States, Almost States, Non-State Actors and the Geneva Conventions: Palestinian President Abbas’s attempt to join the Club

[Editor’s Note: Be sure to see the letter to the editor from a former Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations responding to this post and Fionnuala’s response]

The announcement yesterday that President Mahmoud Abbas has signed applications to multiple international treaties and international organizations, including the 1949 Geneva Conventions (see full list), on behalf of Palestine reignites an old conversation about whether non-state entities (and proto states) can be parties to such treaties. In its public statement following President Abbas’ actions, the Palestinian Authority (PA) stressed the importance of the Fourth Geneva Convention to the Palestinian polity. This position was doubtlessly informed by the breakdown in an agreed prisoner release process with Israel that has been the trigger for this move to join international organizations by the PA.

The signing and stated intention to join the Geneva Conventions raises questions about the legality of such a move under international law. To date, the Geneva Conventions have generally been signed, acceded to, and ratified by state parties. The language of the Conventions and the process of depositing state consent seems to envisage only fully fledged and recognized states becoming parties. Yesterday’s events are not the first foray by the Palestinian polity into Geneva Conventions territory.

On 21 June 1989, the Swiss Federal Department of Foreign Affairs received a letter from the Permanent Observer of Palestine to the United Nations Office at Geneva informing the Swiss Federal Council “that the Executive Committee of the Palestine Liberation Organization, entrusted with the functions of the Government of the State of Palestine by decision of the Palestine National Council, decided, on 4 May 1989, to adhere to the Four Geneva Conventions of 12 August 1949 and the two Protocols additional thereto”. On 13 September 1989, the Swiss Federal Council informed the States that it was not in a position to decide whether the letter constituted an instrument of accession, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine”. Critical to assessing the legal implications of President Abbas’ application is whether the decision of the General Assembly to accord Palestine ‘Non-Member Observer State’ status in the United Nations on November 29th, 2012 removes accession uncertainty.

The bottom line is whether non-member observer status is sufficient to satisfy the statehood status required for the purposes of Geneva Convention signature and ratification. Notably, a parallel status is held by the Holy See — which has maintained non-member state status at the United Nations as well as holding long-standing High Contracting Party status to the Geneva Conventions. The Holy See signed the Geneva Conventions in December 1949 and ratified the treaties in February 1951. It further ratified Protocol 1 Relating to the Protection of Victims of International Armed Conflicts and Protocol 11 on November 21, 1985. The Holy See precedent suggests that the accession to the Treaties will not face the same barriers for the Palestinian Authority that the PLO confronted in 1989.

The Palestinian Authority is not the first non-State entity to seek Geneva Convention legitimacy. The same move has been undertaken by the ANC and other groups such as the Gouvernement Provisoire de la République Algérienne since the upswing in post-colonial conflicts from the 1950’s onwards. National liberation movements often seek to apply IHL principles in their conflicts to legitimize their organization and actions on the international stage. If they are seen to act in accordance with international legal principles, states may view these movements as genuine and valid actors, rather than as “rebels” or “terrorists.” A dedicated NGO Geneva Call continues to promote the engagement of non-state actors with the law of armed conflict and has had some success in having a number of insurgency and national liberation movements including the Polisario in the Western Sahara, the Sudan People’s Liberation Movement/Army (SPLM/A), the Moro Islamic Liberation Front in the Philippines, the Kurdistan People’s Congress in Turkey, and the Kurdistan Regional Government in Iraq, agree to implement IHL principles specifically in relation to the use of landmines.

Protocol I, Article 96(3) seems to envisage the capacity for non-state powers to declare their willingness to comply with the Conventions. In 1980, the African National Congress signed a Declaration committing its combatant forces to adherence to the four Conventions and Protocol I (1977) in a public ceremony in Geneva with senior ICRC officials present. In signing the Declaration the ANC demanded that the South African apartheid regime treat ANC prisoners as combatants, and end the practice of denying those imprisoned POW status. In a powerful echo of the language of the Palestinian Authority President, much of the impetus for the Declaration lay in bringing attention to the claim that Protocol I specifically addressed the legal status of the apartheid regime, and that other States Parties should:
[e]ncourage the South African regime, whether or not the regime ratifies the Protocol, to stop committing war crimes by executing our combatants, torturing them and generally ill-treating them contrary to international law.

Despite the fanfare for the ANC Declaration no formal Declarations are listed by the Depositary, or have been transmitted to the High Contracting Parties since the inception of the Geneva Convention regime. This is in part because the Depositary will not accept Declarations made by national liberation movements in states that have not ratified Additional Protocol I, since such Declarations do not fulfill the procedural requirements of Article 96(3).

The Palestinian Authority’s actions have obvious repercussions in the region and specifically implicate the accountability of the PA’s own forces on the territory over which it has effective control. Equally, it portends interesting developments in the law of armed conflict and its application to non-state entities in many other parts of the world where legitimacy and status remain contested and fluid. 

About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).