Conundrum of the Day: Palestinian Statehood

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.

13 thoughts on “Conundrum of the Day: Palestinian Statehood”

  1. Caroline Polisi

    Are you arguing that the Palestinians don’t deserve statehood? I feel that’s basically the one sentence summary of this article masquerading as analysis.

    1. No, I support a two-state solution. There is a difference between saying there should be a Palestinian state (there should, in my view) and saying there is a Palestinian state now, as a legal matter. On the second question, sometimes it is in the Palestinians’ interest for the answer to be “yes,” and sometimes it is in their interest for the answer to be “no.” That’s really my point.

      1. Caroline Polisi

        Ted, even Palestinians have been getting Coronavirus. Do they deserve help, in your opinion? Or is questioning whether they are entitled to statehood (because they are so mercurial in your view) a way of hoarding all resources for the Israelis?

  2. I am generally a fan of Letters Blogatory, but it’s getting too political for my tastes. However, I also find Caroline’s post highly offensive, and the suggestion that Israel is trying to secure all of the Coronavirus treatment resources borders on conspiratorial. I don’t think Ted was arguing that Palestinians don’t deserve resources, but Ted’s decision to turn this blog into a forum for discussing Middle East politics will naturally invite some misinterpretations. What next, Ted? Are you going to confront the conundrum of police racism?

    1. Barry, it’s a fair point! There is no doubt that since 2016 I have had more political content. I thought at one point about separating it onto another website. This post, however, was not meant to be political, but rather, a comment on a point that I’ve written about before (in the posts I’ve linked) having to do with how Palestinian statehood is treated in the US courts. But lesson learned! I think it is impossible to say anything about Palestinian statehood without being political or controversial, even without meaning to.

  3. Let’s get real for once: In 1948, the UN offered Israelis and Palestinians a two-state solutions. The Israelis accepted and the Palestinians rejected it. The Palestinians then joined Israel’s neighboring Arab countries in vicious attacks to drive Israel to the sea. They tried and failed. Not once but three times BEFORE there was any “occupation” of Palestinian Territories. Caroline’s view is abhorrent and Ted chooses appeasement.

    1. Yossi, I haven’t said anything at all about occupation, and I think support for a two-state solution is hardly appeasement. But it’s a free country!

  4. I live in the so-called occupied territories—a “settler.” Let me tell you something. We are not the obstacles to peace. This article is hogwash. Letters Blogatory and all of these hyper-liberal websites are not presenting the situation fairly. Come to the West Bank. Visit a “settlement.” And then visit the City of Hebron. Tell me if I am an “occupier.” You should be ashamed of yourself, Letters Blogatory.

    1. Elie, I haven’t said anything about occupation in this post, or about Hebron, or about who is or is not an obstacle to peace. So I am not sure what you are talking about.

  5. Sir, you are an occupier. No quotes. You and your cohorts are the most stubborn obstacle to peace. Instead of a two-state solution, Israel/Palestine should be one nation with everyone having the right to vote. Why does Mr. Gertel get to vote, and my cousins who live in Ramallah have no vote? It’s anti-democratic.

    1. Gary, your comment made it just in under the wire. I am not occupying anything except my home office in Boston these days, and if I have a “cohort” it is news to me! Take it down a notch.

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