President Obama’s meeting this week with the Israeli prime minister has focused attention on the universal goal of a Palestinian state living peacefully alongside its Jewish neighbour.

But there is increasing concern in legal circles that the prosecutor of the International Criminal Court risks making the two-state solution harder to achieve by politicising what should be a judicial process.

While the politicians are trying to reach agreement on how a future Palestinian state might be established, Luis Moreno-Ocampo has spent the past four months considering whether one exists already. In doing so, he has raised doubts about the ICC’s impartiality at a time when the US is reportedly reassessing its opposition to the court.

The ICC can try individuals for genocide, crimes against humanity and war crimes committed in states that are parties to the court’s founding treaty, the Rome Statute of 1998.

At the beginning of this year, Moreno-Ocampo was asked if he would launch an investigation into Israel’s recent military operations in Gaza. The prosecutor correctly explained that, because Israel is not a party to the Rome Statute, he could not do so unless the UN Security Council referred the situation to him or Israel accepted the ICC’s jurisdiction in respect of the recent conflict.

On 22 January, Ali Khashan, the Palestinian Authority’s minister of justice, handed Moreno-Ocampo a declaration. This says ‘the government of Palestine hereby recognises the jurisdiction of the court for the purpose of identifying, prosecuting and judging the authors and accomplices of acts committed on the territory of Palestine since 1 July 2002’ – the date on which the court’s jurisdiction began.

Three weeks later, Khashan was back in The Hague with a ministerial colleague to submit ‘information and documents’ to the prosecutor. We may assume that these include allegations against Israeli troops.

Does the Palestinian declaration give the court jurisdiction to investigate Israeli operations in Gaza — or, indeed, Palestinian rocket attacks on Israel? That is something the court is currently considering. At a diplomatic briefing last month, the deputy prosecutor, Fatou Bensouda, confirmed that her office would examine ‘all issues related to its jurisdiction, including whether the declaration by the Palestinian Authority accepting the exercise of jurisdiction by the ICC meets statutory requirements, whether crimes within ICC jurisdiction have been committed and whether there are national proceedings in relation to alleged crimes’.

This last point is important: the ICC cannot try anyone who is being investigated or who has already been tried by another court. Israel is currently conducting its own investigations into the conduct of its forces in Gaza and has brought criminal proceedings in the past.

But the first question to resolve is whether the Palestinian declaration complies with the Rome Statute. Article 12(3), under which the declaration was made, applies only to states. By implication, these are states with the capacity to sign international treaties. Is the Palestinian National Authority a ‘state’ in this sense? Or is it, as the name suggests, merely a national authority with no greater power than, say, the Scottish government?

Writing in the current Rutgers Law Record, Professor John Quigley of Ohio State University argues that Palestine is a state for the purposes of article 12(3). He bases this on a resolution by the UN General Assembly in December 1988 that ‘acknowledge[ed] the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988’.

But that resolution also said the General Assembly’s decision to designate the Palestine Liberation Organisation as ‘Palestine’ was ‘without prejudice to the observer status’ of the organisation at the UN — a point that Quigley does not mention.

His argument is also inconsistent with the fact that the Palestinian Authority has always been treated as an observer rather than as a state in international gatherings, including ICC-related events. And it runs counter to remarks by UN secretary-general Ban Ki-moon, who called this month for ‘the emergence of an independent democratic and viable Palestinian state living side-by-side in peace and security with Israel’.

Mahmoud Abbas, the Palestinian president, himself speaks of a Palestinian state as an aspiration rather than a reality. While the international community is discussing how to create a Palestinian state, there would clearly be something absurd in the ICC prosecutor concluding that one already exists.

The term ‘state’ has no agreed definition in international law. But the accepted criteria for statehood include a permanent population, a defined area of territory, an effective government and the ability to maintain relations with other states. It is on the last two of these criteria that the Palestinian Authority has the most difficulty.

It has only partial and limited control in the West Bank — and less still in Gaza, where it has not even had a presence since Hamas seized control in June 2007.

Although the Palestinian Authority may sign economic and cultural agreements with foreign states, it has no capacity to conduct diplomatic relations and no sovereign powers of security or defence. Under agreements with Israel, it was established as a provisional body with limited powers.

Six years after Moreno-Ocampo was appointed, the ICC has yet to complete its first trial. With three years left to serve, he would no doubt like to be remembered for something more than prosecuting a handful of Africans and an unsuccessful attempt to have the Sudanese president arrested for alleged genocide.

But unless Moreno-Ocampo recognises that the Palestinian Authority is not a state, he will not only make it harder for it to become one, but will also jeopardise the credibility and impartiality that is crucial to his court’s success.