that will be negotiated in the permanent status negotiations. The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period."). Although the Accords, in principle, established a territorial jurisdictional regime, they did not specify exactly which parts of the West Bank and Gaza Strip territories are covered or how they are exempted from jurisdiction.
206. See Davenport Communication, supra note 32, at 4-5 (contending that the Interim Agreement prohibits the Palestinian Authority's exercise of criminal jurisdiction over citizens of Israel "including those who are in the West Bank and Gaza," and further arguing that the Palestinian authority cannot transfer jurisdiction to the ICC which when it does not itself possess this jurisdiction in its domestic courts).
Israel will provide security and policing for settlements and Israelis. 207 In the latter case, the PNA would not be prohibited from exercising adjudicative authority over Israelis. 208 Even if the PNA does not have adjudicative authority over Israelis under the Oslo Accords, we could interpret that provision as a "constitutional" limitation on the PNA as a government that might not necessarily apply to the ICC.
The capacity of an international legal person to accede to the Rome Statute has been addressed by the French Constitutional Council in a slightly different context. In Re Treaty Establishing the International Criminal Court, 20 9 the Council determined that Article 27 of the Rome Statute, which provided that official immunity was not a bar to prosecution, conflicted with Article 68 of the French Constitution, which granted the President of the French Republic immunity from prosecution "for acts performed in the exercise of his functions." 2 10 The same objection was claimed for the immunity provided to members of the French Parliament, who are immune for "opinions or votes expressed in the exercise of their functions" under Article 26 of the French Constitution. 2 1 1 The Constitutional Council concluded that this conflict would bar France from acceding to the Rome Statute. Subsequently, the French Parliament amended the 207. The argument that Israel retains sole jurisdiction over its citizens in Gaza presumes a conclusive legal interpretation of the term "responsible" and introduces terms such as "retained" which are not present in the Oslo Accords. It also overlooks the fact that Israel has previously argued that it does not have jurisdiction in the West Bank and Gaza.

French Constitution to permit it to join the ICC. 2 12
The fact that the Constitutional Council found a conflict between these provisions suggests that the Council believes that violations of international criminal law could constitute official acts of the President. This conclusion contradicts well-established case law in the United Kingdom. In Pinochet, 21 3 the House of Lords held that the crime of torture, as provided in the Torture Convention, was not part of the Chilean dictator Pinochet's executive duties. 214 As far as this author is aware, France signed and ratified the Torture Convention in 1986 without constitutional objection. 21 If we agree that the Pinochet holding is a correct statement of law, then the French Constitutional Council was simply incorrect.
This constitutional issue in France might suggest that Palestine does not have the capacity to accede to the Rome Statute or at least accept its jurisdiction if it does not have "constitutional" capacity to do so-that is, capacity under the Oslo Accords. But, this is simply not the case. The impediment in the French case was the constitutional allocation of jurisdictional competence over the President and members of Parliament and was a limitation on the powers of the judiciary, not the inherent inability of the French State to prosecute violations of the law. 216 The fact that the French Parliament easily amended the French Constitution to provide for accession shows that it clearly has that power. At the end of the day, the conflict, if there was one, was entirely municipal. Accession to the Rome Statute would have placed France in the untenable position of overriding and granting immunities at the same time. As far as international law was concerned, though, once France adhered to the Rome Statute, it was bound regardless of its internal legal provisions. 2 17 If France had interpreted its constitution in a manner similar to U.K. courts in Pinochet, so that an amendment would not have been required, then the ICC would not enquire into the correct interpretation of French competence to join the ICC. If Palestine is a quasi-state with the right to self-determination, and is thus accepted as a "state" at least for the purposes of acceding to the Rome Statute or otherwise accepting the jurisdiction of the ICC, then there is no impediment under international law, and municipal law is beside the point.
It does not necessarily follow that the PNA's jurisdictional limitations would similarly constrain the ICC. The States Parties to the Rome Statute and other states that accept the ICC's jurisdiction are accepting the jurisdiction of the Court. Although the "transfer" or "delegation" of jurisdiction by the state to the ICC is the paradigm most often used to describe the complementary relationship between the ICC and its States Parties, 2 18 that particular language is not present in the Rome Statute. Contrary to the theory that powers are attributed to an international organization through delegation or transfer, international organizations also can be said to have certain inherent powers and competencies, usually based on the organization's functions. 2 19 Often, these inherent competencies are limited to treaty making, legation, and maintaining international disputes, but international law does not restrict them to these areas. 22 0 217. Vienna Convention, supra note 167, art. 27 ("A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."). 220. See SEYERSTED, supra note 219, at 28 (noting that international organizations do not lack legal capacity to perform the full range of international acts performed by states; rather, organizations do not have the "practical need" to One question relevant to this situation is whether a purely judicial international legal person has an inherent jurisdictional capacity that states merely accept. 2 2 1 One possible example of the ICC's inherent jurisdiction is in regards to head of state immunities. If states merely transfer their jurisdiction to the ICC, then the Court could never hear the case of any serving head of state because states cannot have jurisdiction over a person enjoying state immunity. 22 2 Clearly the states of the world were able to bring into existence an entity that would have jurisdiction over serving heads of state, despite the fact that they themselves did not have that capacity. 223 Indeed, arguing perform many international acts because they lack territory and nationals). (arguing that if a state party to the ICC arrested Sudanese leader Al Bashir, the arrest would be unlawful because it would violate his head of state immunity, but also asserting that such an unlawful arrest would not affect the ICC's jurisdiction because the ICC need not respect head of state immunities). Although arguments have been made that the Rome Statute could be characterized as a collective waiver of immunity amongst the various States Parties, these arguments are ultimately unconvincing. For one, the language used by the International Court of Justice in the Arrest Warrant case did not reflect the collective waiver argument; rather, it suggested that there is something unique to international tribunals that allows them to disregard the head of state immunity doctrine. This approach was applied in practice in the Charles Taylor case. See Prosecutor v. Taylor, Case No. SCSL-03-01-PT, Prosecution's Second Amended Indictment (May 29, 2007) (holding Taylor individually criminally responsible for the crimes charged). Further, if the collective waiver argument bears weight, it will be difficult for the ICC or any international tribunal that the ICC must examine each state's municipal jurisdiction provisions and condition the application of the Rome Statute to the state's municipal situation is an untenable position. The jurisdictional transfer paradigm does not fully capture the relationship between the ICC and the States Parties, and that convenient expression should not prejudice the relationship by suggesting that the ICC is strictly limited to exercising the particular jurisdictional competence of the state's judiciary.
Provided that the PNA has sufficient capacity to accede to the Rome Statute as a treaty, or otherwise accept the Court's jurisdiction, the PNA is recognized as an international legal person for that purpose and the ICC may then apply its own jurisdictional, competence, and admissibility requirements as provided in the Rome Statute. To date, neither the Defense, Prosecution, nor the ICC bench have ever raised questions about the jurisdictional provisions of the states in which allegedly criminal acts took place-at least as a limit on the provisions of the Rome Statute. In fact, the PNA's jurisdictional limitations might be the very reason that it is "unable" to prosecute certain crimes over which the ICC could have jurisdiction, thus rendering the case admissible before the Court.

B. CAPACITY TO ACT REGARDLESS OF THE OSLO ACCORDS
A second consideration is whether Palestine, as a nation with the right to self-determination, needs authorization under the Accords to accede to the Rome Statute or accept the jurisdiction of the Court. If Palestine is acknowledged as a state, it would not need any other state's permission to accede to a treaty regardless of whether Israel considers Palestine a state. However, if Palestine falls into a quasistate status, then its situation is less clear. Given that Palestine is widely regarded as a people with a right to self-determination, then the people may have an inherent competence to accede to any treaty. 224 As discussed above, the PLO, as the generally to prosecute heads of state when the state has not expressly waived its immunity by acceding to the Rome Statute. to extradite or prosecute violations of international criminal law, the people of Palestine arguably cannot release themselves from this duty. Thus, Palestine retains authority to prosecute any person in its territory for violations of international criminal law, even if it has delegated away authority to prosecute for other minor crimes. See, e.g., Kearney & Denayer, supra note 38, if 33-34..

225.
See Palestinian Declaration, supra note 1. 226. In fact, it appears that the formal distinctions between PLO and PNA competencies are already being "blurred in practice." See, e.g., Kearney & Denayer, supra note 38, 26 (noting that the PNA has entered into agreements with international organizations and the PLO concluded a security agreement, but signed as the PNA). None of these blurred practices appear to have been protested.

227.
See Wye River Memorandum, supra note 37, § V ("Recognizing the necessity to create a positive environment for the negotiations, neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip in accordance with the Interim Agreement."). The determination that either PNA accession to the Rome Statute or the PLO's encouragement of the PNA's However, Israel's unwillingness to authorize the accession does not necessarily deprive the people of Palestine of their inherent capacity to accede.
Even if the PNA was exceeding its authority in acceding to the Rome Statute or accepting the Court's jurisdiction, that fact would not, by itself, necessarily be grounds for the ICC to refuse to act. The Vienna Convention provides: A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 22 8 It then clarifies that "[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith." 229 First, the Vienna Convention only provides the acceding state with a ground to object to its accession, not a right of third-party states to intervene and object. Similarly, the Convention does not confer upon a treaty organization-like the ICC-the option to object. In the case of Palestine, therefore, Israel does not have grounds to assert that the PNA is not competent, nor does any other state. Similarly, the ICC would not have a basis in the Vienna Convention to refuse on that ground.
Even if the ICC or a third-party state could object on this ground, the objecting party would have the onus of showing that the PNA manifestly lacks competence and that its actions have violated a rule of fundamental importance to Palestine. This would be an impossible argument to make if Palestine merely asserts that the Oslo Accords accession violated the Accords would necessitate a preliminary finding that the accession or acceptance of ICC jurisdiction changed "the status of the West Bank and the Gaza Strip." Further, Israel would also need to determine whether such an act changed the status of the territory in a manner significant enough to constitute a material breach of the Accords. This would permit Israel to denounce the Accords, and would likely result in Israel's revocation of the PNA's right to exist. However, the power of states to terminate a treaty for material breach is, in turn, constrained when the termination would affect the human rights of the individuals benefiting from the treaty.
228 are not of fundamental importance. Given the arguments above regarding inherent self-determination and the relationships between the PNA, PLO, and Palestinian people, the PNA's competence may be unclear, but such issues are not necessarily manifest and fundamental to Palestine.
Some have argued that the Palestinian declaration is invalid because of Hamas' refusal to accept the authority of the PNA in Gaza. 23 0 The fact that a portion of a state or a rebel group, or similar rebellious region, does not accept the authority of the central government of a state (or quasi-state) does not mean that the government lacks the legal authority to act for the entirety of the state (or quasi-state) internationally. Not only has Israel recognized the PNA as the authority acting internally and the PLO as the authority acting internationally, for the entirety of the territory of the West Bank and Gaza, but so have all of the organizations that Palestine has joined or at which it has been seated as an observer. 23 ' Since Gaza appears to be recognized as a part of the entity of Palestine, the Fatah-led government in the West Bank would be the only authority competent to act for the Gaza territory internally, and the PLO remains competent to act for the entire Palestinian people internationally. This argument loses even more support following the creation of the unity government between Hamas and Fatah.
Based on the above, the PNA is arguably authorized under the Oslo Accords and has the capacity to accede to a judicial treaty such as the Rome Statute or otherwise accept the adjudicative jurisdiction of the ICC. Moreover, under its right to self-determination, Palestine (possibly through the PNA and certainly through the PLO) is inherently competent to accede to any treaty or treaty organization that will recognize it as having that capacity. If it is true that the 230. See, e.g., Davenport Communication, supra note 32, at 9-10. 231. See Vienna Convention, supra note 167, art. 29 ("Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory."). In addition, the Hamas-led government in Gaza has accepted the Basic Law promulgated by the Fatah-led PNA for the entirety of the Palestinian territory, and has even asserted its own legitimacy as a government under the PNA Basic Law. PNA's accession to the Rome Statute is a judicial act, then the PNA's acts would not be ultra vires under the Oslo Accords. If, on the other hand, accession is not a judicial act, then it might be beyond the scope of the Accords. However, even if the act could be considered ultra vires under the Oslo Accords, the violation would not necessarily deprive the PNA's acts of all legal force. 232 Therefore, Palestine has the capacity to accede to the Rome Statute or otherwise accept the jurisdiction of the ICC, arguably through any of its various personalities of the people of Palestine, the PLO, or the PNA.

IV. FORM OF ACCESSION
While this article ultimately concludes that Palestine may join the ICC or accept its jurisdiction, there is no reason to assume that Palestine must be afforded the same rights as other State Parties. On the contrary, there are a variety of limited forms of membership that might be suitable. For example, some organizations that accept nonstate entities as members do not permit full voting rights to nonindependent states because of their status. 233 In the period in which the "micro-state" problem was being debated at the United Nations, there were proposals that miniscule states might be admitted with special conditions, such as reduced voting rights or other limitations on their participation rights. 234 These proposals were ultimately rejected, but the rejection appears to have been for political reasons (a failure to amend the Charter to provide for differing forms of membership), not because there was any international legal obstacle to conditional membership. 235  ("ASP") might be limited in some way. It might also be possible to limit Palestine's ability to refer situations occurring in other states to the ICC.
Unfortunately, at this point in time, the Rome Statute does not provide for these possibilities. To accommodate a limited form of membership, the Statute would most likely need to be amended, unless it was informally amended by practice accepted by the membership. 2 3 6 A final possibility is that Palestine could be admitted as an observer over which the ICC might even exercise complementary adjudicative jurisdiction, but which could not participate.in the organization's political processes. The creation of an observer category could be an inherent power of an international organization, possibly even without enabling language in the organization's constitutive instrument. This is exemplified by the consistent practice of international organizations admitting observers, and the fact that the Rome Statute might be implicitly amended through the practice of admitting observers. In any event, Palestinian accession to the Rome Statute might not require that it join in the same membership category as other States Parties.

V. EXERCISE OF JURISDICTION
As noted above, the ICC may only assert its jurisdiction in one of three situations: referral by a State Party, referral by the UN Security Council, or when the ICC Prosecutor investigates on his own initiative.237 Both Saudi Arabia and Yemen, though neither State Parties to the Rome Statute or permanent members of the UN Security Council, have nonetheless expressed a desire to refer the situation in Gaza to the Court. 23 8 Alternatively, the "self-referral" of a State Party to the Rome Statute has been accepted in practice where the referring state would be the locus for the investigation.  However, this alternative would require that Palestine be a party to the Rome Statute, not merely that it have accepted the Court's jurisdiction. Self-referral would also require that Palestine not have been admitted as a special case member under an amended Rome Statute membership category that raises institutional limitations on lodging referrals, should such a category be created. If so, it would seem odd that a special case member could not refer itself, at a minimum. Finally, the Prosecutor could also start an investigation in Palestine "proprio motu"--on his own initiative. As of yet, the Prosecutor has never exercised his power in this fashion, but he is certainly not precluded from doing so. In sum, one of these actions must be taken in order to "trigger" the ICC's jurisdiction.
The necessary protocol for triggering the Court's jurisdiction is somewhat less clear where an entity has merely accepted the Court's jurisdiction rather than acceded to the Statute wholesale. 240 This paper will not take a position in this debate, but will proceed with the assumption that the Court's jurisdiction must be additionally triggered in the same fashion as it must for a State Party, simply to ensure a complete discussion. In this analysis, the self-referral option would be unavailable because Palestine would not be a State Party to the Rome Statute. Therefore, either another state that is party to the Rome Statute or the Security Council would need to refer the Gaza situation to the ICC, or the Prosecutor would need to take the initiative on his own accord.
As mentioned above, in order for a case to be admissible to the ICC, a state with jurisdiction must either be unwilling or unable to genuinely investigate or prosecute the alleged crime. 2 4 1 If the Court had jurisdiction through the initiative of Palestine, either because it accepted the ICC's jurisdiction and another State Party referred the situation in Gaza, or because Palestine referred itself though not a State Party, we can presume that this condition would be satisfied.
Similar analyses for pending situations of self-referral. currently before the Court have reached the same conclusion. 2 42 Palestine could block the admissibility of a case at any point by genuinely investigating and prosecuting the situation itself. Given its relations with Israel and the PNA's historic relations with Hamas, however, Palestine likely accepted the Court's jurisdiction because it could not exercise such jurisdiction in Gaza. Israel, on the other hand, could also block a case by genuinely investigating and prosecuting the situation. Because the alleged violations occurred within the hierarchical and accountable IDF, Israel's option to block the admissibility of a case is a real possibility and a welcome one-if it is genuine. The sad reality is that, politically speaking, even a thorough investigation and prosecution by Israel might not be perceived as legitimate. 2 4 3 The Court would need to wade into the treacherous waters of determining the genuine quality of such an investigation and prosecution, but, that is one subject for another discussion.

CONCLUSION
This article argues that there is no barrier under international law for Palestine to accede to the Rome Statute or accept the jurisdiction of the ICC, and that the ICC may exercise jurisdiction over the situation in Gaza, or any other situation in the Palestinian territories or involving "nationals" of Palestine.
The Rome Statute limits membership and acceptances of jurisdiction to "states." Although there is an argument that Palestine satisfies the conditions for statehood under the declaratory and constitutive theories, the criteria are not fully or clearly met. Nevertheless, because Palestine satisfies the conditions, at least in 242. See, e.g., El Zeidy, supra note 239, at 111-19 (discussing whether Uganda, which self-referred to the ICC's jurisdiction, has competence to investigate and prosecute alleged crimes by the Lord Resistance Army).
243. See, e.g., Isabel Kershner, Israel Rebukes 2 for UN Gaza Compound Shelling, N.Y. TIMES, Feb. 2 2010, http://www.nytimes.com/2010/0202/world/ middleeast/02mideast.html (reporting that Israel reprimanded military officers for their use of white phosphorous, but also that Israel has been accused of "covering up details of the shelling of the [UN] compound); Israel: Military Investigations Fail Gaza War Victims, supra note 13 ("Israel has failed to demonstrate that it will conduct thorough and impartial investigations into alleged laws-of-war violations by its forces during last year's Gaza conflict."). part, Palestine may qualify as a quasi-state, with some aspects of statehood for some purposes. This article argues that those purposes include both accession to the Rome Statute and acceptance of the ICC's jurisdiction.
Palestine, through its personalities of the PNA, the PLO, and the Palestinian people, has the capacity to accede to the Rome Statute and/or accept the ICC's jurisdiction. The Oslo Accords limited the PNA's authority to engage in foreign relations, but the PLO remains free to act internationally. Also, the authority granted to the PNA includes the competence to establish a judiciary and police force, which arguably includes the right to accede to an international judiciary or otherwise delegate its adjudicative jurisdiction. Furthermore, the Palestinian people still hold the right to selfdetermination. On that basis, the Palestinian people may derive the right to accede to any treaty, regardless of the demands of its neighboring people. Thus, even if the Oslo Accords limit the authorization of the PNA to accede to an international treaty, the Accords would not restrict Palestine's inherent capacity to enter treaties, though doing so might violate its agreement with Israel that it would not act internationally.
Although the text of the Rome Statute appears to limit membership to "states," the practice of international organizations is that that term "state" may be used liberally to include quasi-states with some degree of tatehood, notwithstanding the clear language of the text. There is no requirement of international law that the term be interpreted restrictively. In fact, the ICC has already admitted one quasi-state-the Cook Islands-to membership. There is also no obligation under international law that only states be admitted as members of international organizations, generally, or that only states participate in the work of international organizations. Thus, there is no barrier under international law to Palestinian accession to the Rome Statute or acceptance of the ICC's jurisdiction. That does not mean, however, that Palestine must necessarily join with the same status as other States Parties. International law would permit the ICC to limit Palestine's voting rights or even to invent a form of observer status that reflects Palestine's status as a quasi-state.
Finally, if the ICC acquired complementary jurisdiction over Palestinian territory and "nationals," and accepted referral of the situation in Gaza, that referral would not mean that the ICC would be limited to investigating only the attacks on Palestinians by the IDF. Instead, the referral and jurisdiction over the situation should be interpreted to include the actions of Palestinians in Gazaspecifically, the acts of the Hamas-led government in Gaza. Hamas has been accused of committing serious war crimes, such as launching more than six thousand mortar attacks targeting civilians and otherwise failing to make any distinction between civilians and legitimate combatants. 244 It may also be responsible for acts of genocide. 245 The accession of Palestine to the ICC should not add to the problems in the region by resulting in a one-sided prosecution policy by the ICC, as that would contravene its mandate.
Based on the above, Palestine may join the ICC or, in the alternative, accept the Court's jurisdiction. The ICC will need to examine whether it will recognize Palestine as a state or whether the object and purpose of the Rome Statute permits a liberal interpretation of the term "state," as it appeared to do with the Cook Islands. Therefore, if the ICC ultimately concludes that Palestine may not accede to the Rome Statute or that the ICC cannot otherwise exercise its jurisdiction over the territory and "nationals," it will be because political concerns are perceived by the ICC as significant enough to justify a conservative approach, not because international law demands it.  . 7, Aug. 18, 1988, available at http://avalon.law.yale.edu/20th century/hamas.asp ("Our struggle against the Jews is very great and very serious. It needs all sincere efforts. It is a step that inevitably should be followed by other steps. The Movement is but one squadron that should be supported by more and more squadrons from this vast Arab and Islamic world, until the enemy is vanquished and Allah's victory is realized."). It would appear that Hamas operatives are engaging in acts prohibited under Article 2 of the Genocide Convention against Jews with the intent to destroy, in whole or in part, their protected group.