There is a report that Palestine is preparing to become a ‘member’ of the International Criminal Court: http://www.maannews.net/eng/ViewDetails.aspx?ID=232793. The report says that information has been requested from the Court with a view to carrying this out. According to article 125 of the Rome Statute, ‘This Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations.’ Thus, Palestine can join to the extent that it is a ‘State’. Indeed, an attempt to accede to the Rome Statute could be interpreted as a manifestation of statehood. But the Palestinian Authority is knocking on the wrong door. It is not the Court that decides who may join; this is the job of the depository, which is the Secretary-General of the United Nations. I would be very surprised if the depository were to accept an instrument of accession from Palestine. Of course, Palestine might then apply to the Assembly of States Parties which, I think, could probably override a decision by the depository.
But isn’t the real problem that Palestine has not yet manifested its desire to be considered a State, or at least not recently? I am sure that if Palestine were to declare itself a State, it would be recognised by many other States very quickly. But it has to take this step first.
Thanks to Michael Kearney.