The US and UK governments have indicated they are considering recognising Palestine as a state after the current conflict ends. On a visit to Lebanon on February 1, the UK foreign secretary, David Cameron, said this would be impossible while Hamas remained in control in Gaza, but that giving Palestinians the prospect of statehood would be “absolutely vital for the long-term peace and security of the region”.
US secretary of state, Antony Blinken, meanwhile told US media site Axios that he had commissioned the State Department to review potential options for US and international recognition of a Palestinian state. Previously, US policy towards Palestinian statehood had been that this was a matter for negotiations between Israel and the Palestinian Authority.
International recognition would usher in a new phase for the realisation of Palestinian statehood. The legal framework for addressing the situation would expand to include more international bodies dealing with international human rights and accountability.
The first thing to stress is that recognition and statehood are two separate issues. Under international law, states conduct foreign relations on the basis of bilateral and multilateral recognition of each other’s statehood as sovereign countries. This recognition also forms the basis for how states behave and imposes various legally binding obligations and duties under international conventions.
Palestine has been recognised as an independent state by 139 of 193 UN members. But, crucially, the US, UK and other G7 countries including Germany, Italy and France, have not.
Since 2012, Palestine has been a “non-member observer state” in the UN. It acceded to a number of human rights treaties in 2014. These include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Palestine’s membership of these treaties is a reflection of its status as a sovereign state in international law, with all the obligations and duties this entails.
Palestine is also a member of a range of other international organisations, including the Non-Aligned Movement, the Organisation of Islamic Cooperation and the International Criminal Court (ICC).
Getting recognised
There is a detailed and complex process by which new states are recognised under international law, established in 1933 by the Montevideo convention on the rights and duties of states. Article 1 contains the four criteria required as follows:
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
The question remains whether Palestine actually possesses a “defined territory” and “effective government”.
The UK has maintained a firm position of non-recognition of Palestinian statehood. It abstained in the UN general assembly vote in 2012 that granted the non-member observer status at the UN. So recognition would be a significant move.
But recognition of Palestine as a sovereign state goes beyond a mere political gesture. It has the potential to unlock a broader range of legal avenues towards accountability for atrocities and human rights violations, grounded in the obligations of states under the laws governing international armed conflicts.
At present, the continuing hostilities in Gaza are perceived as a conflict between a state (Israel) and a non-state group (Hamas). Recognising Palestine as an independent state could significantly alter this dynamic. It would change the situation to an international armed conflict which involves one or more states taking up arms against another.
Establishing accountability
Palestine has been a member of the ICC since it acceded to the Rome statute in 2015. In 2021, the ICC prosecutor initiated investigations into the “situation in the state of Palestine”.
This followed a pre-trial chamber decision that the court could exercise criminal jurisdiction in the situation (the term “situation” is used by the ICC to mean the jurisdictional confines within which an investigation is done). In respect to the territorial scope of this jurisdiction and investigation, it extends to Gaza and the West Bank, including East Jerusalem.
On November 17 2023, the ICC chief prosecutor received a state party referral for Palestine from South Africa, Bangladesh, Bolivia, Comoros, and Djibouti, meaning they requested the ICC prosecutor investigate crimes in Palestine under the Rome statute.
Palestine’s obligations
Recognition as a state would involve certain obligations on the part of Palestine, both in terms of international law and human rights. States have concrete obligations and duties under international law in relation to how they deal with armed conflicts. They are also obliged to act according to international law in recognising and protecting human rights in the territory under their jurisdiction.
One example of this idea in action was the 2023 decision in the matter of Mangisto and al-Sayed v the State of Palestine, which involved the disappearance of two Israeli nationals in Gaza. The ruling was made by the UN’s Committee on the Rights of Persons with Disabilities, because the two Israelis who had disappeared were both ruled to have psychosocial disabilities which had influenced their decision to cross into Gaza – despite the dangers that involved – where they disappeared.
Even though there was no Palestinian government with effective control over Gaza and West Bank, the legal entity of the state of Palestine had a legal obligation to respect and protect the rights of the people as enshrined under the Convention on the Rights of Persons with Disabilities.
So, recognising Palestine as a state is more than just a political gesture. It has legal implications which will also be important when it comes to negotiating peace, the future of the Palestinian people and accountability for war crimes by both sides.