Guest Post: Effective Control and Accepting ICC Jurisdiction

[Eugene Kontorovich is a Professor of Law at Northwestern University School of Law.]

New reports say the Palestinian leadership has decided to seek to join the International Criminal Court as a member state. The PA has been threatening such action fairly constantly for several years, and it remains to be seen whether they mean it this time.

A recent and little-noticed development at the ICC suggests the Palestinian Authority may have a harder time getting the Court to accept its accession than many previously thought. A few months ago, in a situation quite analogous to the Palestinians’, the Court rejected an attempted accession.

Recall that the ICC rejected a 2009 Palestinian attempt to invoke its jurisdiction by saying that it lacked the competence to determine if Palestine was a “state” under international law. A main motive for the last year’s General Assembly’s vote to treat Palestine as a non-member state was to bolster its case for ICC membership. The idea was that the OTP would look only to the formal, “political” action of the General Assembly, rather the the objective factors of whether Palestine satisfies the criteria of statehood, such as whether they control their own territory.

Whether that is true or not, recent developments show that even if the OTP accepts that Palestine is a state – ignoring objective tests – it would conclude that the PA cannot accept jurisdiction on behalf of that state, certainly not for Gaza. In May, the OTP just rejected an attempt by Mohammed Morsi, the first democratically elected president of Egypt, to invoke the Court’s jurisdiction over his country under article 12(3). The OTP concluded that when Morsi filed the declaration last December, he was no longer the head of state for Egypt.

Crucially, the OTP used a combination of two distinct tests for the legitimate government of a country for purposes of accepting jurisdiction. The first was a “political” test, referring to the views of the UN, the Rome Statute’s depository. The UN recognizes the Sisi-installed government, that came to power in a coup against Morsi last year. So far, so good for the PA: the U.N. recognizes Abbas as the head of state of Palestine. However, the OTP did not stop there.

It went on to apply an additional, objective test – whether Morsi had “effective control” of Egypt at the time of the application. Finding that he did not, it concluded he could not accept jurisdiction on behalf of the country. This is particularly notable because Morsi was removed in a violent coup, followed by severe repression. Thus the OTP’s action could be seen as at odds with some vague notion of the “grand purpose” of Court: ICC jurisdiction might be most needed when democratically-elected governments are ousted in a military putsch. But the Prosecutor wisely ignored common arguments that the Court should at every turn interpret its jurisdiction broadly because its purpose is to do good, and thus the more jurisdiction, the better.

Now lets apply the “effective control” test to PA. Hamas came to power in coup against Abbas’s government, and since the “statehood” of Palestine, the latter has never exercise “effective control” over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president. Indeed, “effective control” is a double-edged sword for Abbas. On the one hand, his lack of it would bar accepting ICC jurisdiction. On the other hand, his lack of it is also what prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.

Then there is a bigger question: can either Abbas or Hanniyeh claim to have effective control? In the view of much of the international community, all of the West Bank and Gaza is occupied by Israel.  The defining feature of occupation is “effective control” by the occupying power. It means that the occupying power is the real power on the ground – which is why it is required to maintain law and order, administer government and so forth. Given that Israel is thought to exercise effective control, it is hard to see how either of the rival Palestinian leader could claim this, except through the unusual arrangement of condominium).

One might say, that’s not fair! Palestine cannot join the ICC because it’s occupied? But don’t occupied countries need the ICC the most? But this is just a rehash of the coup argument. While military junta countries and occupied countries may need the ICC more, this is just an argument for countries joining the Rome Treaty early, before they need it.

Of course, “the State of Palestine” is an odd duck, because in any other situation, international law clearly says one cannot become a new state while occupied; being a state has objective requirements like effective control that occupation negates. In its explanation of its action on Egypt, the OTP explained:

It would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

That would be precisely the situation that would arise between the Hanniyeh and Abbas regimes regarding Gaza, and between the PA and Israel regarding the West Bank and Gaza. For a while, the Palestinians have managed to uniquely claim to best of both worlds, claiming to be an occupied territory while at the same time claiming to have emerged as a genuine new state with a real government that runs its affairs, but yet still being occupied.

The Morsi precedent suggests that even if the Palestinians are allowed to hold both ends of the stick on the “statehood” question, they will be frustrated on the government question. And they will have their old ally, Egypt, to thank.