ICJ's Historic Choice: Is a Palestine State?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. Recently, a pivotal question has emerged: Should the State of Palestine be allowed to intervene in the ICJ case brought by South Africa against Israel concerning alleged genocide in Gaza? This is related to very fabric of international law, particularly, standing and the criteria for statehood.

According to the ICJ Statute, only states can be parties to cases before the Court. Traditionally, the ICJ has maintained a strict requirement that only full-member states of the United Nations can intervene in cases. However, the legal landscape is evolving, and the recognition of Palestine as a state by a growing number of countries and international organizations challenges this traditional viewpoint.

Palestine's application to intervene in the case, citing Articles 62 and 63 of the ICJ Statute stands on its status as a party to the Genocide Convention since 2014. Paragraph 40 of Palestine's application emphasizes: "The State of Palestine acceded to the Convention on the Prevention and Punishment of the Crime of Genocide on 2 April 2014."

Palestine's request to intervene is based on several compelling legal arguments:

Legal Interest Under Article 62. Palestine asserts that it has a direct and substantial legal interest in the case brought by South Africa. As stated in paragraph 26 of the application: "The State of Palestine submits that it has a special interest in the current proceedings." The allegations of genocide directly impact Palestine and its population, giving it a significant stake in the outcome.

Collective Responsibility Under Article 63: Palestine argues that, as a party to the Genocide Convention, it has a right to offer its interpretation of the Convention's provisions. Paragraph 24 of the application cites the ICJ’s acknowledgment that "every State Party to the Genocide Convention has a legal interest sufficient to provide it with standing in an application under Article IX of the Convention." This reinforces Palestine's position that it should be allowed to intervene to ensure the Convention is interpreted correctly and comprehensively.

Humanitarian Impact: The severe humanitarian crisis in Gaza, described in paragraph 5 of the application, underscores the urgent need for intervention. Palestine highlights that the ongoing situation "continues to deteriorate," with significant loss of life and destruction of infrastructure, necessitating immediate legal and humanitarian attention.

Although those arguments are important, the decision will be based on whether Palestine is state that can intervene to the ICJ. According to the ICJ Statute, only recognized states can be parties to cases before the Court. Despite Palestine's significant international recognition, including its status as a non-member observer state at the United Nations and as a state party to various international treaties, including the Genocide Convention, its statehood remains contested. Israel and its allies argue that Palestine does not meet the traditional criteria for statehood, which includes a defined territory, a permanent population, a government, and the capacity to enter into relations with other states.

The ICJ must weigh these arguments against the substantial recognition Palestine has garnered globally. This includes the United Nations General Assembly's acknowledgment and the International Criminal Court's acceptance of Palestine's legal standing. Ultimately, the ICJ's interpretation of what constitutes a "state" under its statute will be decisive in determining whether Palestine can intervene, potentially setting a precedent that balances legal formalities with evolving international recognition.

The recognition of Palestine as a state has seen a significant upward trajectory. The United Nations General Assembly granted Palestine non-member observer state status in 2012, a move that over 130 UN member states supported. Additionally, Palestine is a state party to numerous international treaties and organizations, including the International Criminal Court (ICC), which further cements its status in the international legal arena. The ICC's acceptance of Palestine's statehood for jurisdictional purposes marks a critical precedent. In May 2021, the ICC opened an investigation into alleged war crimes in the Palestinian territories, underscoring that Palestine's legal standing is recognized at the highest levels of international law.

Israel's stance on this issue is predictably opposed to Palestine’s intervention. Israel has consistently contested Palestine's claims to statehood and its capacity to participate as a state in international legal proceedings. Israel's opposition is rooted in its broader political and legal strategy to deny Palestine's statehood, arguing that the recognition of Palestine as a state by the ICJ could have far-reaching implications for Israeli sovereignty and its policies in the occupied territories. Israel might also argue that allowing Palestine to intervene could set a precedent that undermines the established criteria for statehood and the requirements for full-member state status in international legal proceedings.

The ICJ case brought by South Africa against Israel is not just a bilateral issue but one of global significance. The allegations of genocide in Gaza, as described in Palestine's application (paragraph 26), highlight the gravity of the situation: "The State of Palestine submits that it has a special interest in the current proceedings." The potential intervention of Palestine in this case is not merely a legal technicality; it represents a broader humanitarian imperative.

The ICJ has the opportunity to interpret its statutes in a manner that reflects the contemporary realities of international relations. While the strict requirement has traditionally been that only full-member states can intervene in ICJ cases, the Court must consider the substantial recognition of Palestine’s statehood. This recognition by a majority of the world's nations, various international organizations, and judicial bodies like the ICC, positions Palestine as more than just a non-member observer state—it is a de facto state, possessing almost all the attributes of full statehood.s.

The ICJ faces a momentous decision that will impact not only the parties involved but the broader international legal community. Allowing Palestine to intervene in this case would be a landmark decision, aligning the ICJ with contemporary international legal principles and humanitarian concerns. It would acknowledge Palestine's de facto statehood and its right to participate in proceedings of such profound global importance, ultimately serving the cause of justice and the protection of human rights for all.