According to the report, the Office of the Prosecutor grouped the arguments that were submitted into four general categories – the interpretation of Article 12(3), the exercise of criminal jurisdiction, statehood in international law, and historical considerations.
Interpretation of Article 12(3) – According to the report, the main question that relates to the interpretation of Article 12(3) is whether the Palestinian Authority can be regarded as a "state" not party to the Statute. This interpretation should be undertaken in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties, which calls for the interpretation of conventions in good faith, in light of the text, context, and the treaty's objective and purpose.
The first line of arguments in favor of the Palestinian request rests on a teleological basis. According to these arguments, the term "state" does not have a clear set of defining variables and should be interpreted in accordance with the main objective and purpose of the Rome Statute, which is to ensure that the most serious international crimes do not go unpunished. Moreover, the meaning of the term "state" in the context of Article 12(3) may differ from the interpretation of statehood under general international law. Therefore, the ICC can restrict its decision concerning the PNA’s fulfillment of the requirements of Article 12(3), without determining thereby the general question of Palestinian statehood.
An opposing set of arguments urging the Prosecutor to reject the Palestinian request focuses on the literal interpretation of Article 12(3). According to this interpretation, the United Nations does not recognize the Palestinian state and the ICC lacks both explicit and implicit powers to recognize the validity of declarations made by a non-state organization. The claim is also made that the acceptance of the Palestinian request and the application of the ICC's jurisdiction could interfere with Israel's rights according to the Oslo Accords, and would infringe Israel's sovereignty claims with respect to the Palestinian territories. Furthermore, it was claimed that the de facto acknowledgement of the statehood of the PNA would compromise the ICC by creating perceptions of the politicization of the Court and would also open a Pandora’s box vis-à-vis other potential non-state claimants before the ICC.
The exercise of criminal jurisdiction – Some of the submissions argue that the entity issuing a request under Article 12(3) must exercise sovereign criminal jurisdiction in order to delegate it to the ICC. The core of the arguments in favor of and against the acceptance of the Palestinian request lies in the Oslo Accords, which invests the PNA with only some powers of criminal jurisdiction.
The arguments in favor of accepting the Palestinian referral claim that although the Oslo Accords bar the PNA from exercising criminal jurisdiction over Israeli citizens, it still has inherent criminal jurisdiction over the territories. The Oslo Accords only provide for a temporary waiver of jurisdiction over Israeli nationals, which does not represent a denial of Palestinian sovereignty.
On the other hand, some submissions claim that all the powers and responsibilities that were not transferred to the PNA were retained by Israel. Since the PNA cannot exercise jurisdiction over Israeli nationals in the West Bank and the Gaza Strip, it cannot delegate authority that it does not possess. According to this claim, at most, the PNA can only transfer criminal jurisdiction over the conduct of its own nationals or of non-Israelis.
Statehood in international law – This category of arguments examines the Palestinian declaration in light of the general rules of recognition of statehood under the Montevideo Convention of 1933 (i.e., permanent population, defined territory, government, and the capacity to enter into relations with other states). [5]
There are different arguments for and against the recognition of Palestinian statehood. The arguments in favor of the declaration note that Palestine has already been recognized by 97 states and 29 states recognize its passports. The opposing arguments note that a significant portion of the international community has not recognized Palestinian statehood, and the national case law of several countries has held that the PNA falls short of one or more of the Montevideo Convention's requirements.
While all the submissions agree that the PNA has a permanent population, in accordance with criteria of the Montevideo Convention, there are different legal opinions and interpretations concerning the fulfillment of the rest of the relevant aforementioned criteria.
Historical considerations – The last group of arguments refers to the situation in the area before 1948, during the Ottoman area, and during the period of the League of Nations Mandate. While some submissions suggest that Palestinian statehood was recognized under the League of Nations Mandate and the UN Partition Plan in 1947, other submissions claim that according to the relevant historical documents, there was never any formal recognition of Palestinian statehood.