Update: I am closing the comments to this post. My commenters cannot seem to decide whether I am an anti-Israeli bigot or an anti-Palestinian bigot. Mission accomplished? Anyway, the comments section seems to be taking a turn that isn’t appropriate for this blog.
As you know, I am not a public international law expert. I do try to keep up with the news, though, and I have been particularly interested by the Prosecutor’s December 2019 request for a ruling on the territorial jurisdiction of the International Criminal Court in the West Bank, Gaza, and East Jerusalem, which amounts to a request for a ruling about whether Palestine is or is not a state. I have been following Professor Heller’s Twitter feed for updates, including for links to the amicus briefs submitted by several states and NGOs arguing that in fact Palestine is not a state, at least for these purposes, and of course briefs arguing that Palestine is a state. There is a lot one could say here about the apparent disconnect between the view of many scholars and the view of much of the world community, but I want to plumb the depths of the Letters Blogatory archive for a minute to arrive at what I think is an interesting point:
As the Prosecutor’s request (¶ 41) explains, Palestine acceded to the Rome Statute in January 2015, and the statute came into force with respect to Palestine in April 2015. Recall that the Palestinian Authority has been sued many times in the United States on terrorism claims. In those cases, the question of personal jurisdiction turns on whether Palestine is a state. If it is a state, then a US court has personal jurisdiction as long as the claim comes within one of the exceptions to foreign sovereign immunity. If Palestine is not a state, then the plaintiff is probably out of luck, because it will be very difficult if not impossible to make the ordinary showing of minimum contacts with the United States. How have the US courts treated Palestinian statehood in these cases?
In Safra v. Palestinian Authority, a case I wrote about in February 2015, the court held that the Palestinian Authority did have rights under the Due Process Clause and could therefore make out a personal jurisdiction defense, precisely because it was not a sovereign. In Sokolow v. PLO (2d Cir. 2016), a case argued after Palestine’s accession to the Rome statute, which I wrote about in September 2016, the court vacated a $650 million judgment on a jury verdict on similar grounds. Now, the issue is complicated a bit by the fact that there is a difference between saying Palestine is not a state and that the United States does not recognize Palestine as a state. My point is that sometimes (as in the ICC) it is in the Palestinian Authority’s interest to be treated as a state and sometimes (as in the US litigation brought by victims of terrorism) it is in the PA’s interest not to be treated as a state. The question of Palestinian statehood is really important and involves matters of principle, but there’s also a lot of complicated legal maneuvering for advantage going on.
I should conclude by saying that this isn’t a post about whether there ought to be a Palestinian state. It’s just a post about whether there is one today as a legal matter, and how the answer to that question may depend on the context.