Legal status of Palestine as a state
Criteria of State Under Montevideo Convention 1933
Article 1
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.
PALESTINIAN FULFILMENT OF THE MONTEVIDEO CRITERIA
A. First Criterion:
The first criterion to take into consideration is the existence of a defined territory.
Argument:Palestine has established its borders, and an overwhelming majority of the
international community, including the UN and the EU, recognizes the “Green Lines” as the
legitimate partition between Palestinian and Israeli territory, with the former including West
Bank, the Gaza Strip and East Jerusalem.
Legal Support:
The territorial integrity of Palestine has also been recognized by the Security
Council (hereinafter, SC) through Resolution 242.
B. Second Criterion:
In relation to the second criterion,
Argument:
It is undeniable that Palestinians are a nation. Moreover, the existence of a Palestinian
people has never been questioned at the international level.
Legal support
According to the Central Bureau of Statistics, Palestine has a total population of five
million people, with more than three million living in the West Bank and almost two million
residing in the Gaza Strip.
C. Third criterion
The effective government requirement seems to be one of the most problematic
requirements in the Palestine claim of statehood.
The Palestine Liberation Organization (PLO), founded in 1964, represents the Palestinian
people internationally and handles diplomatic relations and gains recognition as the sole
representative of Palestinians (UNGA Resolution 67/19).
PA (Palestinian Authority)
● Article 1 of the Declaration of Principles 1993 (Oslo 1 Accords) created it as a
temporary body to govern parts of the West Bank & Gaza.
● Meant to last 5 years but still exists today.
● However till now two government exist i.e Hamas and Fatah
D. Fourth Criterion
The accepted idea is that an entity which is not able to enter into relations with other states
cannot be defined as a state.
De Facto Diplomatic Activity
Despite restrictions, the PLO/PA has:
● 143 bilateral recognitions .
● Observer status at the UN (since 2012).
● Membership in UNESCO, ICC, and other international bodies.
● Many states treat the PA/PLO as a government, exchanging ambassadors.
Legal support:
The General Assembly adopted Resolution 43/177 essentially to "acknowledg[e] the
proclamation of the state of Palestine by 104 in favor, the US and Israel opposed, and 44
abstaining of, As John Quigley stats, ""this strong vote indicates that Palestine was regarded
as a State”
Statehood of palestine under constitutive theory:
The constitutive theory of state recognition says that a territory becomes a state when other
countries officially recognize it as one. Palestine has gained a lot of this recognition,
especially through a 2012 UN vote where 138 countries supported its statehood.
This vote helped in a major ways:
1. It supports the idea that Palestine can enter into relations with other countries,
meeting the fourth Montevideo criterion.
ICC Pre-Trial Chamber Decision
On February 5, 2021, the International Criminal Court (ICC) to analyse the situation in Gaza
Since Palestine is a member of the Rome Statute, the court said that Palestine is
considered a “state” for the specific purpose of allowing the ICC to have jurisdiction under
Article 12(2)(a) of the treaty.
I. Forcible Displacement: A War Crime, a Crime Against Humanity, and Potential
Genocide
Factual Support:
Since October 7, 2023, over 1.9 million Palestinians—more than 80% of Gaza’s
population—have been displaced.
Illegal Evacuation orders issued by Israel demanded 1.1 million people flee their homes
within 24 hours, including children, the elderly, and hospital patients.
“Safe zones” such as Rafah and Bureij were subsequently bombed, causing mass civilian
deaths.
Humanitarian corridors were targeted. UN shelters, schools, and health facilities were
either rendered inoperable or directly attacked.
The denial of food, water, shelter, electricity, and medical access constitutes collective
punishment and creates conditions of life incompatible with survival.
Legal Basis:
Geneva Convention IV (1949), Article 49:
Prohibits “individual or mass forcible transfers” unless strictly required for civilian
safety”—and even then, only temporarily.
Rome Statute of the ICC: - Article 7(1)(d): Forcible transfer = crime against humanity
when part of a widespread or systematic attack.
- Article 8(2)(a)(vii): Forcible transfer in conflict = war crime even in a single instance.
Genocide Convention, Article 2(c):
Acts calculated to destroy, in whole or part, a group by “inflicting conditions of life
calculated to bring about its physical destruction.”
ICTY Jurisprudence (e.g., Simić, Krajišnik):
Held that coercion includes indirect means—such as bombing, deprivation of services, or
fear of death—sufficient to render departure involuntary.
These actions meet every legal threshold for international criminal responsibility under IHL
and ICL.
Internally Displaced Persons (IDPs):
According to Principle 6.2 of the Guiding Principles on Internal Displacement,not only
forced displacement beyond borders but also internal displacement within the state is
prohibited if it is done to change the ethnic, religious, or racial makeup of a population (e.g.,
through apartheid or ethnic cleansing), or during armed conflict unless necessary for
safety or military reasons.
Relocation as a Violation of Jus Cogens Norms:
Jus cogens norms, or peremptory norms of
international law, include:
● Prohibition of genocide
● Prohibition of ethnic cleansing and forced displacement
● Right to self-determination
Any attempt to relocate the people of Gaza en masse would likely fall under ethnic cleansing
violating non-derogable principles of international law.
